Jackson v. Jackson, 2017 ONSC 1566

CITATION: Jackson v. Jackson, 2017 ONSC 1566 COURT FILE NO.: D 22850/11 DATE: 2017-03-10

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Carmen Marie Jackson Applicant

• and -

David Gordon Jackson Respondent

COUNSEL: Maria Lucarelli, counsel for the Applicant Patricia Lucas, counsel for the Respondent

HEARD: June 23, 24, 25, 26, 30, 2014; July 3, 2014; December 10, 11, 14, 15, 16, 17, 18, 2015; January 18, 19, 20, 21, 22, 25, 26, 27, 28, 29, 2016; May 24, 26, 27, 2016; June 29, 30, 2016; August 5, 22, 2016

THE HONOURABLE MADAM JUSTICE DEBORAH L. CHAPPEL

REASONS FOR JUDGMENT

PART I: INTRODUCTION

[1] These are my Reasons for Judgment in connection with the trial of this matter. The Applicant Carmen Marie Jackson (“the Applicant”) and the Respondent David Gordon Jackson (“the Respondent’) were married on October 11, 2003, and separated on October 1, 2010, after eleven years of cohabitation. They have two children, namely Jacob David Jackson, born December 23, 2004 (“Jacob”) and Carter Joshua Jackson, born May 6, 2008 (“Carter”). They were divorced on February 2, 2012. The trial involved the issues of custody, access, child support, spousal support, benefits and life insurance coverage.

[2] On June 2, 2016, I released Reasons for Judgment on a contempt motion which the Applicant had initiated against the Respondent, alleging that he had committed contempt in relation to three temporary access orders pertaining to Jacob and Carter. The hearing of that motion proceeded on a viva voce basis, and I heard seven days of evidence. At the outset of this trial on December 10, 2015, I made an order on consent of the parties that all of the evidence adduced on the contempt motion would also be admissible in the trial of the application. I made numerous findings and conclusions in my Reasons for Judgment on the contempt motion, reported at 2016 ONSC 3466 (S.C.J.), which I also rely on in support of the orders that I am making in relation to the trial of the application.

[3] The issues to be determined in this case are as follows:

1. What custodial arrangement is in the best interests of Jacob and Carter?
2. What time-sharing arrangements are in Jacob and Carter’s best interests?
3. What is the appropriate quantum of child support payable by the Applicant to the Respondent commencing January 1, 2016?
4. What are the parties’ respective child support obligations on a prospective basis depending on the decision in this case respecting time-sharing?
5. What order, if any, should be made regarding contribution to section 7 expenses relating to the children from January 2016 onward?
6. Should spousal support for the Applicant be terminated as of December 31, 2015, and if not, what quantum and duration of spousal support are appropriate commencing January 1, 2016?
7. Should the parties be ordered to secure their child support obligations through life insurance, and if so what are the appropriate terms of any such order providing for security for child support?

[4] For the reasons that follow, I conclude that it is in Jacob’s and Carter’s best interests that the incidents of custody be allocated between the parties in accordance with a divided parallel parenting regime. I am granting the Applicant sole decision-making on matters relating to the children’s academic education, religious education and upbringing and counselling needs. I have granted the Respondent sole decision-making on issues relating to the children’s medical, health and dental needs and their extracurricular activities. With respect to time-sharing, I have concluded that it is in Jacob’s and Carter’s best interests to share equal time with each party, and I have ordered a regular residential schedule that involves the children spending Monday and Tuesday with the Applicant, Wednesday and Thursday with the Respondent, and alternating weekends with the parties. I have also divided special holidays equally between the parties.

[5] With respect to the support issues, I am ordering that the Applicant pay the Respondent child support in the amount of $442.00 per month effective January 1, 2016 and continuing until March 31, 2017. I have ordered that the Respondent continue to pay the Applicant spousal support at the rate of $509.00 per month until March 31, 2017. Commencing April 1, 2017, the Respondent will be required to pay the Applicant child support in the amount of $499.00 per month, but there shall be no order for ongoing spousal support. I have also addressed the issues of contribution to section 7 expenses as of January 2016, and security for child support.

PART II: BACKGROUND AND OVERVIEW OF COURT PROCEEDINGS

[6] The Applicant was born on March 22, 1973, and is therefore 43 years of age. The Respondent was born on December 15, 1968 and is 48 years old. The parties began cohabiting in September 1999 and were married on October 11, 2003. Jacob and Carter are the only two children of their relationship. The parties separated on October 1, 2010, and a divorce order was issued on February 2, 2012. For the first several weeks post-separation, the parties both remained in the matrimonial home.

[7] The parties’ separation was very acrimonious. The Applicant alleges that the break-up was precipitated primarily by the fact that the Respondent had an extra-marital affair with Ms. Kari-Lyn Nielson. The Respondent denies this allegation, and attributes the breakdown of the marriage to a history of abusive treatment by the Applicant towards both him and the children. In the context of the contempt motion, I concluded that the Respondent was involved romantically with Ms. Nielson prior to the parties’ separation, and that this contributed to the breakdown of the marriage and some of the Applicant’s erratic around the time of the marriage breakdown.

[8] Unfortunately, the conflict between the parties led to a number of interventions by the Niagara Regional Police Service (“the police”) following the separation. The Respondent eventually left the matrimonial home and began to reside with his mother, Beverley Jackson (“the paternal grandmother”), sometime in late October, 2010. He moved into the residence of his new partner, Kari Lyn Nielson sometime in January 2011.

[9] The police attended the matrimonial home again in response to domestic disputes on November 2, 2010 and November 11, 2010. The Respondent left the home with Jacob following the police attendance on November 11, 2010. He and Jacob went to the home of the paternal grandmother at that time, and the Applicant remained with Carter in the matrimonial home. The Respondent did not return Jacob to the Applicant’s primary care after November 11, 2010 and did not send Jacob to school for several days afterwards. In response to these developments, the Applicant consulted with counsel and began the process of initiating this court proceeding. On November 16, 2010, she called the police to request assistance in having Jacob returned to her care. The police declined to intervene, since there was no custody order in effect. Jacob remained in the Respondent’s sole care from November 11, 2010 until November 23, 2010, when the Applicant took matters into her own hands and picked Jacob up from school. On that date, she brought Jacob back to the matrimonial home to reside primarily with her and Carter. After that point, the parties worked out an arrangement whereby the Respondent began to have time with both children every weekend from either Friday night or Saturday morning until Sunday evening. In addition, the Respondent typically visited with Jacob every Tuesday and Thursday evening from approximately 4:30 p.m. until 8:00 p.m. The Respondent testified that the Applicant often refused to allow Carter to attend these mid-week visits, but the Applicant testified that Carter also attended most Tuesday and Thursday evening visits.

[10] The application in this matter was issued on January 11, 2011. Henderson, J. held a case conference on May 11, 2011. On that date, he referred the custody and access issues to the Office of the Children’s Lawyer (“the OCL”), and made a temporary order on consent dealing with custody, time-sharing and child support. The order granted the parties joint custody, with primary residence of the children to the Applicant. The temporary joint custody order was never varied throughout these proceedings. The Respondent was granted generous and liberal time with the children, including each Tuesday and Thursday from 4:30 p.m. until 8:00 p.m., or earlier if the Respondent was able to pick them up before 4:30 p.m., and every weekend from Saturday morning at 7:30 a.m., unless earlier if required due to the Applicant’s work schedule, until Sunday at 7:00 p.m. In addition, the Respondent was to have the children during periods when the Applicant was unavailable to care for them if the Respondent was available. The order also required the Respondent to pay the Applicant child support in the amount of $1,034.00 per month commencing June 1, 2011, and addressed issues relating to the payment of matrimonial home expenses.

[11] The OCL accepted the court’s referral for services, and a clinical investigator, Ms. Leiloni Montour, completed an investigation pursuant to s. 112 of the Courts of Justice Act, R.S.O. 1990, c. C-43, as amended. Ms. Montour held a disclosure meeting on March 12, 2012. She completed a condensed report dated March 20, 2012, as it was her understanding that the parties had settled the custody and access issues on a temporary basis following the disclosure meeting. Ms. Montour recommended that a temporary arrangement be implemented providing for joint custody and primary residence with the Applicant, and granting the Respondent time with the children every Tuesday after school until Thursday morning and every weekend from Saturday at 8:45 a.m. until Sunday at 8:00 p.m. As I will discuss in further detail below, she also made a number of recommendations for services for the family.

[12] On Saturday April 21, 2012, the Applicant dropped Jacob and Carter off at the home of their daycare provider, Ms. Michelle Jones, early in the morning before going to work. The Respondent picked the children up later that morning for his regular time with them. The Respondent testified that he noticed soon after picking the children up that Jacob presented as groggy, lethargic and not himself. Jacob disclosed to the Respondent later that morning that the Applicant had hit him on the head with a steel pot the night before, and that his head hurt as a result of this incident. Jacob clarified at a later date that he had been hit with a metal bowl rather than a pot. The Respondent testified that he observed a bump on the top of Jacob’s head where the child said the Applicant had hit him.

[13] In response to Jacob’s disclosure and injury, the Respondent took Jacob to the hospital for a medical examination and assessment. Staff from the hospital made a child protection report to Niagara Family and Children’s Services (“FACS”) based on Jacob’s disclosures to them. FACS and the police conducted an investigation as a result of the child’s disclosures. Based on this investigation, the Applicant was charged on April 22, 2012 with assaulting Jacob with a weapon. On April 23, 2012, the Applicant was released from custody pursuant to bail terms which prohibited her from communicating or associating directly or indirectly with Jacob or Carter, except under the direct supervision of FACS, and from attending within a radius of 100 metres of any place known to her to be the children’s place of residence, daycare or school. Jacob and Carter have remained in the primary care of the Respondent since April 21, 2012.

[14] On July 4, 2012, Maddalena, J. made a temporary order granting the Respondent primary residence of Jacob and Carter, terminating the Respondent’s obligation to pay child support, and requiring the Applicant to pay the Respondent child support in the amount of $333.00 per month commencing May 1, 2012, based on an imputed annual income to her of $22,000.00. In addition, the Respondent was ordered to pay the Applicant spousal support in the amount of $509.00 per month commencing May 1, 2012.

[15] The Applicant attempted through her previous Family Law counsel, Mr. Corbett, to arrange supervised access with the children through FACS following her release from custody. However, FACS closed its child protection file after the Applicant’s arrest, and in June 2012, it confirmed to the Applicant in writing that it would not provide supervised access services to the family. In response to this decision, the Applicant’s lawyer in the criminal proceeding, Mr. Mark Evans, submitted a Variation of Judicial Interim Release on Consent application to the Crown dated August 16, 2012, requesting that the Applicant’s bail terms be changed to permit her to have access with the children either under the direct supervision of FACS or pursuant to a Family Court order granted after August 10, 2012. Crown Attorney representatives Ms. Patricia Vaddachino and Ms. Linda Scaringi-DeChatelets denied this application. A further Variation of Judicial Interim Release on Consent application was submitted after this denial, and that application was also denied on December 10, 2012.

[16] On January 4, 2013, the Respondent brought a motion for an order granting him exclusive possession of the home. He and the children had been living at the home of his partner, Ms. Nielson, until he separated from Ms. Nielson in late 2012, at which point he had moved with the children to the residence of the paternal grandmother. On January 4, 2013, Turnbull, J. made an order on consent of the parties that the Applicant vacate the matrimonial home by January 31, 2013 so that the Respondent and the children could occupy the residence. The order also incorporated an agreement which the parties had reached regarding the equalization claims and other property-related matters. The Respondent was ordered to pay the Applicant an equalization payment, in full and final satisfaction of all property claims, in the amount of $99,677.00, less $2,000 on account of costs that the Applicant owed to the Respondent. The Applicant was also required to obtain a release of the Respondent’s obligation in relation to the Applicant’s student line of credit, totaling $8,431.07, by March 6, 2013, failing which this sum was to be deducted from the equalization payment owed to the Applicant.

[17] In early 2013, the Applicant made ongoing attempts to vary her bail terms. Her criminal lawyer, Mr. Mark Evans, negotiated with the Crown regarding the bail terms during the criminal pretrial conference that occurred on January 18, 2013. Mr. Evans also followed up with the Crown by email following the pretrial in an effort to resolve the issue. These efforts eventually paid off. On February 27, 2013, Crown Attorney Mr. Eshuis consented to a variation of the Applicant’s bail terms to permit her to communicate or associate with Jacob and Carter either under the direct supervision of FACS or pursuant to a Family Court order. Further to this variation, the Applicant brought a motion dated April 11, 2013 and originally returnable on April 24, 2013, requesting access with the children supervised by the Supervised Access Program at Pathstone Mental Health (“Pathstone”) on a temporary basis until the completion of her criminal trial. The Applicant also sought relief regarding outstanding property issues that the parties had been unable to resolve. The Respondent brought a cross motion in response to the Applicant’s motion. He sought various heads of relief, including an order terminating his spousal support obligation and orders to resolve outstanding disputes between the parties regarding household contents and expenses relating to the matrimonial home.

[18] As of the return date of the Applicant’s motion and the Respondent’s cross motion on April 24, 2013, the Applicant had not seen Jacob and Carter for over a year. The Respondent opposed the Applicant’s request for access until the completion of the criminal trial, which had been scheduled to commence during the trial sittings of October 4, 2013. On April 24, 2013, the parties resolved the issue of payment of the equalization amount which the Respondent owed to the Applicant. The Respondent was ordered to pay the Applicant the sum of $71,629.77 by May 3, 2013. This sum took into account various financial adjustments that the parties negotiated, as well as a holdback of $15,000.00 to be paid to Ms. Lucas in trust. The holdback was intended to address the Respondent’s claim for reimbursement for household contents that he alleged the Applicant had wrongfully removed from the home.

[19] The balance of the issues raised in the Applicant’s motion and the Respondent’s cross motion proceeded to a hearing before Maddalena, J. on May 31, 2013. The parties had still not resolved the dispute about household contents by that date, and therefore Maddalena, J. made orders aimed at facilitating a resolution of that issue. The Respondent’s claim for a termination of his spousal support obligation was dismissed. The Applicant succeeded in obtaining an order reducing her child support obligation to $50.00 per month, as she was in full time attendance in a Law Clerk training program at Niagara College at the time. With respect to access, Maddalena, J. made an order granting the Applicant access to the children supervised by Pathstone, subject to the following terms and conditions:

1. The Applicant was to pay all fees including intake fees and supervised access fees relating to the access;
2. The Applicant was not to discuss any issues dealing with court or the litigation with the children;
3. The Applicant was not to make derogatory remarks to the children about the Respondent, his family or anyone else;
4. The Applicant was to refrain from consuming alcohol or non-prescription drugs for 12 hours prior to access;
5. Access was to occur a maximum of two hours weekly, with times and start dates determined by Pathstone; and
6. Both parties were to complete all necessary intake forms within 15 days, subject to Pathstone availability.

[20] During the fall of 2014, Jacob and Carter had to undergo the difficult process of being prepared for the criminal trial relating to the Applicant’s assault charge. However, at the outset of trial on October 4, 2013, the Crown decided to withdraw the charge on the condition that the Applicant consent to a common law preventative justice order. On that date, Maresca, J. granted such an order, which stipulated as follows:

1. The preamble of the order provided that the Applicant had “acknowledged sufficient of the allegations” and “concedes that probable grounds exist for the granting of the order sought”;
2. The preamble also provided that the court “has probable grounds to suspect future misbehaviour by the Respondent [the Applicant in this proceeding] likely to give rise to breaches of the Queen’s peace”;
3. The Applicant was ordered to keep the peace and be of good behaviour generally, and especially towards Jacob and Carter, for a period of 18 months; and
4. The order provided that access to Jacob and Carter was to be through a Family Court Order or through a written agreement between the Applicant and the Respondent.

[21] The access order dated May 31, 2013 could not be implemented until mid-October 2013 due to the lengthy waiting list for supervised access at Pathstone and the centre’s policy against supervising access while criminal charges against the visiting parent involving the children are pending. For reasons that I reviewed in great detail in my Reasons for Judgment on the contempt motion, supervised access had still not begun by mid-January 2014. The Applicant was of the view that the Respondent was stone-walling efforts to implement access at Pathstone. Accordingly, on January 22, 2014, she brought a motion requesting temporary custody and primary residence of the children, and an order striking the Respondent’s Answer and Claim for failing to obey the May 31, 2013 access order. On the first appearance of the motion on January 22, 2014, Henderson, J. made a temporary order on consent of both parties providing that the Respondent would attend with the children to facilitate a supervised access visit through Pathstone on Sunday January 26, 2014 at 10:00 a.m., for a maximum of two hours. The order further stipulated that the Respondent would refrain from making any negative comments about the Applicant or the supervised access visit to the children. The visit on January 26, 2014 proceeded as ordered. This was the first time that the Applicant had seen Jacob and Carter since April 21, 2012.

[22] On the return of the Applicant’s motion on January 29, 2014, the Respondent brought a cross motion for the production of financial information, a termination of his spousal support obligation, an increase in child support from the Applicant and contribution from the Applicant towards section 7 expenses. Whitten, J. made an order on consent adjourning the motions to March 17, 2014, and directing the Respondent to attend with the children to facilitate supervised access visits through Pathstone on Sundays from 10:00 a.m. for a maximum of two hours.

[23] The Applicant had further supervised access visits with the children on February 2, 2014, February 9, 2014, February 16, 2014, February 23, 2014, March 1, 2014 and March 9, 2014. Based on the progress of access, she served and filed an amended notice of motion that was originally returnable on the previously scheduled court date of March 17, 2014. In this amended motion, she withdrew her request for an order striking the Respondent’s Answer and Claim, since supervised visits at Pathstone had begun. She also withdrew her claim for temporary custody and primary residence of Jacob and Carter. Instead, she requested, inter alia, an order for unsupervised access with the children on a gradually increasing basis, culminating in a regime of access on alternate weekends from Friday after school until Monday morning and in alternate weeks from Wednesday after school until Friday morning. She also requested regular telephone contact with the children. On March 17, 2014, Maddalena, J. adjourned the motions once again. She ordered that pending the hearing of the motions, the children were to have telephone access with the Applicant on Wednesdays at 6:30 p.m., and that supervised visits were to continue at Pathstone on Sundays at 10:00 a.m. for a maximum of two hours. The motions were later scheduled for a hearing on May 23, 2014.

[24] The Respondent brought the children to Pathstone for supervised visits with the Applicant on March 16, 2014, March 23, 2014, March 30, 2014, April 6, 2014, April 13, 2014 and April 27, 2014. However, on each of those dates, the children refused to enter the visitation room, and the visits therefore did not proceed. Pathstone eventually terminated its services with the family based on the children’s repeated refusals to participate in access.

[25] The Applicant brought her contempt motion on April 9, 2014. On that date, the Applicant also brought a separate motion requesting an order for the following relief:

1. That a friend and neighbour, MaryAnn DuRoss, deliver Jacob and Carter to Pathstone to facilitate the weekly supervised visits with the Applicant; and
2. That Ms. Maggie Hall or another independent therapist qualified in parental alienation syndrome complete an assessment respecting the children, and that the parties cooperate in making the children available as required by the therapist.

[26] The Applicant’s contempt motion and the companion motion referred to above were adjourned to April 16, 2014. On that date, an order was made directing that the children’s daycare provider, Ms. Wendy Weaver, deliver Jacob and Carter to their supervised access visit with the Applicant on April 27, 2014. Ms. Weaver brought the children to the visit on that date, but the children once again refused to enter the visitation room.

[27] All of the above referenced motions eventually came on for a hearing before me on June 23, 2014. At the outset of the hearing, I ordered that the contempt motion would proceed first, as a stand-alone motion with viva voce evidence. The contempt motion proceeded before me on June 23, June 24, June 25, June 26, June 30 and July 3, 2014. On July 3, 2014, Henderson, J. held a mid-hearing Settlement Conference. As a result of the discussions and negotiations that occurred during the conference, the parties agreed to participate in reconciliation counselling with therapist Ms. Maggie Hall. On the basis of this agreement, I made an order on consent of the parties on July 3, 2014 which provided as follows:

1. All of the motions before me were adjourned to a date in October 2014 to be scheduled through the Trial Coordinator’s office;
2. The parties were to work with Ms. Maggie Hall for the purposes of reconciliation counselling, with the goal of reconciling the relationship between the Applicant and the children;
3. Both parties were to cooperate with Ms. Hall and participate as required and make the children available for the counselling and for access during the reconciliation process as required, and were to return phone calls from Ms. Hall in a timely manner;
4. Both parties were to permit Ms. Hall to contact their respective counsel for the purpose of assistance if and when necessary;
5. The parties were to equally share the costs of reconciliation counselling and were to provide any retainers required for Ms. Hall’s services; and
6. The Respondent was to make best efforts to have the children’s telephone conversations with the Applicant not occur on speaker phone.

[28] The “to be spoken to” date that was anticipated for October 2014 was not scheduled because the reconciliation counselling was underway at that point. On December 17, 2014, the January 5, 2015 trial date that had been set for this matter was vacated on consent of both parties to allow the reconciliation process to continue. On March 23, 2015, a further trial date was scheduled for an estimated ten days to the sittings commencing December 7, 2015.

[29] The parties embarked upon the reconciliation counselling process with Ms. Hall as required by the order dated July 3, 2014. With the assistance of Ms. Hall, visits between the Applicant and the children progressed to the point that by early May 2015, the Applicant was having one unsupervised overnight visit each week with Jacob and Carter, from Saturday at 6:00 p.m. until Sunday at 6:00 p.m. This was the arrangement that was in effect when the contempt motion resumed before me on December 7, 2015.

[30] On October 30, 2015, I heard a motion brought by the Applicant seeking the following relief:

1. An order that the contempt motion and all of the other motions that I had adjourned on July 3, 2014 be brought back on for a continued hearing before me;
2. An order that I seize myself of the trial of the application; and
3. An order that the transcripts of the oral evidence adduced at the hearing of the contempt motion be admitted as evidence in the trial of the application.

[31] I made an order on October 30, 2015 seizing myself of the trial of the application, and directing that the hearing of the contempt motion continue before me immediately prior to the commencement of the trial. The hearing of the contempt motion finally resumed before me on December 7, 2015 and ended on December 9, 2015. On December 8, 2015, I made an order on consent granting the parties leave to withdraw all of the other motions that I had adjourned on July 3, 2014, on a without costs basis. The trial of the application commenced on December 10, 2015. I heard supplementary Closing Submissions in relation to the contempt motion on January 18, 2016. On June 2, 2016, I released Reasons for Judgment on the contempt motion in which I dismissed the motion.

[32] There were a number of developments during the course of the trial of this matter, which spanned from December 2015 until August 22, 2016. Specifically:

1. On December 10, 2015, I made a final order on consent addressing outstanding issues relating to household contents, and directing that $12,000.00 from the holdback that Ms. Lucas had been holding in trust be paid to the Applicant.
2. On December 11, 2015, the parties executed a consent regarding temporary access for the Applicant, and resolving the issues of retroactive spousal support, child support, and section 7 expenses for the period up to and including December 31, 2015 on a final basis. Sweeny, J. made an order in accordance with the consent on December 11, 2015. The order required the Applicant to pay the Respondent the sum of $5,500.00 in full satisfaction of all claims by both parties for spousal support, child support and contribution to section 7 expenses up to and including December 31, 2015. With respect to access, the order granted the Applicant her regular weekly overnight access from Saturday at 6:00 p.m. until Sunday at 6:00 p.m. for the weekends commencing December 11th and December 19th, 2015. The Applicant was granted visits over the Christmas period as follows:

a) On December 22, 2015 from 5:30 p.m. until 8:30 p.m.; b) On Christmas day from noon until 4:00 p.m.; c) An overnight visit from Saturday December 26, 2015 at 9:00 a.m. until Sunday December 27, 2015 at 1:00 p.m.; d) On December 30, 2015 from 5:30 p.m. until 8:30 p.m.; e) An overnight New Year’s Eve/Day visit from December 31, 2015 at 3:30 p.m. until January 1, 2016 at 3:30 p.m.; and f) An overnight visit from January 2, 2016 until January 3, 2016 at 6:00 p.m.

The order further provided for a regular visitation schedule following the Christmas Break consisting of evening visits every Wednesday night from 5:30 p.m. until 8:30 p.m., and alternate weekends from Friday at 6:00 p.m. until Sunday at 6:00 p.m. Up until this order was made, the Applicant had continued to have visits with the children every weekend from Saturday at 6:00 p.m. until Sunday at 6:00 p.m.

3. On January 29, 2016, I made a final order on consent of the parties permitting the Applicant to attend at the children’s school, Cardinal Newman Catholic Elementary School, for any purposes relating to the children.

[33] Unfortunately, the trial of this matter continued well into 2016. Closing Submissions were not completed until August 22, 2016, due to numerous scheduling challenges. When all was said and done, the trial evidence and Closing Submissions took 30 days to complete. The documentary evidence filed at trial was also voluminous. Extensive time was required to carefully review all of the evidence. I completed this review by mid-December 2016, but was unable to prepare and release full Reasons for Judgment on all of the issues prior to Christmas. However, I released Reasons for Judgment dealing with the issue of Christmas time-sharing December 13, 2016. I granted the Applicant and Respondent equal time with the children over the Christmas school break period, and indicated that I would provide more fulsome Reasons for this decision in my Reasons for Judgment on all of the issues.

PART III: CREDIBILITY AND RELIABILITY ASSESSMENT

[34] The parties both testified at length in this trial and called numerous witnesses in support of their cases. I have carefully considered the credibility and reliability of the parties and their witnesses, and I find it necessary to comment on my impressions respecting the parties and two of the Respondent’s witnesses, namely his sister Suzanne Osborne and his mother Beverley Jackson. I did not have any concerns regarding the reliability or credibility of the other witnesses. They all presented as honest, forthright, and even-handed in giving their evidence.

[35] Dealing first with the parties, I noted in my Reasons for Judgment on the contempt motion that their evidence conflicted on many important points. I indicated that both presented as credible in some areas of their testimony, but that I seriously questioned their credibility and reliability with respect to other aspects of their evidence. As a result, I concluded that I was unable to reach general conclusions as to which party’s evidence should be preferred in the event of conflict, and that their credibility and reliability had to be assessed on an issue by issue basis. Having had the benefit of hearing extensive additional evidence from both parties during the trial, as well as evidence from numerous other witnesses who testified on issues that the parties also commented on, I was able to develop further impressions regarding the overall credibility and reliability of each party. Unfortunately, I continue to have concerns about the evidence of both parties in certain areas, and therefore the conclusions that I reached in the contempt motion remain the same.

[36] With respect to the Applicant, I find that she was responsive and forthright in answering most questions in examination in chief and cross examination during the evidence that she gave at trial. However, there were certain aspects of her evidence that I found troubling and which raised concerns about her credibility. For example, Ms. Lucas questioned her about whether she attempted to interfere with the Respondent’s contact with the children in the summer and fall of 2011. The Applicant denied that she did so, even when she was presented with text messages which she wrote in August 2011 (Exhibits 42 and 43) in which she clearly told the Respondent that he would only see the children when she saw fit to allow contact. She was also questioned about taunting comments that she made to the Respondent in a text message around that time in which she talked about what the OCL Clinical Investigator Ms. Montour had told her. When Ms. Lucas asked her what Ms. Montour had said, she presented as anxious, avoided answering and simply stated that she could not recall. Her evidence on this issue was not believable. Another area of the Applicant’s testimony that raised concerns about her credibility was her testimony in response to questioning as to whether there was a person living in the matrimonial home with her and paying rent as of January 2013. The Applicant stated in an affidavit sworn January 3, 2013 and in her evidence at trial that nobody was living with her in the home at that time. However, when she was cross examined about a Small Claims Court proceeding that a woman had commenced against her relating to a rental agreement with her, she acknowledged that this person lived with her and paid rent of $600.00 per month until the Respondent obtained possession of the home. Finally, the Applicant indicated in a Financial Statement sworn November 20, 2015 that RESPs in Jacob’s and Carter’s names had values of $1,229.36 and $1,646.77 respectively, when in fact the values were only $151.29 for Jacob’s plan and $546.25 for Carter’s plan. It was established at trial that she had actually withdrawn the remainder of the monies from the accounts to cover her expenses following the separation.

[37] The Respondent presented as genuine and credible in some areas of his testimony, but I had significant concerns about his credibility in other areas as well. There were several occasions during his evidence at trial when he was being questioned about challenging topics when he dodged the question and reinforced points that he wished to make to his advantage. It was necessary for me to redirect him and require him to answer the question on these occasions. For instance, as I will discuss below, there was significant conflict between the parties around the Applicant’s desire to attend the children’s extracurricular activities during the reconciliation process that the parties embarked upon with Ms. Hall. Ms. Lucarelli asked the Respondent whether he ever reinforced the point with the children that their mother should be able to attend their sports practices and events. The Respondent avoided this question altogether, and began to discuss how the children did not want their mother to attend and never asked her to attend. When I redirected him to answer the question, he initially stated he did not know if he made this point to the children, but eventually acknowledged that he did not recall making that suggestion to them.

[38] There were many aspects of the Respondent’s evidence at trial that were clearly not credible. The most significant example was his insistence that he did not oppose the implementation of overnight access during the reconciliation process, but simply relayed his concerns to Ms. Hall about overnight visits. He went so far as to deny that he was ever reluctant to permit overnight visits. As I will discuss in further depth below, it is patently obvious from Ms. Hall’s evidence and a review of the text messages between her and the Respondent that the Respondent strongly resisted almost every effort by Ms. Hall to increase access, and that he was vehemently opposed to the introduction of overnight visits for the Applicant. Another example of evidence that was not credible was his testimony in response to questioning about a text message that he wrote to the Applicant in the spring of 2011 in which he told her point blank that the bank would be foreclosing on the matrimonial home due to outstanding property taxes owing on the residence. The Respondent admitted in his testimony that there was never any real prospect of the bank seizing the house, since he could have accessed funds to pay the outstanding property tax debt from his voluntary contributions to his pension plan through his employment. However, he adamantly denied that his text was in any way threatening in tone. Another problematic area of his testimony related to his evidence about when he moved into Ms. Nielson’s residence. This was an important issue to the Applicant, because she attributed many of the problems that she experienced around the time of the separation to the affair that the Respondent had with Ms. Neilson. The Respondent testified that he did not move in with Ms. Neilson until sometime in February 2011, and that he lived with his mother prior to that time. However, when he was subsequently cross examined about numerous household expenses that were included in his Financial Statement sworn January 27, 2011, his initial explanation was that he was sharing household expenses with Ms. Neilson as of January. When he was questioned further on this issue, he backtracked and could not provide a clear explanation of where he was living at the time.

[39] The Respondent’s mother, Beverley Jackson, and his sister Suzanne Osborne testified at the trial of this matter. I had serious concerns regarding the credibility and reliability of much of their evidence. Their testimony on issues relating to the Applicant was so intensely negative on every single front that it became highly suspect. Both of them adamantly denied that they were close with the Applicant during the parties’ relationship. However, the Applicant presented as highly genuine and credible in giving evidence about how close she was to both of them. She became extremely distraught upon hearing their evidence, and in responding to it by talking about the numerous acts of kindness that she showed to them. She pointed out that she was so close to Suzanne that she asked her to be her bridesmaid at her wedding, asked her to be her birth coach for Jacob’s birth, named her as Jacob’s godmother and asked her to provide child care for Jacob. Beverley Jackson was unable to acknowledge that the Applicant engaged in any acts of kindness towards her extended family during the marriage, and repeatedly redirected her focus to all of her son’s positive qualities and attributes. By way of example, when Ms. Lucarelli suggested to her that the Applicant used to host Christmas Eve dinners, her initial response was that it was her son’s house too, and David would have Christmas Eve at his house. When Ms. Lucarelli further questioned Ms. Jackson about the Applicant having hosted an Easter dinner for the extended Jackson family over Easter in 2010 when the father was on a vacation with friends, Ms. Jackson insisted that her son had arranged the dinner, and denied that the Applicant had any involvement in preparing the meal. In short, my general impression regarding the testimony of Beverley and Suzanne Jackson was that it was completely one-sided in favour of the Respondent, and lacked the fairness and even-handedness that I required in order to give it significant weight in my analysis of the custody and access issues.

PART IV: CUSTODY AND ACCESS ISSUES

I. POSITIONS OF THE PARTIES

[40] Regrettably, one of the most significant and persistent features of this family’s reality since the period leading up to the parties’ separation has been the intense conflict between the Applicant and the Respondent. Since the separation, this conflict has focused largely on issues regarding parenting of Jacob and Carter. These two young boys have been exposed to their parents’ differences and disputes since a very young age. It is important for this court to acknowledge at the outset of the discussion of the custody and access issues how truly remarkable Jacob and Carter are. Both parents know this. The boys are healthy, active in the community, doing reasonably well at school, and have strong family and social support networks. The point that must be emphasized, however, is that they are remarkable despite all of the odds against them. Their story since 2009, in a nut-shell, is one of being caught in the cross-fire of their parents’ disputes, being completely cut off from contact from their mother for 21 months, attempting to reconcile their relationship with her, and all the while having to delicately navigate an emotional whirlpool created by the ongoing and incessant clashes between the two people who are supposed to be their supporters and protectors: their mother and father. The most important outcome of this case is to ensure that Jacob and Carter can one day look back upon the remainder of their childhood years and be able to tell a much happier tale: one in which they were able to peacefully enjoy a healthy relationship with both parents and benefit from the strengths that each of them has to offer them.

A. The Applicant’s Position

[41] Predictably, the positions of the parties respecting the custody and access issues are markedly different. The Applicant and Respondent both provided draft proposed orders which set out very detailed terms regarding custody, time-sharing and various child-related issues. By way of overview, with respect to decision-making, the Applicant seeks a parallel parenting order dividing the incidents of custody between her and the Respondent. She seeks to have sole decision-making rights regarding the children’s education and religious upbringing and activities, and consents to the Respondent being granted sole decision-making in the areas of non-emergency medical and health care assessment and treatment and the children’s extracurricular activities. The Applicant submits that an order for joint custody is not feasible in this case. In support of this position, she relies on the long-standing history of conflict between the parties, and evidence which she states demonstrates that the Respondent is unable and unwilling to support her relationship with the children or her role as a parent. Her position is that an order for sole custody in all areas of decision-making in favour of the Respondent would enable the Respondent to continue to completely marginalize her role in the children’s lives, and would ultimately intensify the conflict that has undermined the family’s well-being for the past several years. Counsel for the Applicant acknowledged that an order dividing up the incidents of custody can pose challenges with respect to interpretation of the scope of each party’s authority. However, she submitted that any such potential drawbacks of a parallel parenting order would be far outweighed by the damage that would result to the Applicant’s parental role if the Respondent were granted sole custody. In addition, she submitted that there have been some occasions when the parties have been able to cooperate, and that this provides some assurance that the parties will be able to navigate any complications that a parallel parenting order may entail. With respect to the proposed division of decision-making responsibilities, she argued that the allocation that the Applicant suggests makes sense given her strong involvement and interest in the children’s religious upbringing and academic achievement.

[42] With respect to time-sharing, the Applicant seeks an order granting her and the Respondent equal time with Jacob and Carter. Counsel for the Applicant presented a draft order for my consideration, which I had a great deal of difficulty understanding. In Closing Submissions, she clarified that the Applicant’s position is that the equal time-sharing should commence immediately with the Applicant having the children every Monday and Tuesday, and on alternate weekends from Friday until Sunday at 6:00 p.m. The Applicant requested that her alternate weekend time be extended to Monday morning by January 2017. Her request is that the exchanges occur at school during the school year and at 9:00 a.m. in the summer months. With respect to holiday periods, the Applicant seeks two consecutive weeks in the summer, one half of the Christmas vacation period, and an order that the parties alternate all other major holidays each year. In addition, the Applicant seeks an order requiring each party to provide the other with the opportunity to care for the children in the event that they are unable to have them during their time.

[43] In support of her position, the Applicant submits that she has addressed any concerns that were identified about her parenting in the past, that she has demonstrated excellent parenting skills, that she is a loving mother, that there is a strong attachment between her and the children, and that it is in the children’s best interests to maximize their contact with her. She highlighted evidence which in her view demonstrates that the Respondent has, since the parties’ separation, embarked upon a concerted effort to eliminate her from the children’s lives. She states that when it became apparent that she could no longer be excluded, the Respondent actively sought to minimize her involvement with the children and her influence with them. The Applicant appreciates that the children have at various times expressed to the Respondent that they do not wish to have contact with her or for her to be involved in their lives. However, she states that the court should not put any weight on those comments, given the overwhelmingly positive evidence respecting the quality of the visits which they have had with her. She urges me to find that the children are well aware of their father’s opposition to her having more time and an expanded role in their lives, and that they tell their father what they think he wants to hear about their relationship with her because of their strong bond with him and their desire to please him. The Applicant requested that the court consider ordering further involvement by Ms. Maggie Hall to assist in the implementation of equal time-sharing between the parties.

[44] The Applicant seeks an order that the parties communicate with each other through Our Family Wizard, which is an online parental communication tool designed to assist separated parents to communicate more effectively. She submits that the communications between the parties about issues relating to the children has been a major source of difficulties and conflict. She noted that the Respondent accuses her of harassing him with commentary and inquiries through text messages, and relayed that from her perspective, the Respondent is typically unresponsive to or dismissive of reasonable inquiries or requests. Her view is that Our Family Wizard would be a valuable means of ensuring that all communications go through one vehicle and are readily accessible. In addition, she argued that the use of the tool would allow the parties to avoid receiving messages in their daily lives, since they would have to log into the official website in order to retrieve and send messages. The Applicant’s expectation is that the tool would reduce the possibility of misunderstandings and encourage a higher degree of civility between the parties.

B. The Respondent’s Position

[45] The Respondent seeks an order for sole custody and primary residence of the children. His position is that an order granting him sole custody is in the children’s best interests. He submits that the Applicant’s request for an order dividing the incidents of custody is based largely on the theory that the Respondent has engaged in a campaign to undermine and alienate the children from her. He denies that he has engaged in this type of conduct, and states that he has at all times acted in a reasonable manner so as to protect the children’s emotional and physical well-being. His perspective is that any difficulties in re-establishing a relationship between the children and the Applicant have been attributable to the Applicant’s conduct, her inability to appreciate the children’s needs and the children’s resulting estrangement from her. In the event that the court declines to grant him sole custody, the Respondent seeks an order for joint custody. Counsel for the Respondent emphasized that the existing temporary order provides for joint custody, and that the conflict between the parties has not arisen in the context of major decisions that the parties have had to make regarding the children. Rather, from the Respondent’s perspective, problems have erupted between the parties because of the Applicant’s request to change the status quo and the Respondent’s reluctance to provide the Applicant with the access that she has sought. While his preference is to obtain an order for sole custody, he suggested that the existing temporary joint custody order has worked reasonably well with respect to major decision-making.

[46] The Respondent’s position with respect to access is that the Applicant should have regular access with Jacob and Carter every Wednesday evening from 5:30 p.m. until 8:30 p.m., and on alternate weekends from Friday at 6:00 p.m. until Sunday at 6:00 p.m., with this weekend access to be extended in the event that the weekend includes a holiday. With respect to summer access, he requests that each party be entitled to two non-consecutive 5 day periods of time with the children, with one of the periods being in July and the other to occur in August. His position is that the regular access regime should continue over the Christmas vacation period, with the exception that the Applicant would have the children every year from December 25th at 3:00 p.m. until December 26th at 6:00 p.m., and for an extra day over the New Year’s period. He requests that the school March Break be divided equally between the parties each year, with the exchange to occur on the Wednesday at 3:00 p.m., and that the Thanksgiving, Easter and statutory holiday weekends also be divided equally, with the parties alternating between the first half and second half of those weekends each year. The Respondent proposes that he be responsible for transportation for the purposes of exchanges, provided that the Applicant continues to live in Niagara Falls.

[47] The Respondent is of the view that any expansion of the Applicant’s time with the children from what he is proposing would be contrary to the children’s best interests. He emphasized that he has been the children’s primary caregiver since April 2012, that the children have done extremely well in his care and that they have become accustomed to the daily routines and environment in his home. He testified that the children have never asked for more time with their mother, and have in fact repeatedly resisted any increases in access time with her. He has major concerns that any effort to alter the long-standing status quo of him having primary care would cause the children tremendous emotional distress. In addition, he relayed concerns about the need for a new before and after school care provider for the children if the Applicant were granted more time, given that the Applicant works on a full-time basis and does not wish to use the services of his current care provider, who is the mother of his former partner Kari-Lyn Nielson.

[48] The Respondent adamantly opposes the request that all communications between the parties be through Our Family Wizard. He emphasized many times throughout the trial that he does not have internet at home because he cannot afford the expense. Furthermore, his position is that the parties have been communicating by text message for a long time, and that this continues to be a reasonable means of relaying messages or inquiries. He also opposes the request for an order that Ms. Hall become involved to assist with the implementation of any increased time-sharing between the children and the mother.

[49] The parties both agreed that the children should be with the Applicant on Mother’s Day and with the Respondent on Father’s Day each year. Both parties included numerous other proposed terms in their draft orders relating to the children. The Respondent took issue with many of the terms which the Applicant proposed. The most pertinent objections were as follows:

1. The Applicant requests that time-sharing exchanges occur at the school whenever possible. The Respondent alleges that this is not possible given that the Applicant works until 5:00 p.m.;
2. The Respondent does not agree with the Applicant’s request that statutory holiday weekends be alternated, and requests instead that all such weekends be shared equally between the parties;
3. The Applicant requests an order that there shall be no make-up time for missed residency time, unless the parties agree otherwise. The Respondent opposes this term and states that the parties should work this issue out depending on the circumstances that give rise to lost time;
4. The Respondent objected to a blanket clause that the parties not be permitted to arrange activities for the children during the other party’s time without the other party’s consent. His concern is that this clause could be used to prevent the children from attending their organized extracurricular activities;
5. The Applicant requested confirmation from a doctor in the event that either party refuses to transfer the child to the other’s care on the ground of illness. The Respondent objected to this provision on the basis that it may not be feasible to obtain a doctor’s note in advance of the scheduled exchange time;
6. The Respondent objected to a term which the Applicant proposed that the parties live “near” to each other, on the basis that this requirement is unnecessary and too vague;
7. The Applicant requests an order requiring the parties to execute Last Wills and Testaments confirming that the other party shall have custody of the children in the event of their death. The Respondent opposed this term on the basis that any determinations respecting custody and access in the event of one party’s death should be based on the overall best interests of the children;
8. The Respondent also objected to a proposed term that the parties be required to share all documents relating to the children by scanning them and emailing them to the other party. He submitted that this requirement is too onerous and that he does not have an email account;
9. The Respondent objected to a proposed term that the parties follow and implement the recommendations of the children’s health care providers. His position is that the parties should consider the recommendations, but that they should ultimately be the ones making the decisions about what is best for Jacob and Carter; and
10. The Respondent does not agree to a term that neither party cancel or rebook appointments involving the children unless neither of them is able to transport the child or an emergency arises. His position is that this term is unnecessary and will simply result in complications if an appointment has to be booked for any reason.

II. THE LAW

A. Relevant Legislative Provisions and General Principles Relating to Custody, Access and Time-Sharing

[50] The parties advanced their custody and access claims in the context of a divorce proceeding, and therefore the applicable legislation is the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as amended. The court’s authority to make custody and access orders under the Divorce Act derives from section 16(1), which provides as follows:

Order for custody

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.

[51] Section 2 of the Act defines “custody” as “including care, upbringing and any other incident of custody.” The term refers broadly to parental decision-making and authority respecting a child (Young v. Young, 1993 CanLII 34 (SCC), [1993] S.C.J. No. 112 (S.C.C.)). The incidents associated with custody include the responsibilities of providing physical care for the child, overseeing all aspects of day-to-day life and long-term wellbeing, determining the child’s residence, disciplining the child, and making major decisions about the child’s education, religion, health care, general well-being and activities (Young, at para. 26; Kruger v. Kruger (1979), 1979 CanLII 1663 (ON CA), 25 O.R. (2d) 673 (C.A.); Baker v. Baker (1979), 1979 CanLII 1962 (ON CA), 8 R.F.L. (2d) 236 (Ont. C.A.); Chou v. Chou, 2005 CanLII 11195 (ON SC), [2005] O.J. No. 1374 (S.C.J.); Harsant v. Portnoi, 1990 CanLII 6703 (ON SC), [1990] O.J. No. 1144, 74 O.R. (2d) 33 (H.C.J.)); Scott v. Chenier, 2015 ONSC 7866 (S.C.J.); Izyuk v. Langley, 2015 ONSC 2409 (S.C.J.); Chomos v. Hamilton, 2015 ONSC 5208 (S.C.J.)). The power which a custody order confers on a party is not a “right” that is granted to the party for their own benefit. Rather, as the Supreme Court of Canada stated in Young, at para. 25, the power that flows from a custody order “is designed to enable that parent to discharge his or her responsibilities and obligations to the child. It is, in fact, the child’s right to a parent who will look after his or her best interests.” (see also Racine v. Woods, 1983 CanLII 27 (SCC), [1983] 2 S.C.R. 173, at 185 (S.C.C.); Frame v. Smith, 1987 CanLII 74 (SCC), [1987] 2 S.C.R. 99, at p. 132 (S.C.C.)).

[52] The term “access” refers to the rights of a party in circumstances where the other party is granted sole custody. Access rights include not only visitation privileges, but also the right to make inquiries and to receive information about the child. These additional rights are set out in section 16(5) of the Divorce Act, which stipulates that a spouse who is granted access to a child of the marriage 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.

[53] Section 16(4) of the Divorce Act specifies that in making an order under section 16(1), the court may grant custody and/or access to “any one or more persons.” The court has a broad discretion to fashion a custody and access order that includes specific terms and conditions that are appropriate to the circumstances of the family that it is assisting. This discretion is set out in section 16(6) of the Act, which provides as follows:

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.

[54] Section 16(8) of the Divorce Act establishes the general test for determining custody and access issues under the Act. It provides that in making an order under section 16, the court is to take into consideration “only the best interests of the child of the marriage, as determined by reference to the conditions, means, needs and other circumstances of the child.” Sections 16(9) and (10) of the Divorce Act set out additional principles that the court must apply in carrying out the best interests analysis. Section 16(9) stipulates that the court may not take into consideration the past conduct of a person, unless the conduct is relevant to the ability of that person to act as a parent of the child. Section 16(10) establishes what is referred to in the case-law as “the maximum contact principle,” which focusses on the desirability of ensuring as much contact with each parent as is consistent with the child’s best interests. The principle is framed as follows:

Maximum contact

16(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.

B. The Best Interests of the Child

[55] Unlike many provincial and territorial statutes dealing with custody and access, the Divorce Act does not spell out a lengthy list of factors for the court to consider in assessing the best interests of the child. The broad and flexible nature of the best interests test under the Divorce Act reflects Parliament’s decision that the only relevant issue when it comes to custody and access is the welfare of the child in question (Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] S.C.J. No. 52 (S.C.C.) at p. 47). While the test gives rise to a certain degree of indeterminacy, the Supreme Court of Canada has emphasized that “a more precise test would risk sacrificing the child’s best interests to expediency and certainty” (Gordon, at p. 47; Young). The general best interests test allows for a uniquely tailored analysis of the custody and access issues, woven from the particular condition, means, needs and circumstances of the child whose well-being is under consideration (Van de Perre v. Edwards, 2011 SCC 60 (S.C.C.), at para. 13). As L’Heureux-Dubé stated in Young, at para. 74:

The wide latitude under the best interests test permits courts to respond to the spectrum of factors which can both positively and negatively affect a child. Such discretion also permits the judge to focus on the needs of the particular child before him or her, recognizing that what may constitute stressful or damaging circumstances for one child may not necessarily have the same effect on another.

[56] The best interests of the child must be ascertained from the lens of the child rather than from the parents’ perspective; parental preferences and rights do not play a role in the analysis except to the extent that they are necessary to ensure the best interests of the child (Young, at paras. 74 and 202; Gordon, at pp. 50, 54, 68). As the court stated in King v. Low, 1985 CanLII 59 (SCC), [1985] 1 S.C.R. 87 (S.C.C.), at para. 101, the ultimate aim of the courts in resolving custody and access disputes is “to choose the course which will best provide for the healthy growth, development and education of the child so that he will be equipped to face the problems of life as a mature adult.”

[57] Although the best interests test is broad and designed to meet the particular needs of the child before the court, Parliament established two very specific directions to courts carrying out the best interests analysis. First, as noted above, section 16(9) of the Divorce Act directs that the court may not take into consideration the past conduct of a person, unless the conduct is relevant to the ability of that person to act as a parent of the child. The Supreme Court of Canada commented on this direction in Gordon in the context of a custody variation proceeding, and emphasized that as a result of this provision, “[p]arental conduct, however meritorious or however reprehensible, does not enter the analysis unless it relates to the ability of the parent to meet the needs of the child” (at p. 47). However, where parental misconduct results in the parties having negative attitudes and views towards each other, those attitudes and views are important to the best interests analysis because they may affect the emotional well-being of the child (Van de Perre, at para. 23).

[58] The maximum contact principle set out in section 16(10) of the Divorce Act is the second factor that Parliament specifically directed courts to consider in carrying out the best interests analysis. By specifically highlighting the desirability of maximizing contact between the child and each parent as a mandatory consideration in the best interests analysis, Parliament has clearly articulated that maximum contact with each parent is generally presumed to be valuable and in the best interests of the child (Young, at para. 25; Berry v. Berry, 2011 ONCA 705 (C.A.)). However, the maximum contact principle is not an unbridled objective. As the Supreme Court of Canada noted in Young (at para. 40) and Gordon (at p. 49), if other factors show that maximum contact would not in fact be in the child’s best interests, the court can and should restrict contact.

[59] Quite apart from the terms of section 16(10) of the Divorce Act, it is a well-established principle that the best interests of the child are generally fostered by ensuring that children have a loving relationship with both parents, and that such a relationship should only be interfered with in demonstrated circumstances of danger to the child’s physical, emotional or mental well-being (Pastway v. Pastway (1999), 49 R.F.L. (4th) 375 (S.C.J); Ferreira v. Ferreira, 2015 ONSC 3602 (S.C.J.), at para. 31; T.E.H. v. G.J.R., 2016 ONCJ 156 (O.C.J.)). If one parent does not facilitate a child’s relationship with the other parent, or improperly undermines that relationship, this will be an important consideration in determining their ability to meet the child’s needs (Leggatt v. Leggatt, 2015 ONSC 4502 (S.C.J.); T.E.H., at para. 442).

[60] The other factors that the court should reflect upon in carrying out the best interests assessment, and the weight that should be accorded to each factor, will vary depending on the unique features of every child and case. In carrying out the analysis, the court may seek guidance from the considerations which provincial and territorial custody statutes enumerate as being relevant to the best interests analysis (T. (K.A.) v. T. (J.) (1989), 1989 CanLII 8818 (ON SC), 23 R.F.L. (3d) 214 (Ont. U.F.C.); K.C.W.V. v. K.L.P., 2010 NBCA 70 (C.A.); Allen v. Wu, 2011 ONSC 6813 (S.C.J.); Scott v. Chenier, 2015 ONSC 7866 (S.C.J.)). The relevant statutory provision in Ontario is section 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C-12, as amended, which provides as follows:

Merits of application for custody or access

24. (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).

Best interests of child

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

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

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

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

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

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

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

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

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

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

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

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10.

Past conduct

(3) A person’s past conduct shall be considered only,

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

(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1).

Violence and abuse

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

(a) his or her spouse;

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

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

(d) any child. 2006, c. 1, s. 3 (1).

[61] The wishes of a child are relevant to the best interests analysis, particularly in cases involving older children. However, as the Ontario Court of Appeal recently emphasized in L. (N.) v. M. (R.R.), 2016 ONCA 915 (C.A.) at para. 36, “the wishes of the child and the best interests of the child are not necessarily synonymous.” The weight that should be attached to a child’s expressed wishes will depend on numerous factors, including the age, intelligence and maturity of the child, their overall developmental status and capacity to form and articulate preferences, how clear the child’s wishes are and the consistency of those wishes over time (Decaen v. Decaen, 2013 ONCA 218 (C.A.); Stefureak v. Chambers, 2004 CanLII 34521 (ON SC), [2004] O.J. No. 4253 (S.C.J.); Heuer v. Heuer, 2016 ONCJ 201 (O.C.J.)). In addition, in determining the weight, if any, which should be accorded to the child’s expressed wishes, the court should consider those wishes in the context of all of the circumstances of the case and carefully assess if there are any concerns as to whether the expressed wishes are an accurate reflection of the child’s true feelings. The court should give little weight to a child’s expressed wishes if the evidence indicates that those wishes have been tainted by negative influence, inducements or alienation exerted by the other parent or any other individual (L. (A.G.) v. D. (K.B.) (2009), 2009 CanLII 943 (ON SC), 93 O.R. (3d) 409 (S.C.J.) at paras. 143-149; O.(C.) v. O. (D.), 2010 ONSC 6328 (S.C.J.) at para. 16; Decaen, at paras. 42, 44-45; L. (N.) v. M. (R.R.), at paras. 33, 36).

C. Custodial Frameworks

[62] The issue of decision-making respecting Jacob and Carter is a major area of dispute between the parties. The options that I have been asked to consider are sole custody, joint custody and “parallel parenting.” The Divorce Act does not set out any specific criteria to assist in determining the appropriate decision-making order, apart from the general “best interests” test. In deciding this issue, the court is required to consider all possible decision-making frameworks, and not simply those proposed by the parties (Chomos, at para. 109; Jackson v. Mayerle, 2016 ONSC 72 (S.C.J.); Ruffudeen v. Coutts, 2016 ONSC 3359 (S.C.J.)). Furthermore, as the Ontario Court of Appeal noted in M. v. F., 2015 ONCA 277 (C.A.), notwithstanding the positions of the parties, the court may decline to make any decision-making designation if such an approach is considered to be in the best interests of the child. As Lafrenière, J. stated in J.B.H. v. T.L.G., 2014 ONSC 3569 (S.C.J.) at para. 354, the ultimate goal in crafting an appropriate decision-making regime is to promote the child’s “right to grow up within a parenting regime that is co-operative and effective, where decisions are made in a child-focused way and with the least amount of acrimony and stress.”

1. Sole Custody and Joint Custody

[63] Traditionally, the two custodial options that the courts have considered have been sole custody or joint custody. An award of sole custody to one parent grants decision-making rights to that parent, generally to the exclusion of the other parent to interfere in carrying out these rights and responsibilities (Kruger). The term “joint custody” is used to describe situations where both parents are given full decision-making authority and responsibility in all areas respecting the child, and must make those decisions together.

[64] In Kruger and Baker, the Ontario Court of Appeal held that joint custody is an exceptional remedy that should only be granted in circumstances where the parties demonstrate co-operation and appropriate communication, and are willing to try a joint custodial arrangement. In Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), 2005 CarswellOnt 266 (C.A.) and Lawson v. Lawson, 2006 CarswellOnt 4736 (C.A.), the court deviated from the requirement of mutual consent to a joint custody order, but emphasized that in order to grant joint custody, there must be some evidence before the court that despite their differences, the parties are able to communicate effectively with each other for the sake of the children. The rationale for this principle is that the best interests of the child will not be advanced if the parties are unable to make important decisions regarding the child under a joint custody regime.

[65] The decision as to whether an order for sole custody or joint custody is in a child’s best interests is ultimately a matter of judicial discretion. However, a number of general principles have emerged from Kaplanis, Lawson and the subsequent case-law to assist in the decision-making process. These can be summarized as follows:

1. There is no default position in favour of joint custody. Each case is fact-based and discretion-driven (Kaplanis; Ladisa v. Ladisa, 2005 CanLII 1627 (ON CA), 2005 CarswellOnt 268 (Ont. C.A); Rubinov-Liberman v. Liberman, 2014 ONSC 5700 (S.C.J.); Palumbo v. Palumbo, 2017 CarswellOnt 236 (S.C.J.)).
2. Joint custody should only be considered as an option if both parents are fit parents and able to meet the general needs of the children. This is a threshold issue before the court considers the question of whether the parties are able to effectively communicate on issues relating to the children (Kaplanis; T.E.H., at para. 446).
3. The quality of past parenting and decision-making, both during the parties’ relationship and post-separation, is a critical factor in determining whether joint custody is appropriate (Milford. v. Catherwood, 2014 CarswellOnt 7879 (O.C.J.)).
4. However, the mere fact that both parents acknowledge that the other is a “fit” parent does not mean that it is in the best interests of the child for a joint custody order to issue. The decision regarding the appropriate decision-making arrangement must take into consideration all factors relevant to the child’s best interests (Kaplanis, at para. 10).
5. Although some measure of communication and cooperation between the parties is necessary to support a joint custody order, the court is not required to apply a standard of perfection in assessing the parents’ ability to work together. As Quinn, J. remarked in Brook v. Brook, 2006 CanLII 12294 (ON SC), [2006] O.J. No. 1514 (Ont. S.C.J.), “the cooperation needed is workable, not blissful; adequate, not perfect.”
6. The fact that one party insists that the parties are unable to communicate with each other is not in and of itself sufficient to rule out the possibility of a joint custody order. The court must carefully consider the parties’ past and current parenting relationship and reach its own conclusions respecting the parties’ ability to communicate, rather than simply relying on allegations of conflict by one or both of the parties (Kaplanis, at para. 11; Ladisa). The existence of conflict and strife between the parties from time to time, and at the time of trial, will not necessarily preclude the court from making an order for joint custody. The question to be determined is whether the nature, extent and frequency of the conflict between the parties is such that it is impacting or likely to impact on the well-being of the children. If the evidence indicates that the parties, despite their conflict with each other, have been able to shelter the child from the conflict reasonably well and put the child’s interests ahead of their own when necessary, an order for joint custody may be appropriate (Ladisa). The question for the court to determine is “whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis” (Warcop v. Warcop, 2009 CanLII 6423 (ON SC), 2009 CarswellOnt 782 (S.C.J.); Lambert v. Peachman, 2016 ONSC 7443 (S.C.J.)).
7. Where an objective review of the historical and more recent evidence clearly indicates that there has never been an ability to cooperate or communicate effectively, or that one or both of the parties is/are unable to put the needs of the child before their own, joint custody is not an appropriate order (Hildinger v. Carroll, 2004 CarswellOnt 444 (C.A.); Kaplanis; Ladisa). In these circumstances, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for making an order of joint custody (Kaplanis). There must be a clear evidentiary basis for believing that joint custody would be feasible (Iannizzi v Iannizzi, 2010 ONCA 519 (C.A.), at para. 2).
8. In cases involving very young children, the court must take into consideration the fact that the child is unable to easily communicate their physical, emotional, developmental and other needs. Accordingly, the need for effective communication between the parties in a joint custodial arrangement will be particularly pressing in such circumstances (Kaplanis, at para. 11).
9. The wishes of the child will also be relevant to the decision respecting the appropriate custodial disposition in cases involving older children. Although a child’s wishes in such circumstances do not necessarily synchronize perfectly with the child’s best interests, “the older the child, the more an order as to custody requires the co-operation of the child and consideration of the child’s wishes” (Kaplanis, at para. 13).
10. Evidence as to how an interim custody and access order has worked, and in particular, whether the parties have been able to set aside their personal differences and work together in the best interests of the child, will be highly relevant to the ultimate decision regarding the appropriate custodial regime.
11. In analyzing the ability of the parties to communicate, the court must delve below the surface and consider the source of the conflict. The Ontario Court of Appeal has clearly stated that one parent cannot create conflict and problems with the other parent by engaging in unreasonable conduct, impeding access, marginalizing the other parent, or by any other means and then justify a claim for sole custody in their favour on the basis of lack of cooperation and communication (Lawson; Ursic v. Ursic, 2004 CarswellOnt 8728 (Ont. S.C.J.), aff’d 2006 CanLII 18349 (ON CA), 2006 CarswellOnt 3335 (C.A.); Andrade v. Kennelly, 2006 CarswellOnt 3762 (Ont. S.C.J.), aff’d 2007 ONCA 898, 2007 CarswellOnt 8271 (C.A.)). Where the parties are both competent and loving parents, but one of them is the major source of the conflict, this factor may support an order for sole custody in favour of the other party (Alqudsi v. Dahmus, 2016 ONCJ 707 (O.C.J.)).
12. There has been an increasing willingness in recent years to order joint custody rather than sole custody where such an order is considered necessary to preserve the balance of power between the parties, particularly in cases where both parties are caring and competent parents but one party has been primarily responsible for the conflict between the parties (Habel v. Hagedorn, 2005 ONCJ 242, 2005 CarswellOnt 3863 (O.C.J.); Garrow v. Woycheshen, 2008 ONCJ 686, 2008 CarswellOnt 8193 (O.C.J.); Bromley v. Bromley, 2009 ONCA 355, 2009 CarswellOnt 2210 (Ont. C.A.); R.K.K. v. B.M.M. and R.S., 2009 CarswellYukon 38 (Yuk. S.C.); Hsiung v. Tsioutsioulas, 2011 CarswellOnt 10606 (O.C.J.); Sinclair v. Sinclair, 2013 ONSC 1226 (S.C.J.); Caverley v. Stanley, 2015 ONSC 647 (S.C.J.); Ferreira v.Ferreira, 2015 ONSC 2845 (S.C.J.); T.E.H. ).

[66] While the foregoing comments outline the various factors and considerations which the courts have taken into consideration in deciding between sole vs. joint custody, the analysis must at all times remain firmly grounded in the best interests of the child before the court. Even if both parents are attentive and loving, a joint custody order may not coincide with the child’s best interests. As Pazaratz, J. stated in Izyuk v. Bilousov, 2011 ONSC 6451, 2011 CarswellOnt 12097 (S.C.J.) at para. 504, “[I]n the wrong family circumstances, a joint custody order can perpetuate hostilities, indecision, and power struggles. Children- particularly children already exposed to the upset of family breakdown- look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully.”

2. Parallel Parenting and Other Customized Custody Arrangements

[67] One of the most significant developments in the case-law respecting custody and access in recent years has been the movement towards increasingly detailed and complex custody and time-sharing orders. In the past, custody and access orders would typically include simple provisions for sole custody or joint custody and basic terms regarding time-sharing. More recently, there has been a proliferation of custody and time-sharing orders in the case-law that deal not only with major decision-making matters in novel ways, but which also address issues relating to the day-to-day care of the children and the overall management of child-related issues. The movement towards more complex decision-making orders has been fuelled by judicial recognition that in some cases, the best interests of a child are simply not served by an order for either sole or joint custody. The courts have concluded that in some cases, the unique circumstances of the family, the particular strengths and weaknesses of the parents and the dynamics of their relationship and the impact of all of these factors on the child are such that a “tailor-made” decision-making regime is required in order to foster and protect the child’s well-being. Unfortunately, a by-product of this evolution towards more complex custody orders has been significant confusion with respect to terminology. This confusion has been particularly marked in the case-law relating to the concept of parallel parenting, and has created challenges in understanding the current state of the law respecting parallel parenting. There is an urgent need to clarify the use of terminology in this area.

[68] The concept of parallel parenting initially emerged in the social work realm rather than on the legal landscape. In that context, it was used to describe arrangements where there was either a sole or joint custody order in effect, but the parties were granted the right to make daily decisions and establish their own routines for the children during their residential time (Peter G. Jaffe et. al., “Custody Disputes Involving Allegations of Domestic Violence: Toward a Differentiated Approach to Parenting Plans” (2008) 46 Fam. Ct. Rev. 500 at 516-17, cited in Lambert v. Peachman, 2016 ONSC 7443 (S.C.J.)). On the legal front, the concept of parallel parenting has morphed into a phrase that describes regimes respecting major decision-making. There are four main types of arrangements that have been described as “parallel parenting” regimes in the case-law, as follows:

1. First, in some cases, the phrase has been used to describe an order that grants joint custody to the parents in all traditional major areas of decision-making such as medical, educational, religion and extracurricular activities, but which specifically states that each parent has the right to make daily decisions and to establish parenting styles and routines independently of each other. This arrangement is often referred to as “joint custody in the parallel parenting mode.” The phrase was used in this fashion in Mol v. Mol, 1997 CarswellOnt 3693 (S.C.J.), L.(A.) v. M. (C.), 2010 CarswellNB 58 (Q.B.) and by the trial judge in Ursic v. Ursic, 2004 CarswellOnt 8728 (S.C.J.), aff’d 2006 CanLII 18349 (ON CA), 2006 CarswellOnt 3335 (C.A.). While the term “parallel parenting” was used in these cases, the type of arrangement under consideration in these decisions was essentially a traditional joint custody arrangement, but which specified that the parties could make day-to-day decisions and establish their own routines during their residential time. In practice, a traditional joint custody order has been presumed to include these rights to make daily decisions and establish household routines. The real distinction between a traditional joint custody order and the orders made in this line of decisions is that the orders in these cases also included numerous detailed terms about day-to-day parenting issues to assist the parties in managing areas that have been problematic. In order to avoid confusion in terminology, it is helpful to refer to this type of order as a “multi-directional joint custody order.”
2. A second line of cases has used the phrase “parallel parenting” to describe a regime which divides up the major areas of decision-making between the parties, such that each party has sole, final decision-making authority in specified areas (Moyer v. Douglas, 2006 CarswellOnt (S.C.J.); Hensel v. Hensel, 2007 CarswellOnt 7010 (S.C.J.); V.K. v. T.S., 2011 ONSC 4305 (S.C.J.); Suchanek v. Lavoie, 20140 CarswellOnt 1236 (O.C.J.); Baetans v. Arthurs, 2013 CarswellOnt 5112 (Div. Ct.)). In the case of V.K., I described this type of arrangement as a “divided parallel parenting regime.” As in the first line of cases, these types of orders typically also give each parent the right to make general day-to-day decisions and establish daily routines during their residential time, and set out specific and very detailed terms regarding the management of problematic issues. Some cases have also referred to this type of arrangement as “joint custody in the parallel parenting mode.” Again, this causes confusion, since this type of order does not require the parties to make major decisions together. The descriptor “divided parallel parenting” is helpful for this type of arrangement, since it reflects that the major areas of decision-making are divided up between the parties.
3. A third manner in which the courts have used the phrase “parallel parenting” is to describe an arrangement that essentially grants each parent the right to make major decisions respecting the child in all important areas of parental authority during their residential time, without the consent or involvement of the other parent (see Mol v. Mol, 1997 CarswellOnt 3693 (Gen. Div.); Ursic). As I indicated in V.K. the phrase “full parallel parenting” is helpful to describe this type of custodial arrangement, since the parents are essentially exercising full decision-making in all areas during their time with the child, but independently of each other. These types of orders typically require the parties to confer with each other before making a major decision. In Ursic, the Ontario Court of Appeal upheld such an order on appeal.
4. A fourth line of cases that have used the phrases “parallel parenting” or “joint custody in the parallel parenting mode” are those where the parties are granted joint custody, the order set out specific steps they must take to resolve any differences about major decisions, and the order goes further to state that if they still cannot agree, each party has final say in specified areas of decision-making (see for example Andrade v. Kennelly, 2006 CarswellOnt 3762 (S.C.J.), aff’d 2007 ONCA 898, 2007 CarswellOnt 8271 (C.A.); Desjardins v. Desjardins, 2013 CarswellOnt 4496 (S.C.J.); Plugers v. Krasnay, 2014 ONSC 7078 (S.C.J.), aff’d 2016 ONCA 279 (C.A.)). For the sake of clarity in terminology, I find it useful to refer to this type of arrangement as “joint custody with a divided parallel parenting fallback.”
5. Finally, “parallel parenting” has been used to describe hybrid-type custodial arrangements, where the order requires the parties to make some major decisions together, but then divides up other areas of decision-making between the parties (see for example Roy v. Roy, 2004 CarswellOnt 8591 (S.C.J.), reversed in part 2006 CanLII 15619 (ON CA), 2006 CarswellOnt 2898 (C.A.); Grindley v. Grindley, 2012 O.J. No. 3717 (S.C.J), where the court ordered joint custody respecting the children’s activities, but divided parallel parenting in regard to all other areas of decision-making). In some cases, the orders add an additional layer of complexity by ordering a joint custody with a divided parallel parenting fallback plan in certain areas of decision-making. Again, in order to avoid confusion respecting terminology, I refer to this type of arrangement as a as a “hybrid” custody regime.

[69] These various forms of decision-making arrangements have evolved in Family Law practice and the case-law as a means of meeting the needs of children in circumstances where both parties are involved and are competent parents, but the conflict between them is such that a traditional joint custody or sole custody order would be problematic. There are many merits to these alternative regimes, in appropriate cases. They give both the child and the parents the benefit of maintaining each parent as meaningful players in the child’s life, over and above time-sharing with the child. The importance of this factor from an emotional standpoint cannot be underestimated where a family is in turmoil because of the breakdown of the parents’ relationship. In addition, by delineating clear areas of decision-making between the parties, these arrangements have the potential in appropriate cases to disengage the parties and reduce parental discord.

[70] The determination of whether one of the more complex custodial arrangements referred to above should be ordered rather than a traditional sole or joint custody arrangement is a matter of judicial discretion that will involve a careful weighing of all of the evidence relevant to the child’s best interests. However, there are certain general principles and factors that consistently emerge in the case-law in this area as being relevant to the analysis. Dealing first with hybrid custody orders, full parallel parenting orders and joint custody orders with divided parallel parenting as a backup, the following principles can be gleaned from the case-law:

1. With respect to hybrid custody orders, the Ontario Court of Appeal held in Roy that they are governed by the same principles that apply with respect to joint custody. The reason for this is that such orders require joint decision-making by the parties in specified areas.
2. Full parallel parenting orders will typically only be appropriate in circumstances where there is some evidence that the parties can cooperate for the sake of the child’s best interests. In the absence of some degree of cooperation, such orders create a serious risk of the parties acting independently at odds with each other on major issues, thereby creating chaos and confusion for the child and professionals involved with the child (Ursic; K.(V.) v. S.(T.); H. (K.) v. R.(T.K.), [2013] O.J. No. 3463 (O.C.J.); Heuer).
3. Joint custody orders with a divided parallel parenting fallback have been upheld by the Ontario Court of Appeal in very high conflict cases where the parties are both competent parents, but they have great difficulty communicating and working together in the child’s best interests. In Andrade and Plugers, the Ontario Court of Appeal upheld such orders in circumstances where both parties were loving and competent parents, the mother had been the primary caregiver, but the mother had undermined the father, failed to recognize him as an important figure in the children’s lives, and had impeded contact between him and the children.

[71] In this case, the Applicant requests that a divided parallel parenting regime be implemented. The Ontario Court of Appeal has in two cases supported the notion that divided parallel parenting orders may be appropriate in very high conflict cases where joint custody is not a feasible option, but granting one party sole custody is not considered to be in the child’s best interests. In Lefebvre v. Lefebvre, 2002 CarswellOnt 4325 (C.A.), the court dealt with a motion to stay a temporary divided parallel parenting regime pending appeal. The court declined to grant the stay, noting that both parents had been involved with the child and were good parents, and that the order had the salutary effects of ensuring that both parents remained involved in the child’s life. The court noted that the order also had the effect of reigning in the father, who had unilaterally acted as if he was the only parent with decision-making authority. In the subsequent decision of Cox v. Stephen, 2003 CarswellOnt 4554 (C.A.), the Court of Appeal upheld a divided parallel parenting order in circumstances where the mother had been the primary caregiver, had met all of the child’s needs, but had demonstrated a clear intention to undermine the relationship between the child and his father and to marginalize the father’s role in the child’s life.

[72] The decisions in Lefebvre and Cox and the subsequent case-law that has addressed the issue of parallel parenting highlight the following factors and considerations as figuring prominently in the determination of whether a divided parallel parenting order is in the best interests of a child:

1. The strength of the parties’ ties with the child, and the historical level of their involvement with the child are critical to the analysis. In almost all cases where parallel parenting has been ordered, both parents have consistently played a significant role in the child’s life on all levels (M.(T.J.) v. M.(P.G.), 2002 CarswellOnt 356 (S.C.J.); Hildinger; Moyer v. Douglas, [2006] O.J. No. 5124 (S.C.J.); Caulfield v. Wong, [2007] ABQB 732 (Q.B.); Andrade; K.(V.) v. S.(T.); H. (K.) v. R. (T.K.), [2013] O.J. No. 3463 (O.C.J.); M.B. v. D.T., [2012] O.J. No. 797 (S.C.J.); Hoffman v. Hoffman, [2013] O.J. No. 389 (S.C.J.)).
2. The relative parenting abilities of each parent and the quality of their decision-making respecting the child are also important considerations. Where one parent is clearly more competent, responsible and attentive than the other, this may support a sole custody order rather than a parallel parenting arrangement (Moyer; K. (V.) v. S. (T.); Ryan v. Scott, 2011 ONSC 3277, 2011 CarswellOnt 5924 (S.C.J.); Hajkova v. Romany, 2011 ONSC 2850, 2011 CarswellOnt 3237 (S.C.J.); Scervino v. Scervino, 2011 CarswellOnt 7845 (S.C.J.); H. (K.) v. R. (T.K.); Izyuk v. Bilousov; Hoffman; Warner v. O’Leary, 2014 CarswellNS 319 (S.C.); Suchanek; Palumbo).
3. A desire to ensure formal equality of influence between the parents is not in and of itself sufficient to found a claim for a divided parallel parenting order (L.L. v. M.C., 2012 ONSC 3311, 2012 O.J. No. 3347 (S.C.J.)).
4. A history of domestic violence or any evidence suggesting that there is a significant power imbalance between the parties will work strongly against a parallel parenting order, as this type of dynamic could frustrate the objective of achieving an equilibrium of influence through parallel parenting (Hildinger; K.(V.) v. S. (T.); H. (K.) v. R. (T.K.); Docherty v. Catherwood, 2013 CarswellOnt 11366 (S.C.J.); L.L. v. M.C., 2012 ONSC 3311, 2012 O.J. No. 3347 (S.C.J.); Ganie v. Ganie, 2014 ONSC 7500 (S.C.J.); Tiveron v. Collins, 2014 ONCJ 474 (O.C.J.)).
5. Divided parallel parenting will not be considered appropriate where the evidence indicates that one party is seeking this arrangement solely as a means of controlling the other parent, rather than as a means of fostering the child’s best interests (H.(K.) v. R. (T.K.); S. (S.) v. K. (S), 2013 ONCJ 432, 2013 CarswellOnt 10801 (O.C.J.).
6. The extent to which each parent is able to place the needs of the child above their own needs and interests is often a compelling consideration. Evidence that a party tends to place their own wishes and needs over the child’s overall best interests will often vitiate against a divided parallel parenting regime, even if that party is in all other respects a loving and competent parent (Potter v. DaSilva, 2014 ONCJ 302 (O.C.J.); Heuer; Alqudsi).
7. The court should carefully consider all of the evidence in the case, and determine whether a parallel parenting order is more likely to de-escalate the conflict between the parties or inflame it. If it is likely to intensify the conflict, an order for sole custody may be more appropriate (H.(K.) v. R. (T.K.); S. (S.) v. K. (S.); Suchanek; Palumbo).
8. The court will consider the nature and intensity of the conflict between the parties, and whether the parties are likely to at least be able to navigate basic issues such as scheduling and interpretation of the order under a divided parallel parenting regime. The court should be particularly vigilant in considering whether the dynamics between the parties are such that they are likely to have disputes regarding the scope of each of their areas of decision-making in situations where the dividing line may be unclear. In H.(K.) v. R.(T.K.), Sherr, J. referred to this potential problem of unclear boundary lines between areas of decision-making as “the spillover effect.” If it is unlikely that the parties will be able to manage basic issues such as scheduling and potential spillover challenges, a parallel parenting order will likely not be appropriate as it will simply serve as a catalyst for further parental strife (H. (K.) v. R. (T.K.); S.(S.) v. K. (S.); Izyuk v. Bilousov; Suchanek).
9. With respect to parental conflict, the court should also carefully consider whether one party is the major cause of discord between the parties. If this is the case, an order for sole custody in the other party’s favour may be the more appropriate choice (H.(K.) v. R. (T.K.); Graham v. Bruto, [2007] O.J. No. 656 (S.C.J.), aff’d 2008 ONCA 260 (C.A.); Warner).
10. Ultimately, with respect to parental conflict, parallel parenting will generally not be considered appropriate where it is clear from a careful review of all of the evidence that one or both of the parties will never be able to disengage from combat. In such circumstances, delineating areas of decision-making will not achieve the goal of alleviating the conflict for the sake of the child but will simply provide a further breeding ground for parental dissonance (Seed v. Desai, 2014 ONSC 3329 (S.C.J.); Nloga v. Ndjouga, 2015 ONSC 5925 (S.C.J.); Ruffudeen).
11. A parallel parenting order is by nature detailed and complex, and the success of such a regime will depend largely on the ability of the parties to respect the carefully crafted terms of the order. Accordingly, this type of regime will typically not be granted where one or both of the parties has a history of failing to comply with court orders or processes (Izyuk v. Bilousov; Nova Scotia (Ministry of Community and Social Services) v. F. (B.), 2014 CarswellNS 202 (S.C.)).
12. Evidence that a party is interfering with contact between the child and the other parent, alienating the child from the other parent or marginalizing the other parent’s role will often be a significant factor in determining whether a parallel parenting order is appropriate (Ching Pang v. Chin Pang, 2013 ONSC 2564, 2013 CarswellOnt 7824 (S.C.J.); Rodriguez v. Guignard, 2013 CarswellOnt 503 (S.C.J.); Potter). For instance:

a) Where the parent with primary care has engaged in this type of conduct, but that parent is otherwise very loving and competent, the courts have often considered a reversal of custody as too drastic a measure and have opted for parallel parenting as a means of protecting the other parent’s role and influence in the child’s life. Parallel parenting orders in this type of situation are often referred to as “defensive parallel parenting orders”. In Grindley, the court emphasized that the goal of defensive parallel parenting orders is not to protect the interests of the parent, but to foster the child’s respect for both parents and their sense of security in the care of both parents. (For other cases in which defensive parallel parenting orders have been granted, see Plugers; Cox; Andrade; Batsinda v. Batsinda, 2013 ONSC 7869 (S.C.J.); Sgroi v. Socci, 2007 CarswelllOnt 8526 (O.C.J.); Gorman v. Gorman, [2008] N.B.J. No. 516 (Q.B.); L.(A.) v. M.(C.), 2010 CarswellNB 58 (Q.B.); Hensel; Bushell v. Griffiths, [2013] N.S.J. No. 18 (S.C.); Suchanek);

b) Where the non-primary parent is loving and attentive but has engaged in undermining or alienating behavior, this is often a factor that tips the scales in favour of sole custody to the other party if they are also competent (Griffin v. Bootsma, 2005 CanLII 35095 (ON CA), 2005 CarswellOnt 4702 (C.A.); Perron v. Perron, 2010 ONSC 1482 (S.C.J.); and

c) If both parties are involved in severe alienating and undermining conduct, the court may conclude that neither can be trusted to exercise sole custody responsibly. In such circumstances, if both parties are equally competent and loving parents, parallel parenting may provide an effective means of keeping both of them in check, protecting the child from exposure to damaging parental conflict and ensuring that the child benefits from the contributions that both parents can make to decision-making. The concern in these types of situations is that an award of sole custody to one of the parents may result in that parent using their decision-making authority as “an instrument of oppression” (see Hart v. Krayem, 2016 ONSC 5754 (S.C.J.); K.(V.) v. S.(T.); A.T. v. J.J., [2013] O.J. No. 1785 (S.C.J.)).

13. The geographical distance between the parties is another factor that may impact on the decision respecting parallel parenting. As Sherr, J. noted in H.(K.) v. R. (T.K.), the implementation of a parallel parenting regime may be problematic if there is a significant distance between the parties. It could lead to practical challenges if the primary parent is required to transport the child during their time to locations in the other parent’s area in order to implement that parent’s decisions respecting the child (see also Heuer).

III. ANALYSIS OF THE CUSTODY AND ACCESS ISSUES

A. Overview

[73] After carefully considering the extensive evidence adduced in this case in conjunction with the general principles outlined above, I have concluded that neither a sole custody nor a joint custody arrangement would be in the best interests of Jacob and Carter. In my view, a divided parallel parenting arrangement would be most supportive of Jacob’s and Carter’s needs. I have also determined that an equal time-sharing arrangement between the parties is in the children’s best interests. I recognize that the change from the current time-sharing arrangement to an equal time regime will require some adjustment for the children, but I note that the order which I made for time-sharing over the Christmas school break provided for extensive time between the Applicant and the children over the two week Christmas holiday period. I have outlined in detail below the main factual findings and considerations that have informed my decisions on the custody and time-sharing issues. My discussion of these various findings and considerations is followed by a general summary of my reasons in support of the custody and time-sharing regime that I have ordered.

B. The Parties’ Respective Parenting Roles Until April 2012

[74] One of the factors that I have considered in addressing the custody and time-sharing issues in this case is the roles that the parties had in parenting Jacob and Carter until the Applicant was charged with assault in April 2012. I find that both parties played a role in meeting the children’s basic needs up until that time, but that the Applicant was overall the more involved parent in this regard. Dealing first with the period prior to the parties’ separation in October 2010, the Applicant took an extended maternity leave of approximately 15 months after Jacob was born, and also took a year of maternity leave following Carter’s birth. The decision to take an extended leave after Jacob’s birth was prompted in part by the fact that the Applicant’s infant niece Chloe was living with the parties under a kinship care arrangement through FACS when Jacob was an infant. The Respondent did not take a paternity leave after the birth of Jacob or Carter. When he was questioned why, he stated that he had a very important role at his place of employment, and that paternity leave was “just something that men didn’t do at the time.”

[75] Both parties testified that the Respondent has worked at Artcraft since prior to Jacob’s birth, and that he has always started work at 6:30 a.m., with a regular Monday to Friday work week. The Applicant’s uncontroverted evidence was that the Respondent sometimes worked on Saturday as well. During the parties’ relationship, the Applicant was primarily responsible for attending to the children’s needs in the mornings when the Respondent worked. When the Applicant returned to work after her maternity leaves, she was the parent who typically took the children to their daycare providers in the morning, even when she started work very early. Jacob received child care from his paternal aunt Suzanne Osborne after the Applicant returned to work, and Carter’s daycare provider was Michele Jones. Ms. Jones also cared for Jacob on a part time basis, approximately 3 times per week, when Jacob began school. She continued to care for both children until April 2012. I find based on the evidence of the Applicant and Ms. Jones that the Applicant was primarily responsible for arranging and coordinating child care arrangements for the children both during the parties’ relationship and following their separation. This was a challenging task, since the children initially had two separate care providers and the Applicant at times had a very early start to her work day. Ms. Jones described in detail how the Applicant sometimes had to drop Jacob and Carter off as early as 5:30 a.m., and how the Applicant was nonetheless completely organized in ensuring that the children had all of their necessary supplies. There was a period of time after Jacob started school when Jacob went to Ms. Jones’ home in the morning, and the parties had to arrange a means for Jacob to get from Ms. Jones’ home to school in the morning. I find that for a short period of time, the Respondent attempted to leave work to take Jacob to school, but that this arrangement broke down very quickly. The Applicant responded by making arrangements for a taxi to take Jacob to school. However, Jacob did not react well to this plan, and the Applicant again responded appropriately by making alternative morning child care arrangements for Jacob with a friend who was able to get Jacob to school. The Applicant was also usually the parent who picked the children up from their respective daycare providers at the end of the day, although the Respondent sometimes did pick-ups if the Applicant could not do so because of her work schedule.

[76] I find based on the evidence of both parties, the Respondent’s sister Suzanne Osborne and his mother Beverley Jackson that the Respondent was very involved in meeting the children’s needs in the evenings when he returned from work and on weekends when he did not work. He participated in feeding them, changing them, entertaining them and carrying out night-time routines. However, the Applicant was also involved in carrying out these child care tasks in the evenings. Both parties agreed that they had their hands full when Chloe lived with them, and that the Respondent played a large role in caring for Jacob when he was not working while the Applicant attended to Chloe and general household tasks. I find that the Applicant was the party who carried out the lion’s share of general home management functions such as cleaning, laundry and cooking. In addition, during the period leading up to the parties’ separation, I find that the Respondent played baseball two or three times a week in the summer months, and that he sometimes went out with his team mates after the games. The care of the children was left to the Applicant on those occasions.

[77] I discuss the Applicant’s employment history in detail in the context of the support issues. However, for the purposes of the custody and access analysis, it is important to note that the Respondent was always the primary income earner during the relationship, and that the Applicant took on employment positions that allowed her to maximize her time with the children and minimize the parties’ need for third party child care. She worked on a part time basis only for most of the time following the birth of Jacob. As a result, she was the parent who assumed most of the responsibility for medical and educational matters relating to the children until April 2012. She and the family physician, Dr. Drew Girard, testified that she was the parent who usually brought the children to their medical appointments with Dr. Girard. She also took Jacob to a specialist appointment with a dermatologist, Dr. Smith, in 2007, and took Carter to an appointment with a dermatologist, Dr. Mak, in 2008. The Applicant also registered Jacob for school, and a review of Jacob’s educational records from Junior Kindergarten in 2009 and grade 1 in 2010 indicates that the Applicant signed his report cards, noted comments regarding his progress, indicated her commitment to supporting Jacob’s educational goals and in Junior Kindergarten thanked Jacob’s teacher for the work he was doing with Jacob.

[78] I heard evidence from JoAnn Edwards, who was the parties’ neighbor when they lived together in the matrimonial home. She testified that she had many opportunities to observe the parties and the children in a social context in the neighborhood. Her general impressions were that the Applicant was the parent who appeared to provide most of the routine care for Jacob and Carter. Mary Ann DuRoss was another neighbor of the parties during the period of their relationship. Her evidence supported that of Ms. Edwards regarding the Applicant’s primary parenting role in relation to the children.

[79] As I have indicated, the Applicant had primary care of both children following the separation and until she was charged with assault with a weapon on April 22, 2012, with the exception of the period from November 11, 2010 until November 23, 2010 when Jacob was in the Respondent’s sole care. During this period, the Respondent typically had the children on Tuesday and Thursday evenings, and from Saturday morning until Sunday evening. I find that in addition to having primary care during this period of time, the Applicant continued to be the parent who carried the major load with respect to issues involving the children. She continued to be the parent who usually took the children to their medical appointments and who was primarily responsible for making child care arrangements. She was the parent who attended the parent-teacher interview with Jacob’s teacher in January 2012. She did not leave the children with the Respondent for extended periods of time, whereas I find that the Respondent went away on three trips with his new partner Kari-Lyn Nielson during this period, leaving Jacob and Carter with the Applicant on all three occasions. One such trip occurred from January 1 to January 8, 2011, and another occurred from October 2 to October 11, 2011.

[80] The Respondent testified that he always wanted to have primary care of the children after the parties separated, and that the Applicant interfered with efforts on his part to have an increased role and increased time with the children during the period from October 2011 until April 2012. As I will discuss in further detail below, I find that there were times during this period when the Applicant exhibited a cavalier attitude towards the Respondent’s time with the children. For instance, she arranged swimming lessons for Carter on Thursdays in August 2011, and told the Respondent that he would therefore not be seeing Carter on Thursday evenings. In addition, she sent a text message in September 2011 threatening that the Respondent’s weekday visits would end. However, I find that despite these inappropriate actions and threats, the Respondent’s weekday visits continued. In addition, I conclude that the Respondent did not request additional time with the children during Jacob’s March Break in 2011, and did not seek additional time during the 2011 summer school holiday period.

[81] There were significant discrepancies in the parties’ evidence as to whether the Applicant offered the Respondent additional time with the children on Friday evenings and Saturday mornings when she had to work very early on Saturday morning or when she had plans on Friday evenings, and whether the Respondent took advantage of any such offers. I found the Applicant’s evidence on these issues to be much more credible than the Respondent’s evidence. The evidence of Ms. Jones corroborated the Applicant’s evidence, and an email exchange between the parties dated March 19, 2012, marked as Exhibit 13, also supports the Applicant’s version of events. The arrangements respecting the Respondent’s weekend time with the children provided for him to have the children starting Saturday at 7:30 a.m., or earlier if necessary due to the Applicant’s work schedule. At that time, the Applicant often worked very early on Saturday mornings. I find that there were many occasions when the Respondent refused to take the children earlier on Saturday morning, resulting in the Applicant having to take the children to Michele Jones’ home for child care very early on Saturday. The Respondent would then pick the children up from Ms. Jones’ home later in the morning. On some occasions, the Respondent pressured the Applicant to leave the children with him on Friday night instead of taking them to Ms. Jones’ care on Saturday morning. The Applicant did take the children to the Respondent’s home on occasion on Friday night, but she typically chose to enjoy her Friday night time with the children. I also find based on the evidence of the Applicant and Michele Jones that there were many occasions when the Applicant asked the Respondent if he wanted to have the children on Friday night, but the Respondent either did not respond to her inquiry in a timely manner or declined to take the children. The Applicant was required to take the children to Ms. Jones’ home on either Friday night or very early on Saturday on those occasions. In addition, during the OCL investigation process, Ms. Jones relayed to Ms. Montour that there were occasions when the Respondent did not pick the children up from her home until between 1:00 p.m. and 3:00 p.m. on Saturday.

C. The Quality of the Parties’ Parenting and their Relationship With the Children Prior to April 2012

[82] I have carefully considered the evidence respecting the quality of the parties’ parenting and their relationship with the children up until April 2012, when the children began to reside primarily with the Respondent. Dealing first with Respondent, I find that although he was not the children’s primary care-giver during this time period, he was a very loving and involved parent, and there was a strong bond between him and the children. Ms. Jones commented that the children were always very excited to see their father when he came to pick them up. The paternal aunt Suzanne Osborne and the paternal grandmother also spoke about the close bond between the children and the Respondent, and the Respondent’s excellent parenting skills. A former neighbour of the parties, Ms. Mary Ann DuRoss, also had very positive comments about the Respondent’s interactions with the children, noting that Jacob would often sit on his father’s lap. Her general impression was that both parties loved both children very much. I am satisfied that the Respondent was competent in attending to the children’s needs when he was not working, and actively participated in activities involving the children. For instance, he regularly took Jacob to his karate sessions and tournaments. The evidence also indicates that he generally exercised appropriate child management strategies and was usually calm and patient with the children.

[83] Ms. Montour observed the children with their father, Ms. Nielson and Ms. Nielson’s two children on August 29, 2011, and noted that Mr. Jackson was affectionate, attentive and responsive to the children’s needs. However, Jacob disclosed during his interview with Ms. Montour on August 29, 2011 that the Respondent yelled at him, Carter and Kari-Lyn Nielson when he was angry. He also told Ms. Montour during the interview that he recalled both the Respondent and the Applicant yelling at each other when they lived together. Another area of concern that Ms. Montour identified in her investigation was that the Respondent at times made last minute decisions that impacted on the need for child care for Jacob and Carter. For instance, there were many occasions when Ms. Jones was expecting him to pick up the children, but he informed her last minute that he would be unable to do so.

[84] With respect to the Applicant, the evidence described above regarding her parenting role until April 2012 indicates that she was extremely organized, attentive and competent in addressing and meeting the children’s basic physical and educational needs. The children received appropriate medical attention during this time period, and the principal of Cardinal Newman Catholic School where Jacob attended, Mr. Chris Kerhoe, advised Ms. Montour in 2011 that there were no concerns regarding Jacob’s school attendance or his behavior and academic performance. Jacob’s report cards during this period indicate that he was progressing well at school. Ms. Jones described the Applicant as being meticulous and organized in ensuring that the children had everything they needed for daycare and for school. In addition, I find that the Applicant engaged Jacob and Carter in many age-appropriate activities during this time period. Ms. Jones testified that she recalled the Applicant arranging frequent “play dates” for the children with their friends, and taking them to numerous community events.

[85] I find that the Applicant was generally affectionate and nurturing with Jacob and Carter during the time period under discussion, and that there was a strong and meaningful relationship between her and the children. Ms. Montour observed the Applicant with the children during a home visit on August 25, 2011, and noted that the Applicant engaged the children in appropriate activities, was attentive and responsive to their needs, and demonstrated appropriate child management strategies and skills. Ms. Jones testified that the Applicant was extremely affectionate towards the children, and that Jacob and Carter in turn showed strong affection towards her. She described the Applicant’s early morning drop-offs of the children at her home as very loving, noting that the Applicant often carried each child to her door carefully bundled up in warm blankets. She recalled that the Applicant would call her during the day to speak with her and the children to see how they were doing. JoAnn Edwards and Mary Ann DuRoss also gave very positive evidence about the Applicant’s parenting abilities and the quality of her interactions with Jacob and Carter prior to April 2012. They both observed the Applicant to be a very loving, affectionate, responsible and competent parent. Mary Ann DuRoss stated that the Applicant was attentive to the children and engaged them in many age-appropriate activities including crafts and teaching them to write.

[86] The Respondent, the paternal grandmother Beverley Jackson and the paternal aunt Suzanne Osborne all raised concerns about the Applicant’s commitment to being a parent and the quality of her attachment to Jacob. They stated that she never wanted to have children, and the Respondent alleged that the Applicant became hysterical and furious when she found out that she was pregnant with Carter. All three witnesses testified that the Applicant clearly preferred Carter over Jacob. Suzanne Osborne testified that at one point, the Applicant told her that she loved Carter, but she could not understand what was wrong with her because she did not love Jacob. The Applicant responded to each of these allegations. She stated that she was excited about having children, but acknowledged that she was not able to bond with Jacob as well as she wanted to when he was an infant. She explained that this was attributable to her feeling overwhelmed because she was also caring for Chloe at that time. She also indicated that she and the Respondent experienced financial pressures during that period, since they did not receive financial assistance from Chloe’s parents or FACS to meet Chloe’s needs. She freely admitted that she was initially anxious and upset when she learned that she was pregnant with Carter, but explained that this reaction was again attributable to feeling overwhelmed in caring for two young infants and fearful about how she would manage. She states that she has never preferred Carter over Jacob, and that she has always loved both children equally. I have carefully considered and weighed all of the evidence on these issues. I conclude that the Applicant had some apprehension about having children but that she fully embraced her role as a mother as soon as Jacob was born. I found the Applicant to be forthright and credible in discussing the challenges she experienced in developing a bond with Jacob when he was young, and I conclude that she discussed her feelings about this with Ms. Osborne at some point. Regardless of what the Applicant may have said to Ms. Osborne during that discussion, I have no doubt based on all of the evidence adduced at trial that the Applicant has always loved both of her children very much and equally. While she may have initially had concerns about the strength and quality of her bond with Jacob, those concerns did not persist. Furthermore, although the Applicant was anxious about having a second child because of the challenging circumstances that she found herself in when she became pregnant with Carter, she overcame those fears quickly, joyfully welcomed Carter and again embraced her role as a mother when he was born.

[87] The Respondent and Suzanne Osborne raised concerns regarding the Applicant’s failure to ensure that the children were properly supervised during the period following the parties’ separation. These concerns were based on alleged observations of neighbors who were not called to testify at trial. FACS conducted an investigation into these issues in October, 2011, and the concerns were not verified. I am not satisfied that the Applicant was neglectful in her supervision of the children.

[88] While there were many positives regarding the Applicant’s parenting of Jacob and Carter during the period leading up to April 2012, there were also a number of significant concerns about the Applicant’s interactions with the children and her general functioning around the time of the parties’ separation. The Respondent raised concerns with Ms. Montour and at trial about the Applicant’s verbal and physical aggression towards Jacob and Carter. He described the Applicant as having no patience with the children, and always “drilling them” rather than speaking calmly to them. He had particular concerns about the Applicant belittling and talking to Jacob in a degrading manner. As I noted in my Reasons for Judgment on the contempt motion, the evidence supports a finding that the Applicant was at times physically and verbally aggressive towards Jacob and Carter during the period up until April 2012. In addition, there were occasions when she became frustrated and impatient with them. The evidence adduced at trial reinforced these conclusions. My findings are based on the following:

1. The Applicant acknowledged to Ms. Montour and during her testimony that she is a loud person, and that she sometimes yelled at the children. She admitted that she had less patience and tolerance with the children around the time of the separation because of her distress about learning of the Respondent’s affair.
2. Jacob disclosed to Ms. Montour during the OCL investigation that his mother yelled and threw things when she became angry.
3. Jacob also disclosed to Ms. Hall during the reconciliation process that his mother used to pull his hair and hit him.
4. Beverley Jackson testified that Jacob told her following the separation that his mother had pulled his hair, dragged him by the arm and thrown him in his room. Ms. Montour became aware of this disclosure during her investigation and reported the concern to FACS in early 2012. Jacob was interviewed at that time and he did not repeat the disclosure. Accordingly, FACS did not verify the concern. However, Jacob repeated this disclosure following the FACS investigation to his caregiver Wendy Weaver and to the Pathstone staff members Ms. Christine Stark and Ms. Hannah Madden.
5. Jacob also disclosed to Beverley Jackson that the Applicant would sometimes lock Carter in his room all night and not allow him to comfort him. He told both Ms. Jackson and Ms. Weaver that he sometimes hid in his closet at his mother’s house when his mother yelled, or when her friends came over and they were drinking and became loud.
6. Suzanne Osborne testified at trial about her impressions of the Applicant when she dropped Jacob off for daycare at her home in the mornings before Jacob started school. She stated that the Applicant was often frazzled and frustrated with Jacob, raised her voice at him, referred to him in derogatory terms and blamed the Respondent for failing to discipline him.

[89] While there were concerns prior to April 2012 that the Applicant demonstrated frustration with the children at times, and was verbally and physically aggressive with them on occasion, it is important to place that evidence in the context of the very positive evidence of witnesses who had occasion to observe the Applicant with the children on many occasions. As I have already noted, Michele Jones, JoAnn Edwards and MaryAnn DuRoss frequently saw the Applicant with the children, and they all testified that she was a patient and loving mother. None of them had any concerns about the mother’s level of frustration in managing Jacob or Carter or about any inappropriate verbal or physical aggression by the Applicant towards the children. FACS investigated the concerns regarding the Applicant’s aggression towards the children in January 2012. During that investigation, the Society worker Mr. Kofi Ansu-Gyeabour determined that Jacob did not present as apprehensive of his mother and that he would rush excitedly to the Applicant when she arrived at school to pick him up. Based on all of the evidence, I conclude that the Applicant had intermittent periods when she became frustrated and volatile with the children. I do not accept the suggestion of the Respondent, Beverley Jackson and Suzanne Osborne that she was always harsh and inappropriate with Jacob and Carter.

D. Concerns Regarding Parental Conflict and the Children’s Exposure to Domestic Incidents Around the Time of the Separation

[90] I find that there was significant domestic conflict between the parties both during their relationship and around the time of their separation, and that Jacob and Carter were unfortunately exposed to this discord on several occasions. As I have said, parental conduct is not relevant to the best interests analysis except to the extent that it impacts on the children. The parties’ engagement in conflict with each other is relevant to the issue of their ability to work together effectively in Jacob’s and Carter’s interests, and to the capacity of each of them to appreciate the emotional needs of the children.

[91] The Respondent suggested that the Applicant was entirely to blame for the conflict between him and the Applicant and the children’s exposure to the parties’ marital difficulties. He attempted to characterize himself as a passive victim of the Applicant’s volatile personality. I do not accept that the Applicant was entirely to blame for the children’s exposure to domestic conflict between the parties. Both parties bear equal responsibility.

[92] The conflict between the parties began long before their separation in October 2010. Jacob disclosed to Ms. Montour that he had often heard his parents arguing, and significantly, he stated that both parties yelled at each other during these incidents. The Respondent testified at length about the Applicant’s emotionally abusive treatment of him during their relationship. Both Beverley Jackson and Suzanne Osborne also testified that the Applicant often belittled and degraded the Respondent and his parenting of the children in a public fashion. The Applicant denied these allegations of abusive conduct towards the Respondent. Based on all of the evidence, I conclude that the Applicant was at times harsh and inappropriate in her interactions with the Respondent. As I have stated, the Applicant acknowledged in correspondence that she wrote to the Respondent around the time of the separation that she raised her voice with him and at times threw objects during arguments during the relationship.

[93] Both parties acknowledged to Ms. Montour that there had been a significant domestic incident between them prior to the fall of 2010 which had become physical. The Applicant alleged that the Respondent had been drinking on that occasion and punched her in the eye, whereas the Respondent’s version of events was that he pushed the Applicant away from him and she sustained a black eye accidentally. Regardless of which version of events is correct, it is clear that the Respondent resorted to physical force against the Applicant during this incident. The police were not involved with the parties in relation to this domestic dispute.

[94] The tension between the parties escalated greatly during the fall of 2010 and following the parties separation. The Applicant explained that this heightened conflict was largely attributable to her suspicions that the Respondent was being unfaithful, which she states she eventually confirmed. The Respondent lay the blame for the conflict during this period on the Applicant, and denied that he ever engaged in an extra-marital affair. The evidence adduced at trial supported the conclusion that I reached in the contempt motion that the Respondent had an extra-marital affair with Ms. Nielson. While the affair is not, in isolation, relevant to the best interests analysis, its effect on the Applicant’s emotional status and the impact of her emotional instability on the children are highly relevant. These considerations are also relevant insofar as they explain much of the conflict that the children were exposed to during the period leading up to and following the separation, and they provide an appreciation of the overall context within which the escalation of the parties’ conflict occurred.

[95] I find that there were numerous domestic incidents between the parties that resulted in police intervention commencing in October 2010. Specifically:

1. The parties became embroiled in an argument at the matrimonial home on October 20, 2010 about the Respondent not returning home after work, and the Applicant kicked the Respondent during this dispute. The Respondent was on the telephone with his mother Beverley Jackson during the argument, and I find that his mother called the police out of concern that Jacob and Carter were being exposed to domestic strife. The police noted that the Applicant presented as abrasive and uncooperative, and that the Respondent was calm. The parties both remained in the home and no charges were laid.
2. The parties had another dispute that involved the police on November 2, 2010. I made findings respecting this incident in my Reasons for Judgment on the contempt motion. I heard additional evidence at trial from Constable Erika Warkentin, Constable Joseph Nardilli and Beverley Jackson regarding the events that occurred on that date. Based on all of the evidence, I reiterate my findings as made in the context of the contempt motion. The dispute between the parties arose after the Applicant uncovered evidence which she felt supported her suspicions that the Respondent was having an affair with Ms. Nielson. The Applicant went to the family home to confront the Respondent about this evidence, and Respondent was on the telephone with his mother when she arrived at the home. Beverley Jackson called the police out of concern about the conflict between the parties. The police attended the home, and when they arrived, the Respondent was calm, whereas the Applicant presented as agitated and having alcohol on her breath. While the police were in the home talking with the Respondent, they could hear the Applicant yelling and cursing. Upon carefully reviewing all of the evidence relating to this incident, I find that the Applicant was understandably distraught after having uncovered evidence that she felt supported her belief that her husband was having an affair. She was extremely angry and agitated when she arrived at the home, and she was under the influence of alcohol. I conclude that she was yelling, and that she threw the telephone, caused a commotion in the garage and kicked the Respondent’s car. In addition, I accept the Respondent’s evidence that the children were awakened by their mother’s behaviour and began crying. The situation was finally resolved with the assistance of the police, and the Respondent left the home. The Applicant remained in the home with the children. There were no charges laid.
3. The third police attendance at the family home occurred on November 11, 2010. I made findings relating to this incident as well in my Reasons on the contempt motion. I heard additional evidence at trial from Constable Joseph Nardilli and Suzanne Osborne regarding this incident. This additional evidence supported the findings I made on the contempt motion. On that night, I find that the Respondent arrived at the home with Jacob after picking Jacob up from karate class. Carter was at the home of the children’s daycare provider, Michelle Jones, that night. The Applicant arrived home late because she had an appointment in Welland. The Respondent was on the phone with his sister Suzanne Osborne when the Applicant returned home, and the parties became embroiled in a dispute. Ms. Osborne called the police out of concern that the situation would deteriorate. Constable Nardilli responded to the call, and Suzanne Osborne and her husband were present when he arrived. The Applicant was yelling at the Respondent to get out of her house when the police arrived. She told Constable Nardilli to get the “f---” off her property. Jacob woke up during this incident and the Respondent was holding him when the police arrived on the scene. While the police were present, the Applicant told the Respondent to “get the f--- out of my house or I will call the police.” Jacob was very frightened as a result of the Applicant’s behavior and the argument between his parents. When Constable Nardilli asked Jacob if he was all right, Jacob responded that he did not want to be there, that his mother scared him, and that he wanted to go with his father. The Applicant agreed to allow Jacob to leave the home with the Respondent that night. Constable Nardilli asked the Applicant where Carter was, to which she responded “It’s none of your f------business.” When Constable Nardilli left the home, the Applicant slammed the door and almost hit him with the door. No charges were laid in connection with this incident.
4. There was another incident between the parties that involved the police in March 2011. The Applicant attended the Respondent’s place of employment on that date to inquire about why the Respondent had not paid for the insurance on her vehicle. The argument between the parties escalated. The Applicant alleged that the Respondent slammed a car door on her leg, and the Respondent accused the Applicant of scratching his arm. The Respondent called the police, who advised the Applicant to stay away from the Respondent’s place of employment. No charges were laid against either of the parties.

E. The Parties’ Alcohol Consumption Prior to the Separation

[96] The Respondent, his mother Beverley Jackson and his sister Suzanne Osborne raised concerns regarding the Applicant’s excessive consumption of alcohol both during the parties’ relationship and following their separation. I have considered their evidence on this issue as well as that of the Applicant, Mary Ann DuRoss and Michele Jones. I find that the Applicant did drink alcohol to excess on occasion during the relationship and following the parties’ separation. However, I am not satisfied that there was pattern or chronic, excessive alcohol abuse on her part throughout the marriage and post-separation. The Respondent alleged that the Applicant lost her job at the casino in Niagara Falls because of her drinking and her poor attitude with her supervisor. However, the Applicant adamantly denied this, and the Respondent did not adduce any independent evidence to corroborate his allegation. Mary Ann DuRoss testified that she saw the Applicant frequently enough during the parties’ relationship to observe her drinking habits. I found her to be a very credible and reliable witness. She described the Applicant as being a social drinker only. She did not ever observe the Applicant consuming alcohol in the afternoon. Furthermore, she stated that when she saw the Applicant drinking alcohol, the Respondent was also drinking. Her impression was that the Respondent drank as much beer as the Applicant drank wine. Michele Jones also testified about her impressions as to whether the mother appeared to be suffering from the effects of alcohol in the mornings when she saw her. I found Ms. Jones to be extremely credible as well, and she had many opportunities to see the Applicant very early in the morning on a regular basis during the parties’ relationship. Ms. Jones testified that the Applicant always presented as very organized, alert, neatly dressed and groomed and in her words, “bright-eyed and bushy-tailed.”

[97] The Applicant did not raise concerns about the Respondent’s excessive alcohol use. Nonetheless, I find that he consumed alcohol on a social basis, as did the Applicant. Moreover, the Respondent testified that during the summer, he played baseball at least twice a week, and that he would typically consume a couple of beers after his games before returning home. There is no evidence to suggest that his consumption of alcohol impacted on his parenting of Jacob and Carter.

[98] As I noted in my Reasons for Judgment on the contempt motion, I find that the Applicant at times consumed excessive amounts of alcohol during the time leading up to the separation, and for a period of time following the separation in October 2010. The Applicant acknowledged both in her testimony and during her interview with Ms. Montour that she drank too much at times during this period because she was having difficulties coping with the evidence that the Respondent was being unfaithful to her and the breakdown of her marriage. She referred to her drinking in a letter that she wrote to the Respondent around the time of the separation, marked as Exhibit 16, and promised to stop drinking to excess. The evidence indicates that on October 20, 2010 and November 2, 2010, when the police attended the family home, the mother had a smell of alcohol on her breath and she presented as emotionally volatile. Furthermore, Jacob disclosed to Ms. Montour that his mother drank more than his father, and that “mommy gets drunk and she falls down and I help her up.” He talked about him and Carter taking care of his mother when she fell after drinking too much alcohol. Ms. Montour made a referral to FACS after receiving this disclosure from Jacob, since the children were in the mother’s primary care at the time of the OCL investigation. During the FACS investigation, the Applicant admitted to unhealthy alcohol use during the period around the parties’ separation. However, FACS did not verify any ongoing protection concerns pertaining to excessive alcohol consumption by the Applicant, and concluded that the Applicant was caring for the children appropriately. Notwithstanding that decision, I conclude that the Applicant experienced problems with excessive alcohol consumption during the time leading up to the parties’ separation and for a period of time afterwards, and that those problems did at times impact on her parenting of Jacob and Carter.

F. The Findings and Recommendations of the OCL Clinical Investigator Leoloni Montour

[99] The OCL Clinical Investigator Ms. Leiloni Montour held a disclosure meeting between the parties and their counsel on March 12, 2012, and completed an abbreviated report on March 16, 2012 as she believed that the parties had resolved the custody and access issues. She completed a more detailed report on April 19, 2012. Ms. Montour’s significant observations and recommendations respecting the custody and access issues were as follows:

1. As discussed above, she made positive observations about the Applicant’s interactions with the children during the home visit that she attended. She found the Applicant to be attentive, patient and affectionate with the boys. She also concluded that the Applicant was able to manage the children’s behaviours and divide her time equally between both of them.
2. Ms. Montour also had positive comments about the Respondent’s interactions with the children during the home visit that she observed. This visit included Ms. Nielson and her two children. She noted that the Respondent was loving and attentive, and that he appeared to have a very close relationship with the boys.
3. Ms. Montour found both of the parties’ homes to be neat and appropriate for the children.
4. Jacob was apprehensive at the outset of Ms. Montour’s interview with him, but was eventually able to open up to Ms. Montour. He stated that his mother was sad because she wanted to reconcile with his father. As I have noted, he made disclosures about the Applicant’s drinking, the parties’ fighting, and the mother’s aggression and volatile presentation at times. With respect to the time-sharing arrangements with the parties, he stated that he liked going back and forth between their homes, but that he wanted to stay at his mother’s home. At first, he stated that he saw his father enough, but he then added that he wanted to see him more.
5. Ms. Montour noted that Carter was too young to interview. She observed that he appeared to be a smart, active, talkative and friendly child.
6. Ms. Montour’s impression was that the Respondent was a calm, patient and loving father who had a very close relationship with the children.
7. Ms. Montour had concerns about the Applicant’s anger, how her volatility was impacting her parenting of the children, Jacob’s disclosures of abusive treatment by her, and her excessive consumption of alcohol around the time of the separation. However, she observed that the Applicant presented as more calm and cooperative near the end of the OCL investigation. In addition, she stated that there was no evidence of current alcohol abuse by the Applicant, and that the Applicant had engaged in counselling with Mr. Jay Stukel to address her anger issues and her emotional well-being.
8. Concerns were noted that Jacob was experiencing stress as a result of his exposure to parental conflict. Ms. Montour queried whether this stress was contributing to his behavioral difficulties.
9. Ms. Montour recommended that a temporary order be granted, with the situation to be reviewed in six months. It was her view that a period of time was required to give the parties an opportunity to address the identified concerns before a final determination of the custody and access issues was made. Although she had concerns regarding the conflict between the parties, she recommended an interim order for joint custody. With respect to time-sharing, she recommended that the children remain in the primary care of the Applicant on a temporary basis, despite the concerns that were identified regarding the Applicant. She felt that the Applicant had made progress in resolving the concerns, and that a further period of time was required to determine whether she was able to sustain those gains. Ms. Montour recommended that the Respondent should initially have time with the children every weekend from Saturday at 8:45 a.m. until Sunday at 8:00 p.m. and for a weekday overnight visit from Tuesday until Wednesday morning, and that this time should be expanded after a four week period such that the Respondent’s weekday visit would be from Tuesday evening until Thursday morning each week. Ms. Montour further recommended that the parties use a parenting program to help address their communication problems. In addition, she suggested that the parties attend a parenting course to help them appreciate the effects of conflict on the children, that the Applicant continue with her counselling, that she also complete an anger management program and an alcohol assessment, and that Jacob be enrolled in counselling to help him cope with the ongoing conflict between the parties.

G. The Applicant’s Assault Against Jacob on April 21, 2012

[100] This case abruptly swerved in a very different direction on April 21, 2012, a few days following the release of Ms. Montour’s final investigation report. On that date, Jacob disclosed to the Respondent that his mother had hit him on the head with a pot the night before, on Friday April 20, 2012. I heard additional evidence relevant to this incident during the trial, and that evidence supported the conclusions that I reached in the contempt motion, which I summarize again below.

[101] The Applicant’s version of the events that occurred on April 20, 2012 paints a picture of a trivial incident during which Jacob suffered no harm whatsoever. The Applicant testified that before dinner that night, Jacob brought her a bag of microwave popcorn and asked her to make it. She stated that she told Jacob to put it away because it was almost dinner time. However, according to the Applicant, Jacob returned shortly afterwards with the popcorn and a flexible plastic bowl that she always uses for popcorn, and asked her once again to make the popcorn. The Applicant stated that she responded to this second request by taking the bowl and gently tapping Jacob on the head with it. She alleged that the bowl was light and that the tap could not have injured Jacob at all. She insisted that Jacob did not show any signs of having been affected by the tap to his head during the morning of April 21, 2012. Her position is that the Respondent exaggerated the seriousness of the situation by telling medical professionals that Jacob was unusually lethargic and not himself that day, and that he vomited. She also postulated that the Respondent initiated a referral to FACS and the police respecting this incident. Her theory is that the Respondent engaged in these tactics in response to Ms. Montour’s custody and access recommendations and the release of Ms. Montour’s report on April 19, 2012.

[102] I do not accept the Applicant’s version of the incident involving Jacob that occurred on April 20, 2012 or her theory that the Respondent exaggerated the seriousness of the situation to bolster his claims for custody and liberal time-sharing. I find that the Applicant became frustrated with Jacob during the evening of April 20, 2012 because he repeated his request for popcorn, and that she responded by hitting him on the head with a metal bowl or pot which the family used for popcorn. I also find that the hit to Jacob’s head was forceful enough to cause a bump to his head, and to cause him side-effects the next day, including lethargy, nausea and vomiting. I make these findings based on the evidence summarized below, which I found to be credible.

[103] Jacob’s disclosure regarding this incident has been consistent over time. He made the same disclosure to his father, to hospital staff, to the investigating police detective and later to his child care provider Wendy Weaver. Jacob did not show any signs of having exaggerated or made up the allegation as time passed. He did not minimize the incident over time, and did not express any remorse for having made the statement to his father and others about the event. In fact, I find that with the passage of time, and particularly after he went through the process of being prepared for the criminal trial relating to the assault, Jacob became more upset about the incident and angry at his mother for not apologizing. Based on the evidence of the Respondent and Ms. Weaver, I conclude that Jacob became increasingly upset with his mother about the incident because she did not acknowledge having hurt him and never apologized to him.

[104] I have considered the fact that Carter confirmed Jacob’s version of the events of April 21, 2012 to his father and Wendy Weaver. He also disclosed to the Respondent that after the Applicant hit Jacob with the bowl, he witnessed Jacob fall to the floor and start crying. Furthermore, the Respondent presented as credible in giving his testimony about Jacob’s disclosure and the child’s physical presentation on April 21, 2012. He became very emotional and choked up, and seemed genuinely distressed during his testimony. His detailed account of the events on April 21, 2012 lends credibility to his evidence. He was able to provide many specifics about what occurred, and how Jacob’s disclosure came out. He explained that Jacob did not want to go to karate, that he was moping around and lying on the couch, and that he said “ouch” when he went to hug him. Jacob disclosed what had occurred after the Respondent asked him what was wrong. The Respondent was able to describe the bump on the back of Jacob’s head where Jacob said the Applicant had struck him, and that description corresponded with the description which Wendy Weaver gave of the bump that she observed on the child’s head at that time. The Respondent also recalled that Jacob vomited outside of the police station on April 21, 2012 before he was interviewed by the police.

[105] I heard evidence at trial from the family physician, Dr. Girard, regarding the events of April 21, 2012 and his contact with Jacob following the assault. Dr. Girard had reviewed the records from the Emergency Department of Niagara Hospital relating to the Respondent’s attendance with Jacob on April 21, 2012 after Jacob disclosed the incident to the Respondent. According to Dr. Girard, those records confirmed that Jacob had complained about having a mild headache following the incident, but he did not complain about vomiting. Jacob also reported to the triage nurse that he had a lump on his head the day before due to the assault, although the nurse did not observe a lump on April 21, 2012. The records confirmed the Respondent’s evidence that he did not contact FACS about the incident, but that hospital staff made the report to FACS. There was no notation in the hospital records of a formal diagnosis of concussion, and Jacob was found at the time of his attendance at the hospital to be oriented as to place and time. In addition, hospital staff noted that Jacob’s pupils were equally reactive to light. Dr. Girard testified that this information suggested that any head injury arising from the incident was not a serious or long-lasting one.

[106] Dr. Girard saw Jacob on April 26, 2012 for follow up in connection with the assault. At that point, Jacob repeated that the Applicant had hit him with a bowl that was used to hold chips or popcorn. Dr. Girard noted that Jacob did not have any head swelling or hematoma at that point, and concluded that there were no lingering sequelae from the injury.

[107] I also heard evidence at trial from the investigating police officer, Detective Jason Myers. He confirmed the Respondent’s testimony that another police officer, Sergeant Lemaich, had been dispatched to the Respondent’s home to investigate the situation following the Respondent’s attendance at the hospital with Jacob on April 21, 2012. Detective Myers observed that Jacob was noticeably lethargic when he attended the police station to be interviewed. The Respondent reported to him at that time that Jacob had vomited in front of the police station. Detective Myers was of the view that Jacob was articulate, appreciated the difference between the truth and a lie, and did not appear to have any malice towards either of his parents. He disclosed that on April 20, 2012, he asked his mother for popcorn and his mother said no. He then retrieved a metal bowl with a lip on it and went to the garage to ask his mother again for popcorn. According to Jacob, the Applicant responded by hitting him on the head with the bowl. Jacob also disclosed that his mother had hit him with a cheese string. He told Detective Myers that he had a bump on his head after his mother hit him, and that his head hurt. Detective Myers also interviewed Carter, but was unable to confirm with Carter whether he saw the incident or if Jacob told him about it. His impression was that Jacob was very natural in giving his statement, and that there was no evidence to suggest that his statement was rehearsed or forced. He concluded that there were sufficient grounds to charge the Applicant with assault with a weapon.

[108] Although the Crown Attorney eventually agreed to withdraw the assault charge against the Applicant on October 4, 2013, it did so only on the basis that the Applicant would consent to a common law preventative justice order. The preamble to that order stipulated that the mother “acknowledged sufficient of the allegations” and conceded that “probable grounds exist for the granting of the order sought.” In addition, the preamble provides that “the Court has probable grounds to suspect future misbehavior by the Respondent [the Applicant in this case] likely to give rise to breaches of the Queen’s peace.”

[109] I conclude that the Respondent reacted appropriately to Jacob’s disclosure of assault, taking into consideration the physical symptoms that Jacob was exhibiting. I accept his evidence that on April 21, 2012, Jacob was lethargic, not his normal self and vomited. The Applicant emphasized that the Respondent did not call her to discuss what had occurred before going to the hospital, and argued that this supports her theory that the Respondent took advantage of the situation for his own gain. I agree that it would have been prudent and desirable for the Respondent to have contacted the Applicant to obtain her version of what had occurred. However, I do not accept that his failure to do so before attending the hospital is reflective of an attempt on his part to manipulate the situation for his benefit in the custody and access proceedings. I am satisfied that the Respondent acted in good faith with a focus on ensuring that Jacob received appropriate and timely medical attention. I find that events snow-balled after his attendance at the hospital with Jacob. Hospital staff contacted FACS in response to Jacob’s disclosure at the hospital about what had occurred and his presentation while at the hospital. Furthermore, the evidence does not support the Applicant’s theory that the Respondent initiated contact with the police relating to this incident. I accept the Respondent’s evidence that a police officer attended his home without advance notice to him after he and Jacob returned from the hospital, and that he received a telephone call from Constable Jason Myers shortly after the first police officer left his home. The Respondent then attended the police station with Jacob and Carter that evening at the request of Constable Myers so that the police could interview the children.

[110] The additional evidence adduced at trial was helpful in providing further information regarding the seriousness of the assault against Jacob. Based on that additional evidence, I find that Jacob was not diagnosed as having suffered a concussion as a result of the incident, as the Respondent had alleged. In addition, he did not suffer any longstanding physical repercussions as a result of the assault. Nonetheless, the incident was serious and supports a finding that the Applicant continued to experience stress, frustration and a poor tolerance level with the children at times following the separation.

[111] The Respondent raised concerns that the Applicant has never apologized to Jacob for having assaulted him. I find that this has been a major “sore spot” for Jacob since April 2012, as he feels that his mother has accused him of lying about what happened. I did not receive any evidence about the Applicant’s statements to the police. I note, however, that she acknowledged in the course of her evidence in this proceeding that she hit Jacob, but stated that she struck him with a soft, flexible bowl and only tapped him lightly on the head. It is unfortunate that the Applicant and Jacob have not had an opportunity to work through issues relating to the assault with each other. Having said this, I am also of the view that this is not a topic that the Applicant should have embarked upon with Jacob on her own, given Jacob’s strong feelings about the issue and the trauma that he has experienced as a result of the incident itself and the aftermath of it, including having to prepare to testify against his mother at her anticipated criminal trial. Any issues between Jacob and the Applicant relating to the assault, including Jacob’s need for an apology, should have been addressed with the assistance of a qualified professional, so as to protect Jacob from further emotional distress relating to the incident.

H. The Parties’ Follow-Through With Services to Address the Concerns Identified Regarding the Family Situation

[112] As I have indicated, Ms. Montour made recommendations regarding services which the parties should consider in an effort to resolve the difficulties that she felt were impacting on Jacob’s and Carter’s well-being as of the time of her involvement. In reaching my decision on the custody and time-sharing issues, I have considered the parties’ responses to these recommendations, and the extent to which they appear to have benefited from services that they accessed.

[113] Dealing first with the Respondent, as I have indicated, Ms. Montour recommended in April 2012 that Jacob receive counselling to assist him in dealing with the parties’ separation and his exposure to parental conflict. The Respondent has been Jacob’s primary caregiver since April 2012, and has failed to follow through with this recommendation to date. The Respondent testified that he consulted with Dr. Girard in April 2014 about concerns that Jacob was suffering from anxiety as a result of visits at Pathstone, and that Dr. Girard made a referral for Jacob to be seen by Dr. Naran. I find that Dr. Naran met with the Respondent, Jacob and Carter, and that she subsequently wrote a report to Dr. Girard in which she recommended that Jacob be connected with a professional who has expertise in child abuse so that he could receive therapeutic support around the assault and any other issues that were causing him anxiety. The Respondent testified that he never received this report, and that Dr. Naran never made this recommendation to him during his meeting with her. Dr. Girard acknowledged at trial that he probably did not provide the Respondent with a copy of Dr. Naran’s report because he would have assumed that Dr. Naran had conveyed her recommendations to the Respondent during her meeting with him. There were clearly communication problems in regard to Dr. Naran’s report and recommendations. The Respondent placed the entire blame for his failure to follow through with counselling for Jacob on these communication problems. This explanation is not compelling. As I have indicated, Ms. Montour clearly identified the need for counselling as early as April 2012. The Respondent was the children’s sole caregiver from that time until the reconciliation process began in 2014. With respect to the communication issues surrounding Dr. Naran’s report and her recommendations, it is a parent’s duty to follow up with professionals to ensure that they receive all pertinent information, so that they can take all necessary steps to foster the well-being of their children. It was incumbent upon the Respondent to follow up in a timely fashion with either Dr. Naran or Dr. Girard, or both, to inquire as to whether Dr. Naran had any suggestions, and if so, to follow through with any reasonable recommendations. Moreover, the Respondent had still not arranged for counselling for Jacob by the conclusion of this trial, which was many months after he learned about Dr. Naran’s recommendation.

[114] Ms. Montour also recommended that both the Applicant and the Respondent utilize some type of formal parenting program to assist them in improving their communications respecting issues pertaining to the children. The Respondent has failed to follow through with this recommendation, and actively opposed the Applicant’s request that the parties be required to communicate via Our Family Wizard, on the basis that he cannot afford the cost of internet. Finally, Ms. Montour encouraged the parties to attend a parenting program to help them understand the detrimental effects of their conflict on the children. The Respondent has also ignored this recommendation. This is of great concern, given the evidence of serious, ongoing conflict between the parties as discussed in further detail below.

[115] By contrast, I find that the Applicant has followed through with all of Ms. Montour’s recommendations. She attended Community Addiction Services soon after receiving the report of Ms. Montour and had an intake appointment at that agency on March 21, 2012 to discuss her alcohol consumption issues. Following that intake appointment, she began to participate in counselling with Ms. Shelley Villella from Community Addiction Services. She continued with this counselling until long after the Crown withdrew the assault charge in October 2013. In addition, the Applicant received counselling services from Mr. Jay Stukel of Ontario Support Services of Niagara to deal with her anger management issues and for general therapeutic support and guidance from approximately February 2011 until 2014. She completed a program dealing specifically with anger management issues through Ontario Support Services of Niagara. Finally, the Applicant was diligent in following through with Ms. Montour’s recommendation that she attend a parenting program to gain a better appreciation of the negative effects of parental conflict on children. She enrolled in a course run by Pathstone called Parenting Through Divorce, and completed the program in May 2012.

[116] I find that the Applicant has benefitted tremendously from her participation in the programming that Ms. Montour recommended. With respect to her alcohol consumption, the Applicant testified that she now drinks very moderately, and only on a social basis. She indicated that at most, she will occasionally have a glass of wine with dinner, and that she does not go out to bars to socialize or drink. The evidence supports her statements regarding her use of alcohol since April 2012. I am satisfied that she no longer has problems with excessive alcohol consumption.

[117] I find that the Applicant has also made significant strides in managing her anger. As I will discuss in further detail below, her interactions with the children since April 2012 have been very positive. The Applicant has described having some difficulties managing the children’s behaviour at times. However, I find that she has applied appropriate child management strategies in dealing with these challenges. There is no evidence that she has been verbally or physically abusive towards Jacob and Carter since April 2012. Nor is there any evidence that she has belittled them or otherwise treated them in a demeaning fashion. Unfortunately, there is still significant conflict between the Applicant and the Respondent, as I will discuss in further detail below. The Applicant still struggles at times in controlling her anger in her interactions with the Respondent. However, I find that she has also made major progress in this area, and that her angry and inappropriate outbursts in response to situations involving the Respondent are much fewer and far between than they were in the past.

I. The Applicant’s Access and the Quality of Her Interactions with the Children Since January 2014

1. Supervised Access at Pathstone

[118] The Applicant did not have any contact with Jacob and Carter from April 20, 2012 until January 2014 due to her bail conditions, the refusal of FACS to supervise access, her inability to obtain a timely bail variation, and Pathstone’s refusal to begin supervised access until the criminal charge was withdrawn. Once her bail terms were varied in February 2013 to allow for access in accordance with a Family Court order, she brought a motion seeking supervised access at Pathstone. The Respondent actively opposed this motion to supervised access. His position was based on the fact that the criminal proceedings relating to the assault charge were still not completed, and his opinion that access would be contrary to the children’s best interests. The Respondent alleged that the children had demonstrated signs of anxiety when he had moved them back into the matrimonial home in January 2013, because they were worried that their mother would show up at the home. I reiterate my finding in the contempt motion that the Respondent’s position respecting the Applicant’s access motion was based on genuine concerns that he had regarding the well-being of the children. However, his response to the motion was overly-protective, given that the request was for fully supervised access, and given the significant gains that the Applicant had made through the various services that she had accessed.

[119] Supervised visits finally began at Pathstone on January 26, 2014. The Applicant had seven access visits with the children at Pathstone, on January 26, 2014, February 2, 9, 16 and 23, 2014, and March 1 and 9, 2014. I heard extensive evidence from the Applicant and Ms. Hannah Madden, an access facilitator at Pathstone, regarding those visits in the context of the contempt motion. Although the children were initially anxious to go into the visitation room during the first two visits, they settled well and did not demonstrate any anxiety going into the room for subsequent visits up until March 9, 2014. I am satisfied that overall, the visits went very well. The mother brought appropriate food and activities for Jacob and Carter, and the boys enjoyed themselves. There were many smiles and laughter by the Applicant and both children during the visits. The Applicant also brought gifts for the children. The activities that the Applicant and the children engaged in included making and cooking pizza, playing with a chemistry set, arts and crafts activities, watching movies, playing board games, playing hockey and soccer and making a scrapbook of family photographs. The Applicant planned these activities based on the children’s interests and wishes. I find that the Applicant was loving, affectionate and appropriate with the children during these contacts with them. Jacob and Carter also showed affection towards their mother. There were occasions during the visits when the children gave the Applicant spontaneous hugs and kisses. The Applicant described that during one visit, Jacob came over to her, lay his head between her legs, lay backwards and asked her to tickle his face. She also testified that during one visit, Jacob made a card for her on which he wrote “I love you, Love Jacob.” She indicated that Jacob told her he loved her during visits, but acknowledged that Carter never said that during these visits. Her acknowledgement of this point lent credibility to her evidence regarding the visits. The evidence indicates that the Applicant divided her time appropriately between Jacob and Carter, and that she exercised appropriate child management strategies during the visits. According to the Applicant, she had planned to celebrate St. Patrick’s Day with the children during the visit scheduled for March 16, 2014, and had brought St. Patrick’s Day t-shirts, leprechaun necklaces and hats, and baking supplies to make cookies. However, the children refused to enter the visitation room on that date.

[120] I find that Ms. Madden arranged with Jacob and Carter prior to the first visit with the Applicant on January 26, 2014 that they would scratch their nose if they felt uncomfortable in any way during the visits. The Respondent called Pathstone Supervisor Ms. Stark following the visit on February 9, 2014 to raise concern that Pathstone staff did not intervene when one of the boys gave the signal that they were uncomfortable. Ms. Madden testified that she observed part of that visit, and that neither of the children gave the signal to her on that day or at any other time during the visits that she supervised to indicate that they were uncomfortable. Neither party called the other staff member who observed the February 9, 2014 visit, Ms. Ally Jones, to give evidence as to what transpired during the time that she observed the visit.

[121] As I noted in my Reasons for Judgment on the contempt motion, the Respondent’s evidence was that the children were resistant to attending visits with their mother at Pathstone. He described having to actively encourage Jacob and Carter to leave his home to attend the access centre, and having to tell the children that they had to go. I accept that the children expressed resistance to their father about attending access at Pathstone. However, there is a clear disconnect between their expressions of discontent to their father and the extremely positive evidence about the quality of their visits with the Applicant. This was a very difficult time of adjustment for the children, as they had not seen their mother for a period of 21 months. Taking into consideration all of the evidence, I conclude that their resistance to access was not attributable to them not enjoying their time with their mother. Rather, I find that it was reflective of the challenges they were experiencing in adjusting to the return of their mother into their lives, including anxiety about how that development may impact the settled life that they had established with the Respondent over that time. In addition, with respect to Jacob, I find that he had some anxiety due to some of his historical negative experiences with the Applicant.

[122] The children refused to participate in access visits with the Applicant at Pathstone commencing March 16, 2014. I discussed in detail the attempts to implement access at the centre in my Reasons for Judgment on the contempt motion. I also made findings respecting the events and dynamics that contributed to the children’s refusal to continue with supervised visits. By way of summary, the children’s refusal to attend access visits as of March 16, 2014 was not in my view due to lack of affection and love for their mother or their dissatisfaction with how visits were going. Rather, the children had learned about the Applicant’s motion for an order permitting her to attend the children’s activities, for liberal telephone contact with the children, and for gradually increasing unsupervised access. This development came on the heels of the children learning that the Applicant had moved to a residence that was very close to the Respondent’s home. As I indicated in my Reasons on the contempt motion, the move for extended unsupervised access was premature having regard for the amount of time that the children had not seen their mother, the fact that the children had gone through the process of preparing for the Applicant’s criminal trial in October 2013, and the fact that supervised access at Pathstone had just begun. I find that the children’s refusal to enter the visitation room was prompted by their anxiety about the situation with their mother evolving too quickly, and about the impact which the increased role of the Applicant in their lives could have on the life and routines that they had established with their father.

2. Contact Between the Applicant and the Children Since July 2014

[123] The Applicant had another period of no contact with the children from March 9, 2014 until August 19, 2014. As I have stated, I made an order on July 23, 2014 granting the Applicant access as arranged with Ms. Maggie Hall as part of the reconciliation process that the parties agreed to participate in. Ms. Hall worked with the family from July 2014 until approximately August 2015. The Applicant was finally able to see Jacob and Carter again on August 19, 2014. On that date, Ms. Hall brought the children to a local park to spend time with their mother. Both the Applicant and Ms. Hall testified that this visit went well overall. The Applicant was well prepared and organized, with appropriate snacks and activities for the boys. I find that Jacob did not demonstrate any resistance to going to the park, and that the children accepted the Applicant’s hugs when she greeted them. There was a period of time during the visit when Jacob withdrew and became sullen, but overall, both he and Carter had a very good time. The Applicant engaged the children in appropriate activities, and Ms. Hall’s impression was that the children did not show any anxiety or distress after the visit when she transported them back to their father’s home. A second visit occurred at Boston Pizza in Niagara Falls on September 11, 2014. Again, the children did not demonstrate any anxiety when Ms. Hall drove them to this visit. They accepted hugs from their mother when she greeted them. The Applicant played video games with Carter, and then she and both children bowled. Jacob had a good time but withdrew for periods during the visit. The Applicant took the children for dinner and gave them gift bags that included supplies and clothing for school. When Ms. Hall returned the children to the Respondent’s home, Carter told the Respondent excitedly about how much fun he had, whereas Jacob jumped into his father’s arms, gave him a bear hug and wrapped his arms and legs around his father.

[124] The third visit which Ms. Hall facilitated was on September 18, 2014. The Applicant and the children started the visit at a laser tag facility, and the visit then continued at the Applicant’s home. Jacob was very serious when Ms. Hall picked the children up and said that he did not want to go. However, he entered Ms. Hall’s vehicle voluntarily when she assured him that he would have fun. The children went willingly into the laser tag venue with the Applicant and enjoyed this activity. The Applicant then took Carter to play mini putt, which Jacob did not want to play. Ms. Hall took Jacob to Tim Horton’s during this period, and Jacob became upset and alleged that his mother had tried to coerce him into playing games with her since she had bought tickets. He became tearful and stated that he did not want to have fun with his mother, because he feared that Ms. Hall and the Applicant would then tell the court that he was having fun. His worry was that this would result in the court taking him away from his father. He alleged that his mother had pulled his hair and hit him in the past, and stated that he did not want to see her. He was unable to provide details to Ms. Hall about when his mother was physically aggressive towards him. Ms. Hall reassured Jacob that seeing his mother was in addition to being with his father. The visit concluded at the Applicant’s house. The Applicant prepared appropriate snacks and a meal for the children. Jacob and Carter were very excited to see the house, and Carter was very relaxed and happy during this portion of the visit. Ms. Hall observed that Jacob was somewhat disengaged.

[125] Ms. Hall arranged a series of sessions with the family at her office on October 1, 2014 to attempt to work through Jacob’s apparent concern that spending time with his mother would mean he would be taken away from his father. I find that Jacob was sullen and resistant to seeing his mother on this date, and that Carter followed his brother’s cues and became tearful, stating that he did not want to see his mother. Ms. Hall met with the Respondent and the children for the purpose of reinforcing to the children in the presence of their father that seeing the Applicant would not diminish their relationship with their father in any way. Ms. Hall then met with Jacob and the Applicant. During this meeting, it became apparent that Jacob did not understand why he had not seen his mother for so long after she was criminally charged. He told Ms. Hall and the Applicant that he thought his mother had simply abandoned him. Ms. Hall and the Applicant used the opportunity to explain to Jacob what had occurred, and the Applicant reassured Jacob that she never stopped loving him and tried very hard to see him. Ms. Hall testified that Jacob became more relaxed and engaged as this discussion progressed. Carter then joined the session. Ms. Hall then met briefly with the Respondent, and when she returned to the room where the Applicant and the boys were sitting, she observed all of them being playful with each other and having a very good time. The Applicant hugged both of the boys at the end of the visit, and both of them leaned into her hug.

[126] Following the sessions with Ms. Hall on October 1, 2014, arrangements were made for the Applicant to have unsupervised visits with the children at her home once a week for one hour on each occasion. During October 2014, the length of these weekly visits was increased to two hours, and subsequently there was a further increase to three hours. In November 2014, visits were increased to twice each week, on Wednesdays from 4:30 p.m. until 7:00 p.m. and Saturdays from 9:00 a.m. until noon. I find based on Ms. Hall’s testimony that the session between Jacob and the Applicant in her office on October 1, 2014 marked an important turning point in terms of the quality of the visits between Jacob and the Applicant. Ms. Hall’s impression was that although Jacob continued to show some periods of withdrawal during visits after that time, his overall attitude towards visits with his mother improved dramatically. I heard evidence from the Applicant and JoAnn Edwards regarding the nature of the Applicant’s interactions during visits, and the quality of the visits around this time. Based on that evidence, I find that the children were very comfortable during the visits, that the Applicant attended to their needs and engaged them in appropriate activities and that there were no incidents of concern.

[127] Notwithstanding the positive direction that access took in late 2014, the Respondent relayed to Ms. Hall that he and the children felt that visits with their mother twice each week was too frequent. Ms. Hall met with the Respondent and the children to discuss these concerns on January 6, 2015. The children relayed to Ms. Hall during that meeting that they felt that two visits per week with the Applicant was “too much”. In response to this resistance from the children and the Respondent, Ms. Hall arranged for access to occur once a week, but for a longer period of time. Visits were set up for every Saturday from 9:00 a.m. until 4:00 p.m. at the Applicant’s home. The parties were able to negotiate a couple of extra daytime visits between the Applicant and the children over the Christmas holidays in 2014.

[128] The extended Saturday visits went well overall. Ms. Hall testified that she received regular feedback from the Applicant, and that the Applicant openly reported both the positive and challenging aspects of the visits. It was her impression based on the even-handed nature of the Applicant’s reports that the Applicant was providing an accurate account of how access was going. The Applicant relayed to her that there were times when the children had fun and were affectionate with her, and also periods when the children exhibited challenging behaviours. Ms. Hall requested that the Applicant not permit other individuals to attend visits for the first several months, but the Applicant casually introduced her partner, Mr. Dan Rockel, sometime in January 2015, contrary to this direction.

[129] In February 2015, the Applicant purchased a cell phone for Jacob as a reward for achieving good marks at school. The cell phone would have also allowed her to communicate with Jacob by text message. The Respondent removed the cell phone from Jacob upon his return to his home. He alleged that Jacob in fact voluntarily handed the cell phone over to him. He testified that he did not want Jacob to have the cell phone because he had told