Court File and Parties

COURT FILE NO.: FC-12-1470-1 DATE: 2017/03/13 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Timothy Campbell Applicant – and – Isabelle Lapierre Respondent

Counsel: Steve Duplain, for the Applicant Ashish Duvadie, for the Respondent

HEARD: December 2, 8, and 9, 2016 January 16, 17, 18, 19 and 20, 2017

Reasons for Judgment

Before: A. Doyle J.

[1] The Applicant father has brought this application requesting joint custody of the two children, Gabriel (aged 9) and Vincent (aged 7), equal time with them, and a change of child support based on a set-off amount.

[2] The Respondent mother is requesting sole custody, reduction of the current access schedule, table amount of child support, sharing of s. 7 expenses, reimbursement of a Child Tax Credit payment along with daycare costs and a restraining order.

[3] The issues for consideration are as follows:

(i) Should the court vary the terms of the parties’ separation agreement? (ii) What custody arrangement is in the children’s best interests? (iii) What parenting arrangement is in the children’s best interests? (iv) What child support is payable? (v) What s. 7 special and extraordinary expenses are payable? (vi) Should the father reimburse the mother as follows: (a) the amount of $1265.50 for the Child Tax Credit received by him (b) the amount of $470 for a division of the value of his coins, and (c) his contribution to daycare expenses? (vii) Should a restraining order issue?

Background

[4] The parties were married on July 19, 2003 and separated on March 10, 2011. They have two children of the marriage, Gabriel born February 10, 2007 and Vincent born April 29, 2009. The parties were divorced on August 19, 2012.

[5] The father is a forensic document examiner with Canada Border Services Agency (CBSA) and resides with his partner, Ms. Janice Richard, in Orléans and their child Benjamin born September 16, 2015. Ms. Richard is a guidance counsellor with a high school. They reside in the same neighbourhood as the children of the marriage.

[6] The mother is a translator with the Ministry of Defence and her partner is Mr. Kenneth Carlisle, an American citizen who spends approximately 5 months per year in Ottawa with the mother.

[7] Gabriel is in Grade 4 at École Élémentaire Publique L'Odyssée, a French public school in Orléans (a suburb of Ottawa). Vincent is in Grade 2 at the same school.

[8] The parties signed a separation agreement (“Agreement”) on November 3, 2011 which provided for the following:

• the parties would have joint custody of the children;
• the children would reside primarily with the mother and the father would have reasonable access on reasonable notice which included every second weekend from Friday after school to Sunday at 6 p.m. and alternate weeks from Wednesday after school until Thursday at 5 pm., and sharing of holidays;
• the parties agreed that it is in the children’s best interests to spend time with the other parent rather than with a third party. If one parent was unable to care for the children, they would notify the other parent and give them the opportunity to do so;
• the father would pay the table amount of child support in the amount of $1,250 per month based on an annual income of $87,057 plus a sharing of s. 7 special and extraordinary expenses;
• spousal support was waived by both parties;
• the father transferred his interest in the matrimonial home to the mother;
• the father would pay an equalization payment in the amount of $7,908.53;
• the parties could vary custody, access and child support if there was a material change in circumstances; and
• in paragraph 14 of the parenting schedule attached to the Agreement, the parties agreed that changes to the schedule could occur subject to the children’s best interests and wishes.

[9] Both parents agreed to discontinue the mid-week access shortly after the execution of the separation agreement as they believed it was disruptive for the children. They agreed that the father would have the children on an alternating weekend access schedule from Friday after school until Monday morning.

[10] The interim order of Justice Lacelle dated August 31, 2015 changed the father’s access to every other weekend from Thursday after school to Tuesday morning when the children are dropped off at school. In April 2016, Justice Pelletier dismissed the father’ motion for an order that he would have the children ½ time. He granted him an extra week during the year while indicating that his parenting time would be fully explored at trial.

[11] The father has regularly exercised access and he has been paying the table amount of child support and a portion of BB and daycare.

i) Should the court vary the terms of the parties’ separation agreement?

Father’s Position

[12] The father submits that there has been a material change in circumstances for the following reasons:

• the children are five years older since the time of the execution of the separation agreement;
• Gabriel has been diagnosed as level 1on the autism spectrum;
• the father has entered into a long term relationship;
• the children have a new baby brother;
• the mother is in a new relationship; and
• the father has moved into the mother’s neighbourhood in close proximity of the children’ school.

Mother’s Position

[13] The mother submits that there has been a material change in circumstances in that, given the parties’ conflict over the issues pertaining to the children, the Court must consider a sole custody regime in her favour. She questions the father’s ability to parent and general lack of co-operation when dealing with parenting issues.

[14] Specifically, since Gabriel was diagnosed as level 1 on the autism spectrum, he has needs that are met by one parent making the major decisions and both parents have been unable to jointly make decisions.

[15] The mother believes she is in the best position to make decisions on behalf of the children. She is prepared to consult and obtain input from the father but ultimately she wishes to make all decisions pertaining to the children.

[16] In addition, she alleges that the father has displayed aggression and demonstrated inappropriate behaviour such as excessive alcohol consumption.

The Law

[17] The current Application and Answer request that the Court make an order dealing with parenting pursuant to the Divorce Act, 1985, c. 3 (2nd Supp.) (“Divorce Act”).

[18] The parties can apply for corollary relief under the Divorce Act as former spouses.

[19] Since the Divorce Order was silent on the issue of corollary relief, the parties are proceeding under s. 16 as an initial application dealing with custody and access.

[20] There is no previous Divorce court order dealing with custody, and hence s. 17 of the Divorce Act does not apply. The Court does not need to find that there has been a material change of circumstances.

[21] However, the Court will consider a number of factors when determining parenting including the factors set out s. 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, (“CLRA”). The Court can also consider the status quo and the separation agreement where the parties agreed on what was in the children’s best interests at the time.

Decision

[22] The parties had agreed that the parenting issues in the separation agreement could only be varied upon a material change in circumstances.

[23] Both parties agree that there has been a change in circumstances for different reasons.

[24] The Court is dealing with this application for custody and access on a de novo basis. Although not bound by the agreement, the Court agrees that changes have occurred since the execution of the agreement that the parenting arrangements should be examined to determine what is currently in the children’s best interests.

[25] The Court finds that there has been a material change in circumstances for the following reasons:

• the parties have experienced some challenges in agreeing to decisions pertaining to the children which requires the Court to examine whether joint custody is in the children’s best interests;
• the children have experienced some health issues which includes Gabriel being diagnosed with Level 1 on the autism spectrum disorder requiring that he be seen by a psychologist Dr. Sharon Francis Harrison;
• the parties have both entered into new relationships;
• the arrival of the children’s brother, Benjamin, in September 2015 has dramatically changed the children’s circumstances; and
• it has been over five years since the execution of the Agreement and children are at a different age and stage of development. Although the passage of time is not in itself enough to constitute a material change of circumstances, in this case, the added elements as listed herein justify an examination of the custodial arrangements to determine what is in the children’s best interests.

(ii) What custody arrangement is in the children’s best interests?

Father’s position

[26] In March 2013, the father commenced the application requesting a continuation of joint custody and equal time with the children.

[27] He wishes to be fully involved with the children and it is in their best interests that he participates in the major decision-making pertaining to the children. He is concerned that the mother unilaterally makes decisions and tells him “after the fact”.

[28] He submits that a sole custody order in favour of the mother would marginalize his role as a father in the children’s lives.

Mother’s position

[29] The mother is seeking sole custody as she believes that a joint custody arrangement cannot function for a number of reasons.

[30] She states that the father has been non-responsive to her emails and other communications dealing with children.

[31] She is concerned about his general attitude, including his « laissez faire » behaviour on medical issues such as not properly administering asthma medicine to Gabriel. She relates the incident in January 2017 when Gabriel accidentally bit into a chip of glass from a butter dish when eating pasta. The mother believes that the father and his partner failed to appropriately respond to this incident and seek medical attention.

[32] They cannot agree on important issues such as the children’s religion, activities and support programs for Gabriel.

[33] She is also concerned with the consumption of alcohol in the father’s household and the children’s exposure to inappropriate media.

The Law

[34] At para. 49 in Gordon v. Goertz, [1996] 2 SCR 27, the Supreme Court directs the Court to consider the following factors:

(a) the existing custody arrangement and relationship between the child and the custodial parent; (b) the existing access arrangement and the relationship between the child and the access parent; (c) the desirability of maximizing contact between the child and both parents; (d) the views of the child; (e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child; (f) disruption to the child of a change in custody; and (g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

[35] The Court has considered s. 24 of the CLRA:

(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, including a parent or grandparent, 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) any familial relationship between the child and each person who is a party to the application.

[36] In Kaplanis v. Kaplanis, 249 DLR (4th) 620 (Ont. C.A.), the Ontario Court of Appeal stated that when considering a joint custody arrangement:

1. There must be evidence of historical communication between the parents and appropriate communication between them.
2. Joint custody should not be ordered in the hope that it will improve their communication.
3. Even if both parents are fit, it does not necessarily follow that joint custody should be ordered.
4. The fact that one parent professes an inability to communicate does not preclude an order for joint custody.

[37] In Giri v. Wentges, 2009 ONCA 606, the Court of Appeal reiterated the following: “joint custody requires a mutual commitment between parents to cooperate on matters pertaining to the raising of their child, and an ability for the parents to put their own interests behind those of the child”.

[38] In Graham v. Bruto, 2008 ONCA 260, the Court of Appeal stated that the joint custody and parallel parenting option was not in the best interests of the child of that family because the parents disagreed on too many important issues that affected the child’s best interests.

[39] In Ladisa v. Ladisa, 11 RFL (6th) 50 (Ont. C.A.), the Court of Appeal did not interfere with the trial judge’s joint custody order. Despite the intense conflict between the parents, the Court found that the parents were able to work in the interests of their children, when necessary. They coexisted at the doctor’s office, at school functions and children’s activities. Those circumstances supported a joint custody arrangement.

[40] At para. 54 of the trial decision, Justice DeSousa stated:

“Despite the intense conflict between the parents, in emergencies and when the parents have had an opportunity to consider the real interests of their children, they have behaved appropriately, even in each other’s presence.”

[41] In Kairzad v. McFarlane, 2015 ONSC 7148, Justice Chappel commented that joint custody can be ordered even if the communication is not blissful or perfect, but it must be workable.

[42] In C(D) v. C(H), 2014 ONSC 6696, the Court was concerned that a sole custody order in favour of the mother would marginalize the father in the lives of the children.

[43] In Ursic v. Ursic, 32 RFL (6th) 23 (Ont. C.A.), the Court of Appeal stated that joint custody or parallel parenting was considered necessary to keep the “innocent” parent in the child’s life.

[44] In recent years, there has been more willingness to grant joint custody where such an order is necessary to preserve the balance of power between the parents, especially where one parent has been primarily responsible for the conflictual relationship: see: Garrow v. Woycheshen, 2008 ONCJ 686, Hsiung v. Tsioutsioulas, 2011 ONCJ 517.

[45] In Griffiths v. Griffiths, 2005 ONCJ 235 it was stated that courts do not expect communication between separated parties to be easy or comfortable, or free of conflict, a standard of perfection is not required, and is obviously not achievable.

Decision - Joint Custody

Overview

[46] For the reasons set out below, the Court finds that it is in children’s best interests that both parents be awarded joint custody.

[47] The Court has considered the evidence of Dr. Weinberger, the historical communication between the parties, the fact that both parties are good parents and that the children have special needs.

[48] The parents have a history of communication when dealing with the children’s best interests and, despite some disagreements, have jointly made major decisions.

[49] Both parents are good parents and can contribute to their children’s well-being and development. The father’s role could be marginalized by ordering sole custody to the mother and this is not in the children’s best interests. Despite different parenting styles, both parents have a loving relationship with both children and are in a position to observe and consider what is in their best interests when making a major decision.

[50] It is in the children’s best interests that both parents are involved in decisions pertaining to the children’s special needs. Their respective input is important so that both parents can consider the options available for their children.

Dr. Weinberger’s evidence

[51] Dr. Weinberger completed his report on September 10, 2014. He was qualified as an expert and the Court found his evidence was given in an impartial and even handed tone. The Court accepts the findings of Dr. Weinberger regarding the parents’ style and parenting abilities.

[52] Dr. Weinberger recommended a continuation of joint custody with final decision making with the mother in certain areas and a transition to shared parenting and holiday parenting time.

[53] Despite the fact that the report is over two years old, the Court finds the report helpful in laying out the dynamics of the parties’ relationship, a description of the parties’ respective parenting styles, positions and beliefs, the children’s development stage and a description of important events up to the date of the report. His observations are supported by the evidence.

[54] Dr. Weinberger outlined numerous meetings he had with the parents, observations of the parents and the children and interviews with the children. He also reviewed the documents, pleadings, correspondence, information regarding asthma and Dr. Sharon Francis Harrison’s psychological assessment report. In his report, he sets out background information with regards to each party’s concerns in regards to the children and the other parent. He has also interviewed both partners of the respective parents and spoke to Dr. Sharon Francis Harrison, Julie Ferrault and school personnel at l’École élémentaire publique L’Odyssée.

[55] In his analysis and conclusions, he found that:

• both parents are meaningfully attached to the children;
• the children are meaningfully attached to both parents;
• both parents are competent and the children are safe and secure when under either parent’s care;
• neither parent has anything negative to say about the other parent’s new partner;
• the father has exercised his access regularly and reliably;
• both children have their anxieties and behavioural anomalies and a number of daycares have had their challenges with the boys;
• “As well, Gabriel has been diagnosed on being on the autism spectrum, albeit in the milder range and is higher functioning and he has been designated to be a special needs child by the school. Nevertheless, both children according to most recent reports by the parents are doing better, the services of Ms. Ferrault have no longer been deemed necessary, school reports the children are doing well, the children have adapted well to both Ms. Richard and Mr. Carlisle, the children by report were doing well at the summer camp, in session there were no major indications of either child being unmanageable and at the home observation visits there were no indications of (sic) either parent being unable to manage” (page 25);
• he describes that the children go to their father readily and comfortably. He acknowledges that the mother reports that the children return at times agitated but it is not clear to him that it relates to their father or the visits.
• mother is concerned that children have difficulty in transitions and how the children are tired upon their return to her care;
• both parents follow their routines and the children, however agitated, settle after a good night’s rest;
• both parents are involved with the children; and
• the father is more muted and more likely to accommodate than to press this point and he has a slower tempo. The mother is more animated and the ‘get go’ type.

[56] Dr. Weinberger testified that the father has a « laissez-faire » style and the mother is an organized person who takes initiative. In situations where there are contrasts in personalities and parenting, one parent can become frustrated when they cannot complete a task and may lose an opportunity due to the pace of the other parent. The mother wants to be efficient and complete an appointment or a registration for the children and is frustrated waiting for the father’s response. The father requires time to reflect on the request, consider options and make a decision after considering various angles.

[57] Dr. Weinberger recognizes this dichotomy in the parents’ parenting and decision-making. He recognizes the mother’s legitimate concern with respect to this different perspective. He balances this with the fact that both parents are capable, caring, fair-minded and accommodating parents and should participate in the decision-making authority for the children’s benefit.

[58] The Court finds that the father’s input is important to the children and recognizes the mother’s desire to make decisions in the best interest of the children.

[59] The Court finds that it is in the children’s best interests that both parents have a say and input into the children’s major decisions.

[60] In his report, Dr. Weinberger recommended that since the father had stated that he trusted her judgment, the mother should have final say in activities, daycare and counselling or psychological assessment in the event of a disagreement.

[61] The father is no longer in a position that he agrees with her judgment due to her rigidity and unwillingness to engage in open dialogue.

[62] The Court accepts Dr. Weinberger’s recommendation regarding joint custody but does not believe that the mother should be entrusted with the final decision power in the event of a disagreement. The Court finds that the best interests of the children dictate that all major decisions should be jointly made after both parents have provided their full position and input.

[63] There was a delay in the release of the report due to the mother’s partner. Mr. Carlisle’s concern was that the description regarding his education and work background was not accurate. Dr. Weinberger delayed in responding. Dr. Weinberger released a letter correcting the information regarding Mr. Carlisle and apologized for the delay.

[64] In addition, the mother lodged a complaint to the College of Psychologists alleging deficiencies in Dr. Weinberger’s report. The College dismissed her complaint and she appealed their decision and the results of the appeal had not been released at the time of the trial.

[65] One of the mother’s complaints is that Dr. Weinberger demonstrated a bias with respect to his findings regarding the issue of religious debate between the parties. The mother favoured that the children be baptized and raised Catholic. For his part, the father believed that the children should be agnostic. In his report, Dr. Weinberger recommended that the parents wait until the children were at an age to understand what religion they wished to follow.

[66] She also alleged that Dr. Weinberger failed to seriously consider her concerns regarding the father and the children’s anxiety and behaviour after visits with the father.

[67] The mother was concerned that Dr. Weinberger did not explore the concept of “separation anxiety” and she only learned of this issue through the complaint process.

[68] In his letter dated August 21, 2015 to the College, Dr. Weinberger stated that Vincent had separation anxiety and he drew this conclusion from his July 24, 2014 session from his meeting with the mother. These observations were not noted in his report. Dr. Weinberger testified that separation anxiety can create complications and is visible in children from age two onwards. He confirmed that there was no official diagnosis of separation anxiety and he used this term as a way to describe his behaviour. In his letter, he further explained that the adjustment problems following visits with the father were as a result of separation from the mother as opposed to “anything attributable to the father”. There was also separation anxiety when Gabriel resisted going to camp or school.

[69] Neither party has suggested that this Court should delay its decision until the release of the appeal decision. The mother suggests that the Court should give it less weight.

[70] The Court has carefully considered the mother’s allegations against Dr. Weinberger, and notwithstanding those complaints, the Court maintains the integrity of Dr. Weinberger’s report regarding his methodology, interviews and balanced approach to the issues between the parties. His letter to the College comprehensively outlines his approach on each of the issues raised by the mother.

Communication

[71] Joint custody requires some form of communication and cooperation. The Court finds the parties’ communication to be:

• cordial and civil;
• there has been exchange of information regarding the children; and
• the parties have provided regular updates and details regarding the children.

[72] Unlike the facts in the Ladisa case, this is not a case of “intense conflict”. Despite the intense conflict in that case, the Court of Appeal upheld the trial Judge’s decision to award joint custody. Here, the Court finds that, generally, there exists a diplomatic dialogue marked with some disagreements and points of view. The parties are generally respectful with each other and disagreements are an exchange of ideas and advocacy for their respective positions.

[73] The parties use Google calendar to mark the children’s events, appointments and activities, to communicate with each other in the family journal which is exchanged between the parents, and also regularly exchange emails. The parents are to be commended for their ability to find ways to communicate and, generally, the polite respectful tone of their communications.

[74] The parents have shown a history in making decisions together:

• They agreed that the children would attend a French public school. It was a compromise with the mother’s preference for a French language education and the father’s preference that the children attend a school with no religious affiliation.
• Following the signing of the separation agreement, they mutually agreed to adjust the access schedule to every second weekend from Friday after school to Sunday evening. The father gave up his mid-week access.
• In 2013, they agreed that Gabriel would be assessed by Dr. Harrison.
• They agreed that Gabriel would attend Building Blocks and they would equally share the cost.
• They agreed that Vincent would see a counsellor for his behavioural issues. The father did not oppose nor pressure the mother to end the counselling.

[75] However, there have been unresolved issues:

i) the children have not engaged in outside school activities as the parents cannot agree when they should occur, weekends vs. school nights; but the children have participated in activities at the school; the children had swimming lessons after school once and the mother described it problematic especially for Vincent who has low level of threshold for transition; ii) the father has repeatedly requested that the children join Boy Scouts and due to the disagreement as to when it should occur (weekend vs. weekdays), they have not participated. The children were registered for a Friday Scouts’ group but it was cancelled due to limited enrolment; iii) the parents have not agreed whether another social development program at CHEO could be considered for Gabriel; iv) regarding religion, ultimately the father agreed that the mother could have them baptized when the mother forced the issue in Court; v) regarding medical treatment, the mother took Gabriel to an osteopath for treatment of his asthma as the father was not following medication. The father did not agree to this alternative treatment; vi) the parents did not agree on the approach to take when in February 2016 Gabriel was accidentally exposed to a naked male image on a computer while at school. The mother was more vigilant in dealing with the school and what appropriate measures were in place to prevent this; and vii) the father requested a change of family doctor for the children and the mother did not agree. The father did not pursue this issue.

[76] There are also issues with respect with to the pace of communication. The mother has indicated her frustration in the delay in making decisions pertaining to the children due the father not responding or providing a position in a timely manner.

[77] Dr. Weinberger recognized this concern by suggesting that the father must respond within 30 days from the mother forwarding an email requiring his input.

[78] The parties have agreed that the window should be 72 hours for either parent to provide his/her response to an issue regarding the children.

[79] There have been infrequent not so cordial email messages. The mother commented on his “tone of anger” as she said he keeps bringing up the same issues regarding Building Blocks, Boys Scouts and activities during the week. In one email, the mother reacted to an “attack on her religion” which the father denied.

[80] In Kaplanis, the Court of Appeal emphasized that it is essential for parents to have good communication when children are young. In Ciutcu v. Dragan, 2014 ONCJ 602, Justice Sherr at para. 33 states:

The same reasoning applies, if not even more, to special needs children. Their needs are complex and it is essential to their well being that there should be an effective decision-making process in place for them. For these children, important decisions frequently need to be made about medical treatment, supportive services, education and activities. They need stability and consistency in decision-making and conflict can be particularly harmful for them. See: Kenney v. Kenney, [2007] O.J. No. 2564 (SCJ – Family Court).

[81] As in the Ciutcu case, the mother has played the lead role in major decision-making regarding the children’s special needs. However, it is important to the children’s well-being that the father continues to participate.

[82] Under the joint custody regime in the separation agreement, the regime has been working although it needs to be tweaked regarding response time by the father.

[83] The children’s needs have been met on a psychological and academic level. The father has been consulted and decisions have been made.

[84] Unlike Ciutcu, the father here has listened to the mother’s views and has not acted unilaterally.

[85] The parents here have shown an ability to communicate civilly. The history shows that the other has consulted the father and ultimately they have made major decisions together.

[86] If the parties have not been able to decide an issue, then other alternatives are found. For example, the mother has enrolled the children in activities at the school so it will not conflict with the father’s time with them.

[87] When the mother would not consider changing the children’s family doctor, the children remained with the same family doctor and father did not push this issue.

[88] Ultimately, on decisions that parties do not agree on, the parents find an alternative solution and equilibrium. The mother’s frustration in delays in decision-making and lack of agreement on some issues does not necessitate a change of custody.

Parenting

[89] The Court finds that both parents are good parents and love the children. The children have a strong and loving bond with both parents and their brother Benjamin.

[90] Ms. Richard is a loving and considerate parent who was very even tempered in her testimony and was quite fair and uncritical in her comments about the mother. The Court finds her to be a supportive individual to the father when the children are in his care. In fact, Dr. Weinberger referred to the fact that both of them share the responsibility of parenting the boys and divide the duties.

[91] Mr. Carlisle did not give evidence but the mother spoke of his relationship with the children as being positive.

[92] The Court finds that both parents provide good stable home environments and show appropriate parenting in day-to-day routines. Both parents want to do the best for the children.

[93] The father is a good parent. He gave his evidence in a straightforward non-confrontational manner. He demonstrates thoughtfulness and a measured approach when assessing events and dealing with challenges. He does not hesitate to follow direction and recommendations from the mother when he perceives that her decision is in the children’s best interests although he does complain that he is, at times, consulted “after the fact”. He has allowed the mother to proceed with certain decisions even if he has some concerns.

[94] The mother is a good parent and she leaves no stone unturned when dealing with the needs of her two sons. She is organized and task oriented and is thorough in researching and investigating issues that arise regarding the two boys. She seeks out professionals and considers their opinion. She has been vigilant in ensuring that the children’s medical and educational needs are met. She is to be commended for her initiative shown and tenacity in ensuring that the children’s needs are met.

[95] Unfortunately, she does not appreciate the importance of the father in the lives of the children. When asked how she would describe the father as a parent she could only say that he was « laissez faire » . She would not remark on his parenting ability or his relationship with the children as she states that she does not see them in his home. This is very troubling.

[96] The mother would not acknowledge that he is a parent who cares for their two sons despite her observations of him at appointments, activities and his communications with her.

[97] She refers to a letter he wrote to her in 2011 after their separation where he acknowledges the challenges of parenting and his lack of innate childbearing strength. The Court places no weight on this letter which was written over 5 years ago. The passage of time and events has rendered his sentiments expressed at the time irrelevant to the Court’s determination as to what is in the best interests of the children at this time.

[98] The Court is concerned with the mother’s ability to encourage the relationship between the father and the children.

[99] The difference in parenting styles is a function of the parties’ diametrically different personalities. The mother is extremely vigilant in doing research, following professionals’ advice, following up, initiating programs and seeking assistance in the community.

[100] On the other hand, the father has sought out information, relies on the mother, does consider his options, prefers to reflect and consider his options before deciding, and believes that the mother unilaterally makes decisions without considering his input.

[101] For example, in February 2016, when Gabriel was accidentally exposed to a naked image on a computer at the school, the father obtained an explanation that was satisfactory to him from the school. In contrast, the mother was outraged and probed the school further on how this could have happened, what filters were in place and wanted assurance that this would not occur again.

[102] There is a delay in Gabriel completing a psycho-educational assessment as the father took time to provide his consent. When the father was prepared to provide his consent, the mother indicated that it was not a good time as she was preparing for the trial.

[103] The children do not participate in extra-curricular activities outside the school. Despite the father’s preference for another social development program and Scouts, Gabriel continues to attend BB and is not registered in Scouts.

[104] The mother has no confidence in the father’s judgment regarding medical decisions including his failure to use the medication when Gabriel had asthma. The parties had a disagreement regarding the use of alternative medicine and the mother unilaterally proceeded to bring Gabriel to an osteopath to deal with his asthma. The Court finds that the father misunderstood the instructions on administering the medication and was not attentive to these details. On the other hand, the Court does not accept the mother’s action to unilaterally bring Gabriel to an osteopath without the father’s consent.

[105] The mother complained of the father’s failure to bring Gabriel to a clinic or doctor when he accidentally bit into glass in January 2017. With respect to this incident, the Court finds that the father responded appropriately and after he cleaned the child’s mouth and found the source of the glass, discarded the butter dish and Gabriel’s meal. There is no evidence following a doctor`s visit by the mother that the child was harmed. The mother stated that the doctor informed her that the cut was very far back in his throat. There was no medical report to confirm this.

[106] In addition, the mother called the Children’s Aid Society and their investigation did not disclose that the father acted inappropriately and the worker who testified indicated that the CAS closed their file. The mother’s response to this incident was an overreaction.

[107] The Court is particularly troubled by the mother raising incidents of violence with the CAS worker which were not raised in her pleadings, with Dr. Weinberger, or with Dr. Harrison.

[108] Even though they could not agree on the children’s religion, the father ultimately accepted that the children could be baptized and the children therefore attend church on the mother’s weekend. The father is free to follow whatever his spiritual practice is in his own home.

[109] Regarding alcohol consumption, there is no evidence that the father or his partner have alcohol abuse issues. There is no evidence of impaired driving, or either the father or Ms. Richard being in a state of alcoholism that affected their ability to parent the children when they are in their care. During the broken glass incident, there was no evidence that the father and Ms. Richard were inebriated.

[110] With respect to exposing the children to inappropriate media, there is no independent evidence indicating the propriety of the media exposed to the children. The Court did not accept internet printouts setting out a description of the media which included literature and commented on its suitability for a younger audience. This was found to be hearsay evidence being tendered for the truth of its contents with no opportunity to cross-examine or probe its validity. The Court finds that no negative inference can be gathered regarding these questions of death.

[111] The Court finds that the mother can on occasion to over react to events. Undoubtedly, she is driven by a concern for the children. But she also demonstrates a lack of flexibility and an inability to cut the father “some slack”. She responds to the father’s parenting with criticism.

[112] For example, she was upset and unforgiving that the father’s partner was late in picking up the children from daycare when she was mistaken about the time in September 2014. The mother testified extensively on how she had previously provided the times for pick up and the details regarding the daycare in previous emails.

[113] On the other hand, the father was forgiving when the mother mistakenly thought pick up of the children was a day earlier after the Christmas access. Prior to her realization that she was mistaken with respect to the day for pick up, she accused him of failing to return the children to her care.

[114] These parenting styles are diverse but not incompatible and it will allow each parent to bring their own view point to the situation and provide a more balanced approach to decision making that is in the children’s best interests.

Special Needs

[115] Both children have special needs. The Court finds that despite the two parents possessing different parenting styles, it is in their best interests that they both play an equal role in decision making. Each parent can, from their own point of view, provide an opinion that will lead both parents to look at a balanced approach to the decision-making pertaining to the children.

[116] In 2013, Gabriel was assessed by Dr. Sharon Francis Harrison, a psychologist. The mother was concerned with Gabriel’s behaviour and emotional expressions at school and at daycare. She believed that he did not respect others’ boundaries and made disturbing statements.

[117] The father believed that Gabriel’s behaviour was in the normal range but admitted observing issues of hyperactivity, inattentiveness and distraction. Both parents told Dr. Harrison that they have successfully kept the children out of the parental conflict.

[118] In meetings with him, Dr. Harrison found it difficult to engage Gabriel as he had trouble focussing and paying attention to her direction. She found him to be very attached to his brother, Vincent, who is a significant person in his life.

In her report dated December 18, 2013, Dr. Harrison states at page 6:

Gabriel displays impairments in social communication and interaction consistent with an autism spectrum disorder, severity level 1 (without intellectual impairment and without language impairment). The impairment is in his social and emotional relationships and self-regulation. This assessment focused on Gabriel’s social and behavioural adjustment. A full psych educational assessment was not indicated at this time. However, it is important for Gabriel to be followed to ensure his academic and intellectual development and adjustment progresses appropriately.

At page 7, she states:

Gabriel has also displayed difficulties with emotional regulation, anxiety, withdrawal and pessimism …He needs to continue working on understanding his own feeling states and find ways to communicate with others. It seems that he is not naturally turning toward his parents sufficiently in this regard and this likely increases his anxiety. His parents will need to persist in working with him to build emotional expression with words, journaling (can be pictorial) or using storybooks and nonverbal cues.

Gabriel would benefit from structured social skills groups aimed at verbal communication and turn taking, as well as, nonverbal cues and personal boundaries.

Gabriel has been showing definite signs of anxiety. It is likely that much of his anxiety arises out of his difficulty processing emotional information and understanding his social world. It has not been possible to identify themes or particular issues related to Gabriel’s’ anxiety, other than his “scary thoughts” and nightmares. … Having some consistent strategies and routines to deal with anxiety in both homes would be a benefit for Gabriel.

[119] For the past several years, Gabriel has been participating in Building Blocks (BB), a social development program which was supported by Dr. Harrison.

[120] In 2015, the mother was concerned that Gabriel was behind in reading. She consulted Dr. Harrison who recommended that Gabriel participate in a full psycho-educational assessment, which had not commenced at the time of the trial.

[121] Vincent has had behavioural issues and has displayed aggression at both daycare and school. He was described as being combative but has settled down. He enjoys playing piano.

[122] Vincent experiences challenges in transitions and the parents have developed structures to assist him in transition. For example, he has picture cards which cue him when he is transitioning from one event to another. This allows him to prepare for the next event, e.g. from school to home.

[123] Vincent had sessions with a counsellor, Julie Ferrault, to assist him with his behaviour management. He has been seeing her for several years but there was no report filed from her before the Court to outline what type of therapy Vincent has been undergoing, his current status and prognosis. His report cards indicate progress at school.

[124] The joint custody arrangement and the parties’ communication and exchange of information will need to be continued.

[125] The parties have resolved the issues of the children’s religion and their current schooling. Ongoing issues that will need to be determined by the parents will be with respect to their educational, psychological, and medical issues.

[126] Their track record to date has shown the mother playing the lead role in these areas, her advising the father, who will consider it and now under a timeline, and a discussion of how they will proceed forward. It has worked to date even though not perfectly.

[127] Both children have shown some improvement in school and the parents, especially the mother is on high alert of the children’s ongoing needs, concerns and developments. The father has shown to be an interested and concerned parent and has been prepared to listen to the mother’s information and research and wanting to be kept “in the loop”. For example, he asked to be copied on emails with Dr. Harrison regarding a full psycho-educational assessment. He phoned and spoke to Dr. Harrison with respect to her recent recommendation of a full assessment for Gabriel.

[128] Gabriel has benefited from the BB program. At the cost of $85 per month, Gabriel has the continuity of the same teachers, support for parents, a progressive program and referrals to community resources. The father has proposed a free program at CHEO with an intake process of four months and a one year waiting list for the program.

[129] The mother took the lead role in IEP, IPRC and attending courses. She attends BB on the father’s weekends as the father has not provided her with materials in the past. She kept the father informed of the information she obtained from consultation, internet research and the course she took.

[130] Dr. Harrison has not been actively involved with this family since 2013. She did not demonstrate any concern with either parent and she confirmed that the mother was the main point of contact with respect to her involvement with Gabriel. She recalled a telephone conversation with the father regarding her involvement.

[131] The Court notes that a joint custody arrangement has been in place since 2011. Over five years, the parties have come to some form of equilibrium that allowed them to make decisions in the best interest of the children, despite some frustrations on the mother’s part. Nevertheless she has been able to march forward and to ensure that the children’s needs were met. This is specifically relevant to Gabriel who has recently been diagnosed and now has an individual education plan at school. The IEP is reviewed through the identification and placement review committee at the school.

[132] The mother continues to be the driving force in setting up counselling and related service needs. After advocating on behalf of Gabriel, she continues to work diligently with these people to ensure the children’s needs are met. The Court believes that it is important that the children benefit from the father’s input and agree with the proposal that if a decision needs to be made the mother or father will provide notice to the other parent with time for input.

[133] The parties’ communication should continue as a joint custody arrangement is in the best interests of the children. The mother will provide the father with an email regarding any decision that needs to be made including details, professional opinions and recommendations, various options if any, and her view moving forward.

[134] Both parents will have 72 hours to provide their feedback and views from the date of the receipt of the email.

iii) What parenting arrangement is in the children’s best interests?

Father’s position

[135] The father submits that the parties should have an equal time parenting schedule with the children for the following reasons:

• the children are older now and better able to adjust to changes in routine;
• they should benefit from maximum contact with both parents; and
• the children enjoy their time with their father, Ms. Richard and their baby brother.

Mother’s position

[136] She opposes an equal time sharing with the children because:

• any change to the children’s routine causes the children anxiety;
• Gabriel will suffer from separation anxiety;
• the children revert to upsetting behaviour with any changes to their routine, and
• she would have to sell the matrimonial home where kids have known all their lives as there would be a reduction of child support.

[137] The mother is also concerned with respect to the father’s lack of judgment when dealing with medical issues. In April 2016, she took Gabriel to the Children’s Hospital of Eastern Ontario (CHEO), due to his unusual breathing and persistent sore throat. He was hospitalized with infection of influenza and remained in ICU for several days. In addition, the father had difficulty organizing his time and coordinating with Ms. Richards. Vincent was cared for by her parents as the Respondent was unable to care for him and showed lack of prioritizing the children’s needs.

[138] The mother is requesting a reduction of access by the father to every second weekend from Friday after school until drop off on Monday morning at school.

Decision

[139] The Court has considered the factors set out in Gordon v. Goertz, the DA and s. 24 of the CLRA.

[140] The Court finds that, in the children’s best interests, there should be no changes to the current schedule at this time for the following reasons:

• Vincent has difficulty with transitions and any changes to his routine at this time could result in challenges for him;
• for example, at the time of the increased access in September 2015, Vincent was soiling and bedwetting; he was aggressive at school and there were discipline reports from school on September 15, September 21, 2015 and two reports on October 1, 2015. He was also referred to a counsellor from a nurse practitioner regarding his behavioural problems;
• the May 2016 disciplinary report from school was the last disciplinary report for Vincent;
• the children have been established in this routine since September 2015 and it is not in their best interests at this time to make further changes;
• on the other hand, it is not in the children’s best interests to reduce the time with their father as this would mean another change to their routine;
• the children have a strong and loving relationship with their father and his partner;
• the children have loving relationship with their baby brother Benjamin;
• the father has demonstrated to be an active, involved and caring father;
• the Court finds that at the time of the increase of his time in September 2015, homework was not necessarily completed on a regular basis as evidenced by mother’s references in the family journal. However, the current journal entries do not identify this is a current issue; and
• Gabriel’s academic progress has been improving as shown in his IEP. Vincent’s report cards indicate he is progressing well.

[141] The Court has considered the recommendation of Dr. Weinberger. The Court accepts his findings regarding the parents’ abilities to jointly work together in the children’s best interests. However, with respect to the parenting arrangements, there have been many issues that have arisen since his report was released.

[142] The parents have been dealing with Gabriel’s special needs, specialists, counsellors and academic responsibilities. In addition, there was a marked change of Vincent’s behaviour as he became aggressive at school. There were a number of incidents immediately following the change of schedule as a result of Justice Lacelle’s Order of August 2015.

[143] On the matter of parenting time, the Court has considered that the mother is in a better position to assist the children with transitions as required by Vincent and taking the children to the necessary appointments and consultations.

[144] At this time, the children have some major changes, two partners added to their lives, a new brother and a major change to the schedule in September 2015 from a regime that had been in place for 4 years. The Order of Justice Lacelle resulted in an increase of overnights from 3 to 5. The Court finds that Vincent immediately reacted to it and the Court finds that the change of routine affected the children.

[145] Gabriel is expected to undergo a complete assessment which will identify his current needs and the parents will need to put in the necessary support system. This could require some change in his life.

[146] Structure and routine are important to these children and the Court is not prepared to change the schedule again at this time. The father has meaningful time with his sons and a stretch of 5 nights in a row is not an insignificant amount of time to spend with his boys. The current schedule allows the father two school nights with the children so he can participate in activities such as homework, preparation of lunches, and school morning routines. They have leisure time on the weekends when they can engage in family activities and spend extended time with their brother Benjamin as well.

[147] The Court notes that the father brings the children to the daycare at times over an hour later than the mother does. This results in the children having to adjust again to the mother’s routine when they are back with her.

[148] The daycare journal indicates that at times the father does not drop the children off at daycare until 8:30 a.m. or 8:40 a.m., whereas the mother’s drop-off times at the daycare are around 7:15 a.m. or 7:20 a.m. She needs to get them into daycare by 7:15 a.m. or 7:20 a.m. so she can get to work by 7:30 a.m. and leave at 3:30 p.m. to pick them up after school.

[149] As much as possible, it is in the children’s best interests that they should try to strive for similar routines, including bedtime, etc., especially when Vincent struggles with transitions. The Court accepts the mother’s evidence that the children are hyperactive when she gets them and needs to calm them down, and it takes a while to establish in their routine. That is not necessarily caused by the father but is a consideration in determining a parenting schedule.

[150] The children’s routine should be synchronized as much as possible. The father should attempt to bring the children to the daycare no later than 8 a.m. when the children are in his care.

[151] The mother also played a lead role in appointments as evidenced by her journal where she took the children to most appointments.

[152] Gabriel’s IEP report shows progress in his interactions with others, retaining his distance and calling a name before approaching them. He is showing autonomy.

[153] The father and his partner Ms. Richard are loving parents. The boys love them and their little brother. The Court accepts that the maximum contact principle would suggest that they should have the boys in their care half the time. Although this is a laudable objective the Court does not believe it is in the boys’ best interests at this time.

[154] By the same token, changing the schedule by reducing the children’s time with their father is not in the children’s best interests. The mother is asking for a reduction of time with the children which does not correspond to the maximum contact principle. As articulated above, the children should spend meaningful time with their father, partner and their brother.

[155] However, to ensure that the parenting regime is considered again, the Court will provide that a review of the parenting schedule can take place after July 2019, without proof of a material change of circumstances. By that time the children will be older and more aware of their surroundings, a further diagnosis or treatment may be available for one or both of them. Gabriel will be 12 years old and the assessment will likely be completed and a plan implemented addressing any needs. Vincent will be 10 years and the parents can review his behaviour and his ability to transition.

[156] After July 2019, the parties can review whether the schedule should be modified in the children’s best interests. The parents are encouraged to consider the views of the professionals at that time and consider alternative dispute resolution.

iv) What child support is payable?

[157] The Federal Child Support Guidelines, S.O.R./97-175, as amended (“Guidelines”) tables dictate that the father will pay child support based on the table amount corresponding with his annual income.

[158] The issue has arisen over whether support should be retroactive to January 1st. The Court heard no evidence on this issue from either party. Given there is no evidentiary record for the Court to make a determination, the Court is not inclined to change the arrangement which existed in the parties’ Separation Agreement.

[159] The father will pay the table amount of $1,415 per month based on his annual income of $99,927.

[160] The parties will exchange their relevant recent tax returns and supporting documentation and Notices of Assessment by June 1st each year. The adjusted support will be retroactive to January 1st of that year.

What s. 7 special and extraordinary expenses are payable?

[161] At this time, the parents are incurring daycare and BB expenses.

[162] The mother has agreed to continue to pay for the activities as she has to date stating that she is tired of asking him and him saying no. She is now requesting that he pay for them within 7 days upon receiving proof of receipt.

[163] It is important that the parties agree and consent to these activities. The father is prepared to share those s. 7 expenses.

[164] The parents will share s. 7 and special extraordinary expenses proportion to their respective incomes. At this time, the father will pay 57% of the expense and the mother will pay 43% of the expense, which at this time are daycare and BB expenses.

[165] No other expense for which contribution is sought will be incurred without first obtaining prior written consent from the other parent, which consent shall not be unreasonably withheld. The parties will claim the expense through their respective extended health plan, if applicable. The proportionate share will be adjusted each year on June 1st when the parties exchange their tax documents.

v) Should the father reimburse the mother the amount of $1,265.50 for the Child Tax Credit received by him?

[166] The father received $1,265.50 from Canada Revenue Agency representing the Child Tax Credit for the two children for the period from July 2011 to June 2012.

[167] The issue for determination is whether the children were living together. In the parties’ Separation Agreement, they chose a valuation date of July 2011.

[168] However, the father states that they were living together at the time. In Dr. Harrison’s report dated December 18, 2013, the mother told her that they were living under the same roof from 2008 to 2012.

[169] Therefore, the parties should equally divide that payment and the father will be required to reimburse the mother ½ of that payment, i.e. $632.75.

[170] He has agreed to pay the mother $470 representing day care costs owing and reimbursement for some coins.

vi) Should a restraining order be issued?

Mother’s position

[171] The mother indicates that a restraining order should be issued for the following reasons:

• the father has been violent in the past;
• he has been stalking her;
• she feels he was jealous and that is why he came by her place. There was no reason to be driving by her home, for example, October 5, 2012;
• he broke into her emails; and
• he has been coming around her street for no reason other than to keep an eye on her.

Father’s position

[172] The father opposes this request as he denies stalking her. There was incident while they were cohabiting when he hit a wall as he was very frustrated after an argument with the mother. It was not near her and the children were not present. The police were not called nor were charges laid.

[173] He admits that he should not have reviewed her emails but she also saw his emails without his permission.

The Law

[174] S. 46 of the Family Law Act states that:

On application, the court may make an interim or final restraining order against a person described in subsection (2) if the Applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.

Decision

[175] The Court declines the Respondent`s request for the issuance of a restraining order because:

• there is no evidence that would give the Respondent reasonable grounds to fear for her safety or that of the children;
• an event of a few years ago where he drove by her house does not warrant the draconian measure of a restraining order which is a restraint of human liberty and freedom;
• there is no fear outlined in her emails, attendance with the father at appointments dealing with the children
• the Court finds that there was no evidence of violence in the home. It was not mentioned in pleadings, nor to Dr. Weinberger or to Dr. Harrison;
• the Court accepts the one incident where the father hit the wall with his fist; and
• neither expert testified with respect to family violence in the parties’ relationship.

[176] As set out in Yunger v. Zolty, 2011 ONSC 5943, Aguirre v. Aguirre, 2016 ONSC 4650 and Khara v. McManus, 2007 ONCJ 223, a restraining order should be issued if there are compelling facts. Justice McDermot in Khara succinctly summarized it “A restraining order cannot be issued to forestall every perceived fear of insult or possible harm, without compelling facts. There can be fears of a personal or subjective nature, but they must be related to a Respondent’s actions or words.”

[177] In her sessions with Dr. Weinberger, the mother stated that he was not a threatening individual and was reserved and passive. On page 4 of her report, Ms. Lapierrre reports that “in 11 years I never saw him angry” and that he is an “even keel personality”. She also reported that they never argued. And on page 7 of the report he is not intimidating in his tone or behaviour “that’s not his way” but she did say he was “sneaky”.

[178] Nevertheless it is in the children’s best interests that they continue to meet at an exchange place so that the parents will continue their civil approach to each other. Communications between them should only deal with issues related to the children.

Summary

[179] Therefore, the Court orders the following as set out below.

[180] The parties will have joint custody of the children with the following stipulations and terms and conditions.

• the parties will not change doctors, counsellors or other professionals involved with the children without the mutual written consent of both parents;
• each parent may register the child in an activity and if it falls within the other parent’s time then they must obtain the other parent’s written consent;
• both parties shall be named as emergency contacts with the children’s schools and with any other organizations or professionals involved with the children;
• neither party shall interfere with the religious observance of the other with the children;
• there will be no further right of first refusal. Each parent will be responsible to ensure care of the children in their absence. This will avoid conflict between the parties as experienced in the past. Both parents are trustworthy to ensure that a designated caregiver will appropriately care for the children;
• each party shall be entitled to receive copies of all medical, dental, school and other reports related to the children and shall be entitled to consult with the children’s teachers, caregivers, physicians, dentists, and other health providers concerning their general well-being. Both parents shall be listed on all documents pertaining to the children and shall be entitled to attend any of the children’s scheduled appointments. Both parents are to execute consents or authorizations to all persons, including teachers, doctors, dentist and others involved with the children to speak full and openly with both parties;
• subject to the above provisions, each party shall be responsible for making day-to-day decisions for routine emergency medical care while the children are in his/her care, and shall keep the other party fully informed, by e-mail, of any minor illnesses, emergencies, treatments, medications administered or prescribed while the children are in his/her care;
• the parents shall advise each other of all important events, functions, or appointments for the children in a timely manner, and with the exception of family or social events, both parties shall be entitled to participate in these events, functions or appointments;
• in the event of a serious illness, accident or other misfortune involving either or both of the children, the party having the children in their care at that time shall immediately and promptly notify the other party. During any period of illness or recovery, each party shall have generous and reasonable contact with the child, consistent with the conditions of this order and the welfare and happiness of the child;
• neither party shall speak in a disparaging or negative manner about the other party or allow or encourage others to do so in the presence of or within earshot of the children;
• the parties will continue to communicate by email, Google calendar and the family journal. Each party will respond promptly by return email to the email of the other and at most within 72 hours. The parties shall exchange information regarding the children’s care, development milestones, food likes and dislikes, scheduled activities and appointments, medical and otherwise;
• each party shall be entitled to make telephone or video call (i.e. Skype, Face Time, Google Hangouts, etc.) to the children on any day that the children are out of their care. The call shall be made before 7:00 p.m. The other parent shall actively support and use reasonable efforts to facilitate the call, including maintaining telephone, computer and internet capacity at their residence;
• neither party shall go to the other party’s home without written consent of the other parent;
• emails relating to major decisions for the children such as health, education, religious upbringing or extracurricular activities shall be responded within 72 hours;
• the parties will not contact each other directly or indirectly unless it pertains to the children; and
• the parents will continue to meet at a neutral location for the exchange of the children.

[181] The father will have the following parenting with the children:

• every second Thursday after school until Tuesday morning;
• he will make the best efforts to bring the children to the daycare before 8 a.m.;
• the following holiday schedule will be in the best interests of the children as it will permit both parents to enjoy the special holidays and maintain their own traditions and celebrations;
  • the parties will equally share the Christmas holidays with each parent one week of the children’s holidays subject to the following: the father will have the children from Christmas Eve at 6 p.m. to Christmas noon on odd numbered years and mother will have that time period in even numbered years;
  • the Thanksgiving weekend will alternate each year with father having them in odd numbered years and the mother will have them in even numbered years;
  • both parents will have up to three summer consecutive weeks of time with each parent for summer vacation with the children. The Applicant will have priority in odd numbered years and the mother will have priority in even numbered years.
• if a parent is away from Ottawa for a prolonged period of time, they will provide the other parent with an itinerary and contact information;
• there will be regular Skype calls between parents and children;
• the mother will able to call the children on Sundays when they are with their father;
• the parenting arrangement will be reviewed by July 2019;
• commencing January 1, 2017, the father will pay child support table amount of $1,415 per month for the two children based on his annual income of $99,927;
• commencing June 1, 2017, the parties will exchange their most recent income tax returns and Notices of Assessment and child support and the division of s. 7 expenses will be adjusted in accordance with the Applicant’s previous year’s income effective January 1st;
• the parents will share s. 7 and special extraordinary expenses proportionate to their respective incomes. At this time, both parties are responsible for BB and daycare expenses. The father will pay 57% of the expense and the mother will pay 43% of the expense. No expense for which contribution is sought will be incurred without first obtaining prior written consent from the other parent, which consent shall not be unreasonably withheld;
• the father will pay to the mother ½ of the Child tax credit in the amount of $632.50 by April 1, 2017;
• the father will pay to the mother the amount of $470 representing a reimbursement of daycare expense and shortfall with respect to coins by April 1, 2017.

[182] The claim for a restraining order is dismissed.

[183] If the parties cannot agree on the issue of costs, the father shall file his two-page costs submissions with any offers to settle and his bill of costs by March 31, 2017 and the mother will file her two-page costs submissions with any offer to settle and bill of costs by April 14, 2017.

Released: 2017/03/13 A. Doyle J.