Court File and Parties

COURT FILE NO.: FS-12-76328-00 DATE: 2017 04 04

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Marcia De Matos P. Bateman, Counsel for the Applicant Applicant

• and -

Nelson De Matos S. Philbert, Counsel for the Respondent Respondent

HEARD: December 22nd, 2016

REASONS FOR JUDGMENT

LEMAY J

1This is a contentious family law case involving custody, access and financial issues. I presided over a ten day trial in May of 2016, and released reasons on August 15th, 2016 (De Matos v. De Matos 2016 ONSC 5138). The unfortunate history of this matter is set out in those reasons and I do not intend to repeat it here.

2In my decision, I made final Orders about a number of issues. I also made interim Orders about access and custody, and directed the parties to return before me after some time had passed so that I could review those interim Orders and see what progress was being made.

3The custody and access issues involve two children, Sierra, who is currently in Grade 9 and Ethan, who is currently in Grade 6. Their parents are the Applicant (Marcia De Matos) and the Respondent (Nelson De Matos). My interim Orders gave sole custody of Sierra to Marcia, with sole custody of Ethan given to Nelson.

4In a conference call in November of 2016, counsel for both parties advised me that a further attendance was necessary, and that I would need to resolve all of the outstanding issues. As a result, counsel were directed to file affidavits and various independent third-party notes for my review, and they have done so. Each party has filed a principal Affidavit and a reply Affidavit with relevant documents. The parties also filed a joint documentation brief, consisting of medical notes, notes from Nevilla Stapleton-Street (a counsellor) and an update to the Children’s Aid Society case notes.

5I was advised by counsel that they wished to have the custody and access matters finally determined based on the evidence that I received over the course of the ten day trial in this matter, and the Affidavits that they filed for this hearing, and that they did not require further viva voce evidence to determine these issues.

6It is apparent from my review of the Affidavits filed for this hearing that the problems I identified in my August 15th, 2016 decision remain on both sides in spite of what both counsel agreed was firm language in my original decision. Although both sides have acknowledged the concerns that I expressed in my original decision, I remain unconvinced that either side has actually understood or acted upon those concerns.

7In particular, I note that both Marcia and Nelson filed detailed Affidavits dated December 9th, 2016. When I review the Affidavits, both parents spent a considerable amount of time criticizing the other parent’s parenting approach, in an effort to obtain sole custody of both children.

8It is clear from the records that were filed on this motion that conflicts between both parents continued during the trial, and the period when my original decision was under reserve. There have also continued to be problems between these parents, even after my decision was released.

9Based on the evidence before me, I must conclude that Nelson and Marcia have an antagonistic relationship that simply cannot be cured, or even managed, by further Court involvement. I also conclude that the possibility that the Court might change its decision may very well motivate both Nelson and Marcia to try and obtain sole custody over both children. They both remain focused on winning. As a result, holding out the prospect that there might be a change of custody in this case by making further interim orders rather than finally resolving these issues is not in the best interests of the children.

10As a result, I am of the view that any further involvement of the Court in this matter would be both unproductive and contrary to the best interests of the children, and I am therefore making a final determination on the custody and access issues that present themselves in this case.

The Issues

11The issues that present themselves at this stage are:

a) Who should have custody of Sierra? Both Nelson and Marcia have asked for sole custody of Sierra. b) Who should have custody of Ethan? Both Nelson and Marcia have asked for sole custody of Ethan. c) What other terms should be ordered respecting custody and access? d) Should the Court revisit any of the financial issues? e) Should the Court revisit any of the “factual errors” in my original decision that Nelson outlines in his submissions?

12I will set out some general facts on this matter, and then address each of the issues.

13Before commencing my review, one preliminary matter must be addressed. In my endorsement on November 23rd, 2016, I set out the page limits for the materials that the parties were permitted to file on this motion. One of those limits was that each party could file no more than two (2) primary Affidavits of no more than fifteen pages in length each. Nelson has claimed that Marcia’s Affidavit is over this limit, because it was single-spaced, and the Rules of Court require it to be double-spaced.

14I am not prepared to give any effect to this argument for three reasons. First, there is a tendency amongst family law lawyers to prepare Affidavits in single-spaced form regardless of the Rules. Second, Marcia’s Affidavit is well within the total length limitations I provided to the parties. Third, the error (if there was one) was made in good faith, and, as a result, I am not prepared to strike Marcia’s Affidavits.

The Background Facts

15The background facts to this matter are set out in my previous decision. In addition to the evidence filed by the parties on this motion I have relied on my previous factual findings in arriving at my decision in this case. At this stage, I need to consider all of the evidence that I have heard and all of the exhibits and documents that I have reviewed in order to arrive at Orders that will ensure, as much as possible, that the best interests of the children are met.

16In reaching my conclusions at this point, there are three additional events that are common to my consideration of which parent should have custody of both children as follows:

a) An October 31st, 2016 incident at Ethan’s Kumon that resulted in him being required to change tutors. b) The incident between Jennifer Lockhart, Marcia’s partner’s sister, and Nelson in the summer of this year that resulted in police involvement. c) The conduct of Marcia’s mother at access exchanges.

17I will deal with each issue in turn.

a) The Kumon Incident

18Ethan had been attending at Kumon, which is a private tutoring service that was attempting to improve his math and English. It is clear that there was an incident at the Kumon centre where Ethan attended on October 31st, 2016.

19There were a significant number of e-mails exchanged between Nelson and Marcia about Ethan’s Kumon workbooks before the October 31st, 2016 incident. I do not need to resolve what happened with respect to these workbooks. However, the result of the e-mails was that both Marcia and Nelson were at the Kumon centre on the same day.

20Nelson’s version of events is that a joint meeting had been scheduled with the owner of the Kumon centre, Ms. Singh, to review the Kumon records, to discuss Ethan’s progress and to obtain Ethan’s marked assignments. On his version of events, Marcia arrived early and met with Ms. Singh alone. As a result, Nelson had his own meeting with Ms. Singh. On Nelson’s evidence, Marcia had Sierra interrupt his meeting with Ms. Singh on a number of occasions, and eventually Marcia left early with Ethan, after repeatedly calling Nelson derogatory names.

21On Marcia’s version of events, Nelson arrived at the Kumon centre uninvited and got into an argument with Ms. Singh. In addition, Marcia asserts that Nelson became verbally abusive with her. As a result, Ethan was no longer welcome as a student at this Kumon centre.

22I reject both parties version of the events. Marcia has filed a statement from Ms. Singh, but has not included an Affidavit from her. Ms. Singh’s statement indicates that she did not have a scheduled appointment with Nelson. However, Ms. Singh states that she had a discussion with Nelson, and that he was persistent in wanting to obtain Ethan’s marked assignments, which Ms. Singh stated were not a priority. However, Ms. Singh went on to state that an argument erupted in the parents waiting area between the parents.

23In my view, Nelson did not have an appointment to see Ms. Singh, and pursued the issue of the marked books more aggressively than he should have. However, I also reject Marcia’s evidence that Nelson became verbally abusive with her. Given the history of these parties, it is far more likely that they were both responsible for the altercation. In short, neither of them were acting in an appropriate way.

b) The Incident Involving Jennifer Lockhart

24Jennifer is the sister of Marcia’s partner. There have been some issues between Nelson and Jennifer, and the details of these incidents are not clear. As I noted at paragraph 47 of my August 15th, 2016 decision, at trial I did not hear sufficient evidence to draw any conclusions one way or the other about this interaction.

25However, Nelson has stated that he lost his job in the summer of 2016 in part because of having to attend court in response to accusations from Jennifer. Those accusations, according to Nelson, were claims that Nelson was taking inappropriate photographs at a Recreation Centre. As a result of this incident, Nelson sought a peace bond against Jennifer.

26Jennifer responded by seeking her own Peace Bond. Both of the requests were dismissed by the Court, and I have no further details about them.

27Based on the evidentiary record before me, I still have not heard or seen enough evidence to draw any conclusions one way or the other about this incident.

28The one conclusion I am prepared to draw is that Marcia has involved her partner’s sister in the ongoing conflict with Nelson, with the result that the conflict has escalated. This conflict continued at a time when the parties had been to court and were awaiting my decision, and reflects poorly on both sides.

c) Marcia’s Mother’s Conduct at Access Exchanges

29As I have detailed in my August 15th, 2016 decision (see paragraph 48), Marcia’s parents have also been involved in the conflict between Nelson and Marcia. They have both made negative comments to the children about Nelson.

30Nelson has advised that Marcia continues to allow her mother to be an integral part of the childcare for the children. In particular, Marcia’s mother is involved in the pick-up and drop off of children from access. Nelson alleges that Marcia’s mother “pretends not to see me, is very confrontational, and hinders my access.”

31Marcia denies this allegation, and states that she has spoken to her mother after the trial and that Marcia’s mother has promised to improve her attitude.

32On this point, I prefer Nelson’s evidence for a number of reasons. First, there are case notes that support the view that there have been ongoing problems since I released my decision in this matter in August. Two examples will suffice. First, in the August 19th, 2016 case note (which was four days after my decision), Ethan advises the case-worker that Marcia’s mother drove around the police station several times before dropping Ethan off. Second, in a September 9th, 2016 visit with a case worker, Ethan reported that, while discussing his father, his grandmother (Marcia’s mother) stuck her finger in her mouth.

33Second, I note that Marcia’s mother did not provide an Affidavit about her conduct since the trial. Given that the various clinical notes make it clear that this conduct would be an issue on the hearing of this motion, I agree with Nelson that this is an omission from the evidence, and that I should draw an adverse inference from it.

34Finally, there is the incident relating to Ethan’s shoes. There was an access exchange in early December that resulted in Nelson complaining to Marcia about her mother’s conduct. In response to Nelson’s complaint, Marcia states the following in her Affidavit:

The Respondent is really upset that Ethan received a pair of shoes that he wanted from my mother. These shoe light up. The Respondent was going to buy the shoes for Christmas. Ethan needed shoes. When Ethan got out of the car, Ethan had the shoes on and that is what I believe angered the Respondent. He then turns the situation into a big deal and basically exaggerates what happened and the honking etc.

35The problem with Marcia’s explanation is that it is not helpful to her in terms of the larger issues in this case. It is clear from this statement that Marcia knew at the beginning of December that Ethan wanted a particular type of shoes that light up for Christmas, and that Nelson was going to buy those shoes for Ethan. Marcia’s mother purchased them instead.

36While it is possible that Nelson overstated the problems with Marcia’s mother at access exchanges, this incident illustrates an ongoing concern about conduct on the part of Marcia’s family that has the effect of interfering in the relationship between Nelson and his children. I reject Marcia’s statement that Ethan needed shoes, and the implication that this purchase could not wait until Christmas. Given the conduct of Marcia’s parents in this case, the only conclusion that I can draw from this incident is that Marcia’s mother deliberately purchased these shoes for Ethan to deny Nelson the opportunity to purchase them.

37Given all of these incidents, I find that Marcia’s mother continues to try and negatively affect the relationship between the children and Nelson. If Marcia is attempting to control her mother’s conduct, it is not working.

Issue #1 - Custody of Sierra

38I have considered all of my findings of fact as outlined in my August 15th, 2016 decision, as well as the common facts set out above. In addressing access to Sierra, I must also focus on the issues which are individual to her, namely her progress in school, her progress in counselling and her relationship with her father.

a) Sierra’s Progress in School

39It is clear from the report cards that were filed that Sierra is struggling in school. However, it is also clear from Dr. Kao’s evidence and from the other evidence that I heard at trial that Sierra is always going to struggle academically.

40Marcia has indicated that she intends to enroll Sierra in tutoring. I am of the view that this is a positive step.

41Other than the academic struggles, a review of the Affidavits suggests that Sierra has adjusted to Grade 9 successfully and is comfortable in her new school.

b) Sierra’s Progress in Counselling and Her Relationship With Nelson

42Three things are clear from the materials that were filed with me. First, and most positively, Nelson’s relationship with Sierra is improving, as she is now willing to spend time with Nelson, including some overnight visits.

43Second, Nelson remains a source of some of the problems with Sierra. It is clear from the clinical notes that Nelson has three issues with the therapy. First, he is not happy that he was not consulted about who the therapist would be. Second, Nelson believes that the therapist has aligned herself with Marcia and with Marcia’s counsel. Third, Nelson believes that the therapist has not done enough to review the past with Sierra.

44I have read the therapists notes and reject all of these concerns. First, and foremost, it is clear that the therapist is making progress in improving the relationship between Nelson and Sierra. Nelson acknowledges this in his Affidavit, and Sierra has agreed to participate in additional access, including overnight access.

45Next, I saw no evidence in any of the materials filed that the therapist is aligned with Marcia, and I particularly saw no evidence that the therapist was aligned with Ms. Bateman. I reject Nelson’s allegation in this regard unreservedly.

46Finally, I am of the view that it is the therapists responsibility to determine how best to repair the relationship between Nelson and Sierra. The fact that the therapist is not exploring all of the past issues and is focusing on the future is not entirely surprising. I am concerned by Nelson’s focus on the past, however, because it suggests that Nelson is still interested in vindicating his position about the events of the past eighteen months rather than listening to the concerns of his now teenage daughter, who will continue to mature and change.

47This brings me to the third fact that is clear from my review of the records. It is that Marcia is still influencing Sierra to some extent, as is her mother. This is evident from the Kumon incident (and the soccer incident discussed below), as well as from the findings I have made about Marcia’s mother’s conduct on exchanges. I am concerned about this influence. However, as was the case at trial, Marcia’s influence is not the only factor that has affected the relationship between Sierra and Nelson and it does not cause me to view this as a case where there should be a reversal of custody.

c) Conclusions on Sierra

48I am of the view that sole custody of Sierra should remain with Marcia on a final basis for the reasons set out in my August 15th, 2016 decision, and for the following additional reasons:

a) The relationship between Sierra and Nelson is improving, but only slowly. b) Nelson is, as discussed above, clearly a significant source of the problems in his relationship with Sierra. His relationship will improve if he works on listening to his daughter, who is becoming an adult.

49However, I also note that I have some reluctance about this Order. As a result, the reunification counselling will continue for at least one more year, and Marcia will continue to pay 50% of the cost of that counselling. To be clear, if the counsellor determines that the counselling should continue for more than one year, Marcia will continue to pay for it. It is not open to any of the parties to forgo the counselling for the next year. If the counsellor withdraws her services prior to the end of the year, then a new counsellor must be found.

50In addition, it is time to increase the access that Sierra has with her father. I am adjusting the Order so that Sierra is to spend one overnight every second weekend with Nelson. The parties should, within the year, move to an access schedule where Sierra spends every second weekend with Nelson. This weekend should be the same weekend that Ethan is with Nelson.

51In addition, there will be provision in the final Order for Sierra to spend at least some period of vacation with Nelson, again at the same time as Ethan. This time reward should be at least a week per year.

Issue #2 - Custody of Ethan

52In considering Ethan’s progress, there are also two specific issues that should be addressed. First, there is an issue relating to a soccer practice. Second, there is his academic progress generally.

a) The Incident at Soccer

53There was an incident at a soccer practice. Nelson is involved in coaching Ethan’s soccer team. At the end of practice on an evening in June, Nelson asserts that Marcia and Sierra were both screaming at Ethan in order to get him to leave the practice.

54Marcia asserts that, with respect to the incident at soccer, she did tell Ethan to come to her and to listen. Marcia states that she made this comment to Ethan because, on the days when Marcia has Ethan, Nelson deliberately delays releasing Ethan after he is done his soccer practices. On the day in question it was Wayne’s (Marcia’s partner’s) birthday, and Marcia stated that the practice ended at 8:00 pm, but Ethan had not been released until 8:15 pm.

55On this issue, I reject Marcia’s version of events. In the materials that Nelson filed in reply is an e-mail that comes from Marcia’s account. In that e-mail, Marcia states that it was “almost 8:00, and that [Ethan] had been there an hour, I figured it was a good time to leave.” This statement is inconsistent with the evidence in Marcia’s Affidavit.

56I accept this e-mail as the true version of events. Marcia wanted Ethan to leave soccer practice early because it was her partner’s birthday. I also accept Nelson’s evidence that Sierra was also yelling at Ethan to leave practice before it was over. This appears to be another example of Marcia’s focus on her interests rather than Ethan’s interests. I have described this focus in paragraph 106 of my August 15th, 2016 decision.

b) Ethan’s Academic Progress

57It is clear from both the evidence at trial and the affidavit evidence on this motion that Ethan has significant challenges in school, and will have significant challenges for the rest of his life. As a result, it is important to consider his academic progress in order to assess what is in his best interests.

58I have reviewed the report cards that have been filed as part of the Affidavit materials. It is clear to me that Ethan is making progress in school, but is still having significant challenges. It is also clear to me that Ethan will have those challenges for the rest of his life.

59This brings me to Nelson’s understanding of Ethan’s educational development. Marcia argues that Nelson is “not realistic in his goals and expectations for Ethan and is unnecessarily stressing out everyone” with his expectations. Marcia bases this statement on e-mails from Nelson outlining his “shock” that Ethan is not working at grade level. Nelson made his statements after receiving the results of testing from the Oxford Educational Group that showed that Ethan was working at a grade 1 to 2 level.

60When I review the e-mails from Nelson, I do not see the same concern that Marcia has. In particular, in the e-mail that Marcia relies on, Nelson’s “shock” is over the fact that the IEP seems to show Ethan at a higher level than the Oxford testing suggests that he is performing at. On the evidence that I have, Nelson is not shocked that Ethan will never get to grade level. Instead, he appears to be concerned about the disparity between the IEP and the Oxford testing. This is a legitimate concern for a parent to have, especially since the school’s program is based on the IEP.

c) Conclusions on Ethan

61This brings me to the question of which parent should have custody of Ethan. Marcia argues that the incident at Kumon, along with the fact that Nelson does not seem to understand that Ethan has significant academic delays and challenges, means that I should change custody of Ethan to her.

62I have already dealt with the incident at Kumon. Nelson is, in part, to blame for this incident. However, I am of the view that Marcia is also to blame for this incident, and it does not cause me to change my decision on custody as set out in my August 15th, 2016 reasons.

63This brings me to Ethan’s academic progress. I am of the view that Nelson is properly managing Ethan’s academic progress. In addition, my concerns about Marcia’s tendency to focus on her own interests (as exhibited by both examples at trial and the soccer example set out above) rather than Ethan’s interests suggest to me that it is appropriate that Nelson retain full custody. As a result, for these reasons, and for the reasons set out in paragraphs 140, and 144-148 of my August 15th, 2016 decision, I order that Nelson is to have sole custody of Ethan on a final basis. Again, I make this Order reluctantly, as I see concerns with the approaches adopted by both Nelson and Marcia.

64In terms of access to Ethan, I note that Marcia is of the view that the week about access is working well for Ethan. Nelson is seeking to have Marcia’s access to both Ethan and Sierra limited to one night a week and alternate weekends. Nelson did not advance any compelling explanation for this position on access.

65For Ethan, I am of the view that his best interests are served by maximum contact with both of his parents. It is clear that Ethan is going to have very significant academic and social struggles throughout his life. As a result, it is in his best interests to ensure that he has as wide a support network as possible, as that will provide him with the best chance of success given the clear challenges that he is going to face. As a result, Ethan is to remain on the week about access schedule that he is currently following.

66There is one change that I am making to the Orders with respect to Ethan. I agree with Marcia that moving the access changeover date from Sunday to Friday is appropriate. This change should have two positive effects. First, it will give Ethan the weekend to adjust to his new location. Second, it will remove any disputes between these parties over long weekends.

Issue #3 - Other Terms in the Order

67I had asked counsel to file their proposed Orders in terms of other issues that they wanted me to address, and they have done so. My intention had been to use those Orders to craft a final draft Order that included vacations, summer holidays, medical treatment, access to records and the like. However, on reviewing those Orders, crafting one final order would be a difficult task. Nelson’s Order envisions him as the custodial parent for both children, while Marcia’s Order envisions her as the custodial parent for both children.

68Given that neither party achieved their desired outcome, both proposed draft Orders need to be edited. To that end, counsel are directed to revise their Orders and exchange proposed draft Orders within fourteen days of the release of these reasons. If counsel are unable to agree on the terms of the other issues that should be contained in a final Order of this nature within a further fourteen days, then they are to advise my judicial assistant, and I will arrange a conference call. I retain jurisdiction to resolve any remaining disputes.

69In considering any disputes over the Draft Order, it is important for both parties to remember that the circumstances of both Sierra and Ethan strongly favour the application of the “maximum contact” principle. Sierra and Ethan both have learning disabilities that will pose challenges for them as both children and adults. As a result, they will need the support of both of their parents, and both of their parents’ families. I will be applying that principle to resolve any disputes that may arise over the draft Order.

70Finally, I would expect that the parties will incorporate the provisions outlined in these reasons in the final Order.

Issue #4 - Financial Issues

71The one outstanding issue is the quantum of ongoing child support. In my August 15th, 2016 decision, I addressed the issue of child support and provided the parties with a retroactive calculation. I do not intend to revisit this calculation. I then stated (at paragraph 180) that, for 2016, no child support was payable for the first three months of the year, and that the parties could address any issues relating to the quantum of support payable by way of written submissions.

72While the parties did not provide me with specific written submissions, they have raised an issue with me. Specifically, although Nelson was employed at the time of the trial, he lost his job shortly afterwards. As a result, there may be a dispute between the parties over the amount of support that should be payable in 2016, and going forward.

73The parties agree that I have the jurisdiction to resolve this issue. However, the parties also advised me that they may be able to resolve the issue without further assistance from the Court. The parties also confirmed that the amounts of money involved would be relatively small at this stage, and did not justify a further attendance before me.

74As a result, I am providing the parties with the following directions:

a) Each party may provide an Affidavit of no more than five (5) double-spaced pages, outlining the relevant facts relating to the amount of child support that should be payable by Nelson from April 2016 forward. Those Affidavits are due within fourteen (14) days of the release of these reasons. b) Each party may file a reply Affidavit of no more than three (3) double-spaced pages within seven (7) days of receiving the other side’s Affidavit as described in sub-paragraph (a). c) Each party may file a written argument of no more than three (3) double-spaced pages within seven (7) days of receiving the Affidavit described in paragraph (b). d) I will then review this material and determine whether I can make a decision on the basis of the written material, or whether I require oral evidence. e) If the parties have been able to reach agreement on these issues, then they are to advise me of that fact as soon as possible and, in any event, before the deadline for filing the Affidavit material described in sub-paragraph (a).

75I should also advise the parties that approximately a month ago I was reviewing the routine requests that we receive from jurors to be excused from a hearing. One of those requests was from Nelson, who was asking to be excused because he had just recently obtained a new job at Kingshore Windows and Doors starting on February 13, 2017. The salary started at $60,000.00 and will escalate to $65,000.00 over time. I granted Nelson’s request, and have set this fact out here so that both parties are aware of it.

76Finally, there is the issue of the tax credits for Sierra and Ethan. First, from here forward any tax credits that are paid are to be administered by the parent that receives the money in the best interests of the child. Second, there is the question of retroactivity for Ethan’s tax credit if he receives it. If the parties cannot resolve this issue, we will also address it by way of a conference call with counsel as set out in paragraph 68.

Issue #5 - Should Modifications be Made to My August 15th, 2016 Reasons?

77No.

78Nelson seeks to correct inaccuracies in my reasons. There are two problems with this request. First, I have already made my findings of fact, and I am not prepared to change them. In some cases, I have simply found different facts than Nelson wishes me to find.

79Second, if I have made an error in a finding of fact in this case that materially affects the outcome of the case, then Nelson has a right of appeal. It would be for a different Court to address that issue, and I have no jurisdiction over it. As a result, there will be no adjustments to the facts found in my decision of August 15th, 2016.

Conclusion and Costs

80I remain convinced that this is a case where both children have lost because of the conflict between their parents. This is especially unfortunate given that the children’s pediatrician, Dr. Kao, has stated that “both children will have a long road ahead with academic/life challenges and struggles.” All I can do at this point is to remind both Marcia and Nelson that their children will need the support of both parents and both families in order to meet these challenges.

81It is why, in spite of the conflict between the parents, that I have made Orders that will maximize the contact between the children and both of their parents. As I have stated above, a healthy relationship with both of their parents, and both of their parents’ families is in the children’s best interest. Nelson and Marcia are strongly encouraged to remember this.

82Based on the foregoing reasons, I make the following Orders:

a) Sole custody of Sierra shall be with Marcia. b) Reunification counselling between Sierra and Nelson shall continue until at least April 4, 2018. c) The cost of the reunification counselling described in paragraph (b) shall be equally shared by Marcia and Nelson. d) Nelson’s access to Sierra is to expand from the current schedule to include one (1) overnight access visit every second weekend, with such visit to take place on the same weekend as Ethan has access with Nelson. e) Sierra is to spend a period of time of at least one consecutive week for vacation with Nelson, at the same time as Nelson has Ethan for vacation. f) Nelson is to have sole custody of Ethan on a final basis. g) Ethan is to continue the current week about access with both parents. The access exchange is to take place Friday after school. h) Counsel are to discuss the other terms of a final order and are to agree if possible. If there is no agreement within fourteen (14) days they are to advise my judicial assistant. I retain jurisdiction to address any outstanding issues. i) Each party may provide an Affidavit of no more than five (5) double-spaced pages, outlining the relevant facts relating to the amount of child support that should be payable by Nelson from April 2016 forward. Those Affidavits are due within fourteen (14) days of the release of these reasons. j) Each party may file a reply Affidavit of no more than three (3) double-spaced pages within seven (7) days of receiving the other side’s Affidavit as described in sub-paragraph (i). k) Each party may file a written argument of no more than three (3) double-spaced pages within seven (7) days of receiving the Affidavit described in paragraph (j). l) I will then review this material and determine whether I can make a decision on the basis of the written material, or whether I require oral evidence. m) If the parties have been able to reach agreement on these issues, then they are to advise me of that fact as soon as possible and, in any event, before the deadline for filing the Affidavit material described in sub-paragraph (i). n) Disability tax credits received for either child are to be used in the discretion of the custodial parent. o) If there are any issues with respect to retroactive tax credits, I am to be advised within fourteen (14) days. I retain jurisdiction over this issue.

83In addition, there is the subject of costs. We are now at a stage where I can consider the costs of this proceeding. As I set out in my August 15th, 2016 decision, I am very firmly of the view that both the Applicant and the Respondent are to blame for the problems that have arisen in this case. As I said in my original reasons, neither party won - but their children both lost.

84As a result, it appears to me that this is not a case for costs to be awarded to either side. However, if either party wishes to seek costs, or there have been offers to settle that I have not considered, they may make costs submissions within fourteen (14) days of the release of these reasons. Those submissions are to be no longer than four (4) double spaced pages, exclusive of offers to settle, bills of cost or case law.

85Reply submissions are due seven (7) days after receipt of the other side’s costs submissions and must be no longer than two (2) double spaced pages.

86If I do not receive submissions from either side within the fourteen days set out in paragraph 84, then there will be no costs in this matter.

87Finally, I would be remiss if I did not observe again that Mr. Philbert and Ms. Bateman handled a very difficult and contentious case in an efficient, effective and cooperative way. I appreciate their assistance.

LEMAY J Released: April 4, 2017