CITATION: A.P. v. J.P., 2017 ONSC 259

NEWMARKET COURT FILE NO.: FC-08-29814-00

DATE: 20170111

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

A.P.

Applicant

– and –

J.P.

Respondent

Leonardo Mongillo, Counsel for the Applicant

Russell I. Alexander, Counsel for the Respondent

Sheila Bruce, Counsel for the OCL

HEARD: September 19, 20, 21 and November 14, 2016

REASONS FOR DECISION

JARVIS J.

[1] There are no winners in a high conflict custody case, only losers, and almost without exception those are the children. So it is with this case. Two children who, when their parents separated over seven years ago, were happy and healthy, now suffer anxiety, depression and academic challenges. Psychiatric treatment is underway for one: the other needs a psycho-educational assessment. The parents cannot communicate with each other - they cannot even cooperate about their children’s treatment! The parents squandered on legal fees what might have been the children’s debt-free educational futures. That is only part of their parent’s legacy.

Issues

[2] A Statement of Agreed Facts dealing with the parties’ incomes and child support was filed at the start of trial and, after evidence was heard dealing with the parenting issues, the parties resolved all property and retroactive child support issues, reserving for disposition those dealing with custody, access and ongoing child support.

[3] The mother claims sole custody and, with that, seeks final decision-making authority - after consulting with the father. He seeks an Order for joint custody and shared parenting of the children: this includes joint decision-making. Both parties agree that the children’s time with each parent should be clearly set out in any final Order, and that child support pursuant to the Federal Child Support Guidelines, SOR/97-175 (“the Guidelines”) should be calculated depending on the outcome of the court’s disposition of the children’s custody and residential schedules.

Overview

[4] The mother and the father were married on June 30, 1998. They have two daughters, JP and VP, who are14 and 12 years old, respectively.

[5] The parties met when the mother was 17 years old and the father was 23 years old. A casual relationship led several years later to the parties’ engagement in 1996, then to their marriage in 1998. The mother was employed in a clerical position at a local company: the father worked then, as he still did at trial, for a wholesale food distributor. According to the mother, the parties’ relationship was characterized by the father’s controlling, inflexible behaviour. Issues arose involving family finances, work hours and family events. The mother was feeling progressively more isolated, not seeing friends or family as much as before. She was the more emotionally expressive partner: the father often resorted to ultimatums when there were differences between them. The mother felt that she had to concede. After the birth of their children, the interpersonal conflict between the parties escalated to the point where the mother was so unhappy and stressed that she told the father on or about January 1, 2008 that she wanted to separate. This is the date on which she claims that the parties separated. According to the father, he did not wish a separation.

[6] In April 2008, the mother consulted a lawyer. An Application claiming, among other things, a divorce and custody of the children was started on May 1, 2008 but went nowhere. The father was served but never noted in default. The parties continued to reside in the matrimonial home and the family’s life proceeded, more or less, as before. While the mother claims that she was a reluctant participant, the parties afterwards pursued counselling for reconciliation purposes.

[7] In late winter 2009 the father retained a lawyer who wrote to the mother’s lawyer on April 1, 2009 advising of his retainer and seeking clarification of the mother’s position: did she want to continue marriage counselling or to pursue court proceedings? But at some point shortly before May 1, 2009, the mother planned to leave the home and take the children with her. There was no single, precipitating event. While the father was showering on the morning of May 1, the mother, with the children still in their pyjamas, drove to her sister’s residence. The children were six and four years old. Around that time, that day, the mother’s lawyer responded to the April 1^st letter from the father’s lawyer (who was away from his office on holiday) and in a letter dated May 1^st informed the father’s lawyer that his client was unable to “take it anymore” and that unless the father agreed to “forthwith” leave the matrimonial home the mother would bring an urgent motion.

[8] The father was surprised when he discovered that “his” children were gone. No note from the mother had been left. The father called relatives and the mother’s uncle. He contacted the police. They contacted the Children’s Aid Society (the “Society”). A duct-taped package was later dropped off at the matrimonial home and at the residence of the father’s sister. Included in the package was an urgent motion, supported by an affidavit sworn that day from the mother, for custody of the children and exclusive possession of the matrimonial home.

[9] The mother also spoke to the police, although whether that was before the father called them or afterwards is unclear. Regardless, this contact had serious ramifications. The mother was also contacted by the Society.

[10] On May 6, 2009, Rowsell J. made a temporary Order for exclusive possession of the matrimonial home in favour of the mother and directed that the children principally reside with her. Daytime access by the father was also ordered, but he was not granted overnight visits.

[11] On or about May 15, 2009, the father was charged with sexually assaulting the mother. The assault was alleged to have been committed between July 1, 2008 and February 28, 2009 when the parties were still cohabiting.

[12] On June 29, 2009, Mullins J. appointed the Office of the Children’s Lawyer (the “OCL”) to represent the children, which appointment was accepted. An investigation pursuant to section 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43 was undertaken in September 2009. The investigator’s Report was delayed due to an investigation by the Society acting on a protection complaint made by the father in October 2009 (which was not verified) and for another reason not otherwise relevant to this case.

[13] The OCL Report was dated May 25, 2010. The investigator observed that both parents “have actively engaged in behaviours to involve their children in their conflicts, and have escalated their conflicts to the point where the investigator is seriously concerned about the emotional impact of the conflict on the children.”

[14] In recommending that the children primarily reside with their mother, the investigator referenced the outstanding criminal charge still before the court, and was unable to recommend any change to the temporary Order made by Rowsell J. on May 6, 2009. The investigator noted that the Society had “warned both parents of the emotional impact of their continued conflict on the children: however, neither parent seems to have changed their behaviours.” She added,

Given the degree of active, ongoing conflict between these parents, there is no evidence to suggest that there would be any benefit to making any changes in the current custody and access arrangements, especially given the unsolved charges before the court. The investigator believes that the level of conflict between the parents impairs their ability to effectively parent their children, and has led both parents to compromise their parenting. Both parents need to engage in educational courses and intensive individual therapy to help them understand the emotional impact of their behaviour upon their children. Mr. and Ms. A.P. are strongly encouraged to share a copy of this report with their individual therapists. The issue of overnight access between the children and Mr. J.P. should not be considered until Mr. J.P.’s criminal charges before the court are resolved, in addition to both parents complying with the educational and therapeutic recommendations of this report. The investigator will be forwarding a copy of this report to the York Regional Children’s Aid Society to be placed in the P. family file for informational purposes, in the event that there be further activations of their file.

[15] The investigator also recommended that the parties attend parent education courses dealing with high conflict separation and divorce and that they individually participate in therapy to assist them in understanding the emotional impact of their behaviour on their children and to assist them in changing their behaviour.

[16] Less than two weeks later, on June 10, 2009, the father was acquitted of the sexual assault charge after a two-day trial. The mother testified at trial. The trial judge found that there were “significant internal inconsistencies” in her evidence which undermined “her credibility and the reliability of her evidence.” The court noted that the events giving rise to the charge occurred when the parties were “clearly in the throes of a disintegrating marriage.”

[17] Afterwards, although not formally varied, the parties slightly changed the May 2009 parenting arrangements ordered by Rowsell J.

[18] On August 17, 2011, Gilmore J. heard motions for extensive relief relating to child and property matters brought by both parties. The court varied the 2009 Order of Rowsell J. The court observed that while the case was “one that cries out for changes to allow the children to spend more time with their father, it is not a case where a dramatic change in the residential arrangements for the children should be made. It is also not a case for joint custody.” Elsewhere, Gilmore J. observed that the “current time allotted for the [father] is…insufficient…for [him] to have a meaningful visit or undertake meaningful activities with the children.” Access was expanded to include overnights and more extensive time.

[19] Gilmore J. also noted the parties’ inability to communicate and ordered, among other things, that all communication be through counsel or in writing. Both parties were also ordered not to discuss the litigation with the children. The mother was granted an opportunity to acquire the father’s interest in the jointly-owned matrimonial home (rather predictably, as events transpired, the parties were unable to reach any agreement). The home was sold in May 2012 and its net sale proceeds retained in trust.

[20] In a Supplementary Endorsement made September 23, 2011, Gilmore J. ordered that the children attend counselling as arranged by the mother and with a counsellor chosen by the mother.

[21] On May 17, 2012 McGee J. dealt with a motion by the mother in response to a Notice of Dismissal from the clerk of the court.

[22] There were continuing problems involving the children. On September 12, 2012 and while the mother and children were living with the mother’s sister, JP was unwell shortly before a scheduled access weekend with her father. When the mother informed the father about this and that JP did not wish to leave with him, he insisted and said that he would get the authorities involved, which he did. The police attended the sister’s residence and spoke to JP. They verified the child’s illness. The father left with VP. The mother testified that whenever the children were ill, the father would demand that they be with him, even when the mother offered make-up access or proposed alternate solutions.

[23] On October 11, 2012, the parties consented to an Order made by McGee J. which, among other things, reappointed the OCL and requested that the May 25, 2010 Report be updated. The OCL accepted the reappointment and proceeded to update its Report. McGee J. also ordered that the children were to remain in their current school and school jurisdiction unless the mother gave the father 45 days’ written notice of any intended move. The mother and children were still living in the residence of the mother’s sister.

[24] On January 15, 2013, counsel (Ms. Bruce) was appointed to represent the children.

[25] On February 13, 2013, Mulligan J. dismissed a motion brought by the father opposing a change in the children’s school brought by the mother. The father sought temporary custody to ensure the continuity of the children’s schooling. The court’s following observations are pertinent,

3. I am not satisfied that a change in the status quo re the children’s residence with mother is appropriate at this time. The OCL have been engaged and the court will be in a better position to determine the issue based on its report and further materials from the parties.

4. I am satisfied that mother’s move has been brought on through necessity. The family home was sold at the urging of the father and the mother was forced to reside with her sister. Her affidavit makes it clear that she is no longer welcome there due to interventions by the father such as calling the police to her sister’s premises.

5. Mother has searched extensively and with limited income has found suitable accommodation for her and the children in Richmond Hill. She has prepaid the rent for 6 months. She was unable to find accommodation within the current school catchment area. She indicates that the children will be able to maintain friendships based on the previous school relationships.

[26] On March 12, 2013, the clinical investigator who authored the May 25, 2010 OCL Report was reappointed. Her trial evidence was tendered by affidavit and supplemented viva voce. She was cross-examined by the lawyers for both parents. In her affidavit the investigator commented that interviews and meetings were delayed on at least two occasions when the Society had become involved with the family.

[27] Between late March and late November 2013, the investigator interviewed the parties, the children, their teachers and attended each parent’s home. A disclosure meeting was held on December 5, 2013. One of the recommendations made at that meeting by the OCL was for a psycho-educational assessment of the youngest child, VP. Earlier, VP’s teacher had speculated that the child might have a learning disability.

[28] In April 2014, counsel advised that the parties were scheduling a settlement meeting and, when nothing further was heard, the file was closed.

[29] In November 2014, the parties met with a qualified psycho-educational assessor. Most, if not all, of the assessor’s fees would be covered by the father’s workplace benefits plan.

[30] In April 2015, counsel asked for assistance because the matter had not settled: the investigator was reassigned the file.

[31] In mid-May 2015, the mother’s lawyer requested the father’s position with respect to proceeding with the assessment first recommended in December 2013 by the OCL and about which the mother had been awaiting a response since late November 2014. The father told his lawyer that he had understood the assessor thought that no amendment was needed. Nothing happened.

[32] On August 16, 2015, the mother’s birthday, the father called the police when the children were not made available to him on time. Three police cruisers attended the mother’s apartment building.

[33] On December 24, 2015, the mother contacted the police after the father told her that he would not return the children to her care as had been previously arranged. They were returned to her care at 2:00 a.m. on Christmas Day.

[34] On June 2, 2016, Rogers J. ordered, on the consent of the parties, that $3,500 from the remaining sale proceeds of the matrimonial home held in trust be used to help fund VP’s psycho-educational assessment. This Order was made 2 ½ years after the issue had been raised by the OCL and over three years after VP’s teacher had expressed her concern.

[35] In July 2016, JP was scheduled to see her psychiatrist during a two-week period when she would be in her father’s care. The mother’s evidence was unchallenged that the father refused to take the child to her appointment because it was “his week” with the child. The mother offered to pick-up and return the child but the father told her not to bother. Later that evening, or the evening afterwards, JP used a neighbour’s cell phone to contact the mother (the father did not permit the children to contact her, and confiscated their cellphones when with him). When the mother attended where the father and children were staying, JP ran to her. The father prevented the mother from seeing VP. The mother took JP to her doctor’s appointment and then returned JP to her father’s care.

[36] At the time of trial, the children principally resided with their mother and secondarily resided with their father on alternate Thursdays from 6:00 p.m. to Sunday at 6:00 p.m. and on alternate Wednesdays from after school to their Thursday morning return to school.

The OCL

[37] Karen Guthrie-Douse was the investigator to whom the OCL referred the P. family in 2010 to undertake an investigation, and was the author of the May 25, 2010 Report. She had been a Social Worker since 1990, in private practice since 1999 and had been providing clinical investigation reports and clinical investigation assistance to OCL panel lawyers since 2004. As already noted, she was reassigned the P. family file in March 2013. The parties agreed that her evidence could be tendered by affidavit, supplemented by viva voce testimony and subject to cross-examination. Her affidavit was intended simply as a narrative of her involvement with the family. When read in the context of her 2010 Report, and as modestly enlarged by her testimony, a distressing picture emerged:

(a) in her 2010 Report, Ms. Guthrie-Douse, among other things, obtained background information from each of the parents and consulted the children’s teachers and family doctor. The parent’s custody and access concerns were canvassed. No serious concerns about the emotional or physical well-being of the children were raised, although the Society was noted as having verified that they “were exposed to some degree of occasional adult conflict”;

(b) in her Report, Ms. Guthrie-Douse also noted that both parents had actively involved their eldest daughter, JP, who was then seven years old “in matters far beyond her comprehension and interest.” She and her younger sister were being used by their parents to pass messages to the other parent;

(c) Ms. Guthrie-Douse thought that the mother lacked insight into the emotional loyalty binds with JP by involving her in adult matters: the investigator had “significant concerns” about the mother’s influence exerted on the children, including the observation that it was “clear” that the mother had taken “deliberate steps to prepare [JP] for her interview…” The father was reported to have told the mother that he intended at some undisclosed point in time to tell the children about the sexual assault charge (which, at that time, had been not yet tried). Ms. Guthrie-Douse observed that the father appeared to have “little insight into the inevitable emotional harm to his children of sitting them down and attempting to destroy the image of one of their primary and most significant attachment figures”;

(d) the eldest child’s Grade 2 teacher reported in 2010 that JP was a strong “B” student but also observed that JP seemed at times to be distracted, not by other students, but by her own thoughts. When interviewed between May 2015 and June 2016 the child’s teacher indicated that while JP was strong academically, she was struggling socially and seemed depressed. She was referred to the school’s social worker and was later diagnosed with a “generalized anxiety disorder, with some significant symptoms.” She had been hospitalized for a panic attack and had chronic worries. JP had also been seen by a child and adolescent psychiatrist and prescribed medication;

(e) in 2010 the younger child was reported as “academically bright, above expectations for all aspects of her curriculum”, happy and well-liked by her classmates. In 2012, she was suspected as having a learning disability, which the father disputed. During the May 2015 and June 2016 interviews period, the child appeared to be doing well at school. She acknowledged that her parents were not getting along;

(f) Ms. Guthrie-Douse catalogued no less than eight Society contacts with the family, mostly between May 1, 2009 and June 3, 2013. These contacts comprised reports by the father of protection concerns (4); by the mother (2); by the police (1) and by JP’s school (1). No protection concern was verified. The Society was noted in early 2011 as having “again” expressed its concern about the children’s exposure to parental conflict and JP’s school had reported that in each of 2011, 2012 and 2013 it, too, had concerns about the children, including on at least one occasion JP’s school Principal speaking to both parents about JP being overheard saying that she wished to kill herself. The Principal recommended counselling;

(g) consistent throughout the interviews of the children was the observation of their attachment to both of their parents and, from 2013 to 2016, the children’s desire to spend more time with their father;

(h) equally consistent was the children’s continuing fear about their parents’ interactions and involvement in their parents’ conflict; and

(i) no concerns were observed in the home environment provided by either parent or in the relationship between the children and each of their parents.

[38] Based on its’ involvement with the family over a period of six years, the views and preferences of the children, interviews of their parents and collateral information obtained, the OCL asked that the children’s time with their father be increased.

LAW

[39] The parties’ custody claims are governed by section 16 of the Divorce Act, R.S.O. 1985, c. 3 (2nd Supp.). Those sections relevant to these proceedings are,

Order for custody

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

Joint custody or access

(4) The court may make an order under this section granting custody of, or access to, any or all children of the marriage to any one or more persons.

Access

(5) Unless the court orders otherwise, a spouse who is granted access to a child of the marriage has the right to make inquiries, and to be given information, as to the health, education and welfare of the child.

Terms and conditions

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

Factors

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

Maximum contact

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

[40] Nowhere in the Divorce Act are a child’s “best interests” defined. Guidance is provided by reference to the definition set out in section 24 (2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12:

Best interests of child

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

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

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

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

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

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

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

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

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

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

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

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

[41] As noted in V.K. v. T.S., 2011 ONSC 4305, [2012] W.D.F.L. 496, by Chappell J., the essential difference between awards of sole and joint custody is the allocation of decision-making rights and responsibilities respecting children. Each case must be decided according to its own facts. In Rubinov-Liberman v. Liberman, 2014 ONSC 5700, Douglas J. noted there is no presumption in favour of joint custody. Despite its utopian attraction, joint custody is generally regarded as inappropriate in high conflict cases which are characterized by parental inability and/or refusal to effectively cooperate and communicate. Hoping for improved communication is insufficient to justify such an Order: Kaplanis v Kaplanis, 2005 1625 (ON CA), at para. 11. Still, depending on the evidence, joint custody may be suitable when combined with a parallel parenting order. Those high conflict cases where such a disposition was made have typically involved competent and caring parents (Ursic v. Ursic, 2006 18349 (ON CA)); workable, though not perfect, cooperation (J.B. v. A.B., 2006 12294 (ON SC)); and preservation of a meaningful and secure role in the children’s lives of the parent with whom they are not primarily residing (Ursic, and Ladisa v. Ladisa, 2005 1627 (ON CA)).

[42] In V.K., Chappell J. identified the emergence of a third custodial option known as “parallel parenting” and, after reviewing the then extant authorities, observed that there was “no jurisprudence that precludes courts from resorting to divided parallel parenting arrangements in high conflict cases in circumstances where the best interests of the child require that both parents continue to have a role in the child’s life beyond that of an access parent.” Divided parallel parenting was distinguished from “full parallel parenting” in that the latter conferred full decision-making authority on either parent without the other parent’s consent. This latter arrangement is considered most problematic in high conflict cases. The father in this case seeks joint custody. The evidence was unsatisfactory as to which parallel parenting model was proposed; however, it is inferentially clear that only the divided parallel parenting model was a possible option.

[43] A number of common themes may be found in the custody/joint custody/parallel parenting case law. These include:

(a) hoping that communication will improve is not a sufficient basis for a joint custody Order (Kaplanis, at para. 11);

(b) a parent’s professed inability to communicate with the other parent does not, in and of itself, mean that a joint custody Order cannot be considered (Liberman, at para. 171);

(c) there must be some evidence of effective post-separation communication and cooperation between the parents;

(d) there must be a demonstrable ability, or willingness, to set aside personal differences and to work cooperatively in the children’s best interests;

(e) the degree of cooperation need only be adequate, workable (J.B., at para. 65);

(f) failure, or refusal, to prefer the child’s interests to a parent’s own interests renders joint custody unworkable (Hildinger v. Carroll, 2004 13456 (ON CA));

(g) the older the child, the more weight should be given to a child’s views and preferences;

(h) the length of time that the children have been exposed to conflict, and the impact of that exposure on the children (Graham v. Bruto, 2007 4867 (ONSC) affirmed 2008 ONCA 260, [2008] W.D.F.L. 2218); and

(i) where parental conflict persists, a parenting regime which clearly sets out each parent’s responsibilities may serve the dual purposes of disengaging the parents and maintaining each parent’s significant role in the child’s life.

[44] The bottom line is the children’s best interests and which parent, whatever their limitations (distorted by the vagaries of litigation as they may be) has more reliably demonstrated a child-focussed approach to promoting those interests.

Analysis

[45] The principal issues which the parties dispute are their children’s custody, decision-making authority and regular, non-holiday time with each parent. Except for minor adjustments, the parties were able to agree on the children’s holiday schedule. A Statement of Agreed Fact was also filed dealing with the parties’ qualifying supporting incomes, temporary child support pending judgment and section 7 expenses.

Custody

[46] It is profoundly distressing that more than half of each of the children’s lives in this case has been marked by their parents’ conflict. It is equally troubling that despite repeated warnings that the parents’ behaviours were emotionally damaging to their children, there was no evidence that either parent took those recommendations very seriously. Both parties demonstrated inflexibility in dealing with the children’s relationship with the other parent. The mother testified that she encouraged that relationship but her failure to agree to the children spending more, regular time with their father belies her evidence: the father preferred his “time” with the children to their medical and academic interests, likely viewing those as being scheduled by the mother to conflict with his access.

[47] The absence of effective communication and cooperation between the parents rules out any serious consideration of joint custody, even if coupled with a parallel parenting model. The evidence is clear that despite her failings, it was the mother who pro-actively tried to deal with the children’s academic and health issues - the father’s response was inaction, oppositional or accusatory. For example:

(a) despite third party concerns about the desirability and probable need for a psycho-educational assessment of VP, the mother was compelled to bring a motion for that relief. While the father consented to the Order made by Rogers J., the mother should never have had to bring the motion in the first place. The father’s response to an inquiry from the court about why, after 10 months’ refusal, he changed his mind in favour of the assessment (“… I don’t know what changed my mind really”) was unimpressive. It is noteworthy that a trial date was in plain sight;

(b) the father acknowledged that having the police enforce his access was “not a good parenting decision.” He only came to that conclusion after his fourth police contact in August 2015. That should have been obvious long before and, quite apart from the emotional impact on the children, was a thorough misuse of the authorities. The mother is not immune from this observation;

(c) the father’s unverified protection complaints to the Society. It is difficult for this court to accept that these complaints were not tactically motivated or retributive in nature. Again, the mother bears some responsibility for this conduct, too; and

(d) the father accused the mother of telling JP not to inform him about anti-anxiety medication that she had been prescribed. He testified that he was so concerned that he scheduled an appointment with JP’s doctor, later cancelled it and then never followed up afterwards with the doctor. He chose instead to rely on information from the mother. The father’s evidence was inconsistent and confusing.

[48] In circumstances where, as it appears in this case, the dispute between the parties is more personal than parental, and there is little or no evidence about the parties’ insight into the emotional damage which their behaviours have caused and are causing the children, any disposition other than sole custody to the mother will likely encourage further conflict and court intervention.

Decision-Making Authority

[49] Paragraph 3 of McGee J.’s Order made October 11, 2012 obligated the mother to consult the father with respect to any and all major decisions involving either child. Any final decision was to be made jointly. This Order was made at a Settlement Conference and was based on the parties’ consent. The mother was self-represented: the father had counsel.

[50] While each party invited the court to either disregard the Order (the mother claiming that she felt pressured into agreeing to its terms) or to view it as finally resolving once and for all the issue of final decision-making (which is what the father argued) the fact is that the Order, as clearly noted on its face, was a temporary Order and one made in the absence of a robust evidentiary record. Based on the trial evidence, it is overwhelmingly clear that requiring the parties to jointly make decisions about the children is not in the children’s best interests. Neither party, the father in particular, led any evidence of how shared decision-making might work. There was no evidence about what kind of clearly-defined decisions, independent of the other, either parent would be entitled to make or any evidence that either parent would accept that the other could make a major decision without the first parent’s consent. There was no evidence how, in the event of conflict, recourse to the court could be avoided.

[51] While the father’s complaint was that he was either not informed, or ill-informed, about the major decisions involving the children, there was little evidence that he did more than demand strict compliance with “his” children’s time with him. Opportunities to independently verify his accusations of the mother’s parental misconduct were not followed up: there was no evidence of his initiating any pro-active discussion involving the children’s best interests. In the evidentiary vacuum of a history of collaborative and effective decision-making, requiring the parties to share that responsibility is not a realistic option.

Residential Schedule

[52] Ms Guthrie-Douse testified that in the three years after her reassignment to this case the children were clear and consistent that they missed their father and wanted to spend more time with him. In particular, the children thought that the week between their return to school on Thursday mornings by their father and the start of their alternate weekend time with him after school over a week later on the next Thursday was too long.

[53] The mother submitted that she was prepared to extend the father’s access time by (i) adding after-school visits (3:00 p.m. to 6:00 p.m.) on the Mondays after the children’s weekend with her, and (ii) extending the weekends spent with their father to his return of them to school on Monday morning. The father proposed a 3-2-2 schedule which would equalize the children’s time with each parent. Ms. Guthrie-Douse had suggested in her evidence that this was an arrangement that might work but this was a suggested option, not a recommendation.

[54] It may be that, in time, a shared parenting schedule which equalizes the children’s time with each parent might be considered, but that would not be in these children’s best interests at this time. What is needed are clearly defined rules and expectations of the parties and a schedule which addresses the children’s wishes to spend more meaningful time with their father. The existing schedule should be modified to extend the children’s time with their father on his weekends to their return to school on the Monday morning (or Tuesday if the Monday is a holiday) and on Mondays overnight after their weekend with their mother.

Child Support

[55] The parties agreed about the following facts relating to child support:

(a) the mother’s income is $42,513 a year;

(b) the father’s income is $39,893 year; and

(c) the proportionate share of section 7 expenses is 51.6% (mother)/48.4% (father).

[56] Pending this court’s decision, the parties agreed that the father would pay to the mother base child support in the amount of $622 monthly.

[57] The parties also agreed about what constituted a termination event for child support, what qualified as a section 7 expense, including and beyond those expenses set out in the Guidelines, and the monthly and annual amounts for those identified expenses. These arrangements, and the children’s benefits’ coverage with each parent’s employment, are reflected in paragraph [60] of this decision.

[58] Despite proposing a residency arrangement which envisaged the children spending roughly equal time with each parent, the father presented no evidence why or how the mandatory application of the Guideline tables should not apply. Based on the children’s residential schedule set out in paragraph 54 above, the father shall pay to the mother base child support in the amount of $578 monthly.

Disposition

[59] After Ms. Guthrie-Douse and the parties testified, the parties entered into Partial Minutes of Settlement dealing with all issues except custody, access and ongoing child support. The Order set out below incorporates, with some modifications, what the parties agreed and this court’s disposition of the disputed issues.

[60] The following Order shall issue:

1. The mother shall have custody of the children, JP, born September 7, 2002 and VP, born November 26, 2004.

2. The mother shall consult the father with respect to all major decisions to be made with respect to the children. If the parties are unable to agree, the mother shall make the final decision.

3. The father shall have the following access with the children pursuant to a two-week alternating schedule as follows:

Monday

Tuesday

Wednesday

Thursday

Friday

Saturday

Sunday

Week One

Mom/ Dad after school to Tuesday morning school

Dad/ Mom

Mom

Mom/ Dad after school to Monday morning school

Dad

Dad

Dad

Week Two

Dad/ Mom after school

Mom

Mom

Mom/ Dad after school to Friday morning school

Dad/ Mom

Mom

Mom

a. In week 1, (i) from Monday after school, or 3:00 p.m. if there is no school, overnight to the children’s return to school on Tuesday morning and (ii) Thursday after school, or if there is no school at 3:00 p.m., to Monday drop-off at school, or 8:00 a.m. if there is no school;

b. In week 2, Thursday after school or, if there is no school, at 3:00 p.m. until Friday drop-off at school or 8:00 a.m. if there is no school;

c. Any other time as the parties agree, in writing;

d. The father shall pick-up and drop-off the children from their school;

e. The parties shall at all times maintain a reasonable and flexible position respecting the residency arrangements for the children and the best interests of the children shall prevail at all times. Accordingly, if special occasions, extracurricular activities, holidays, excursions or other opportunities become available to the children and the children wish to participate, or to the mother or the father, neither of them shall insist that the residency arrangements set out herein shall be adhered to without exception.

4. The following holiday schedule shall supersede the regular schedule in paragraphs 3a and 3b above:

Christmas:

i. Every year, the father shall have the children on Christmas Eve from 10:00 a.m. to 2:00 a.m. the next day.

ii. Every year, the mother shall have the children from 2:00 a.m. on Christmas Day to 10:00 a.m. on Boxing Day.

Boxing Day:

iii. In odd numbered years, the mother shall have the children from 10:00 a.m. to 8:00 p.m. the same day.

iv. In even numbered years, the father shall have the children from 10:00 a.m. to 8:00 p.m. the same day.

New Year’s Eve:

v. In odd numbered years, the father shall have the children from December 31^st from 10:00 a.m. to 9:00 a.m. the following day.

vi. In even numbered years, the mother shall have the children from December 31^st from 10:00 a.m. to 9:00 a.m. the following day.

Remainder of Christmas/Winter school break:

The remainder of the Christmas/Winter school break shall be divided equally, subject to the Christmas Eve, Christmas Day, Boxing Day, New Year’s Eve dates above, in the following manner:

vii. In odd numbered years, the father shall have the children for the first week of the Christmas holidays from the last day of school until the mid-point date of the break at 12 noon. The children shall be with the mother the second week from the mid-point date of the break at 12 noon until the return to school.

viii. In even numbered years, the mother shall have the children for the first week of the Christmas holidays from the last day of school until the mid-point date of the break at 12 noon. The children shall be with the father the second week from the mid-point date of the break at 12 noon until the return to school.

Family Day:

ix. In odd numbered years, the father shall have the children from 10:00 a.m. to school drop-off the following day.

x. In even numbered years, the mother shall have the children from 10:00 a.m. to school drop-off the following day.

March Break:

xi. In even numbered years, the father shall have the children from the first Sunday at 6:00 p.m. until the following Sunday at 6:00 p.m.

xii. In odd numbered years, the mother shall have the children from the first Sunday at 6:00 p.m. until the following Sunday at 6:00 p.m.

Good Friday:

xiii. In odd numbered years, the father shall have the children from noon on Good Friday to 8:00 p.m. on Saturday.

xiv. In even numbered years, the mother shall have the children from noon on Good Friday to 8:00 p.m. on Saturday.

Easter Sunday:

xv. In odd numbered years, the mother shall have the children from 8:00 p.m. on Saturday for the remainder of the weekend.

xvi. In even numbered years, the father shall have the children from 8:00 p.m. on Saturday for the remainder of the weekend.

Mother’s Day:

xvii. Should the day fall during the father’s time with the children, the children shall be with the mother from 10:00 a.m. on Mother’s Day for the balance of the weekend.

Victoria Day:

xviii. In odd numbered years, the mother shall have the children from 10:00 a.m. to drop-off at school the following day.

xix. In even numbered years, the father shall have the children from 10:00 a.m. to drop-off at school the following day.

Father’s Day:

xx. Should the day fall during the mother’s time with the children, the children shall be with the father from 10:00 a.m. on Father’s Day to school drop-off the following day.

Summer Break/Holiday:

xxi. In odd numbered years, the mother shall have the children for the first week of the summer and every other week thereafter until the commencement of school, when the regular access schedule will resume.

xxii. In even numbered years, the father shall have the children for the first week of summer and every other week thereafter until the commencement of school, when the regular access schedule will resume.

Canada Day:

xxiii. In odd numbered years, the father shall have the children from 10:00 am to 9:00 a.m. the following day.

xxiv. In even numbered years, the mother shall have the children from 10:00 a.m. to 9:00 a.m. the following day.

Civic Holiday:

xxv. In odd numbered years, the father shall have the children from 10:00 a.m. to 9:00 a.m. the following day.

xxvi. In even numbered years, the mother shall have the children from 10:00 a.m. to 9:00 a.m. the following day.

Labour Day:

xxvii. In odd numbered years, the mother shall have the children from 10:00 a.m. to 9:00 a.m. the following day.

xxviii. In even numbered years, the father, shall have the children from 10:00 a.m. to 6:00 p.m. the same day.

Thanksgiving Monday:

xxix. In odd numbered years, the father shall have the children from 10:00 a.m. to school drop-off the following day.

xxx. In even numbered years, the mother shall have the children from 10:00 a.m. to 9:00 a.m. the following day.

Parents and Children’s Birthdays:

i. The regular schedule shall proceed, with the exception that the other parent may have a Birthday brunch with the children from 11:00 a.m. to 2:00 p.m.

P.D. and P.A. Days:

xxxi. A P.D./P.A. day shall extend a party’s weekend with the children. If the P.D./P.A. day falls on a Monday, the weekend shall be extended to Tuesday’s return to school.

5. The mother shall hold the children’s documents, including Health and Social Insurance Cards. She shall provide to the father notarized copies of these documents within 30 days.

6. The mother may apply for Passports for the children. If a copy of a completed Passport Application for either child or both children signed by the mother is provided to the father and he does not sign and return the Application to the mother within 14 days, then the mother is authorized to sign the Application(s) and any other related processing documents required without the father’s consent.

7. The mother shall hold the children’s Passports but they shall be delivered to the father as required in the event he travels with the children outside of Canada. The Passports shall be returned to the mother within 48 hours of the children’s return.

8. Both parties shall be entitled to travel outside of Canada on 30 days’ notice to the other party for all travel exceeding one week in duration, and on 14 days’ notice for all travel less than one week in duration. Neither party shall unreasonably refuse to provide their consent. Notice of the need for a Travel Consent shall include an itinerary detailing the children’s departure and return dates, an address and/or telephone number where they may be contacted during the period of travel.

9. If a party seeks to move their current residence, the moving party shall provide the other party with 45 days’ notice prior to any move.

10. Neither party shall change a child’s given names without the written consent of the other party or an Order of the court.

11. Each party shall be at liberty to attend all special events of the children.

12. The parties shall be permitted to speak directly with and receive information and reports from the children’s schools, teachers, principals, and all health care providers.

13. Commencing February 1, 2017, the father shall pay to the mother child support for the children in the amount of $578 per month based on his 2015 income of $39,892.70.

14. The parties shall contribute to all section 7 expenses for the children, including but not limited to extracurricular activities and post-secondary education, in an amount proportionate to their incomes and as set out in paragraph [55] above. The current section 7 expenses are:

a. Kumon (total estimated $120 per month);

b. Summer camp – the parent scheduling the camp shall ensure it is booked during their time with the child or children (to a maximum of $350);

c. Music (to a maximum of $100 per month per child); and

d. Basketball or swimming or one alternative town-run activity per child (to a maximum of $50 per month).

15. Child support shall be variable annually effective July 1 in any year during which child support is payable and shall be calculated pursuant to the Guidelines.

16. Neither party shall incur a section 7 expense for either child in addition to those set out in subparagraph 14 above and for which a contribution will be sought from the other parent without the other parent’s consent being first obtained in writing (email is satisfactory). Upon delivery of the written receipt, the party claiming reimbursement shall be reimbursed by the other parent within seven days. If payment is not made, the expense shall be enforceable by the Family Responsibility Office.

17. The post-secondary expenses to the children’s first diploma/degree shall be shared as follows:

a. 1/3 to the child; and

b. 2/3 to the parents proportionate to income, after applying a share of their joint RESP.

18. The parties’ joint RESP accounts no. 5580929 and no. 5580951 with TD Bank shall be applied to the parties’ obligations jointly. If either party contributes to an RESP after separation, that RESP contribution shall be used to offset the contributing party’s obligation.

19. The parties shall maintain the children on any benefits plan available to them through their employment. This shall include any health or dental expense recommended by the children’s family Doctor or family Dentist. Any expense not covered by available insurance/benefits shall be paid by the parties proportionately. The parent claiming reimbursement, and upon delivery of the written receipt, shall be reimbursed by the other parent within seven days. The parent who makes a benefits claim shall do so within seven days of receiving the receipt and shall provide the other parent with proof of the submission within seven days afterwards by email or text. If the claimed benefit is approved, the parent shall provide proof of the claim and a cheque to reimburse the adjusted mount with five days of receipt. If reimbursement is not made the expense shall be enforceable by the Family Responsibility Office.

20. The parties shall coordinate their current insurance coverage through Great West Life to allow each party to process claims.

21. The termination events for child support are as follows:

a. the child becomes 18 years of age and ceases to be in full-time attendance at an educational institution;

b. the child completes her first post-secondary degree or college program or upon her attaining the age of 22;

c. the child marries;

d. the child dies;

e. the father dies; mother to maintain any existing policies of life insurance for the benefit of the children; or

f. the mother dies; father to maintain any existing life insurance for the benefit of the children.

22. The father shall designate the mother as the irrevocable beneficiary, in trust for the children, of his life insurance policies with Sun Life within 14 days of this Order and shall maintain the mother as beneficiary for as long as he is obligated to pay child support.

23. Any dispute regarding the children’s activities or section 7 expenses may be resolved by way of 14B Motion to the Superior Court on 30 days’ written notice to the other party.

24. The net proceeds of sale of the matrimonial home currently held in trust with Zinati Kay Barristers and Solicitors, in the approximate amount of $57,671.36 shall be shared equally by the parties. There shall be no other adjustments. The mother’s share shall be paid to Mongillo Law in trust. The father’s share shall be paid to Russell Alexander in trust.

25. The father shall transfer his interests in the parties’ jointly-owned timeshare and the mother shall assume the associated costs. The father shall sign all documents necessary to effect the transfer within 30 days of September 21, 2016.

26. Either party may proceed with a Divorce on an uncontested basis.

27. Neither party shall pay costs concerning the issues of property, retroactive support, section 7 expenses and other adjustments claimed.

[61] Given the history of the parties’ conflict over matters involving their children, attached to these Reasons as Schedule “A” is a schedule setting out minimum expectations of the parties for their reference, guidance, and consideration by the court should issues arise in future with respect to the children’s parenting. This Schedule shall be appended to the final Order issued.

[62] A word of caution to the parties. While the mother may view the award of custody as some kind of victory and the father as a loss, it is anything but. In this case, it is the children who have suffered from their parent’s inability and/or refusal to sensibly and consistently put their interests first. Children are not chattels. Parental failure to communicate and cooperate in a respectful and timely manner is a failure to parent. This applies to each party’s extended families –their behaviour to the other parent will reflect on their related parent. The mother and father should carefully reflect on how their own actions in future will impact the children and how, if it should become necessary, a court will critically scrutinize their parenting.

[63] This does not appear to be a case where the costs of those issues tried are warranted. However, if the parties’ disagree, then counsel shall confer within two weeks from the date of release of these Reasons and shall each submit their written submissions on costs, limited to three double-spaced pages, by no later than February 17, 2017. The submissions shall be filed as part of the Continuing Record. The parties may also deliver their Offers to Settle (if any), Bills of Cost, and any Authorities upon which they may be relying, which documents shall not form part of the Record.

Justice D.A. Jarvis

Date: January 11, 2017

SCHEDULE “A”

1. The mother and father may communicate the state of the children through a communication book that should focus only on the children's conditions and should not be used to communicate with, or attack each other. Our Family Wizard is also an option, the costs of which should be shared equally.

2. Except for important family events or emergencies, and unless otherwise so invited or encouraged, neither party shall communicate with the extended family of the other.

3. A child's illness in NOT an excuse for missing a visit. The child can recuperate with one parent as well as the other. Neither is the weather an excuse, except if a snow emergency is declared.

4. Each parent should have the address and the phone numbers of the other parent. The whereabouts of the children and a phone number should be conveyed to the other parent during holidays.

5. Neither parent has the right to object or have any input on the plans of the other parent when the children are with the other parent.

6. Each parent is entitled to school reports and attendance at parents-teachers meetings and school events (when applicable). Each parent should have direct contact with the school and not expect either parent to provide school information to the other parent.