Court File and Parties

COURT FILE NO.: FC-15-258 DATE: 2017/05/29 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Alex Wachira Nderitu Applicant – and – Wathira Kamoji Respondent

COUNSEL: Richard R. Marks, counsel for the Applicant J. Alison Campbell, counsel for the Respondent

HEARD: January, 16, 17, 18, 19, 20, 23, 24, 25, 26 and March 20, 2017

Reasons for Judgment

SHELSTON, J.

[1] The applicant (“father“) and the respondent (“mother“) started to live together on January 1, 2012, married on April 14, 2012 and separated on November 7, 2014 when the father left the matrimonial home. They have one child, namely Aden Kayo Wachira (“Aden”) born March 11, 2013.

[2] This trial dealt with the following issues:

(a) should there be an order for joint custody, parallel parenting or sole custody on all major decisions? (b) what parenting schedule is in the child’s best interests? (c) should table child support be ordered retroactive to November 2014 and in what amount? (d) should the parties be ordered to maintain the child as a beneficiary of their extended health plans? (e) should one or both parties be ordered to designate the other as the irrevocable beneficiary in trust for the child of a life insurance policy and if so in what amount? (f) who should pay costs and in what amount?

Background

[3] The father is 39 years of age and works for Nokia as a Lead Project Manager with an annual income of approximate $72,000 per year. In the last five years, he has worked from home and is usually working between 8:30 a.m. and 5:00 p.m. depending on the day. There are times when he is required to attend his office but most of his day is spent in conference calls, emails and working from his computer at home.

[4] The mother is 39 years of age and is employed with Employment and Social Development Canada with an annual income of approximately $72,000 per year.

[5] Both parties have multiple university degrees. The parties met in the fall of 2010 and by November 2011 were engaged. In January 2012, the parties moved in together at a home owned by the mother’s parents, who were posted overseas at the time. At that time, the father rented out his condominium.

[6] Upon moving in with the mother, the father started working from home. The father pursued post university education when he enrolled in an MBA program to improve his skills and he attended two classes a week in the evenings. He graduated with an MBA in December 2013.

[7] The parties married on April 14, 2012.

[8] The mother became pregnant in the summer of 2012. When the mother was a teenager, she was advised that it would be difficult for her to carry any child to full term. Consequently, once pregnant, she decided to use the services of a midwife, an acupuncturist and a kinesiologist to ensure that her child was carried to term. The father attended two or three midwife meetings and the ultrasound appointment. The father helped prepare a new room for the baby and hired a cleaner to help the mother at home.

[9] Aden was born on March 11, 2013. The father was present at the birth and both parties were very excited by the arrival of their new son.

[10] In the initial months after the child’s birth, the father would get up in the night to bring the child to the mother to breastfeed. In the morning, the father would take care of the child but once he started to work, the mother was responsible for his care. The father was responsible for helping the mother but he continued to work from home during regular business hours, studied for his MBA and on Sundays tutored a high school student in mathematics.

[11] The mother was very concerned about socializing the child and arranged play dates with friends. The mother describes the child as social, loving, warm compassionate and enjoying people. The child was weaned off breastfeeding at least partially at approximately 15 months of age. The child was supplemented by regular milk and by the summer of 2014, was drinking regular milk as well as at the daycare.

[12] In 2014, the mother planned to return to work. The mother investigated possible daycare providers. Both parents interviewed the final person and hired her.

[13] In March, 2014, the mother returned to work. Her hours of work were from 7:00 a.m. to 3:00 p.m. She would leave for work by 6:00 a.m. to take the city bus and would be home between 4:30 p.m. and 5:00 p.m. Once the mother left for work, the child was the father’s responsibility. The child would normally awake around 6:30 a.m. and the father would feed, change and deliver him to daycare near the home by 8:15 a.m. The father would then return home, conduct his normal business affairs and study for his MBA. Either the father or both parents together would pick up the child at the end of the day.

[14] If the child fell ill, it was the father who was responsible for the child because he was working from home only a few minutes away from the daycare while the mother was at her employment in Gatineau, Québec.

[15] By September 2014, the parties started drifting apart. On September 12, 2014, the mother decided to separate from the father. In October, 2014, the father told the mother that he had purchased a four bedroom townhouse approximately a three minute drive from the mother’s residence and a two minute drive from the child’s daycare

[16] On Thursday, November 6, 2014, the mother’s lawyer had sent a draft separation agreement. The father had not retained a lawyer. The parties undertook to sign the final version as soon as it was ready and that they had agreed to all its terms. On November 7, 2014, the father met with the mother and her father who was visiting. The parties signed a document entitled “Commitment to Sign Parental Agreement”. The parties agreed to sign this document in order to facilitate the father’s move to his new residence on Friday, November 7, 2014, but an agreement was never signed.

Period of November 2014 to February 5, 2015

[17] At the beginning, the mother wanted Aden in her primary care as she was breastfeeding. The parties agreed to a parenting schedule that provided that during the week, the father would attend at the mother’s home at approximately 6 a.m. to care for the child on Tuesday, Wednesday and Thursday. The mother would leave for work at approximately 6 a.m., the father would come to her home and he was responsible to wake the child at 6:30 a.m. and care for the child until delivering the child to daycare at approximately 8:15 a.m. The mother would return home between 4:30 and 5:00 p.m.

[18] On Tuesdays, the father would have access from 5:45 p.m. to 7:45 p.m.; on Thursdays, the father would have the child from 5:45 p.m. until daycare at 8:30 a.m. and on Fridays and on Sundays, from 8:30 a.m. until daycare at 8:30 a.m. on Monday.

[19] This schedule resulted in the child sleeping at the mother’s home five nights per week being Monday, Tuesday, Wednesday, Friday and Saturday. The child slept at the father’s home on two nights per week being Thursday and Sunday nights.

[20] Problems arose with this agreement when the father mentioned to the mother that on Tuesdays the child was not adjusting well as he would throw a fit and did not want to go back to the mother’s home and that it was too short a time as he had to rush when he would have to pick the child up at the mother’s home at 5:45 p.m., return to his home, feed the child, play with the child, and return the child by 7:45 p.m. The mother refused to change the agreement.

[21] A disagreement arose regarding Saturday access by the father. The child had been registered for swimming lessons for November and December 2014 but the child was sick so often that the mother withdrew the child from the course. Consequently, the father would see his child at the mother’s house for a few hours on Saturday to visit with the child. In December 2014, the mother advised the father that he would no longer have access to the child on Saturdays. Her rationale was that the swimming lessons, which were on Saturdays, ended in December and consequently there was no need for the father to have access to his child for that period of time.

[22] The father was very upset. He sent the mother a text message and attended and banged on the mother’s door to speak to her. After receiving the message, the mother was concerned and went to a friend’s house until 11 p.m. She was not home when the father banged on her door. She had her cousin come over to her home to be present when the father picked up the child on Sunday morning. There was no incident on that Sunday morning.

[23] The mother went to the police to get assistance without success and put an extra deadbolt and changed the alarm code at the home. Despite this concern, the father continued to attend at the mother’s home on Tuesday, Wednesday and Thursday morning to care for the child while the mother went to work.

[24] The father was not happy with his access to his son. The mother refused to vary the agreement and consequently, the father commenced these proceedings on February 5, 2015.

March 11, 2015-August 25, 2015 Parenting Schedule

[25] By March 2015, the mother was concerned that the father was not civil with her, would ignore her, she did not feel safe near him and she wanted to eliminate any tension for Aden. Consequently on March 10, 2015, the mother unilaterally decided that the father was no longer permitted to attend at her home on Tuesday, Wednesday and Thursday morning to care for the child. The mother decided to deliver the child to the father’s home at 6:15 a.m. before leaving for work at which point the father would be responsible for the child’s care until delivering him to daycare at approximately 8:15 a.m.

[26] Other than delivering the child to the father’s home on Tuesday, Wednesday and Thursday morning, the residential arrangements for the child remained the same. The child continued to sleep five of seven nights at his mother’s home.

[27] In the spring of 2015, the father started to do activities with Ms. Chantha Nems, a co- employee at Nokia and her daughter. By July 2015, the father wanted to go to Niagara Falls for a week with the child. The mother indicated he could only go for five days but the father insisted on taking the child for seven days. Further, while in Niagara Falls, the mother insisted on being able to speak to the child every day which the father agreed to. The father did not tell the mother that Ms. Nems and her child were going to accompany him and Aden to Niagara Falls to avoid an argument. The parties’ relationship was tense.

August 25, 2015-October 2016 Parenting Schedule

[28] Problems arose as the father was concerned that on Tuesdays access, at times the mother was late which affected his time with his child. Consequently, effective August 25, 2015, the father unilaterally decided to keep Aden overnight on Tuesday’s returning him to daycare on Wednesday morning. The father advised the mother by email of the change. She was very upset and refused to change. She called the police to seek assistance and was advised that it was a civil matter and they would not become involved. The mother was not in favour of any changes in the schedule and felt that was too much back and forth for the child. This change resulted in the child’s sleeping on Tuesday, Thursday and Sunday nights at his father’s home.

[29] The mother felt that her bonding time with Aden was compromised by the father’s actions. Despite not agreeing with the change in the schedule, the mother indicated that her preparatory work with her child had “saved him” when this new schedule started. The mother indicated that in her home the child did yoga, meditation, read, played and the atmosphere in her home was very calm and quiet. She indicated there are no televisions or computers for the child to use and since birth, she has read to him and sang to him.

[30] By September 2015, the father planned to take a five day “staycation” with his son at home. He emailed the mother as to his intentions but she did not reply. On the first day of the intended staycation, the mother attended at the daycare to remove the child before the father arrived. The mother exited the daycare holding the child’s hand when the father arrived. The child ran to the father and consequently they left together. The father was concerned that the mother would take the child from the daycare so he kept the child in his care for the entire week.

[31] The father had another vacation week with his child in the fall of 2015 where he stayed in Ottawa with the child.

[32] The parties were able to agree on the sharing of the Christmas vacation in 2015 and in March 2016, the mother went to Boston for one week with the child and the father consented.

[33] On April 27, 2016, the mother insisted that she have makeup access for Mother’s Day on May 15, 2016 as the child would be in the father’s care. The father agreed. The mother was to be in Toronto visiting family on Father’s Day in June 2016. The father proposed that he have the child on June 25, 2016 for makeup access. The mother disagreed and indicated the father could have the child from 2:00 p.m. to 8:00 p.m. on Father’s Day. The father reluctantly accepted what the mother was prepared to agree to.

[34] In May 2016, the father wanted to take the child to Germany and needed the child’s passport be renewed and required a travel consent letter. On February 23, 2016 counsel for the mother advised that the mother was consenting to the travel proposed by the father subject to certain conditions including the mother’s right to speak to the child every other day by Skype and that the mother would be permitted to travel for one week to Boston and Guyana. The father agreed to the Skype and the mother could travel to Boston but not Guyana in the summer as summer travel was to be resolved through mediation.

[35] The father responded but added a condition that the father and the child could travel to Kenya to visit family. By letter dated March 7, 2016, the mother consented but rejected the request of the father to go to Kenya. On April 4, 2016, counsel for the mother sent a further letter correcting the travel dates and other information. A further problem arose with respect to a travel consent form and passport. Despite starting in February 2016, the required documents were not signed and given to the father.

[36] On April 26, 2016, counsel for the father advised that unless a travel consent and passport were received that day, he would bring an emergency motion. The documents were not received and consequently on April 28, 2016, the father brought an emergency motion before Master Champagne who ordered:

(a) on consent, the child’s habitual and ordinary residence is Ottawa, Ontario; (b) the father shall be permitted to travel to Germany with the child for May 4, 2016 to May 11, 2016 and shall return the child to Ottawa on May 11th 2016 with or without the consent of the mother; (c) the mother should immediately provide the father with the child’s passport and a consent authorizing the father to travel with the child between May 4, 2016 and May 11, 2016 to Germany; and, (d) the mother to pay the father’s costs for the motion in the amount of $750.

[37] The father, Aden, Ms. Nems and her daughter travelled to Germany. The father did not tell the mother he was travelling with Ms. Nems and her child to avoid an argument. When the father went to Germany in 2016, one of the conditions that he would arrange for Skype access with the mother. The father, despite being six hours ahead, tried to rearrange access by Skype. There were significant problems in arranging the Skype access as the mother did not have Skype access at work and to accommodate the time change. The mother was unable to speak to Aden and had to wait till Saturday at 1:00 a.m. Ottawa time to speak to the child. A review of the email exchange between the parties indicates that the mother was adamant that she speak to the child every second day but it is clear that the parties did not think through the difficulties in the time difference between Ottawa and Germany and the fact that the mother did not have Skype access at work. As the mother did not have Skype at work, the only Skype access that could occur would be at home. As she left for work at 6:00 a.m. and returned by approximately 4:30 p.m. and based on the time change, through no fault of the father and despite his best efforts, the Skype access did not take place. The emails exchanged by the mother on May 6, 2016 indicates that she expected the Skype access to occur, that she believed the father was denying her access, the father was preventing the child to speak to her mother and that he was attempting to alienate her from the child’s life. The mother had all the telephone numbers of the places where the father were staying in Germany but she never called because it was not an emergency. The father went so far as to take a video of the child and email it to the mother who received it and saw the child.

[38] At the end of September 2016, the mother indicates the child was reluctant to go to the father’s home. The mother indicated that her son was suffering from a degree of separation anxiety that had occurred prior to the end of September 2016 but that she could handle the issue. By the end of September 2016, the mother indicated that the child really did not want to go see his father and she texted the father accordingly. Despite the child apparently suffering from separation anxiety, the mother has taken no steps to seek medical advice on how to deal with the issue.

[39] On October 20, 2016, both parties attended an appointment with the family doctor as the child was sick. The doctor wanted a blood test and the parties discussed where to take the child to have the blood test. The parties argued. The mother indicated that it should be at a clinic designated by her and that she was going back to work and wanted the child to go with her. At this time, the child was in the mother’s arms. The father asked to give the child a hug and then promptly took the child and left the doctor’s office to go to his car. The mother ran after the father who put the child in the car seat of his car. The parties continued to argue and swear at each other. The mother was incensed and eventually opened the back door of the car and removed the child from the car seat and took the child to her car. The mother then took the child to daycare. The mother called the police but no further action was taken. The mother contacted the Children’s Aid Society who interviewed the father. The child protection worker sent a letter to the father in December 6, 2016 indicating the Society had determined that the child was at risk of emotional harm resulting from exposure to domestic violence. The investigation regarding risk of physical harm was deemed inconclusive. The Society closed their file as the matter was proceeding through the family court.

October 2016 Forward Parenting Schedule

[40] Based on the recommendations made by the Children’s Aid Society worker, the mother advised the father by email that she had unilaterally decided to drop the child off to directly to daycare on Tuesday, Wednesday and Thursday morning rather than dropping the child off at the father’s home. The mother’s rationale was that this schedule avoided interactions between the parties.

[41] In response to the mother’s unilateral action, the father unilaterally decided to implement an alternating weekend schedule. The new schedule was follows:

Week One The child would be with the father from Tuesday at 4:30 p.m. until Wednesday morning to daycare; Thursday from 4:30 p.m. to Friday morning to daycare and Friday at 4:30 p.m. to Monday morning to daycare.

Week Two The child would be with the father from Tuesday at 4:30 p.m. to Wednesday morning to daycare at 8:30 a.m. and from Thursday at 4:30 p.m. to Friday morning to daycare at 8:30 a.m.

[42] This schedule resulted in the child sleeping at both parents home seven nights in a two-week period. The mother was concerned that this new weekend schedule caused a gap of between 4 to 5 days without the child seeing his mother. The mother’s evidence is that the child became clingy and was exhibiting signs of separation anxiety. Increasing her stress was the fact that when the child was in the care of the father there was no contact for information with the child.

[43] By the fall 2016, the relationship between the father and Ms. Nems became romantic. The parties started to co-parent Aden and Ms. Nems daughter. The father was reluctant to tell the mother because he was concerned it would start a “nuclear war or get into a battle”. The mother became aware of the relationship in September 2016 when Ms. Nems accompanied the father to a trial management conference. Following the trial management conference, the mother texted the father that the child did not want to go to the father’s on Tuesday and Thursday mornings. Within one week of that conference, when the father went to pick the child up at the mother’s home, the child backed up and was reluctant to go with the father. After 6 to 8 minutes of the father talking to his son, the child went and has continued to go.

The Parties' Relationship With Aden

[44] Ms. Jacqueline Wachira, a cousin of the father, stated that her relationship with him is more like brother and sister. She testified that after the child was born both parents were devoted to the child. She observed the father changing and bathing the child. She testified that the relationship with the father and the child is very good, the child is very happy with his father. He is a creative and inquisitive child who is very well behaved. She confirms that the mother is devoted to the child and that she had no concerns about either party’s parenting ability. She observed the father and Ms. Nems and indicated they work well with their children.

[45] Ms. Nems confirmed that she and her daughter started interacting with the father and his child in July 2015 when they would go to the park near her house. In October 2015, Ms. Nems and her daughter moved into the father’s residence on a temporary basis as result of an infestation of mice in her apartment. She has travelled to Niagara Falls and Germany with the father and her daughter and Aden. She testified that the father is easy-going, intelligent and that she has never felt threatened by him and that the children get along quite well together.

[46] The mother’s father, Mr. Kamoji Wachira, a retired senior analyst at CIDA indicated that his grandson is a happy-go-lucky, bright little boy who is very gifted and has above average intellect. He describes his daughter as being determined, pleasant, sociable and devoted to her child. He stated that he found that the father was hard-working, quiet, and devoted to his job and that the father’s role after the birth of the child was to bathe him, do laundry and rock the baby to sleep. His daughter did all other tasks. He found the father to be very hard-working as he would work at his job during the day and take classes at night. Mr. Wachira was present when the father wanted to leave the matrimonial home on November 7, 2014. He found that the father was very emotional by crying and raising his voice. It was Mr. Wachira who was a witness to the commitment to sign parental agreement and was influential in negotiating the initial parenting schedule. Mr. Wachira was concerned about the tension in the household. He had returned from overseas approximate two weeks before father left the matrimonial home. He was concerned about his daughter’s security and safety and that was one of the reasons his son came to stay with his sister around the time of separation. He had the impression that the father was rational but there were elements of hidden violence by verbal threats that may become physical. He finally indicated that the stress of the separation was very hard on his daughter as he indicated the child was taken away from his daughter at such a young age, 18 months.

Custody

The Law

[47] 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. (s. 16(1) Divorce Act).

[48] The court may make an order under this section granting custody of, or access to, any and all children of the marriage to any one or more persons. (s. 16(4) Divorce Act).

[49] In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child. (s. 16(8) Divorce Act).

[50] 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 the other 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 conduct. (s. 16(10) Divorce Act).

[51] The only relevant issue in custody and access matters is the best interests of the child. (Gordon v. Goertz, 1996 SCC 191, 1996 S. C. J.No.52).

[52] The jurisprudence provides guidelines for the court in considering a joint custodial regime as follows:

(a) the parties need not consent to an order for joint custody but before ordering joint custody the court must have some evidence that the parties are able to communicate effectively with each other; (Kaplanis v. Kaplanis, 2005 ONCA 1625, 2005 CarswellOnt 266 OCA); (b) simply relying on allegations of conflict will be insufficient to preclude a joint custody order. The analysis must be what is the nature, extent and frequency of conflict such of conflict impacts are as likely to impact on the well-being of the child if the evidence is that the parties have been able to shelter the child from the conflict reasonably well and put the child’s interest ahead of their own, an order for joint custody may be appropriate. (Ladisa v. Ladisa, 2005 ONCA 1627, 2005 CarswellOnt 268 OCA); (c) one parent cannot create problems with the other parent then claim custody on the basis of a lack of cooperation (Lawson v. Lawson, 2006 ONCA 26573, 2006 Carswell on 4789 OCA); (d) where it is necessary to preserve the balance of power between the parties, particularly cases were both parties are caring and competent parents but one party has been primarily responsible for the conflict, joint custody versus sole custody may be appropriate. (Khairzad v. Macfarlane, 2015 ONSC 7148 and Fraser v Fraser, 2016 ONSC 4720); and, (e) in determining whether a reasonable measure of communication and cooperation is in place and is achievable in the future the court must consider the source of the conflict, consider whether one parent is creating the conflict and engaging in reasonable conduct, impeding access, marginalizing the other parent or by other means and then claim sole custody of the basis of lack of cooperation communication. (Khairzad v Macfarlane, 2015 ONSC 7148)

[53] One option is to order parallel parenting. In Cox v. Stephen, 2003 ONCA 18571, [2003] O.J. No. 4371, the Court of Appeal upheld a parallel parenting order, with terms giving decision-making responsibility respecting education to the mother, and decision-making respecting the child’s physical health to the father, despite the longstanding history of conflict between the parties. The Court held that parallel parenting did not require a cooperative working relationship or even good communication. The objective of parallel parenting was to give the parents equal status, each with distinct rights and responsibilities in relation to specific topics.

[54] In Ursic v. Ursic, 2006 ONCA 18349, 2006 O.J. No, 2178, the Court of Appeal upheld the trial judge’s decision to award joint custody with a parallel parenting order in a high conflict situation and specifically stated at paragraph 26:

26. Also, importantly, the trial judge did not merely order joint custody. He included with it a parallel parenting order. Many trial courts have recognized that joint custody under a parallel parenting regime may be suitable where both parents love the child and should play an active role in the child’s life, yet have difficulty communicating or reaching a consensus on the child’s upbringing. See T.J.M. v. P.G.M. (2002), 2002 ONSC 49550, 25 R.F.L. (5th) 78 (Ont. Sup. Ct. J.), and Mol v. Mol, [1997] O.J. No. 4060 (Sup. Ct. J.). The trial judge viewed parallel parenting to be suitable in this case, and I a.m. not persuaded that he erred in ordering it.

[55] In K. (V.) v S. (T.) 2011 ONSC 4305, Chappel J. discussed the concept of parallel parenting in the following paragraphs:

79 Parallel parenting arrangements have been resorted to in practice and by trial courts to resolve situations where both parents have been involved with the child and wish to retain decision-making rights, but the conflict between them is such that a joint custody order is not feasible or in the child's best interests. (M. (T.J.) v. M. (P.G.), 2002 CarswellOnt 356 (Ont. S.C.J.). There are many merits to a parallel parenting regime, in appropriate cases. It gives both the child and the parents the benefit of maintaining each parent as a meaningful player in the child's life, over and above timesharing with the child. The importance of this factor from an emotional standpoint cannot be underestimated where a family is in turmoil because of a breakdown in the parents' relationship. In addition, by delineating clear areas of decision-making between the parties, parallel parenting has the potential in appropriate cases to disengage the parties and reduce parental conflict.

[56] The Court of Appeal has upheld parallel parenting orders where joint decision-making was impracticable and unworkable. (Cox v Down, 2003 ONCA 18571, 2003 O.J. No. 4371; Andrade v. Kennedy 2006 CarswellOnt 3762; Ladisa v. Ladisa, 2005 ONCA 1627; J. T. v. S. C. T., 2008 ONSC 3971 and Ursic, supra). However, each case is decided on the particular facts and specific needs of the child.

Position on Custody

[57] The father’s position is:

(a) that both parties should have an equal say in all major decisions affecting their child; (b) in the alternative, he proposes a parallel parenting regime where he be responsible for all education and medical decisions for the child and the mother responsible for religion and dental issues. With respect to activities, the child is to be registered in two activities per season and the right to decide the activities would rotate by season; (c) that there should be an equal timesharing schedule based on the current parenting agreement; and, (d) the father proposes that every season each parent would have a right to select an activity, they try to schedule the activities so both parents can attend in any event of a conflict one parent has the right to decide even if it conflicts. The right to decide what alternates by season.

[58] The mother’s position is:

(a) that she should have sole custody, to be able to make the final decisions regarding the child after consulting with the father; (b) the mother disagrees with a parallel parenting regime as she is been the main parent responsible for the child’s education, medical, dental and activities decisions; (c) that she is in agreement with the first week of the two week parenting schedule proposed by the father but in the second week wishes more time than the father to provide the child with stability while he attends school; and, (d) that overall the mother should have the child eight nights and the father six nights on a 14 day rotating schedule.

[59] Regarding the parties relationship, the mother says that the father is loud, angry and aggressive and can be intimidating in her interaction with him. Consequently, in her view, she cannot make any decisions with the father and is fearful of the father’s reaction if she disagrees with his views. The mother testified that there were a series of incidents that caused her to be intimidated by the father including:

(a) The first incident occurred on the eve of the parties wedding when the mother, father, the mother’s parents and the father’s mother attended to inspect the reception area at the Aviation Museum. At that time they were advised that another group would be sharing part of the reception area. The father became very upset, pointed in the face of the event planner and screamed at her. The father’s reaction is corroborated by the evidence of the mother and her father, Mr. Wachira. The mother broke down in tears and then went home for the rehearsal dinner. All parties agree that the father was upset and so was the mother. They differ on the degree; (b) In the months leading up to separation, the mother indicated that the father would have bouts of anger, would not talk to her and that she was constantly walking on egg shells. The father moved to a bed in the basement in October 2014. The mother retained a lawyer and wanted to document any agreement the parties reached regarding the child and all issues related to separation. (c) The mother describes the period of September 12, 2014 to November 7, 2014 as very tense. There was no communication between the parties except about discussing a possible parenting schedule. The mother found that the father was walking around glaring at her and menacing her but the parties followed the same routine and lived together. (d) In November 2014, around the time that the father was to leave the matrimonial home, the mother was concerned about the father’s anger and aggressiveness and asked her brother to come down from Toronto to stay with her. In addition, she enlisted the assistance of her father who met with the parties to negotiate the initial residential arrangements for the child; (e) In December 2015, the mother terminated the father’s access to the child at her home on Saturday for a few hours. In reply, the father sent the mother a text message indicating he was very upset. The father went to the mother’s home and banged on her door. When she did not answer, as she was not present, he calmed down and left; (f) During the October\November 2015 staycation when the father and mother disagreed as to whether or not the father could care for Aden for the entire week while he prepared for examinations. The mother disagreed that the child should be taken out of daycare. The father took the child out of the daycare and kept the child for the week; (g) In September 2016, the father attended at the mother’s home to pick the child up for access. The child did not want to go. The father picked the child up and put him in the car. This was the first time that he did not want to go with his father. The mother indicated he did not want to go. The father was very upset and left with the child; and, (h) The incident at the doctor’s office in October 2016.

Analysis

[60] In arriving at my decision regarding the decision-making aspect for custody of the child, I have considered the testimony of the parties, the exhibits filed and the jurisprudence. I have also considered the parties interaction with respect to issues of the child’s activities, health, interaction between the parties, historical decision-making and the ability of the parties to communicate on important matters regarding their child. Since the birth of the child, I find that the parties have been able to agree on many issues regarding their child such as:

(a) to register the child in soccer, swimming and gymnastics since separation; (b) that the child should have a flu shot. The father was upset that on the day after emailing the mother of the requirement of the injection, she obtained a last minute appointment and had the flu shot administered. The father was upset he was not advise and not in attendance; (c) that the child would attend Forest Valley Elementary School in September 2016; (d) that religion is not important in their or the child’s life but it may change in the future; and, (e) consented to vacations including the mother travelling outside of Canada to visit family.

[61] I find that the mother was the lead person in investigating the various needs for the child but both parents were involved in all final decisions such as:

(a) When the mother was pregnant with the child, she registered him in certain public schools to allow him to be enrolled in pre-and post-school daycare programs; (b) When the parties agreed that the mother would return to work and needed a daycare, it was the mother who conducted the initial telephone interviews and narrowed down the list to one individual who met with both parties. The parties jointly agreed to register the child with the daycare provider; (c) The mother made the initial call for the child’s medical doctor. Both parties attended the appointments. The mother usually goes into the appointments with a list of questions while the father usually takes a secondary role and listens to the interaction. He will ask questions if he needs clarification; (d) The mother contacted an ophthalmologist for Aden at seven months of age. The father did not to attend the first appointment but has attended subsequent appointments; (e) In the summer of 2016, the family doctor recommended that the parents investigate the child’s right eye. The child was seen and is to be re-evaluated 2017; (f) In June 2013, the mother originally retained an osteopath to care for Aden. In 2015, the mother changed to an osteopath in Orleans, to be closer to her home, the last visit was approximately one year ago. The mother takes the child to the appointments. The parties agreed to observe the child rather than having him seen by a pediatric chiropractor regarding a rotated pelvis, a condition suffered by the mother; (g) From August 2013 to July 2014, the child was treated for torticollis at the Children’s Hospital of Eastern Ontario where he saw a therapist over an 11 month period. The mother took the child to these appointments; and, (h) The current dentist was recommended by the child’s pediatrician. Both parties attend all appointments.

[62] I find that the parties have had differences regarding medical decisions affecting their child set out as follows:

(a) The parties differed on the use of a puffer after the child was diagnosed with asthma but currently they are in agreement; (b) The parties differ on the child being given almond milk. The father is concerned that since the child is allergic to cashews and pistachios he may suffer the effects of cross pollination. The mother is following the advice of the allergist; and, (c) The parties differ on the use of an iron supplement coupled with the use of prune juice to deal with possible constipation by the child.

Final Decision-Making

[63] The mother’s position is this is a high conflict matter where the parties cannot communicate and cooperate to make decisions in the best interests of the child. The mother does not trust the father because he failed to tell her about his girlfriend and that he took the child and his girlfriend and her daughter to Niagara Falls and Germany without telling the mother. She also complains that the father is absent-minded and can be angry and irrational. The mother submits that she would take a more holistic approach to all decisions such as getting all the background information, consulting on all the professionals and then making a decision.

[64] In her view, the parents do not agree on the application of the asthma puffer and the mother giving the child almond milk. The mother indicates that after separation sometime in 2015, she saw a psychiatrist to deal with the problems that she felt she had with the father. The psychiatrist advised the mother to parent as if she is a sole parent with no interaction with the father consequently when the child is in her care, she makes all decisions and in case of emergency, she will communicate with the father.

[65] The mother wishes to make all decisions regarding the child because she has been the parent to make those decisions since the child’s birth. She has no ability to communicate with the father but is prepared to consult with him. The mother complains that the emergency contact at the daycare is the father’s cousin and not the child’s mother. The mother admitted that since the incident at the doctor’s office in October 2016, there have been no other incidents.

[66] The mother admits that today the father attends most of all medical appointments and refers to the father as her ”bodyguard” at the appointments as normally the father just listens to the advice been given by the medical practitioner.

[67] The father’s position is that they can make these decisions together, that they attend dental, medical and activities together and that he is never interfered with the request by the mother for a vacation. He indicates that he has no animosity for the mother and they have been able to resolve issues such as when the daycare provider broke her ankle and was unavailable for weeks; the parents made arrangements to share the two weeks without argument. The father readily admits that he was emotional after the separation as he felt he was being pushed out of any serious involvement in his child. He indicates he has moved on and only wishes to act in the best interests of his child.

[68] In the alternative, the father seeks an order for parallel parenting in that he would have sole decision-making regarding education and medical decisions while the mother can make decisions regarding the child’s religion and dental care.

[69] I have considered the testimony of the various witnesses and the exhibits filed and I make the following findings of fact:

(a) Both the mother and father are highly educated and intelligent parents with multiple university degrees and stable employment; (b) The child is bonded to and loved by his parents; (c) Both parents have been involved in all decisions regarding their child be it medical, dental, selection of the daycare provider and activities; (d) The parties have had disagreements regarding the child attending the Montessori school, the issue regarding the use of the child’s puffer, the father’s concerned about the child taking almond milk and the iron supplement and prune juice; (e) At separation, the father was very emotional and concerned that he was going to be restricted in his child’s life. I accept the evidence of the mother and her father that they were concerned about the father’s reaction when he physically left the home. However, the mother agreed that from November 2014 to October 2016 that the father attend at her home at 6 a.m. on Tuesday, Wednesday and Thursday morning or she would attend at the father’s home on Tuesday, Wednesday or Thursday morning to allow the father to care for the child. I do not accept the mother’s allegation that she was afraid of the father. If the mother was afraid of the father, she would not have gone and interacted with him for over two years, three mornings per week at 6 a.m. without any witnesses; (f) Both parents have unilaterally modified the parenting agreement; (g) At times both parties have insisted on makeup time, telephone time or Skype time with the child that has caused disagreements between the parties; (h) Both parties have acted improperly with each other. The incident at the doctor’s office in October 2016, where the parties were fighting over the care of the child to take the child to a blood test was unfortunate and unwarranted. I blame both parties for what occurred that day. I can only imagine of how the child felt by the actions of his parents that day; (i) The mother was the parent who undertook all required research before the selection of the various health care providers for the child. The mother was also the lead parent regarding the child’s daycare selection, registration in the preschool program at the local elementary school soon after the child was born and has been the parent who is interacted with all these professionals; (j) The father has attended most if not all of the required healthcare professionals but that he takes a secondary role in listening to the advice being provided. If he requires clarification, he will ask questions. However, other than the noted disagreements, the parties agree with most of the professional advice being provided; (k) The mother to be very controlling in her relationship with the father regarding the child. Her position before the court regarding vacations was that Aden is too young to be away from her for more than a week until age 5. Despite the parties being separated, her position is that if the child goes to Kenya on vacation, both parties must travel with the child and that once in Kenya, each would have exclusive vacation time with the child; (l) The father has had a role in all major decisions regarding his child and has always acted in the child’s best interests; (m) The parties are able to communicate and able to make decisions regarding the best interests of their child despite their separation and this litigation; (n) The conflict regarding major decisions regarding the child have been sporadic. Currently, the parties agree on where the child will go to school, who his dentist is, his family doctor, ophthalmologists, daycare provider, the activities he is registered in. The parties have minor differences of opinion regarding almond milk and iron supplements\prune juice. The mother’s use of the puffer has been resolved to the father’s satisfaction over the past winter; (o) The parties have been able to put their differences aside and make decisions for and in the best interest of their child; and, (p) Since the child’s birth, both parties have had input into all major decisions affecting the child and I see no reason to grant either parent sole decision-making power.

[70] I find that the conflict has been sporadic and usually concerns certain specific medical issues that are currently resolved. I find that the conflict, when it has occurred, has not had an impact on the child and that the parties have been able to shelter the child from any conflict reasonably well and put their child’s interests ahead of their own.

[71] Consequently, I order that the parties are to have joint custody on all decisions affecting this child’s life including but not limited to decisions regarding the child’s education, health, activities and religion.

Residential Arrangements

[72] The mother does not like the current schedule because there is a five day gap with her not having contact with Aden and that once he starts school in September 2017, he will need stability and he is too young to be separated from her for that length of time.

[73] The mother’s position is that the father should have the child from Wednesday after daycare until Friday morning in week one. The parties agree on this point.

[74] During the second week, the mother proposes that the father has the child Monday at 4:30 p.m. from daycare Tuesday morning at 8:30 a.m. to daycare and from Friday at 4:30 p.m. until 8:30 a.m. on Monday morning. The result is that in a 14 day period, the mother would have the child 8 nights and the father 6 nights while the father’s proposal is that in the same 14 day period, the parties would each have 7 nights with the child. The mother states that the child needs a sense of home and a stable schedule and that the child requires more bonding time with the mother.

[75] The father proposed to maintain the status quo because there is very little interaction between the parents and it affords each parent to have the child equal time.

[76] I make the following findings of fact:

(a) Both parties have the ability to parent the child; (b) The parents live close to each other in the same area of Ottawa; (c) The child will be starting elementary school in September 2017; (d) The child is bonded and loved by both parents; (e) The father’s time with his child has increased since November 2014; (f) No evidence was provided indicating that the child has not adjusted well to the schedule changes. Despite the mother believing the child’s was suffering from separation anxiety, she did not seek medical advice. I find that in all other circumstances, the mother investigates, educates herself and seeks medical advice regarding an issue regarding her son. Despite alleging that the child was clingy and was exhibiting signs of separation anxiety, she took no action to seek medical advice; and, (g) The child is four years of age.

[77] In the circumstances, I find it in the child’s best interests that both parents have the child for an equal amount of time. Consequently, I order that the residential arrangements for the child will be as follows:

Week One The child will be with the father from Wednesday at 4:30 p.m. until Friday morning to daycare. The rest of the week, the child will be with the mother.

Week Two The child would be with the father from Monday at 4:30 p.m. to Wednesday morning to daycare at 8:30 a.m. and from Friday at 4:30 p.m. to Monday morning to daycare at 8:30 a.m. The rest of the week, the child will be with the mother.

[78] Once the child starts school at Forest Valley Elementary School in September 2017, the pickup and drop off will be at the school and or daycare as applicable. If the child is not in school or daycare, the pick up or drop off will be as agreed to by the parties.

Child Support

[79] The father’s position is that there should be no table child support payable because the parties have had shared custody of the child and that the party’s incomes are equal. The father’s basis for shared custody is that all of the time that the child was in daycare, the time is to be shared equally between the parties. Based on that calculation he has met the 40% threshold of section 9 of the Federal Child Support Guidelines, S.O.R./97-175, as amended (“Guidelines”)

[80] The mother seeks full table child support effective October 2014. Firstly, the mother’s argument is the father did not meet the 40% threshold required for a shared custody arrangement until October 2016. Secondly, as the father unilaterally changed the access schedule in October 2016, she argues that one party cannot unilaterally keep the child in order to produce a 40% figure as set out in Ness v Ness, 1999 BCCA 261 where the Court stated paragraph 22:

Clearly, one party cannot unilaterally insist on keeping the children over extra time in order to produce the 40% figure. The calculation in this case must be based on the order made by Mr. Justice Blair. By my calculation, Mr. Ness, under Mr. Justice Blair’s order, does not have physical custody of the children for 40% of the time. Accordingly, s.9 is not applicable in this case.

[81] Thirdly, in the alternative, the mother submits that the father has not discharged his onus to show that the table amount of child support is inappropriate in the circumstances. In support of that submission, the father has failed to provide child expense budgets to consider both fixed and variable costs and evidence as to the ability of each parent to assume any increased cost of shared custody by considering income levels, disparity in incomes and the assets and liabilities and net worth of each party.

Shared Custody

9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account (a) the amounts set out in the applicable tables for each of the spouses; (b) the increased costs of shared custody arrangements; and (c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

[82] I have considered the following principles:

(a) Where the 40% threshold is met, the court must proceed under section 9 of the Guidelines in calculating child support. (L. v. C., 2013 ONSC 1801); (b) The parent relying on section 9 of the Guidelines has the burden of proof to establish that the 40% threshold has been met.(L. v. C. supra); (c) There is no universally accepted method for determining the 40 percent of time that triggers s. 9 of the Guidelines (Froom v. Froom (2005), 2005 ONCA 3362, 11 R.F.L. (6th) 254 (Ont. C.A.); (d) The court should avoid rigid calculations and instead look at whether physical custody of the children is truly shared (Froom, supra para. 2); (e) The overwhelming weight of authority in Ontario and other provinces support calculating the 40% threshold on an hourly basis. When calculating time in hours, the 40% threshold is met if the parent has the child in their care for 3504 hours in a year (Khairzad v. McFarlane, supra at para. 68); (f) The relevant period for the calculation of time under section 9 is the amount of time that the child is in the general care and control of the parent, and not the time that the parent is physically present with the child. (L. v. L., supra, at para 38); (g) The calculation includes the time the child spends in swimming lessons, at day care, at school, or with a nanny, so long as the parent claiming this time is the parent who during that period is “responsible for their well-being” (Sirdevan v. Sirdevan, [2009] O.J. No. 3796 [(S.C.)]); (h) In determining who is responsible for the children during school time, the court should look at criteria including where both parents (a) are on the contact list at the school, (b) are proximate and available during school hours, (c) are probably responsible for enrolling the children, (d) go to parent teacher meeting, (e) sign report cards and journals, (f) pay for daycare. (g) sign notes to the teacher and (h) respond to telephone messages from school. (Ferguson v. Ferguson, 2005 PESCTD 16, 246 Nfld. & P.E.I.R. 204); (i) “Calculation of time with each parent is not a rigid exercise. Parental responsibility, not minutes, is the primary consideration. Time sleeping and time at school cannot be ignored.”(Law v. Law, 2011 ONSC 2140, at para. 67, Sloan, J); and, (j) The application of section 9 rests on more than a mere set off calculation and requires the court to consider the reality of how expenses for the children are met in each parent’s household, not assume that time spent equals money spent. (Fraser, supra at paragraph 80).

Analysis

[83] Since the mother returned to work in March 2014, the parties agreed that when the mother was at work, the father would be responsible for the child. The parties acknowledged that the father lived minutes from the daycare while the mother was working in Gatineau, Québec.

[84] This is not a case where the father was responsible for the child until 8:15 a.m. when he brought the child to daycare and then had access to the child later on any specific date. In the particular facts of this case, and on the specific arrangement reach by the parties, the father was responsible with the mother for the child while the child was in daycare.

[85] The 40% of time calculation must be over the course of the entire year. In one year there are 8760 hours. The father must reach 3504 hours to cross the 40% threshold.

[86] I find that in 2014, the father did have the child more than 40% of the year because the parties shared the child equally and lived together until November 7, 2014 and then they followed the first schedule.

[87] In 2015, I find that the father had the child two different periods of time. From January 2015 to August 26, 2015, he had the child 67.5 hours x 33.71 weeks equals 2275.71 hours. From August 26, 2015 to December 31, 2015, the father had the child 79.25 hours per week x 18.29 weeks equals 1449.48 hours. In addition, the father had the child for 2 weeks of vacation and March break totalling 322.23 hours. The total hours in 2015 are 4047 hours being well over the required 3504.

[88] From January 1 to October 25, 2016, I find that the father had the child 79.25 hours x 39 weeks equals 3090 plus as of October 2016, the father has had equal time totalling 924 hours. As of October 25, 2016, the parties have had shared custody of the child.

[89] I find that to grant to the mother, all the time that the child was in daycare since November 2014 would be to ignore the specific agreement that the parties reached. This father was responsible for the child during the day. He was 5 minutes away from the daycare. The mother was over 30 to 40 minutes away in Gatineau. I find that this child was and remains in the general care and control of the father during the day.

[90] Based on the above analysis and sharing the daycare time between both parties and considering the parental responsibility for this child, I find that the father has met his burden of proof that he had the child more than 40% of the time since separation.

Shared Custody

[91] Having found that the parties have been in a shared custody arrangement pursuant to section 9 of the Guidelines, the amount of the child support order must be determined by taking into account:

(a) the amounts set out in the applicable tables for each of the spouses; (b) the increased costs of shared custody arrangements; and (c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

[92] In Contino v. Leonelli-Contino, 2005 SCC 63, [2005] 3 S.C.R. 217, the Supreme Court of Canada provided a step-by-step method of calculation of child support in shared custody arrangements. The principles of Contino are as follows:

(a) All three factors in subsections (a), (b), and (c) of section 9 of the Guidelines must be given equal weight; (b) It is not appropriate to apply any form of fixed mathematical formula to calculate child support in shared custody cases; (c) The starting point is the set-off described in section 9 (a) of the Guidelines; (d) Appropriate evidence must be provided to the court to enable the consideration of subsection 9 (b) and 9 (c); and (e) There is no presumption that the quantum of child support in a shared custody case should be more or less than the table amount of child support payable by the payor.

Income Determination

[93] A spouse’s annual income is determined by the court in accordance with section 16 to 20 of the Federal Child Support Guidelines. (s. 15 Guidelines). A spouse’s annual income is determined using the sources of income set out under the heading “Total Income” in the T1 General form issued by the Canada revenue agency (s. 16 Guidelines).

[94] The father’s income is calculated as follows:

(a) In 2012, the father’s Notice of Reassessment indicates that his line 150 income was $85,188 of which $75,387 was employment income, gross rental income was $11,451 and net rental income was $9801; (b) In 2013, the father’s Notice of Reassessment indicates that he had a line 150 income of $80,458 of which $70,678 was employment income and net rental income of $9780. During the father’s testimony, he stated that he deducted repairs to his condo in 2013 but failed to deduct the condo fees mortgage and other expenses. On a review of the father’s financial statements, they indicate that he had a debt to ING Direct of $82,650 on the date of marriage and $76,300 on the date of separation; (c) In 2014, the father’s line 150 income was $72,770.38 based on employment income of $73,762 and rental income loss of $993.62. In 2014, the father completed a statement of real estate rentals arriving at a loss of $993.62; (d) In 2015, the father’s Notice of Assessments indicates that his line 150 income was $87,600. The father did not produce a T1 general income tax return. The father testified that he made a mistake as he should have not included the rental income without the rental expenses as he had done in 2014 which provided a loss of $993.62; and, (e) In 2016, the father produced no evidence as to his annual income amount save and except the financial statement sworn September 22, 2016 which attached a pay stub for the period ending September 10, 2016 showing that his income year to date was $57,398.83.

[95] The father submits that I should not use the line 150 income on his income tax returns as they are wrong because they fail, except for 2014, to deduct the expenses related to his rental unit. He submits that his annual income is approximately $72,000. The burden of proof is on the father to prove his income. At the trial, he indicated that he had made mistakes and failed to properly complete his income tax return. I have trouble accepting that the father failed to properly complete his return considering his education including an MBA and his work experience.

[96] I find that the parties income was as follows:

(a) In the year 2014, I find that the mother earned $40,611.76 and the father earned $72,770.38; (b) In the year 2015, I find that the mother earned $72,762 and the father earned $87,600; and, (c) In the year 2016, I find that the mother earned $72,762 and the father earned $72,000.

[97] Ms. Nems came to live with the father in October 2015 and paid him $2000 per month. From January 2016 to August 2016, the father and Ms. Nems’ relationship remained as her being a boarder. In September 2016, the father’s relationship with Ms. Nems became romantic and that her contribution should no longer be calculated as income added to the father’s total income in the year.

[98] Subject to sections 17 to 20 of the Guidelines, a spouse’s annual income is determined using the sources of income set out under the heading “total income” in the T1 general form issued by the Canada Revenue Agency and is adjusted in accordance with schedule III (s. 16 Guidelines).

[99] The mother submits that that money paid by Ms. Nems being $2000 per month should be included as income for the father in calculating child support. She requests that the months of October through December 2014 being $6000 should be grossed up by 25% to account for income taxes to arrive at a figure of $8000 which should be added as rental income to the father’s total income in 2015.

[100] The mother submits that the sum of $2000 per month times for January through August 2015 being $16,000 should be grossed up by 25% to arrive at a figure of $20,000 which should be added as rental income to the father’s total income in 2016. The father opposes this request.

[101] In Crabtree v Crabtree, 2009, O.J. No. 1466, the Court did not include into the payor’s income money received from boarders in a communal living situation. In that decision, Justice Blishen found that the payor and the boarder shared the kitchen, living room, bathroom and all contribute to household expenses. The payor characterized the arrangement as a communal living situation enabling everyone to reside together for a reduced cost. The payor did not report the boarder’s contribution on his income tax return. The Court refused to impute the income based on the arrangements with the borders because of the following reasons:

(a) the payments toward household expenses made by the boarders was not income included on line 150 of the payor’s tax return. The onus fell on the payee to prove that they should be included; (b) the monies received were for sharing all expenses including food which was different from receiving rent from tenants in an investment property; (c) although the pay or arguably benefits by reduce mortgage and other cause, the boarders were really just paying for what they were using and therefore is difficult to quantify the benefit to the pay or; and, (d) the payor was not offsetting all household costs when considering both his personal proportion contributions and those of the boarders where the monthly costs were $3000 and the boarders were considering $1410.

[102] I find that the situation in this matter is analogous to the Crabtree decision. I will not include Ms. Nems’ contribution as income because the income was not listed on the father’s income tax return, the contribution was to share in the food eaten by the two adults and two children and there is no evidence of whether or not the contribution was in excess or below of the actual expenses. Further, even if Ms. Nems’ contribution was characterized as “rental income”, the father would be entitled to make deductions from that income.

November 2014 to December 2014

[103] The mother filed her Answer March 11, 2015 where she sought child support from the father in accordance with the Guidelines.

[104] Neither party provided childcare budget amounts save and except as stated in their financial statements. I have not received any evidence with respect to the increased cost of a shared custody arrangement.

[105] I find that during the year 2014, the parties shared custody of the child. Full table child support owed by the father was $1,075 per month while the shared custody set off amount was $485 per month based on the father’s table amount of $1,075 per month and the mother’s table amount of $590 per month.

[106] I find that taking all factors into consideration, including the parties income, their financial statements and shared custody, the father should have paid the mother child support of $500 per month as child support for a total of $1,000.

Year 2015

[107] In 2015, starting with the set off calculation, the father should have paid the mother $782 per month based on an income of $87,600 and the mother should pay the father the sum of $663 per month based on an annual income of $72,762 resulting in an amount owing by the father of $119 per month.

[108] The mother submits that the father has not met his burden of proof that the full table support is inappropriate. In the alternative, she submits that the father should pay $450 per month being half way between $663 per month and $119 per month.

[109] While I do not have childcare budgets, I am aware that the father earned approximately $15,000 more in 2015. In my discretion, I order the father to pay the mother child support in the amount of $300 per month for the months of January through December 2015.

Year 2016 and Forward

[110] In 2016, I have found that both parties have approximately the same amount of income and in those circumstances, I will not make any order for support payable by either party.

Arrears

[111] The father did not pay any child support until the fall of 2016 when he delivered a cheque in the amount of $24,203 to the mother of which the sum of $21,217 was payment by the father for the equalization payment. The difference being the sum of $2,986 was paid by the father as a credit towards any child support owing by him to the mother for the period of November 2014 to August 2015. The sum of $2,986 was arrived at by the father making the following calculations:

(a) $5,913 representing the sum of $657 per month for a nine-month period based on a set off calculation performed by the father; (b) Less the sum of $2280 representing half of the child tax benefits received by the mother for a 24 month period; and, (c) Less the sum of $631 representing an overpayment of daycare expenses calculated by the father.

[112] Since the birth of the child, the mother has been in receipt of the child tax benefit cheques. She testified that after the birth of Aden until she returned to work, she used such cheque to pay for her own expenses. When she returned to work, she contributed $150 per month to registered educational savings plan (RESP) in the child’s name. Further, she accumulated savings equal to the amount of the child tax benefit cheque that she received in the first year of the child’s life that she used to support herself. She then contributed that lump sum amount to the RESP.

[113] Currently, the mother is contributing $150 per month to the RESP and as of September 23, 2016, had a balance of $8,968.30.

[114] I find that the arrears of child support owing by the father is the sum of $4,600. This amount is to set off against the sum of $2,986 leaving a balance owing of $1,614 to be paid within 30 days of this judgment.

Life Insurance

[115] Both parties have life insurance policies with Sun Life insurance in the amount of $500,000.

[116] The father proposes that both parties maintain the child as the beneficiary of a life insurance policy in the amount of $180,000 while the mother proposes of the father maintain a life insurance policy in the amount of $225,000.

[117] In Katz v. Katz, 2014 ONCA 606, 377 D.L.R. (4th) 264, the Court of Appeal canvassed the issue of life insurance securing support obligations and provided the following principles:

a) The Court is given broad discretion to impose terms, conditions, and restrictions in connection with an order for child or spousal support, including the power to order a spouse to obtain insurance to secure the payment, to be binding on the payor’s estate; and b) The factors to be considered in determining the quantum of the life insurance, once the issue of insurability and cost of the insurance is resolved, are as follows: the amount of life insurance cannot exceed the amount of support payable over the duration of the support order; the amount of insurance to be maintained should decline over time as the amount of spousal support payable will diminish over the duration of the award; the obligation to maintain insurance should end when the support obligation ends; and the court should first order that the support obligation is binding on the payor’s estate.

Analysis

[118] I have considered the following factors in arriving at my decision regarding life insurance:

(a) Under the Divorce Act, I have jurisdiction to order the respondent to obtain and maintain life insurance to secure his payment of a support obligation; (b) Under the Divorce Act, I have jurisdiction to order the support obligation to be binding on the respondent’s estate; (c) I have found that the parties will have joint custody of their child and currently there is no child support payable by either party based on the approximately equal amounts of income by both parties; (d) I find that both parties should have life insurance in place to secure their obligation to pay child support; (e) I find that both parties have life insurance; and, (f) The mother has provided a DivorceMate calculation indicating that if the father paid the mother child support of $782 plus $409 per month towards child care expenses, the life insurance estimate would be $164,412. This calculation does not include post-secondary education and is based on the father paying the mother a table amount of child support which is not the situation at this time.

[119] Taking into consideration that the child is 4 years of age, that his residential arrangements may vary and that the parties incomes may change as well as the child’s needs, in the circumstances, I order both parties to designate the other as the irrevocable beneficiary in trust for Aden of a life insurance policy in the amount of $180,000 and to provide proof of the said designation within 30 days of this judgment.

[120] In the event that life insurance is not in place at the time of the death of one of the parents, the sum of $180,000 shall be the first charge against his or her estate.

Divorce

[121] The parties separated on September 12, 2014, have not reconciled and there is no chance of reconciliation. In the circumstances, an order of the divorce shall issue.

Spousal Support

[122] The mother withdrew her claim for spousal support.

Partial Minutes of Settlement

[123] On January 17, 2017, the parties filed Partial Minutes of Settlement where they agree on the sharing of specific holidays and acknowledging that they have settled the equalization of the net family property with the father paying the mother an equalization payment of $21,217, which the mother acknowledges she has received. Further, the parties agreed the father has paid the mother a cheque in the amount of $24,203 representing the equalization payment and the balance is paid without prejudice to the mother’s right to pursue retroactive child support.

Disposition

[124] Based on the foregoing, I order as follows:

(a) A divorce order shall issue; (b) The parties shall have joint custody of Aden Kayo Wachira, born March 11, 2013 and shall make all major decisions regarding the child jointly; (c) The parent residing with the child at all relevant time make daily decisions affecting the child’s welfare; (d) The child will reside with the father as follows:

Week One The child will be with the father from Wednesday at 4:30 p.m. until Friday morning to daycare.

Week Two The child would be with the father from Monday at 4:30 p.m. to Wednesday morning to daycare at 8:30 a.m. and from Friday at 4:30 p.m. to Monday morning to daycare at 8:30 a.m.

(e) The parties shall keep each other up to date with regards to the child’s curricular and extracurricular activities. Neither party shall register the child in an activity which takes place during the other party’s time with the child without the consent of the other parent; (f) Both parties shall be entitled to have a copy of the child’s report cards, notice of all school events and activities, medical reports and such other documentation relating to the child provided them directly and each shall cooperate with the other to ensure that both receive same; (g) Both parties shall be entitled to community directly with all professionals involved with the child, including but not limited to medical, dental, educational, professionals and each shall cooperate with the other to ensure that both parties are able to do so; (h) In the event that the child needs emergency medical care, each parent shall be entitled to make any decisions and provide any instructions necessary, to see to the care of the child on an urgent basis. The party in whose care the child is at the time of the emergency shall promptly notify the other parent of the emergency as soon as is it is safe to do so; (i) The mother shall retain the child’s birth certification and the father shall retain the child’s passport. These documents shall be provided to the other parent should they require same and once the stated purpose has been fulfilled, that parent shall return same to the care of the parent in whose possession the document was; (j) The father shall be responsible to ensure that the child has a valid passport and shall renew same as required. The mother shall cooperate with the renewing or replacement of the passport shall execute and return any documents within 10 days of having received them from the father. The cost of renewing or replacing a passport for the child shall be divided equally between the parties; (k) The child’s OHIP card shall travel with the child between the home of the parents; (l) If either party plans a vacation with the child, that parent will give the other a detailed itinerary at least 60 days before the commencement of the vacation, including the name of any flight carrier and flight times, accommodations, including address and telephone numbers and details as to how to contact the child during the trip. Within 10 days of receiving such information, that party shall, in writing, confirm to the other whether or not they are prepared to consent to the proposed travel. Should such consent not be forthcoming, the other party shall be at liberty to apply to court for an order directing the party proposing the travels to do so and that the other party shall immediately deliver all documentation necessary to accomplish such travel as may be within the power of that party, together with an order directing the cost of making such application shall be payable by the defaulting party on the full indemnity scale; (m) If either party plans a vacation outside of Canada with the child, the travelling parent will provide the other parent with a travel consent authorizing the child to travel for the other parent to execute and have notarized at the travelling parent’s expense. Said travel consent authorization provided within 14 days of receipt; (n) The parent who attends to travel with the child shall be responsible for all the necessary immunizations and will follow all necessary medical protocol prior to departure; (o) In the event that either party are to travel with the child to a location in which the medical\dental\travel insurance are not in effect, the parent travelling with the child shall acquire, at his or her own expense, such medical\dental\travel insurance as may be necessary to ensure the child while he is away; (p) This holiday parenting schedule shall be in addition to the regular parenting schedule identified in which remains to be determined and overrides the regular parenting schedule in the event of a conflict;

1. As long as Family Day is not a statutory holiday for the mother, the child shall be in the father’s care every Family Day from 8:30 a.m. until 4:30 p.m. At 4:30 p.m., the regular schedule resumes.
2. If Family Day becomes a statutory holiday for the mother, the child shall be with the mother in even-numbered years and with the father in odd-numbered years, from 8:30 a.m. to 4:30 p.m. At 4:30 p.m., the regular schedule resumes.
3. In odd numbered years beginning in 2015, the child shall reside with the mother at the following times: on December 24th until 2:30 p.m.: from December 25th at noon until 4:00 p.m. on December 26th, from December 28th at 8:30 a.m. until January 1st at noon.
4. In odd numbered years beginning in 2015, the child shall reside with the father at the following times: on December 24th at 2:30 p.m. until December 25th at noon, from December 26th at 4:00 p.m. until December 28th at 8:30 a.m.: from January 1st at noon until January 5th at 8:30 a.m.
5. The father shall be responsible for pickups and drop offs, save and except for the pick up on December 25th at noon and January 1st at 8:30 a.m. drop off. The mother shall transport the child on these two dates and times.
6. The Christmas schedule able shall be reversed in even numbered years commencing in 2016.
7. Once the child is attending school, the regular parenting schedule shall govern March Break. However, in the event that a parent wishes to travel with the child during March Break, they shall be entitled to do so, so long as they provide notice to the other parent by no later than February 1 of that year and the schedule for March Break shall be adjusted accordingly.
8. Should there be a conflict between the parents where each parent wishes to travel with the child during the same year, the father shall have priority to travel with the child during off numbered year and the mother during even numbered years.
9. The child shall be with the mother on Good Friday in odd-numbered years and with the father in even numbered years, from 8:30 a.m. until 4:30 p.m. At 4:30 p.m., the regular schedule resumes.
10. As long as Easter Monday is not a statutory holiday for the father, the child shall be in the mother’s care every Easter Monday from 8:30 a.m. until 4:30 p.m. At 4:30 p.m., the regular schedule resumes.
11. If Easter Monday becomes a statutory holiday for the father, the child shall be with the father in odd-numbered years and with the mother in even-numbered years, from 8:30 a.m. to 4:30 p.m. At 4:30 p.m., the regular schedule resumes.
12. The child shall be with the mother on Victoria Day weekend in even numbered years and with the father in odd numbered years from 8:30 a.m. on Monday morning until Tuesday morning at 8:30 a.m. At 8:30 a.m. the regular schedule resumes.
13. If Mother’s Day falls on the father’s schedule weekend, the child shall spend Mother’s Day from Sunday at 9:30 a.m. until 7:00 p.m. with the mother. The father shall drop the child off at the father’s home at 7:00 p.m.
14. If Father’s Day falls on the mother’s schedule weekend, the child shall spend Father’s Day from Sunday at 9:30 a.m. until 7:00 p.m. with the father. The father shall drop the child off at the mother’s home at 7:00 p.m.
15. The child shall be with the father on Canada Day weekend in odd numbered years and with the father in even numbered years from 8:30 a.m. on Monday morning until Tuesday morning at 8:30 a.m. At 8:30 a.m. the regular schedule resumes.
16. The child shall be with the mother in even numbered years and with the father in odd numbered years, from 8:30 a.m. on Monday morning until Tuesday morning at 8:30 a.m. At 8:30, the regular schedule resumes.
17. The child shall be with the mother in odd numbered years with the father in even numbered years, from 8:30 a.m. on Monday morning until Tuesday morning at 8:30 a.m. At 8:30 a.m. the regular schedule resumes.
18. In even numbered years, the child shall be in the father’s care on Thanksgiving Monday from 8:30 a.m. until 4:30 p.m. and in the mother’s care in odd numbered years. At 4:30 p.m. the regular schedule resumes.

(q) The father shall pay to the mother the sum of $1,614 representing the arrears of child support within 30 days of this judgment; (r) Commencing June 1, 2017, neither party shall pay table child support to the other based on shared parenting and equal incomes. (s) The parties shall share in proportion to their annual income the child’s section 7 expenses set out pursuant to the Guidelines including but not limited to the daycare expense; (t) Both parties shall designate Aden as a beneficiary of their extended medical and dental policy available through her employment for so long as the benefit is available and the child is entitled to support; (u) Both parties shall designate the other as the irrevocable beneficiary in trust for Aden of a policy of life insurance in the amount of $180,000; shall provide proof of said designation within 30 days of this judgment and in the event that a parent dies without said insurance in place, the amount of $180,000 shall be the first charge on their estate; and, (v) The Applicant owes the Respondent the sum of $21,217.00 as an equalization payment, which payment has been made.

Costs

[125] I encourage the parties to settle the issue of costs by June 9, 2017. If they cannot, the father to provide his costs submissions not to exceed three pages plus a bill of costs and any offers to settle by June 16, 2017. The mother shall file her costs submissions not to exceed three pages plus a bill of costs and any offers to settle by June 30, 2017.

Shelston J. Released: May 29, 2017