Court File and Parties

Citation: Umeya v. Tebit, 2017 ONSC 2874 Court File No.: FS-13-386499-002 Date: 20170510

Ontario Superior Court of Justice

Between: Aisha Umeya, Applicant – and – Humphrey Tebit, Respondent

Counsel: Erin Chaiton-Murray, for the Applicant Katherine Robinson, for the Respondent

Heard: April 6, 7 and 10, 2017

Before: Gilmore J.

Overview

[1] The Applicant ("Ms. Umeya") brings this Motion to Change the order of Myers J. dated December 11, 2015. That order stipulates that the parties' son, Rashard Umeya-Tebit, has his primary residence with Ms. Umeya and that the Respondent ("Mr. Tebit") is to exercise access during specified times. Ms. Umeya brings the Motion to Change because she wants to move from Toronto to Belleville. She seeks to modify the current access arrangement given the distance between Ms. Umeya's proposed residence in Belleville and Mr. Tebit's home in Toronto. Registration of the child in a new school and daycare will also be required if the move is permitted. Finally, Ms. Umeya seeks payment of arrears of s. 7 expenses as well as financial disclosure and a new formula for determining Mr. Tebit's income.

[2] Mr. Tebit resists all of the relief sought by Ms. Umeya. His Response to Motion to Change seeks equal time with the child, an order that the child attend private school and an order that the custody and access provisions of any order resulting from this trial be enforced by the Toronto Police Service or the police department in the area in which the child is residing.

Background Facts

[3] This case has had an extensive litigation history even though the child is only four years old and the parties separated in June 2012, less than a month after they were married. Ms. Umeya commenced her original application in May 2013. The litigation has been ongoing ever since. It is an unfortunate set of circumstances in which both parties have entrenched views as to what is best for their child. Unfortunately, those views do not align.

[4] A two-week trial was heard by Myers J. in November and December 2015. I have paraphrased the relevant parts of the resulting judgment dated December 11, 2015 as follows:

(a) Access exchanges are to take place at daycare or at a location near the daycare, as agreed.

(b) Ms. Umeya must consult with Mr. Tebit on major decisions relating to the child's health care and religion but she has the final decision-making authority in those parenting areas. Mr. Tebit may expose the child to Mr. Tebit's religion including taking the child to church, but the child is to be raised as a Muslim, unless Ms. Umeya agrees otherwise.

(c) The parties are to decide jointly on the child's schooling, failing which either party may bring a Motion to Change.

(d) Neither parent may remove the child from Canada without the other party's consent. Consent for travel with notice may not be unreasonably withheld.

(e) Mr. Tebit may obtain a new birth certificate for Rashard listing Mr. Tebit as the child's father and may implement a change of name for Rashard from Rashard Umeya to Rashard Umeya-Tebit. The name change may not be implemented until such time as Mr. Tebit has paid all arrears of child and spousal support.

(f) As of September 1, 2016, Mr. Tebit shall have access to the child as follows:

(i) Alternate weekends, from after school/daycare on Friday to drop-off at school/daycare on Monday morning.

(ii) After school/daycare on Tuesdays to drop-off at school/daycare on Wednesday mornings.

(iii) After school/daycare on Thursdays returning the child to Ms. Umeya at 6:30 p.m.

(g) Ms. Umeya shall endeavour not to schedule the child's appointments during Mr. Tebit's time with the child, but if that is unavoidable, Mr. Tebit will take the child to the appointment.

(h) If the child is ill (as defined by the daycare) on the day of an access visit, Ms. Umeya shall notify Mr. Tebit via Our Family Wizard ("OFW") that the visit will be missed. If the notification is within two hours of a visit, additional notification via text message shall be given.

(i) The parent who does not have the child on his birthday shall have a three-hour visit with the child on his birthday at a time which does not interfere with school.

(j) Thanksgiving, Easter, Christmas Eve, Christmas Day, New Year's Eve and New Year's Day shall be alternated.

(k) The child shall be with Ms. Umeya on Eid, Mother's Day and Ms. Umeya's birthday.

(l) The child shall be with Mr. Tebit on Father's Day and Mr. Tebit's birthday.

(m) Both parties shall ensure that the other is listed with the daycare, school and family physician. Both may obtain copies of any educational, medical and/or other professional report concerning the child directly from the professionals involved.

(n) The parties shall only communicate in writing and regular communication shall be via OFW. Mr. Tebit shall pay the cost of both parties' subscriptions to this service. The communication between the parties shall be courteous, brief and child-focused.

(o) Each party may enrol the child in extra-curricular activities during that party's time with the child Consent from the other parent must be obtained if a parent wishes the cost of the activity to be shared or if the activity takes place on the weekend.

(p) Both parties shall provide the other parent's name to any list of required emergency contacts.

(q) The parties are to cooperate re government documentation required to be obtained for the child.

(r) Mr. Tebit shall pay child support in the amount of $880 per month based on an imputed income of $100,000 for 2014 and 2015.

(s) Expenses for daycare and Ensure ($150 per month plus HST at the time of the judgment) shall be shared in accordance with the parties' respective incomes.

(t) The parties shall exchange income tax returns for the prior year by June 1 of each year so long as child support is payable.

(u) Mr. Tebit was ordered to pay arrears of child support in the amount of $16,149 and, pursuant to a supplementary order of Myers J. dated January 6, 2016, arrears of spousal support in the amount of $26,388. All of those amounts have been paid.

(v) Mr. Tebit to pay pre- and post-judgment interests at the prescribed rates.

(w) Mr. Tebit was held in contempt of an order of Chiappetta J. dated June 15, 2015 and an order of Wilson J. dated August 28, 2015. In lieu of sentencing, the contempt was to be reflected as a factor in the determination of liability and quantum of costs. After receiving written costs submissions from both parties, Myers J. ordered no costs.

[5] It is also important to note some of the factual findings made by Myers J. in his reasons for judgment. While he found overall that both parents had a loving and close relationship with their son, those findings were tempered by comments such as the following. Regarding Mr. Tebit: "Mr. Tebit does not differentiate his own wants from Rashard's needs as well as he could or should." The trial judge agreed with the report of the Office of the Children's Lawyer, where it stated, "He dismisses Ms. Umeya's concerns outright and sees his own views as paramount."

[6] As for Ms. Umeya, she was described as a great mother but "over-protective and inclined to hyperbolize and catastrophize any perceived risk." The trial judge dismissed Ms. Umeya's concerns that Mr. Tebit had a drinking problem, that he was obsessed with her or that by disagreeing with her, Mr. Tebit was trying to control her. The trial judge also stated, in his costs endorsement of March 22, 2016, that Ms. Umeya's "approach to issues concerning the child was unreasonable and self-serving throughout."

[7] In terms of general observations, Myers J. found as follows: "Each questions the sincerity of the other's [religious] observance." "By fighting all the way with extreme positions, the parents have caused themselves distress which Rashard seems to have started feeling."

[8] Despite the trial judge's clear warning about the necessity of the parties learning to get along for the sake of their son, they have been to court on multiple occasions since December 2015. In January 2016, Ms. Umeya brought a motion requiring Mr. Tebit to pay daycare expenses directly to the daycare centre rather than through the Family Responsibility Office ("FRO"). She alleged that Mr. Tebit was not paying his share of daycare to FRO promptly resulting in her having to "front" the daycare cost, which she could not afford. Ms. Umeya was successful and Mr. Tebit has paid his share of daycare expense directly to the daycare since then.

[9] In May 2016 Ms. Umeya brought a motion seeking Mr. Tebit's consent to travel to Buffalo with the child. He had refused to sign any consent on the basis that the trip would interfere with his regularly scheduled access. The matter was resolved by way of a consent allowing Ms. Umeya to travel at specified times.

[10] Ms. Umeya brought a motion in September 2016, seeking a change to the access provisions of the December 11, 2015 order. The judgment had provided for gradually increasing access between the date of the order and September 1, 2016. Paragraph 8(c) of the judgment expanded access as of September 1, 2016, as follows:

(c) Commencing September 1, 2016:

(i) on alternating weekends, Mr. Tebit shall pick up Rashard after school on Fridays and return him to school on Monday morning

(ii) Mr. Tebit shall pick up Rashard after school on Tuesday and return him to school on Wednesday mornings

(iii) Mr. Tebit shall pick up Rashard after school on Thursdays and return him to Ms. Umeya at 6:30pm

[11] Since the parties had decided that the child would remain in daycare until September 2017, Ms. Umeya's position was that the judgment's reference to "school" in paragraph 8(c) was unclear. She sought to prevent the access expansion from occurring until the child went to school in September 2017. Her motion was dismissed and she was ordered to pay $500 in costs to Mr. Tebit.

[12] In November 2016, Mr. Tebit brought a motion to restrain Ms. Umeya from moving to Belleville with Rashard. The motion was adjourned to November 24, 2016, to allow Ms. Umeya to file responding materials. A temporary order was made restraining Ms. Umeya from moving the child outside of Toronto or taking him out of daycare. On the return of the motion the court gave directions as to the timing of Ms. Umeya's Motion to Change and scheduled a Case Conference on the Motion to Change for December 23, 2016. The matter was not resolved at the Case Conference and a Settlement Conference/Trial Management Conference was scheduled for February 13, 2017. Unsuccessful attempts were made at that conference to settle and a hearing schedule was determined.

[13] Much of the background of this matter is set out in the reasons delivered by Myers J., at the conclusion of the trial on December 11, 2015; however, to give the matter some context, the following is of assistance. Ms. Umeya is 38 years old. She is a registered practical nurse and works in cardiology and general medicine. She does shift work, often coordinating night and weekend work with times when the child is with Mr. Tebit.

[14] Ms. Umeya is a Muslim and Rashard is to be raised as a Muslim. Ms. Umeya and Mr. Tebit participated in a traditional Muslim marriage blessing before the marriage ceremony, which took place in June 2012. They separated some three weeks after their marriage. Mr. Tebit is a Christian and does not identify as Muslim. He explained that he went through a form of conversion for the purpose of the wedding ceremony only.

[15] Mr. Tebit is 53 years old. He is a self-employed clinical research consultant. His hours and income vary depending on the number and types of projects he is working on. He works mostly from home and has some flexibility with his work hours.

[16] The child, Rashard, was born on February 8, 2013 and is now four years old. He has been going to My Little School ("MLS") daycare since he was ten months old. Ms. Umeya described her son as generally healthy but prone to skin rashes and some respiratory problems that require the occasional use of a puffer. Mr. Tebit agrees that his son requires a puffer from time to time but he disagrees with Ms. Umeya's descriptions of the extent of Rashard's skin rashes or respiratory problems.

[17] Both parties have a close and loving relationship with their son. There is no doubt that Rashard receives the best of loving care and that all of his needs are met. The parties deserve credit for this but the credit ends there. The evidence of the parties on this motion with respect to their relationship with Rashard was presented as a form of one-upmanship with each parent suggesting that their time with Rashard and their interpretation of his needs was superior to that of the other parent.

[18] Ms. Umeya has a litany of complaints about Mr. Tebit including late access returns on Thursdays, a failure to give her access on Eid, a refusal to allow her time with the child on her birthday (as per the trial judgment), a refusal to contribute to the cost of soccer, a failure to show for access with no or minimal notice (this affects Ms. Umeya's work schedule, which is set six weeks in advance and contemplates her working during access times), a failure to pay child support or s. 7 expenses on time, a failure to respond to questions when the child is in his care, and an overall resistance to negotiating with her on any contested matter. This has resulted in repeated court appearances.

[19] Mr. Tebit, in turn, has his panoply of complaints about Ms. Umeya including cancellations of access without notice, cancellations for illnesses that are suspect, infringements on his access time for things that Ms. Umeya deems more important (such as Sunday school at her mosque), a failure to communicate by phone or email when access is cancelled resulting in Mr. Tebit having to call the police for assistance, a failure to sign birth certificate and change of name forms as ordered, an insistence by Ms. Umeya that he contribute to the cost of Ensure when the child does not like it or need it, a lack of cooperation by Ms. Umeya when the child is sick, a failure to make up missed access time or an offer of time that is not equal to what was lost, and a failure to promptly share health information about Rashard.

[20] Much of the two and a half days of evidence in this trial was taken up with a listing of complaints by each party about the other. It is against this background that Ms. Umeya seeks to move to Belleville with her son. She views it as a necessary change to ensure he has better housing, his own room, a backyard and support from her family. Mr. Tebit does not see it that way at all. He testified that the move would greatly impact his relationship with his son and that spending hours of driving is not quality access time.

The Move to Belleville

[21] Ms. Umeya testified that until March 2017, she had been living in a small one-bedroom apartment at 3 Biggin Court in Toronto. Once Rashard got older, she gave up her bedroom to him and slept on the couch in the living room. The apartment is too small for her to have any of her son's friends over to play. Further, the rent has gone up by $200 to $990 in the last two years and she has no control over future increases. There is no storage area, so all of her son's toys including his bicycle and scooter must be stored inside the apartment. Her evidence was that Mr. Tebit is well aware of the challenges of this space. Much of the lump sum child and spousal support Ms. Umeya received in accordance with the December 2015 judgment went to pay legal fees and personal loans from family members. Further, Ms. Umeya's work was not as flexible as she had hoped. Management had changed after she returned from maternity leave and were not as understanding. She could not always get the shifts she wanted.

[22] Around April 2016, Ms. Umeya decided that for the sake of her son she needed a new living and working arrangement. She began to look around for a larger apartment or house to rent. She was shocked to find that a two-bedroom apartment would cost her a minimum of $1700 per month plus parking and laundry. A friend at work suggested she was better off to buy a house and pay a mortgage if she was going to pay that much. So Ms. Umeya contacted a real estate agent and started to look at homes in the Toronto area. She determined that her purchase price budget was a maximum of $400,000. It proved impossible to find something reasonable and within her budget in the Toronto area so she expanded her search to North York, Brampton and Ajax. When she was still unsuccessful at finding something within her price range, she kept expanding her search east until she found a home in Belleville.

[23] Ms. Umeya repeated several times during her evidence that she can no longer afford to live in Toronto. Not only is her income modest, but the fact that she has had to expend significant sums for legal fees to pursue appropriate amounts of support from Mr. Tebit and the fact that he is consistently late with his payment of support and s. 7 expenses has meant that a great deal of the financial burden associated with raising Rashard has been placed on her shoulders. In contrast, she points out how Mr. Tebit bragged at trial about how many toys he had bought for Rashard, how he takes him to his private tennis club and how he believes that private school at more than $18,000 a year is a viable option for Rashard. Ms. Umeya told the court that she was recently evicted from her apartment as she could not afford to pay both rent and the mortgage in Belleville. She has had to resort to payday loans and living in one bedroom of a relative's home while awaiting the result of this hearing.

[24] The home in Belleville is a newly constructed three-bedroom with a finished basement and a backyard, located at 157B Cannifton Road North. It was priced at $389,000, within Ms. Umeya's affordable limit. Ms. Umeya was unable to qualify for a mortgage on her own so her sister-in-law ("Sabra") helped her. The home was purchased in October 2016. Title was placed in Sabra's name and a trust agreement prepared. A deposit of $18,500 was paid. Ms. Umeya testified that this amount came from her own funds as well as gifts from her family. Sabra took out a first mortgage on the home for approximately $307,000 and secured a second mortgage in the amount of approximately $61,000 against her own home.

[25] Ms. Umeya is responsible for the mortgage payment of $1,900 per month plus realty taxes. She has been paying these amounts with help from her family. Once she is back on her feet, she intends to take over full responsibility for these costs and ultimately have the house transferred to her name.

[26] Ms. Umeya spoke with a great deal of emotion about what this home would mean for her son. There would be room to store his bicycle and scooter. They would be within walking distance to amenities, a community centre and schools. He could have friends over, a study and play area of his own, and a pet, which he has been asking for. The plan would be for her father to move in with her and Rashard so that he can help her when she is unable to pick up Rashard or take him to activities because of work.

[27] Other benefits of living at this location include easy access to the 401 and what Ms. Umeya estimates is a 20 percent reduction in overall costs including daycare, activities and general expenses. Ms. Umeya has investigated public schools in the area and there is one ten minutes away from her house. She has also investigated daycares and found two good prospects nearby. Both daycares cost 20 percent less than what she is paying for daycare in Toronto.

[28] With respect to her work, Ms. Umeya had secured a job in Belleville but she was let go prior to the end of her probation period. She found it impossible to balance the commute and caring for Rashard while still living in Toronto. She is currently working approximately 75 hours every two weeks at Humber River Hospital in Toronto. Her evidence was that the Toronto market is flooded with nurses. Her plan to upgrade her education and obtain her RN designation has been sidelined by raising Rashard. She is aware that there are many more opportunities for nurses outside the GTA. She is also confident that she can obtain a job that would allow her the flexibility of being able to take her son to school in the morning and pick him at after-school care when she is finished work.

[29] Much evidence was given during this motion about the driving time between Toronto and Belleville. Ms. Umeya testified that the distance was 177 kilometres one way and the driving time was 1.5 hours or less. Mr. Tebit disagreed about the driving time and said he thought it could take him up to three hours one way in winter weather. Ms. Umeya offered to share the driving but Mr. Tebit was obviously concerned about, for example, how he would spend quality time on Thursday evening with his son when most of the time would be taken up with driving his son between Toronto and Belleville.

[30] Ms. Umeya's solution to this dilemma is to offer access at different times. Her plan, until the child goes to school in September 2017, is to maintain alternate weekend access from Friday at 3:00 p.m. to Monday at 9:00 a.m. Ms. Umeya would drive Rashard to Toronto on Friday and Mr. Tebit would bring him to Belleville for daycare on Monday morning. Mr. Tebit would also have access on Tuesdays, when he would pick up Rashard from daycare at 3:00 p.m. and drop him off at an agreed-upon location at 6:00 p.m. On the weeks when Ms. Umeya has Rashard on the weekend, Mr. Tebit would also have access on Thursdays, when he would pick up Rashard from daycare at 3:00 p.m. and return him to an agreed-upon location at 6:00 p.m.

[31] Ms. Umeya proposes that once the child is in school, Mr. Tebit's access would change to take place on alternate weekends from Friday after school to Sunday at 6:00 p.m. Mr. Tebit would also have an additional access weekend every second month with the same start and end times. The child would spend half of the Christmas Break and half of the March Break as well as two non-consecutive weeks during the summer with Mr. Tebit. The balance of the holiday schedule would be as per the December 2015 judgment.

[32] Ms. Umeya gave evidence that she is willing to share the driving with Mr. Tebit. Mr. Tebit would also be invited to attend the child's activities when he visits him during the week.

[33] Mr. Tebit has no interest in Ms. Umeya's proposed plan. In his view, such a plan would have a seriously detrimental effect on his relationship with his son. He points out that his son has lived in Toronto his entire life. Further, neither he nor Ms. Umeya knows anyone in Belleville. Rashard would give up his Toronto friends and connections. As well, Ms. Umeya does not have a job in Belleville. If she continues to work at Humber River Hospital, what is the point of moving?

[34] Mr. Tebit also points out that he had not heard of the trust agreement until it was produced on the eve of trial. However, he appears to have been aware of the agreement as he had requested a copy of it well before trial. The late production meant he was not able to call witnesses such as the other party to the trust agreement. Further, the agreement does not have any provision as to a future transfer to Ms. Umeya or what happens in the event of her default of payment.

[35] In terms of Ms. Umeya's financial situation, Mr. Tebit complains that she did not provide an updated financial statement prior to trial as required by the Family Law Rules, she did not provide proof of her search for accommodation or jobs in Toronto and the surrounding area nor did she provide a budget of her proposed expenses in Belleville for the purposes of comparison. Mr. Tebit's position is that Ms. Umeya has simply repeated over and over that she cannot afford to live in Toronto but has not provided adequate proof that that is actually the case.

[36] Mr. Tebit's plan builds on the shared parenting arrangement that Myers J. referred to as the future goal for parenting in this case. Mr. Tebit proposes a 2/2/3 rotating schedule with transfers taking place at daycare or school. This would allow Ms. Umeya to maximize her employment opportunities and allow Rashard to spend quality time with both parents. Mr. Tebit testified that he has investigated Bayview Glen Independent School ("BGS"), a private co-ed school that educates students from pre-school to Grade 12. Mr. Tebit has offered to pay the first two years of tuition for the private school ($18,000 for Junior Kindergarten and $22,500 for Senior Kindergarten) and share the cost of tuition proportionally thereafter. Ms. Umeya stated that she cannot afford private school on her income and wondered how Mr. Tebit is able to propose it based on what he says his income is.

The Legal Test

[37] The jurisdiction for the court to grant the relief sought by Ms. Umeya is found in s. 17 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), which permits a court to vary a custody order on application by either party. Subsection 17(9) requires that in determining such an application, the court must consider that a child should have as much contact as possible with each parent in accordance with the child's best interests.

[38] Case law has, of course, developed in the area of "mobility cases" such as this. The leading case is Gordon v. Goertz[^1] in which the Supreme Court of Canada articulated the principles to be considered when determining whether moving a child to a location that will affect the access of the other parent should be permitted.

[39] The test is best set out in the headnote of Gordon[^2] as follows:

A parent applying for a change in a custody order must first establish that there has been a material change in the circumstances affecting the child since the custody order was made. As an application to vary custody cannot be used as an indirect way to appeal from the initial custody order, the judge must assume the correctness of the initial order, and consider only the change in circumstances since that time.

Once this threshold test has been met, the judge must then conduct a fresh inquiry into what is in the best interests of the child. This inquiry is to be based on the findings of the judge who made the initial custody order and evidence of the new circumstances, but such an inquiry does not begin with any presumption in favour of the custodial parent, although that parent's views are entitled to great respect. The only issue at this point is the best interests of the child, not the interests or rights of the parents.

The particular factors to be considered are the existing custody and access arrangements, the relationship between the child and the custodial parent and access parent, the desirability of maximizing contact between the child and both parents, the views of the child, and the disruption to the child of a change in custody or consequent on removal from his or her present community. The custodial parent's reason for moving is also a factor, but only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child.

[40] One must review the decision of Gordon with s. 24(2) of the Children's Law Reform Act, R.S.O. 1990, c. C.12 and ss. 16(8) and (10) and s. 17(9) of the Divorce Act. Subsection 24(2) of the Children's Law Reform Act reads as follows:

BEST INTERESTS OF CHILD 24(2) The court shall consider all the child's needs and circumstances, including,

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

(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

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

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

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

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

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

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

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

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

(h) any familial relationship between the child and each person who is a party to the application.

[41] A number of cases following Gordon have enunciated further guiding principles for the court. Those include determinations that Gordon applies to both joint and sole custody cases,[^3] that the maximum contact principle is not absolute and remains only one factor in the analysis,[^4] and that the court will consider the type of accommodation available as a result of the move (such as the child having his or her own bedroom).[^5]

[42] Courts have been critical of parents who engage in self-help by obtaining new accommodation and then asking the court to permit a change.[^6] As well, courts have denied relief to parties who were found to have 'spent their way' into a change of circumstances which forced the move[^7] or where the move would change the nature of access because of the large amount of driving time involved.[^8]

[43] Applying Gordon, subsequent case law and the relevant legislation to the facts of this case, I make the following findings.

Material Change

[44] As per Gordon, at para. 13, it is Ms. Umeya's onus to establish that there has been "(1) a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which materially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order."

[45] Mr. Tebit's counsel argues that there has been no material change. First, Ms. Umeya testified in the December 2015 trial that she was contemplating a move so the move cannot have been "unforeseen." Second, Ms. Umeya has failed to provide evidence of her financial difficulties following the December 2015 trial, including an updated financial statement, documentation relating to her searches for housing and employment in Toronto or a budget for Belleville. Finally, Ms. Umeya's financial circumstances following the December 2015 trial were better than they had been because Mr. Tebit paid lump sums of both child and spousal support arrears. It was only after her decision to move to Belleville that her financial situation became strained while she tried to maintain two homes.

[46] While Mr. Tebit's counsel makes good points I am not convinced that the evidence is insufficient for the material change threshold to be met. First, while Ms. Umeya stated that she would likely need more space after Rashard was born, this does not mean that the fact that she would have to move out of the GTA could have been foreseeable, both because she may not have been aware of the market and because of the changes in the market between 2015 and the present. As for documentation regarding Ms. Umeya's searches for housing and employment, I take judicial notice of the difficult state of housing in the City of Toronto. It is unique in the country. In short, the supply of both rental housing and single-family homes for sale is low and prices are ever increasing. Add to that the fact that Ms. Umeya was not in a rent-controlled premises, and it is clear that her concerns about future housing for her and her son cannot be dismissed.

[47] Ms. Umeya is a registered practical nurse. Her past history shows that she has always worked. She has not been unemployed because she could not find a job but only because of her maternity leave. When the job in Belleville could not work because of her circumstances, she went back to Humber River Hospital where she resumed full-time hours without any problem. She is not moving for employment reasons. Ms. Umeya, with her education and experience, is eminently employable. I accept her evidence, however, that there is greater need for nurses outside the GTA and she has a chance of obtaining a job with more flexibility. She did not, however, rely on this prospect as the sole reason for her move.

[48] What Ms. Umeya did provide was a copy of her eviction notice and applications for payday loans. Further, I accept her evidence that the majority of her lump sum support awarded post-trial was used to pay legal fees and repay loans from friends and family used to get her through the trial process. Based on the evidence of both parties, their legal fees have been substantial and I accept that even with the lump sum payments, Ms. Umeya was not much better off after she paid her debts.

[49] Therefore, I do not find that Ms. Umeya has spent her way into a material change. If she is unsuccessful on this motion, she will get back on her feet and do her best as she always has. Her current state of financial disarray has resulted from a number of circumstances, including legal fees, trying to meet her financial obligations with respect to the home in Belleville, and maintaining basic expenses for herself and the child. She does not have the option of writing off car, gas and meal expenses like Mr. Tebit.

[50] Could Ms. Umeya have managed the situation better? I find that she could have. It would have been better if she had brought her Motion to Change earlier and well before the Belleville purchase. However, I accept her evidence that she did not really understand the process of bringing a Motion to Change while self-represented and that her interpretation of the judgment was that she could not move out of Canada but she could move anywhere within Canada. With the benefit of counsel, she is now clear on these former misconceptions.

[51] The question is, then, whether Ms. Umeya's circumstances have changed in a manner that materially affects the child and could not have been foreseen. I do not find that the current circumstances could have been foreseen by Ms. Umeya. She gave up her bedroom when the child grew out of infancy and the small apartment began to feel even smaller as Rashard's toys became bigger (bicycles and scooters) and he became bigger. The difference between a two-year-old (Rashard's age at trial) and a four-year-old (Rashard's current age) is significant in terms of development and needs. Ms. Umeya started her search with apartments. At first, she planned to move to a two-bedroom apartment. That was not so simple given the supply and the price.

[52] Overall, Ms. Umeya's search for housing that would allow her son his own room and a space to study (as he has at his father's home) proved to be an exercise in frustration. It cannot be a surprise to anyone that the apartment supply was low and expensive and that her budget for a home at $400,000 took her far out of the GTA.

[53] This is also not a case, like many, where Ms. Umeya is seeking a change because she has found a new partner and wants to establish a life with him elsewhere. Her motivation for the move is related purely to Rashard's growing needs. Further, I do not view this as Ms. Umeya putting her needs ahead of those of her son. Indeed, she has already put his needs ahead of hers by sleeping on the couch and allowing him the only bedroom.

[54] In summary, I find that Ms. Umeya's housing needs for her son have resulted in a material change in circumstances. The small one-bedroom apartment they were residing in was no longer reasonable given that Rashard would be starting school and needing his own proper space. The results of Ms. Umeya's housing search were also not unreasonable given the current state of the Toronto housing market. She sought a long-term arrangement for the child. The location of Belleville is not in itself significant. I infer that Ms. Umeya would have moved wherever she could have found a house within her budget.

[55] As for the foreseeability of the change, the focus of the trial in 2015 appeared to be mostly financial and the parties' living circumstances were not discussed in the judgment. Given the progression of access to two weeknights plus alternate weekends, it seems reasonable that the trial judge expected the parties to live within a reasonable distance of one another or such access would not have feasible.

Best Interests

[56] Some factors in the consideration of best interests are beyond dispute in this case. First, both parents having a loving relationship with their son and there is no issue that their care of the child when with either of them is beyond reproach. There was no evidence of Rashard's wishes in this case. Even if there had been, I would give them little weight because he is only four. Videos of him presented to the court showed a happy, healthy, energetic little boy whose focus was far from the battleground of his parents. And finally, there is no doubt that a move to Belleville would disrupt Rashard somewhat and would affect the current access schedule.

[57] In this case, any move would have to ensure maximum contact with Mr. Tebit and even move towards the shared parenting mentioned by Myers J.

[58] In my view, it would be in Rashard's best interests to move to Belleville with his mother in consideration of the following factors:

(a) A move to Belleville would allow Rashard to have his own bedroom, study area and play area at his mother's home, just as he has at his father's home.

(b) I accept Ms. Umeya's evidence that her father would live in the home with her and provide much needed support in the event that Rashard needs to be taken to an activity or to school in the event she is working. Ms. Umeya complained, and I accept, that it created problems for her at work when she had to take time off when the child was sick or when Mr. Tebit cancelled access with minimal notice.

(c) The lower cost of living in Belleville and the certainty of expenses that comes with home ownership (of a new home, at least) would allow Ms. Umeya a financial stability that would benefit the child.

(d) Mr. Tebit would not have the same access schedule as before but one could be fashioned that would allow maximum contact but at different times. I reject Ms. Umeya's proposed schedule. It does not promote the maximum contact principle and is rife with problems in terms of where the parties would meet for exchanges.

(e) Ms. Umeya's significant contribution to driving would assuage Mr. Tebit's concerns about much of his access time being spent in the car.

(f) Ms. Umeya is the child's primary caregiver. Her views about what is best for the child must be respected; however, this is only one factor, and not the overwhelming factor in determining this child's best interests.

(g) Mr. Tebit complained that the child would be disrupted because he will be losing his friends and connections in Toronto. However, there was very little evidence about what those friends or connections were. In any event, Rashard will be starting Junior Kindergarten in the fall and would be making an entirely new set of friends wherever he lived.

(h) Rashard will still be able to see his half-brother, Brinley, during holidays. Brinley lives in the U.S. and only visits his father occasionally on holidays. Mr. Tebit gave no evidence about any other family members whose relationship with Rashard would be impacted. Ms. Umeya, by contrast, indicated that her family would be visiting her father in Belleville regularly as he is the family patriarch and the family is close.

(i) Ms. Umeya has researched schools and daycares in the area that would be satisfactory to her. Mr. Tebit has not taken any steps to do so. His focus was only on BGS, a school far beyond these parties' means, as I will set out below.

(j) Neither of these parties has a new partner so there is no issue regarding any relationship between Rashard and a step-parent. Such relationships are often considered in the case law where the relationship between the child and the step-parent is a close one. See Wharton v. Prieur.[^9]

(k) Rashard is only four. He appears to have adjusted well to the gradually increasing access as per the December 2015 judgment. I see no reason why he cannot adjust to a new arrangement that will give him lots of quality weekend and summer time with his father.

(l) Each parent is critical of the other's parenting. Without getting into all of the many complaints that each had about the other, I find that overall Ms. Umeya has a somewhat better understanding and appreciation of Mr. Tebit's parenting skills. It was extremely telling that when asked in cross-examination if he thought Ms. Umeya was a good parent, Mr. Tebit's response was that it "depends on how you define that." He refused to concede that Ms. Umeya and Rashard had a close relationship. His refusal to acknowledge that Ms. Umeya had any good parenting qualities is illustrative of how he approaches his dealings with her. I find that if permitted to move, Ms. Umeya will respect and understand that Mr. Tebit's time with Rashard must continue to be maximized.

[59] Mr. Tebit has provided a number of cases where proposed moves were rejected by the court. Some of these cases are factually quite different from this case. For example, in Porter v. Bryan,[^10] the mother requested to move from Cochrane to Thunder Bay to obtain better employment. The driving distance between Cochrane and Thunder Bay is some eight hours. While Mr. Tebit complains about the driving distance to Belleville, it cannot be compared to a 16-hour round trip.

[60] In Stav v. Stav,[^11] the British Columbia Court of Appeal allowed the father's appeal and the children in that case were not permitted to move from Vancouver to Israel with their mother. The court found that the trial judge had failed to give sufficient consideration to the eldest child's wish to remain in Vancouver and in treating the mother's best interests as synonymous with those of the children. In the case at bar, the child is too young to express a view. Further, as I found previously, it is unlikely that Ms. Umeya would be moving at all had she not put her son's interests ahead of her own. This is not about a new job or a new partner for her, it is only about what is best for Rashard.

[61] Finally, in Vander Byl v. McLeod,[^12] the court refused to allow the mother to move the children from Alexandria, Ontario to Tamworth, Ontario. The court found it would be too disruptive for the children as they had grown up with the paternal grandparents on their farm. Their connections to the farm and their grandparents were significant. The court found that just because the mother was in a new relationship, she could not simply cut off the children's connection to their father, his parents and the farm. Those facts are, of course, very different from this case. There was no evidence that Rashard had any similarly significant connection to Mr. Tebit's family. His connection to his half-brother, Brinley, is not comparable since Brinley visits his father only occasionally.

[62] Given all of the above, I find that a move to Belleville with Ms. Umeya would be in Rashard's best interests. However, a new access arrangement must be put in place to ensure maximum contact with Mr. Tebit.

Section 7 Expenses

[63] There are two areas of dispute concerning s. 7 expenses: arrears owed by Mr. Tebit and the cost of private school.

[64] Ms. Umeya insists that Mr. Tebit owes her $5,541.81 for s. 7 expenses since 2014. This is made up of a combination of daycare costs, Ensure expenses, and prescription costs.

[65] Some explanation is required in relation to the Ensure expenses. Ms. Umeya's evidence during this hearing and at the 2015 trial was that Rashard's doctor wanted Rashard to take a daily supplement. Ms. Umeya buys the product Ensure, which she says Rashard drinks daily and enjoys. Myers J. specified in his judgment that expenses for Ensure (at that time $150 per month plus HST) were to be shared proportionally.

[66] Mr. Tebit does not believe that Rashard needs Ensure. He testified that the child did not even like it. He conceded he has never contacted Rashard's doctor to discuss the necessity of continuing with the supplement. Ms. Umeya disagreed that the Ensure was unnecessary. Her view is that the doctor's recommendation must be followed and she testified that while in her care, Rashard drinks two or more bottles of Ensure per day.

[67] Given Mr. Tebit's view about the necessity of this product, it is not surprising that he has not always been timely about his contribution towards its cost. Ms. Umeya testified that she submitted receipts for Ensure to FRO but that FRO told her they would not enforce these claims. Mr. Tebit points to various additional amounts he paid to FRO in 2015. Exhibit 4 was an FRO statement for the period of October 1, 2014 to March 16, 2017. Mr. Tebit's evidence was that FRO added the sum of $1,016.62 to the support he was required to pay in 2015 for payment of s. 7 expenses including Ensure. He made payments over and above his regular support payments during the summer and fall of 2015 and had his support balance down to zero by November 2015. Mr. Tebit did not provide any correspondence from FRO to confirm that the $1,016.62 amount on the FRO statement related to s. 7 expenses.

[68] Ms. Umeya testified that the adjustments shown in Exhibit 4 were for previous arrears and that Mr. Tebit owes the amounts set out in the schedule she presented. She provided all of the receipts she relied on in her Document Brief. She stated that she has not provided receipts for Ensure in 2017 because Mr. Tebit never pays his share so she stopped keeping the receipts.

[69] Like many before me, I find FRO statements to be difficult to decipher. It is certainly not clear that the amount of $1,016.62 added to Mr. Tebit's accounts for s. 7 expenses. What is clear is that $1,016.62 is the only "odd" amount shown outside of regular support payments and the lump sum arrears from December 2015.

[70] I have reviewed the receipts provided by Ms. Umeya. The daycare and prescription amounts from her schedule correspond exactly with what she sent to FRO.

[71] Mr. Tebit's position, as per Exhibit 7, is that he has paid any outstanding amounts subject to a small balance owing for recently produced Ensure receipts.

[72] I have reviewed the receipts produced by Ms. Umeya for Ensure (or its equivalent) for 2016. They total $261. This is not even close to the $1,225 claimed by Ms. Umeya for Ensure for the same year. While Myers J. set out a specific amount for Ensure each month ($150), s. 7 expenses are not reimbursable without receipts.

[73] It is not for the court to review every receipt for s. 7 expenses. I am prepared to allow Ms. Umeya s. 7 expenses for Ensure for 2014-2016 at $260 per year for a total of $780 for those three years. Ms. Umeya stopped sending receipts for Ensure in 2017 as Mr. Tebit simply would not pay. However, as indicated above, s.7 expenses are not reimbursable without receipts.

[74] The prescription, daycare and Ensure totals based on the chart provided by Ms. Umeya and my findings would therefore be: a total of $1,259.88 for daycare in 2014 and 2015, plus a total of $515 for Ensure ($780 x 66%) to March 31, 2017, plus a total of $300.93 for prescriptions in 2014-2015. This would total $2,075.81 I am prepared to allow Mr. Tebit a credit of $750. This number reflects partial acceptance of Mr. Tebit's evidence that he has paid some s. 7 expenses to FRO and at the same time recognizes Ms. Umeya's evidence that FRO refused to enforce s. 7 expenses. The court's dilemma is that the FRO ledgers are incomprehensible but it does appear that certain unusual amounts were added to Mr. Tebit's support obligations.

[75] Given all of the above, the net total owing by Mr. Tebit would be $1,325.81.This amount is to be paid forthwith and directly to Ms. Umeya by Mr. Tebit upon the release of this judgment. Mr. Tebit is not obligated to pay his share for any future Ensure expenses without receipts.

[76] The other s. 7 expense in issue is the cost of BGS. Mr. Tebit believes it is important for Rashard to attend a private school. BGS is located in the Leslie and York Mills area in Toronto. Mr. Tebit offered to pay for the first two years and then share the cost of the remaining years proportionally. He suggested that he should receive a reduction in child support during the two years he is responsible for the private school fees.

[77] I do not intend to spend much time on this issue for two reasons. First, it is not feasible for Rashard to attend BGS when he will be moving to Belleville and attending school there. Further, the cost of BGS (or frankly, any private school) is simply not affordable for these parties given the financial information provided during this hearing. For example, by the time Ms. Umeya is asked to pay her share of private school expenses two years from now, the cost of BGS would be at least $22,500 per year. This is the cost for Grade One in the 2017/18 academic year and an increase in tuition can be expected in the intervening two years. This cost also does not include before- or after-school care or transportation.

[78] Based on these numbers, Ms. Umeya would be asked to contribute $6525 a year. This translates to $544 per month. On a modest budget, she is already close to the line in terms of being able to pay basic expenses. Adding another $544 per month to her expenses would be unreasonable and simply unaffordable for her.

[79] As for Mr. Tebit, his financial information is singularly unhelpful because it is based on his income in 2015. Based on that information, his expenses exceed his income by over $3,000 per month. Unless his income has doubled in 2016 (and he could not provide any real specifics about last year's income), his ability to afford private school is closing in on a fantasy.

Mr. Tebit's Income for Support Purposes

[80] As indicated above, Mr. Tebit has provided only outdated income information to the court on this hearing. During his evidence he said he thought his gross income for 2016 would be approximately $150,000. He provided documents related to some expenses he had for his business but nothing to substantiate such an income. Given that Mr. Tebit, as a self-employed contractor, is the one who would invoice his clients (presumably via the internet), it would seem to be a relatively straightforward exercise to produce those invoices as proof of what he billed last year.

[81] Instead, the court is left with a financial statement showing his 2015 income as approximately $65,000 and his expenses for that year at over $100,000.

[82] Mr. Tebit agrees that there is a personal component to the expenses he deducts from his income. The parties disagree on the percentage of the deduction attributable to personal expenses. Given the amount of time spent on Mr. Tebit's income and his failure to provide full financial disclosure at the last trial and this hearing, Ms. Umeya suggests a "formula" for determining Mr. Tebit's income. This would avoid having to return to court each year on this issue. Ms. Umeya suggests that going forward, Mr. Tebit's income for support purposes be determined as the greater of $150,000 or his line 150 income plus 75 percent of his business expenses added back and grossed up. Mr. Tebit's view is that his income should be based on his line 150 income plus 25 percent of his car expenses and 50 percent of his other business expenses added back and grossed up.

[83] Mr. Tebit's proposed formula would apply to his 2015 income as follows. Mr. Tebit's line 150 income for 2015 was $24,190.88. His business expenses (minus car expenses but including business use of home expenses) were $27,565.76 Fifty percent of that amount is $13,782.88. Based on his income, his tax rate would be in the range of 12 percent, increasing the amount to be added back to $15,436.83. Twenty-five percent of his $13,151 in car expense (including vehicle CCA) would be $3,287.75 grossed up by 12 percent would be $3,682.28. Therefore the total to be added back would be $19,119.16 bringing Mr. Tebit's notional income for support purposes in 2015 to $43,310.04.

[84] I am not prepared to accept $43,310.04 as Mr. Tebit's income for support purposes for several reasons:

(a) This is less than Ms. Umeya's income and Mr. Tebit has always earned more income than her.

(b) Such an amount is inconsistent with Mr. Tebit's lifestyle including his expenditures on a private tennis club, expensive toys for Rashard, and the fact that he bills his clients between $150 and $190 per hour.

(c) The disclosure he has provided for his 2016 income is inadequate. The disclosure in Exhibit 5, Tab 38 is of little assistance. Since Mr. Tebit bills by the project or by the hour, surely he would have invoices for his work that could have been produced but were not. By the time of this hearing, we were already over three months into 2017 and Mr. Tebit's vague protests that he wasn't sure of his 2016 gross income but thought it might be in the range of $150,000 were difficult to accept. I prefer the submission of Mr. Umeya's counsel in this regard that Mr. Tebit strategically chose not to update his income information.

[85] Mr. Tebit's financial statement sworn February 6, 2017 shows that his expenses exceeded his income by $36,192.56 in 2015. Yet, during this hearing Mr. Tebit testified about taking Rashard to his private tennis club and the expensive toys he buys for him and he was confident he could afford private school in September 2017. Mr. Tebit's documentary and oral testimony simply don't align. As such, and keeping in mind the findings made by Myers J., there is no reason not to impute income to Mr. Tebit of $100,000 for 2015.

[86] I am loathe to apply the formula proposed by Ms. Umeya for Mr. Tebit's future income for two reasons. First, pegging his income at $150,000 if he earns $150,000 gross income is unfair because Mr. Tebit must incur expenses in order to earn this income. The other proposal made by Ms. Umeya's counsel – that Mr. Tebit's income be based on his line 150 income with certain amounts added back – may end up being unfair to Ms. Umeya. Even if the expenses were added back at 75 percent and then grossed up as suggested by Ms. Umeya's counsel, that would put Mr. Tebit's 2015 income in the range of $58,000 It would be difficult to accept that Mr. Tebit actually earns only slightly more than Ms. Umeya given the earning history of both.

[87] As such, I will impute income to Mr. Tebit for 2016 at $110,000. This factors in that the HST he collects forms part of his gross income and some reduction for expenses. This would result in a support payment of $958 per month and arrears owing for January 2016 to May 2017 being $1,326 ($958-880 = $78 per month x 17 months = $1,326). This is to be adjusted and collected by FRO.

[88] Mr. Tebit did not provide any significant information about his 2017 income although he also did not suggest that it was trending to be much different than 2016. As such, and to hopefully avoid further court appearances, Mr. Tebit's income for 2017 shall also be imputed at $110,000. If this amount proves to be grossly overstated, Mr. Tebit may bring a Motion to Change. If he does so, however, he must provide all invoices, billing and expense information for 2017 at the time of bringing his Motion to Change.

[89] Proportional sharing of s. 7 expenses shall remain at 68 percent for Mr. Tebit and 32 percent for Ms. Umeya in 2015. In 2016 and 2017 the proportional sharing of s. 7 expenses will be based on Mr. Tebit's income of $110,000 and Ms. Umeya's income of $45,000. This is only an estimate of Ms. Umeya's income as her second-last pay stub for 2016 showed she had only earned $41,000 up to December 15, 2016. Based on these numbers, the proportional sharing of s. 7 expenses would be 71 percent for Mr. Tebit and 29 percent for Ms. Umeya. However, given the amount of time and energy spent on dealing with s. 7 expenses in this case, there will be no further adjustment to the amount of s. 7 expenses that Mr. Tebit is required to pay according to the terms of this judgment. The new proportional sharing shall commence on April 1, 2017.

Final Orders

Given all of the above, the final order of Myers, J dated December 11, 2015 shall continue, except as amended herein:

(a) Access shall remain as is until July 2, 2017. Ms. Umeya may move to Belleville if she wishes before July 2, 2017, but she will be required to do all the driving necessary to ensure that Mr. Tebit's access remains the same until July 2, 2017. That is, for example, on Thursday evenings, Mr. Tebit would pick up the child from daycare and Ms. Umeya would pick the child up from an agreed upon location and drive him home to Belleville when the access ends at 6:30 p.m.

(b) Rashard shall remain in his current daycare until June 30, 2017.

(c) As of Sunday July 2, 2017 the parties shall share time with Rashard on a week-about basis for the summer of 2017 and each summer thereafter. Access exchanges shall take place on Sunday evening at 7:00 p.m. except on long weekends they will take place on Monday at 7:00 p.m. By way of example, if the weekend of July 1 and 2, 2017 is Mr. Tebit's weekend with the child, he shall drive the child to an agreed-upon meeting place in Belleville for the exchange on Sunday, July 2 at 7:00 p.m. Ms. Umeya would then have the child in her care until Sunday, July 9 and she would drive him to agreed-upon meeting place in Toronto for the exchange at 7:00 p.m. on that day. If the weekend of July 1 and 2, 2017 is Ms. Umeya's weekend, she shall drive the child to an agreed-upon meeting place in Toronto on Sunday, July 2 for an exchange at 7:00 p.m. and Mr. Tebit shall drive the child to Belleville on Sunday, July 9 for an exchange at 7:00 p.m. In future years, the commencement of the summer week-about arrangement shall always be the Sunday following Rashard's last day of school.

(d) Each party shall arrange and pay for any daycare they require during the summer of 2017 and every summer thereafter.

(e) Ms. Umeya's religious holidays are to be respected and the child is to be with her on those days. For example in 2017, Eid al-Fitr takes place from the evening of June 25 to the evening of June 26 and Eid al-Adha takes place from the evening of August 31 to the evening of September 1. No matter what the regular access schedule, the child is always to be with Ms. Umeya on these religious occasions. If the child is not otherwise in her care, she is to pick up the child at 3:00 p.m. in Toronto on the first day of the holiday and return the child to Toronto at 9:00 a.m. on the morning after the second day of the holiday. On January 1 in each year commencing January 1, 2018, Ms. Umeya is to advise Mr. Tebit on which days Eid al-Fitr and Eid al-Adha will take place in that year as the dates change each year.

(f) Commencing Tuesday, September 5, 2017 and each September thereafter, the school year access arrangement shall be as follows: The school year access schedule shall commence on the Tuesday following Labour Day. If the summer week ending with the Labour Day long weekend is Mr. Tebit's week with the child, Mr. Tebit will drop off the child in Belleville on Labour Day Monday at 7:00 p.m. If the summer week ending with the Labour Day long weekend is Ms. Umeya's week, the child shall remain with Ms. Umeya throughout the Labour Day long weekend and into the following week.

(iv) The child shall reside with Mr. Tebit for the first three weekends of every month and with Ms. Umeya for the fourth weekend of every month. If a month has five weekends, the child shall reside with Ms. Umeya for the fourth and fifth weekend of that month. If a month begins on a Sunday, that shall be considered the first weekend of the month.

(v) The child shall reside with Ms. Umeya during the week.

(vi) For the first and second weekend of each month, Ms. Umeya shall drive the child to an agreed-upon meeting place in Toronto for 6:00 p.m. on Friday night. On these weekends, Ms. Umeya shall pick up the child on Sunday night at 7:00 p.m. at an agreed-upon meeting place in Toronto. In the event that the first or second weekend of the month is a long weekend, access shall extend to the Monday at 7:00 p.m. and Ms. Umeya shall pick up the child in Toronto at 7:00 p.m. on the Monday.

(vii) For the third weekend of each month, Ms. Umeya shall drive the child to an agreed-upon meeting place in Toronto for an exchange at 6:00 p.m. on Friday night. Mr. Tebit shall drive the child back to Belleville for an exchange on Sunday night at 7:00 p.m. If the third weekend of the month is a long weekend, Mr. Tebit shall drive the child back to Belleville for an exchange on Monday night at 7:00 p.m.

(viii) Rashard will spend the majority of the school Christmas Break with Mr. Tebit. The parties shall share the driving with Ms. Umeya dropping Rashard off at an agreed-upon location in Toronto at 9:00 a.m. on the Monday morning after the last day of school before the Christmas Break (even if the preceding weekend would otherwise be Mr. Tebit's weekend) and Mr. Tebit returning him to Ms. Umeya in Belleville at 6:00 p.m. the night before the first day of school after the Christmas Break.

(ix) The parties will share March Break with the changeover for March Break being the Wednesday at noon. The parties shall share the driving for March Break.

(x) There shall be a grace period of 30 minutes for pick-up and drop-off times in the event of unforeseen weather or traffic issues.

(xi) Given the distance of the parties, the provision allowing special access time on Mother's Day, Father's Day and a party's birthday is no longer feasible and will be discontinued.

(xii) Given the new access arrangement, there shall be no alternating of the Easter or Thanksgiving holiday.

(xiii) As well, given the distance of the parties, there will be no additional access time for the parent who does not have Rashard on his birthday. That parent must plan any birthday celebrations during their regular access time with the child.

(xiv) Both parties shall be permitted to communicate with the child by FaceTime/Skype once a day while the child is in the other party's care.

(xv) The parties shall communicate in writing in a respectful manner via Our Family Wizard. Mr. Tebit shall pay for the cost of Our Family Wizard subscriptions for both parties each year. The parties may communicate by text in the event that urgent communication is required.

(xvi) Ms. Umeya shall arrange for before- and after-school daycare as required for the child. Mr. Tebit shall sign any required documents to allow the child to be registered at daycare. Mr. Tebit shall be listed as a daycare contact (for both summer and before and after school daycare) and is free to visit the daycare at any time. Ms. Umeya is to be listed as a daycare contact for any summer daycare in which Mr. Tebit enrols the child. The cost of before- and after-school daycare for the school year is to be shared proportionally – 71 percent by Mr. Tebit and 29 percent by Ms. Umeya. Mr. Tebit shall provide his daycare payment when due by Interac email transfer. If the daycare will not accept such an arrangement, Mr. Tebit shall make such other arrangement with the daycare to ensure that his payments are never late.

(xvii) Ms. Umeya shall arrange to place Rashard in Harmony Public School (or any other elementary school of her choice close to her home) in Belleville commencing September 2017. Mr. Tebit shall sign any required documentation to allow the child to be registered at such school in Belleville. Mr. Tebit is to be listed as a parent and emergency contact for the child and shall be entitled to receive his own copies of any school-related notices (report cards, information circulars, parent/teacher meeting schedules, etc.).

(xviii) Access is not to be cancelled for any reason unless the child is required to be hospitalized. If the child is sick, the parent who has his care will deal with the illness, take the necessary steps, and inform the other parent via OFW. If the child requires prescription medication, the parent who has care of the child shall buy the medication and receipts shall be reconciled based on the proportional sharing set out herein every 90 days, that is, March 31, June 30, September 30 and December 31 each year.

(xix) The cost of over-the-counter medications such as Aveeno (the exception being Ensure if a doctor states it is necessary, as discussed below) are not to be shared proportionally.

(g) Ms. Umeya is to take Rashard to his family doctor within 30 days of the date of release of this judgment to obtain the doctor's advice as to whether Rashard continues to require a nutritional supplement such as Ensure. This information must be provided by the doctor in writing and is to be shared with Mr. Tebit. If the doctor's opinion is that Rashard no longer requires the supplement, Mr. Tebit shall not be required to contribute to the cost of Ensure or any similar product.

(h) So long as the child's doctor recommends a supplement to the child's diet (such as Ensure), Ms. Umeya is to provide copies of her receipts to Mr. Tebit on the last day of each month and Mr. Tebit is to pay his proportionate share to Ms. Umeya directly within seven days of the production of the receipts.

(i) Mr. Tebit shall pay directly to Ms. Umeya the sum of $1,866.91 forthwith representing arrears of various s. 7 expenses including remaining daycare expense for 2014 and 2015, Ensure expense to March 31, 2017 and prescriptions for 2014 and 2015.

(j) Upon proof of payment of the abovementioned sum representing s. 7 arrears to Ms. Umeya, the sealed envelope containing the signed documents for the change of name and new birth registration of Rashard may be given to Mr. Tebit's counsel to submit to the Ontario government for processing. Each party is entitled to receive their own original birth certificate.

(k) Mr. Tebit's income for 2016 and 2017 is imputed at $110,000. His child support obligation shall increase from $880 per month to $958 per month commencing January 1, 2016. The Family Responsibility Office shall adjust for the difference between support paid from January 1, 2016 to date.

(l) The parties shall exchange copies of their income tax returns and Notice of Assessment by June 1 in each year. Child support and s. 7 expenses shall be adjusted in accordance with the Child Support Guidelines and subject to the findings in this judgment.

(m) Commencing April 1, 2017, Mr. Tebit shall pay 71 percent of the s. 7 expenses and Ms. Umeya shall pay 29 percent. The new proportional sharing amounts are based on imputed income to Mr. Tebit at $110,000 and Ms. Umeya's estimated 2016 income at $45,000.

(n) There is to be no proportionate sharing of daycare expense during the summer when the parties are sharing time with Rashard. Each party is responsible for arranging for and paying for their own daycare during that party's access weeks.

(o) Once Ms. Umeya moves to Belleville it may not be feasible to have the child enrolled in activities to which he is taken by both parents. Therefore, each party may register Rashard in any activity and be responsible for taking him to that activity during that party's parenting time. The activity is not to interfere with the other parent's time with the child. The parents are to exchange schedules for the activities and the other parent is free to attend and observe the activity with notice. The party enrolling the child shall be responsible for the cost of that activity.

(p) Ms. Umeya shall ensure that all appointments for Rashard are made during her parenting time.

[90] A support deduction order shall issue.

[91] Mr. Tebit's request for police enforcement of access is dismissed. The changes to the access arrangement, it is hoped, will result in fewer cancellations and confrontations by both parties.

[92] The parties may provide written submissions on costs. The submissions shall be no longer than two pages in length excluding any Offers to Settle or a Bill of Costs. Counsel shall send their costs submissions directly to my assistant at therese.navrotski@ontario.ca. Costs are due on a seven day turnaround with the Applicant's submissions due seven days after the date of release of this judgment, the Respondent's submissions seven days after that, and any reply seven days following. If no costs submissions are received within 35 days of the date of the judgment, costs shall be deemed to be settled.

CITATION: Umeya v. Tebit, 2017 ONSC 2874 COURT FILE NO.: FS-13-386499-002 DATE: 20170510

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

AISHA UMEYA Applicant

– and –

HUMPHREY TEBIT Respondent

REASONS FOR JUDGMENT

Gilmore J.

Released: May 10, 2017

[^1]: 1996 191 (SCC), [1996] 2 S.C.R. 27, 134 D.L.R. (4th) 321.

[^2]: At 1996 191 (SCC), 1996 CarswellSask 199.

[^3]: Young v. Young (2003), 2003 3320 (ON CA), 63 O.R. (3d) 112, 223 D.L.R. (4th) 113 (C.A.).

[^4]: Bjornson v. Creighton (2002), 2002 45125 (ON CA), 62 O.R. (3d) 236, 221 D.L.R. (4th) 489 (C.A.), at para. 34.

[^5]: Johnson v. Cleroux (2002), 2002 37304 (ON CA), 23 R.F.L. (5th) 176, 156 O.A.C. 197 (C.A.), at paras. 6, 8.

[^6]: Hazelwood v. Hazelwood, 2012 ONSC 5069, [2012] O.J. No. 4274, at paras. 55-59.

[^7]: P. (W.C.) v. P. (C.), 2005 BCCA 60, 40 B.C.L.R. (4th) 163, at para. 19.

[^8]: Elliott v. Elliott, 2009 ONCA 240, 64 R.F.L. (6th) 1, at para 18.

[^9]: 2015 ONSC 5129, [2015] O.J. No. 4316.

[^10]: 2017 ONSC 756, [2017] O.J. No. 601.

[^11]: 2012 BCCA 154, [2012] B.C.J. No. 673.

[^12]: 2012 ONSC 4857, [2012] O.J. No. 4526.