Court File and Parties

Court File No.: FS-14-4958-00 Date: 2017-05-24 Ontario Superior Court of Justice

Between: Gurpreet Singh Doal, Applicant Counsel: Deepa Singh, for the Applicant

- and -

Bajwinder Kaur, Respondent Counsel: Preet Kaler, for the Respondent

Heard: April 3, 4, 5, 6, 2017

Reasons for Judgment

M. J. Donohue, J

OVERVIEW

[1] This family law dispute dealt largely with whether there should be an order for joint custody or sole custody to the respondent mother for the decision-making regarding the parties’ four-year-old son.

[2] At the opening of this brief trial it appeared to me that the parties were in agreement on a great number of issues. Once they prepared and filed their draft orders it became more apparent. By the end of the second day, the parties had an extensive draft order on agreed issues. This narrowed the issues for trial considerably, reduced animosity between the parties, and saved expense to each of the parties and the court’s time.

[3] The issues narrowed down to the following;

(a) Whether the father owes past daycare expenses of $4,800;

(b) How section 7 expenses should be paid;

(c) Whether the father should pay child support for the six months after separation;

(d) Whether the father may be allowed to travel with the child outside of Canada.

(e) Whether there should be an order for joint custody or sole custody of the child.

[4] The focus of the evidence was on joint custody as opposed to sole custody to Ms. Kaur.

BACKGROUND OF THEIR MARRIAGE

[5] Ms. Kaur was born and raised in India. She came to Canada in 2006. She became a Canadian citizen. This was an arranged marriage between herself and Mr. Doal, arranged by Ms. Kaur’s family in India. Mr. Doal was working in India as a college mathematics professor at the time the parties married.

[6] The couple became acquainted by phone for three months. Then Ms. Kaur travelled to India to meet and marry Mr. Doal. They met before the wedding in February 2011. Ms. Kaur was not forced to marry him. Her first marriage ended in divorce and she was anxious to be married and have a family.

[7] In India, they were together for approximately two months. They had a honeymoon and then visited with relatives. The parties started growing their family right away. Ms. Kaur became pregnant but miscarried shortly afterward.

[8] Ms. Kaur testified that there were some arguments with her in-laws about the dowry she was to provide, but the demands were withdrawn as Ms. Kaur was sponsoring their son to Canada.

[9] Ms. Kaur returned to Canada in May 2011 and she began the sponsorship process for Mr. Doal. For the following nine months, they spoke on the phone. Mr. Doal said they spoke almost daily during this time.

[10] He arrived in Canada in February 2012 and within three weeks he found a job as a general labourer. He admits that was he was initially not very happy as he was an educated man. Ms. Kaur testified that he would have preferred to study first in Canada, but she explained to him that everyone starts out by doing general labour work.

[11] Both wanted to continue a life together. In describing their marriage over the next two and a half years, Ms. Kaur said they argued all the time. Mr. Doal agreed that they would argue but then they would be “united again.”

[12] Their son was born in November 2012. Mr. Doal’s mother came to help when the baby was three months old. Ms. Kaur returned to work part time for four months while her mother-in-law provided childcare.

[13] Around June 2013, when the child was seven months old, Mr. Doal’s mother returned to India and Ms. Kaur began full time work. She took the child to a third-party daycare but terminated this after a few days as the child was unhappy. Mr. Doal and Ms. Kaur arranged their respective work schedules so that they could share the childcare responsibilities while the other was at work.

[14] This shared parental childcare arrangement continued for 11 months until August 2014. At that time Ms. Kaur’s parents arrived in Canada, following Ms. Kaur’s successful application to sponsor them. When her parents arrived, Mr. Doal said they criticized and harassed him. Within a few weeks, he left the matrimonial home.

[15] Mr. Doal is now 33. Ms. Kaur is 42. The child is 4 ½.

DISPUTED ISSUES

(a) Whether the father owes past daycare expenses of $4,800;

[16] It is not disputed that Mr. Doal minded the child while the parties resided together and Ms. Kaur was working. When he moved out of the home, the child was two and a half years old. Care for the child was needed. Ms. Kaur seeks reimbursement for daycare expenses for the two years following the parties’ separation, calculated below.

[17] Ms. Kaur chose to pay her mother $600 per month and relied on cancelled cheques and her tax return in support of her claim for reimbursement. She claims two years of daycare expenses until the child began school in September 2016. Had Ms. Kaur sought market-price childcare, it is not disputed by Mr. Doal that it would cost more than $600 per month.

[18] Mr. Doal objects to contributing to this expense for two reasons.

[19] First, he suggested that the cheques by Ms. Kaur were not “real” because, in their culture grandparents do not charge to mind their grandchildren, just as his mother did not charge anything. I do not find his position surprising as Ms. Kaur sponsored her parents to Canada, they are dependent on her, do not drive, and even now are not employed outside the home.

[20] As well, he did not hear of this expense being incurred until he was in court more than a year later.

[21] Second, Mr. Doal suggested that he would have preferred that their child be cared for by a certified daycare provider who would give quality childcare as well as exposure to Canadian culture and education. He agreed, however, that this would cost closer to $1,000 per month. As he was concurrently seeking the court’s indulgence in waiving past child support due to his financial constraints, this was not a reasonable argument in the circumstances.

[22] It does not appear that he made any inquiry as to who would take his place as caregiver and assumed that his in-laws would serve at no cost. He left it to Ms. Kaur to manage.

[23] Ms. Kaur advises that she paid $14,400 in total, of which Mr. Doal’s share would be $7,200. She recognizes that she received a tax benefit from being able to claim the payments on her tax returns and so reduces the claim by one-third to $4,800. This amounts to $200 per month from Mr. Doal for his share of the childcare services. I consider this to be a modest claim for necessary services.

[24] Mr. Doal’s concern that the payments made to Ms. Kaur’s parents were not “real” should be tempered by the knowledge that Ms. Kaur’s parents in fact provided childcare for more than two years, and Ms. Kaur has covered all of the direct and indirect costs associated with having her parents available to provide fulltime childcare. There are real costs to having these care providers available, one way or another.

[25] I order Mr. Doal to pay the past daycare expenses of $4,800. This is to be paid in monthly installments of $100 commencing on June 1, 2017.

[26] Ms. Kaur is not claiming daycare expenses for the period after the child began full time school, while her parents provided and continue to provide childcare.

(b) How section 7 expenses should be paid;

[27] Mr. Doal agreed to an order to equally share the section 7 expenses but wishes to pay the service provider directly. In this way, he would be aware of what activities the child is involved with and he could attend to see the child’s performance.

[28] In my view, this unduly complicates payment of such extraordinary expenses when Ms. Kaur may need to promptly pay an expense in order to secure their child’s enrollment in a program.

[29] The same result that Mr. Doal seeks may be obtained by an order that each parent advise the other in writing of what extracurricular activity the child is enrolled in, with information of the dates and times of the proposed activity.

[30] In accordance with the wording proposed by the parties, I order, on consent, that Mr. Doal shall pay 50% of special and extraordinary expenses relating to the child, within 30 days of being provided proof thereof.

[31] I further order that each parent is to advise the other in writing what extracurricular activity the child is enrolled in, with particulars of its dates and times, at least 7 days before any activity is to start.

[32] If there is no agreement as to the payment of special and extraordinary expenses in relation to the child, either party may bring a motion on notice to the other party to address the issue.

(c) Whether the father should pay past child support for the six months after separation;

[33] Mr. Doal agrees that Guideline child support between the date of separation and March 2017 amounts to $2,353. However, he asks that the court not order him to pay child support for the first few months following the parties’ separation.

[34] Mr. Doal submitted that he experienced financial hardship immediately following separation. However, he did not provide evidence of financial hardship that would justify relief from his obligation to pay child support. I can understand that he had a number of expenses to set up his new accommodations at the time, but this does not relieve him of his responsibility to support the parties’ child. That is the priority.

[35] I order Mr. Doal to pay the outstanding support of $2,353. This shall be paid in monthly installments of $50 commencing June 1, 2017.

(d) Whether the father may be allowed to travel with the child outside of Canada.

[36] In 2015 Ms. Kaur laid a criminal charge in India as against Mr. Doal and his parents relating to the failed marriage. Mr. Doal testified that the charge is false and is under appeal. He said there is the potential that he would be incarcerated if he travels to India.

[37] Mr. Doal consented to Ms. Kaur travelling with the child outside of Canada and he seeks a similar order to international travel. He wishes, in particular, to travel to India.

[38] In light of his evidence that he may be arrested there, I am not prepared to make an order allowing international travel with the child. I make this order without prejudice to his applying to vary this order in future, upon demonstrating that he is not liable to arrest in India. There is no suggestion of potential abduction in this case. The issue is simply the child’s safety if his father is potentially liable to arrest when overseas.

(e) Whether there should be an order for joint or sole custody of the child.

[39] Ms. Kaur seeks an order for sole custody of the child to her. Mr. Doal seeks an order for joint custody. The parties have worked out residence and access as well as a number of other issues, on consent.

[40] It is agreed that the best interests of the child govern this decision. Are the parents able to communicate and compromise, putting their child’s interests first such that major decisions affecting the child’s health and education can be reached? If not, then sole-decision making by the primary resident parent may best serve the child’s interests.

Positions of the Parties

[41] Ms. Kaur gave evidence that during their time together in Canada from February 2012 to August 2014, the parties were always arguing. For example, Mr. Doal reviewed her bank accounts and questioned payments she made even before they were married. She told him she was sending money to family in India. In response, Mr. Doal said that he would also want to send money to his family in India. Although this was Ms. Kaur’s example of the parties’ arguing, she appeared to accept Mr. Doal’s position with respect to sending money to family in India.

[42] In another example, Ms. Kaur said Mr. Doal insisted that he be named on title for their car. However, she then admitted that he shared the cost of insurance and maintenance and that they both had the use of the car.

[43] Ms. Kaur testified that Mr. Doal made demands of her to cook him particular dishes and do the cleaning even when she was just home from hospital after the child’s birth. These examples, although illustrative of some disagreement generally throughout the marriage, are not particularly helpful in deciding the issue of child custody.

Decisions Regarding the Child

[44] Ms. Kaur cited two occasions where they argued over a decision regarding their child. Shortly after the child was born, Ms. Kaur wanted to put the child tax benefit into an RESP. Mr. Doal refused to do so. Ms. Kaur admitted that Mr. Doal was not working at that time and that he wanted the money to be used for the household expenses. It does not appear that the issue was revisited once he became employed.

[45] The other dispute she described was following a medical incident. The child became ill and both parents took him to emergency that evening. The doctor there suspected a seizure may have occurred and recommended the child see a paediatrician. Ms. Kaur’s evidence was that Mr. Doal said it was unnecessary to bring the child to a paediatrician because the child had a family doctor. Ms. Kaur took the child to a paediatrician. It does not appear that Mr. Doal interfered or objected to her doing so. I note that the treatment recommended was to give the child baby Tylenol when the child had a fever.

[46] Ms. Kaur testified that the child had 3 or 4 seizures, with the last one being a year ago. Mr. Doal said their child was a healthy child. Ms. Kaur was critical of Mr. Doal for thinking that their child had no health problems. I note that the child has never required further hospitalization or treatment. Ms. Kaur had not told to Mr. Doal these additional seizures which she described. No medical records were filed in the trial. Further, Ms. Kaur stated in her affidavit in support for custody that the child has no health concerns, special medical, educational, mental health or development needs. In her evidence regarding her trip to India in the summer of 2015, she said the child was “healthy”.

[47] On one occasion during the father’s access, the child was on some medication which he administered as requested by Ms. Kaur. On another occasion when the child became ill on an access visit, Mr. Doal took him to emergency for treatment.

[48] There is really no evidence that the parties have seriously disputed any issues concerning the child’s health. In my view, Mr. Doal has cooperated with Ms. Kaur regarding health care decisions relating to the child.

Other Disputes in the Marriage

[49] Ms. Kaur testified that when Mr. Doal got a better job at an income commensurate with hers, he opened his own bank account. He then split all the household and child expenses and paid half. Mr. Doal denied opening such an account and the Court was not provided any proof of such an account.

[50] Nonetheless, Ms. Kaur does not allege any unfairness but simply expressed her hurt feelings that they did not treat everything jointly.

[51] Ms. Kaur testified that they argued a lot about money. I note that Ms. Kaur’s income dropped 40% in 2014, by $20,000, due to her employer having less work available. This was the same year that her dependant family members joined them in August 2014. Under these circumstances, the financial stress on this couple is not surprising.

[52] Although testifying to their frequent arguments in the marriage, Ms. Kaur also said that it came as a surprise and shock to her when Mr. Doal left the home. She called him repeatedly to ask him to return home.

[53] Some physical altercations in 2012 were mentioned by each party. Ms. Kaur testified that she was pushed off the bed by Mr. Doal when she was pregnant. Mr. Doal was not cross-examined on this point so I do not have his evidence. Mr. Doal described an incident when the baby was only ten days old. Mr. Doal testified that Ms. Kaur bit and scratched him. He attended the police station. He did not want his wife charged, however, and had a discussion with a Punjabi speaking officer who later called Ms. Kaur. Ms. Kaur denies that she bit or scratched her husband. The police report says there was a verbal disagreement.

Litigation

[54] This application was filed by Mr. Doal within three months of separation. Neither party brought any interim motions, apart from Ms. Kaur seeking an order for the father to attend questioning. He said he did not wish to attend due to the expense, and he hoped to resolve things short of court proceedings.

[55] Mr. Doal did not seek overnight access in his application, recognizing that the child was only two and a half years old and would have a strong attachment to his mother. He did plead that he would like gradual overnight access as the child grew older.

[56] I consider Mr. Doal’s gradual overnight access parenting plan to be a reasonable approach.

[57] Ms. Kaur cooperated with providing access opportunities without court order. It began with every second Saturday for 3 hours. She increased the access to 5 hours four months later and then to 8 hours two months later, again without court order.

[58] Mr. Doal has been requesting overnight access through his counsel for some time now. At the opening of trial, Ms. Kaur consented to overnight access commencing on a gradual basis. By July 2017, this summer access will be increased to two overnights on alternate weekends.

[59] By the second day of trial, the parties had agreed on summer vacation and holiday access such that there was a consent order, a copy of which is appended to this judgment. They also agreed on life insurance and health benefits provisions for a consent order.

[60] The parties have agreed that the child will be raised in the Sikh religion, which is incorporated into this Order, on consent.

[61] In this litigation, generally the parties have shown themselves to be reasonable and willing to make concessions to the other, demonstrating that the best interests of the child are paramount.

Involvement of the Father in the Child’s Life

[62] Ms. Kaur’s counsel argued at the opening of trial that Mr. Doal has not played a major role in the child’s life either before or after the child’s life. I find the evidence to be to the contrary.

[63] Ms. Kaur’s evidence suggested that he did not want a child and that he was not happy when the child was born. Mr. Doal testified that he was happy about the child. Ms. Kaur admitted that the father was present at the birth of the child and they took the baby to temple together on the way home from the hospital. Early photos of the father and baby son show the two of them cuddled together, with father beaming. I accept that the father was a loving parent from the start.

[64] For eleven months, it is admitted that Mr. Doal shared the childcare duties with Ms. Kaur. He testified to long hours that Ms. Kaur worked. She testified that she worked short hours.

[65] Mr. Doal remembered her working 10-12 hours on Monday, Tuesday and Wednesday, and then 4 hours on Thursday and Friday evenings. This would amount to 38-44 hours a week.

[66] Ms. Kaur remembered that she worked 7-8 hours on Monday, Tuesday and Wednesday, and then 3 1/2 hours on Thursday and Friday evenings. This would be a total of 27-31 hours a week.

[67] The extent to which Mr. Doal provided care was relevant, such that I reviewed Ms. Kaur’s income over this period. Her wage was $17-$18/hour. In 2013, she earned $57,002 despite being off work for the beginning of the year and then returning part time for three months. As her employer had less work for her in 2014, she only earned $35,392.

[68] For 2013, I accept Mr. Doal’s evidence that Ms. Kaur worked the longer hours he described and he cared for the child accordingly. For 2014, I accept Ms. Kaur’s evidence that she was home more and so Mr. Doal’s childcare duties were reduced.

[69] Ms. Kaur, in cross-examination, was critical of the care which the father provided over this time frame. She was asked if she was happy with his care. She said she was not. For example, she suggested that the child’s diaper would be full when she got home from work and that Mr. Doal would tell her to change it now that she was home. Ms. Kaur also said that she heard from the landlady that the child was crying in the day and she worried that Mr. Doal was not feeding the child. She also said he did not bath the child.

[70] Mr. Doal’s evidence was that he bathed, changed and fed the child and took him out in the stroller to the park.

[71] Respectfully, I am unable to believe Ms. Kaur’s evidence on this point. By all accounts, Ms. Kaur is a good mother. I do not accept that she would allow her child to be so neglected for almost a year by anyone who would not feed him or change him. No medical evidence was produced suggesting diaper rashes or malnutrition.

Father’s Involvement Since Separation

[72] Mr. Doal has not missed a single access visit since the parties arranged things cooperatively. He has had 59 visits as of the time of trial. Mr. Doal did both pick up and drop off on every visit without incident. He was on time or called when he was expecting to be late.

[73] He had requested overnight access through his counsel but did not litigate the matter. As noted, the parties have worked out a gradual schedule for the future overnights.

[74] Photos and videos since separation show healthy activities of going to the library, the playground, play centres, Indian festivals and dressing for Hallowe’en. Mr. Doal and the child rough-house with one another, brush their teeth, play with stickers, watch cartoons and do painting and gardening.

[75] Mr. Doal said he took some parenting classes as well.

[76] Mr. Doal and Ms. Kaur communicated by text message to facilitate access. The messages were generally polite back-and-forth communications. They demonstrate compromises made regarding the timing of the access visits, and further demonstrate the father’s cooperation and acquiescence when the mother denied various requests made by him.

[77] Mr. Doal had no criticism of the care that Ms. Kaur was providing to their son except that he was upset when he was not consulted regarding the child’s school, described below.

[78] When the child was three and a half years old, Ms. Kaur enrolled him in a school which provided both Punjabi spoken subjects and Sikh education. When it came to Mr. Doal’s attention that the boy was at this school, Mr. Doal attended the school. He sought to speak with the teachers and see how his son was performing. The school refused as they had a letter that only the boy’s mother and uncle could pick him up from school.

[79] On consent of the parties, I order that the father will be named as emergency contact for the child on education and health-related forms, and that Mr. Doal may contact any educators or service providers to obtain information regarding his son.

[80] As noted, the father agreed that the child would be raised in the Sikh faith. He has also consented to share the additional section 7 cost of the school.

[81] It was particularly in the area of education that Mr. Doal expressed that he wanted to be involved in decision-making for the child. He felt education was important and would impact the child’s future.

Balance of Power

[82] Ms. Kaur’s counsel argued Mr. Doal was a controlling person such that joint custody would be unworkable.

[83] Ms. Kaur testified that when her mother-in-law arrived to help with the baby, that Mr. Doal “forced” her back to work. However, in cross-examination she agreed that she did not go on full maternity leave as she was attempting to reach a financial threshold in order to sponsor her parents to Canada. I am satisfied that she had her own motivation to return promptly to work and was not “forced” to do so by Mr. Doal.

[84] Her counsel argued that it was a measure of Mr. Doal’s controlling nature that he had not paid the support owed for the first six months after separation. At trial Mr. Doal acknowledged that he owed it, but asked that the court not order it be paid as it was financially difficult for him.

[85] Although I consider it improper for him to have left the home and not immediately provide support for the child’s needs, particularly as he sought legal counsel upon separation, I do not equate it to his assertion of control over Ms. Kaur.

[86] Mr. Doal began to pay support without court order six months after separation. There is no claim that he ever missed a payment or was late.

[87] It was determined that Mr. Doal underpaid support in 2015 by $309; in 2016 by $612 and in 2017 by $48. These were Guideline calculations on his Line 150 income levels, to which he agreed he owed and consented to a court order to pay it.

[88] Although Mr. Doal could have agreed to resolve this issue long before trial, as his line 150 income and the Child Support Guidelines were known to him, the unpaid amounts are modest and do not equate to him lording control over Ms. Kaur.

[89] In support of the argument that Mr. Doal was a controlling person, several answers were read into the record from his questioning. Mr. Doal was asked why he wanted joint custody. His answer was “….because I—the father, right.” He was not asked to expand on this answer but was asked the following questions:

“ You were born in India?”

“India is a patriarchal society”

“Just because you’re a man you believe you have more rights, right?”

[90] Mr. Doal responded “Yes” to each of the above questions.

[91] Counsel for Ms. Kaur urged me to conclude from this exchange that it is evident that Mr. Doal will impose his will on Ms. Kaur.

[92] Mr. Doal did not have the benefit of a Punjabi interpreter during questioning. He stated at trial, through an interpreter, that he felt he did not express himself properly at the questioning and that he did not then know the meaning of the word ‘patriarchal.’

[93] He testified that he had many women students in his college class; his sister is an English teacher in India; and he does not believe men are superior to women. He was raised by parents who made joint decisions. He does not think women are less intelligent than men and he pointed out that he retained a woman lawyer to represent him in this application.

[94] The evidence since separation shows that Ms. Kaur has largely controlled matters concerning the child and that Mr. Doal has co-operated. I am not persuaded that he has been shown to be so forceful that he will overbear Ms. Kaur’s parenting will. I see no evidence that he will seek to make decisions just to bully Ms. Kaur, nor is there evidence that he will put his own interests ahead of the child’s.

[95] Ms. Kaur brought a criminal legal proceeding India against Mr. Doal and his parents regarding the failure of the marriage. I was not provided with the final order in this proceeding but understand from the parties that it means that his parents are unable to travel to Canada to visit and Mr. Doal is unable to travel in India without potential arrest. Mr. Doal said the decision is under appeal. There was no evidence before me that the child was told of this litigation or that it has interfered with the parties’ communication with one another.

[96] Mr. Doal made one unscheduled visit to Ms. Kaur’s home to check who was minding the child when he discovered that Ms. Kaur had gone to India for several weeks at that time but nothing arose from his visit.

Law on Sole Custody vs. Joint Custody

[97] The law on sole custody versus joint custody was recently articulated by Chappel J. in Khairzad v McFarlane, 2015 ONSC 7148. In my opinion, there is no better articulation. I reproduce the relevant portions of Chappel J.’s decision in full, below:

B. Sole Custody vs. Joint Custody

[28] The Ontario Court of Appeal’s approach to joint custody has evolved over the years. In Kruger, Supra., and Baker v. Baker the court held that joint custody is an exceptional remedy that should only be granted in circumstances where the parties demonstrate co-operation and appropriate communication, and are willing to try a joint custodial arrangement. Since that time, the court has dropped the requirement of consent to a joint custody order, but has maintained that in order to grant joint custody, there must be some evidence before the court that despite their differences, the parties are able to communicate effectively with each other. The rationale for this principle is that the best interests of the child will not be advanced if the parties are unable to make important decisions regarding the child under a joint custody regime.

[29] While some measure of communication and cooperation between the parties is necessary to support a joint custody order, the court is not required to apply a standard of perfection in assessing the parents’ ability to work together. As Quinn, J. remarked in Brook v. Brook, “the cooperation needed is workable, not blissful; adequate, not perfect.” A mere statement by one party that there is an inability to communicate will not be sufficient to preclude a joint custody order. The court must carefully consider the parties’ past and current parenting relationship and reach its own conclusions respecting the parties’ ability to communicate, rather than simply relying on allegations of conflict by one or both of the parties. Furthermore, the existence of conflict and strife between the parties from time to time, and at the time of trial, will not necessarily preclude the court from making an order for joint custody. The question to be determined is whether the nature, extent and frequency of the conflict between the parties are such that the conflict is impacting or likely to impact on the well-being of the child. If the evidence indicates that the parties have been able to shelter the child from the conflict reasonably well and put the child’s interests ahead of their own when necessary, an order for joint custody may be appropriate (Ladisa, Ibid.). The question for the court to determine is “whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis”.

[30] Where an objective review of the historical and more recent evidence clearly indicates that there has never been an ability to cooperate or communicate effectively, or that one or both of the parties is/are unable to put the needs of the child before their own, joint custody is not an appropriate order. In these circumstances, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for making an order of joint custody.

[31] In analyzing the ability of the parties to communicate, the court must delve below the surface and consider the source of the conflict. The Ontario Court of Appeal has clearly stated that one parent cannot create conflict and problems with the other parent by engaging in unreasonable conduct, impeding access, marginalizing the other parent, or by any other means and then claim sole custody on the basis of lack of cooperation and communication.

[32] There has been an increasing willingness in recent years to order joint custody rather than sole custody where necessary in order to preserve the balance of power between the parties, particularly in cases where both parties are caring and competent parents but one party has been primarily responsible for the conflict between the parties.

[33] Although the foregoing comments outline the various factors and considerations which the courts have taken into consideration in deciding between sole and joint custody, the analysis must at all times remain firmly grounded in the best interests of the child before the court. While both parents may be attentive and loving, a joint custody order may not coincide with the child’s best interests. As Pazaratz, J. stated in Izyuk v. Bilousov, at para. 504, “[I]n the wrong family circumstances, a joint custody order can perpetuate hostilities, indecision, and power struggles. Children- particularly children already exposed to the upset of family breakdown- look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully.”[References Removed]

[98] In the context of this case, I am struck by the similarity of the evidence to a joint custody decision considered by the Ontario Court of Appeal in May-Iannizzi v Iannizi, 2010 ONCA 519. The Court of Appeal in that case affirmed the trial decision noting at para. 6:

The trial judge was in the best position to determine the importance of this incident and the several other incidents of bad behaviour alleged by both parties. His conclusion on those incidents is summarized in this paragraph:

Small matters, idiosyncrasies, and immature conduct, at trial, [were] made to look large and destructive but after all the evidence was completed the picture of this couple [is that they are] relatively balanced ... emotionally and to my mind, quite capable of working this matter through on a joint custody with equally shared access.

[99] For reasons that follow, I similarly find the parties in this case to be relatively balanced, reasonable, and capable of jointly making decisions that are in the best interests of their child.

Analysis on Custody

[100] Ms. Kaur described Mr. Doal being controlling, argumentative and difficult, but I was not persuaded that the parties have been unable work things out between them, keeping the child’s needs at the forefront.

[101] These parties, overall, have shown maturity and care in dealing with their young son since separation. They have sheltered the child from conflict. They have communicated politely with one another. When Ms. Kaur registered the child for school, Mr. Doal made no objections but made inquiries about the school in his concern for the child. They each have made multiple concessions to one another, just as any parents who remain married would have to compromise when making parenting decisions. They have avoided reliance on the courts to make such decisions for them. They have been reasonable with one another.

[102] Mr. Doal has demonstrated interest in and care for his son since the boy’s infancy. He has demonstrated that he is cooperative and has not caused further hostilities in the relationship. He seeks to have an impact on his son’s future. I see the child can benefit from input in major decisions from his father.

[103] Although the court approaches an order of joint custody in the face of perceived conflict cautiously, this is a case where it is an appropriate order.

ORDERS PURSUANT TO MY JUDGMENT

[104] Accordingly, I order,

[105] Mr. Doal to pay past childcare expenses of $4,800.This amount shall be paid in monthly installments of $100 commencing June 1, 2017.

[106] The parties shall each pay 50% of special and extraordinary expenses relating to the child, within 30 days of being provided proof thereof.

[107] Each parent is to advise the other in writing what extracurricular activity the child is enrolled in with particulars of dates and times, 7 days before any activity is to start.

[108] If there is no agreement as to the special and extraordinary expenses in relation to the child, either party may bring a motion on notice to the other party to address the issue.

[109] Mr. Doal is to pay the outstanding child support of $2,353. This shall be paid in monthly installments of $50, commencing June 1, 2017.

[110] Mr. Doal may not travel with the child outside of Canada. This order is without prejudice to him applying to vary this order upon demonstrating to the court that he is not liable to arrest in India.

[111] Mr. Doal and Ms. Kaur are to have joint custody of the child.

Consent Orders

[112] The parties may phone the child when the child is in the care of the other parent for up to 5 minutes, between 6:00 p.m. and 7:00 p.m.

[113] Neither party shall make any disparaging remarks against the other parent or his/her relatives in the presence of the child or within hearing distance of the child.

[114] If there is any access missed by reason of the child travelling with Ms. Kaur pursuant to paragraph 1 of my order of April 5, 2017, access shall be made up either before or after the trip.

[115] As agreed to by the parties, the child will be raised in the Sikh religion.

[116] Ms. Kaur is to name Mr. Doal as emergency contact for the school and any service providers. Mr. Doal is permitted to obtain information from the school and service providers regarding the child at any time.

[117] In accordance with Appendix A attached, my order of April 5, 2017 made on consent is included in this judgment.

COSTS

[118] If the parties are unable to resolve the matter of costs, I order Mr. Doal to serve and file written submissions of three pages or less, plus any cost outlines, offers to settle and case law, within 14 days. Thereafter, Ms. Kaur may provide similar written submissions within 14 days. If required, Mr. Doal may submit one page reply submissions plus attachments within 7 days thereafter.

M. J. Donohue, J Released: May 24, 2017

APPENDIX A: FINAL ORDER DATED APRIL 5, 2017