COURT FILE NO.: FS-15-020052-00 DATE: 20170530
Ontario Superior Court of Justice
B E T W E E N:
ALEXANDER CHAN Sheri Hirschberg, for the Applicant Applicant
- and -
LAI LIU LY (also known as Yvonne Ly) In person Respondent
HEARD: April 24, 25, 26, 27, 28, 2017 MESBUR J
REASONS FOR DECISION ON APPLICANT FATHER’S MOTION TO CHANGE THE FINAL ORDER FOR CUSTODY MADE BY SCOTT J, 2012
Introduction
[1] The applicant father and respondent mother are the parents of two young children, Maelyn, age 8 and Nathen, age 7. The parties’ relationship has been fraught with chaos and conflict ever since they first began living together in 2007. Since they separated parental conflict has continued as a constant theme between them, resulting in a significant impact on their children.
[2] The parties met in August of 2007 when the father was 35 and the mother 18. Notwithstanding their significant age difference, they developed a relationship, and were soon intimate. They began to live together in December of 2007 in the mother’s parents’ home, with mother’s parents and her younger sister, Letitia. Letitia was about 8 years old at the time.
[3] The parties’ relationship was volatile, to say the least. At one point in the spring of 2008, they were both charged criminally in relation to alleged threats against a police officer. The father was also charged with gun related offences.
[4] As a result of these charges, mother spent a month in pre-trial custody. It was while she was incarcerated she discovered she was pregnant. Father entered a guilty plea to charges of possession of a firearm. He was incarcerated for about 9 months. He was not present when the parties’ daughter Maelyn was born on January 27, 2009.
[5] Father was released from custody into a halfway house at the end of February, 2009. He remained there until the following June. During that period, he saw Maelyn, but in a supervised setting.
[6] The parties reconciled briefly in the summer of 2009. During their reconciliation, father was charged with assault and mischief. Since these charges constituted a breach of his parole, the father remained in custody pending his trial on these charges. He was released from custody in April, 2010. Nathen was born around the same time. Ultimately, father was acquitted on the charges.
[7] The father began to see both children and eventually the parties entered into a consent regarding custody and access. The final order of Scott J, dated September 14, 2012 incorporated the terms of their consent.
[8] The final order provides generally as follows:
a) Mother has sole custody of both children;
b) Father has access:
i) Alternate weekends from Friday at 8:00 p.m. to Sunday at 8:00 p.m. extended to Monday at 8:00 p.m. if a holiday weekend;
ii) Half of the holiday periods (Christmas, New Year’s, Chinese New Year’s, March Break, Easter, Thanksgiving) as agreed by the parties;
iii) Commencing in 2011 and in each odd numbered year thereafter, the child’s birthday, at such times to be agreed by the parties taking into account the child’s school schedule;
iv) Regardless of the regular access schedule, the child shall spend Father’s Day with the applicant father and Mother’s Day with the respondent mother for no less than 5 hours, as agreed by the parties taking into account the child’s school schedule;
v) Summer vacation of no less than two weeks as agreed by the parties in each year before May 1st;
vi) Reasonable telephone access; and
vii) Such other access times as may be agreed by the parties.
c) The father shall pick up and drop off the children from the maternal grandparents’ home, the Sheppard Centre, the Scarborough Town Centre, or at another location agreed to by the parties.
d) The father has the same rights to release of information regarding the children as if he had custody. This includes matters of education, extra-curricular activities and health. He has the right to obtain the information directly from the relevant source.
e) Finally, the order requires father to pay child support of $369 per month, based on income of $24,700.
[9] Father began this motion to change in 2015. In it, he seeks to change the order to award sole custody to him. He asserts there have been material changes in circumstances warranting such a change. In large part, his motion is grounded in what he characterizes as mother’s inability to get the children to school either on time, or at all. He also points to her marijuana use as a reason to change custody. He argues that mother has failed to address the children’s needs for counselling appropriately, or at all. Last, he suggests the mother’s frequent moves and changes to the children’s schools have failed to provide stability to the children.
[10] Father has re-partnered. He and his wife, Ginger, have a daughter Kaelyn, nearly 5. Ginger is expecting their second child in September. Father takes the position the children’s interests would be better served if the children were in his custody, with him, Ginger, their daughter and the new baby. Under father’s proposal the children would attend school at Cameron Public School, a school they attended for about a month at the beginning of 2015. This school is located in North York, where the father lives. It would mark a move from the children’s current school, Randall Public School, located in Markham, where mother now lives with the children.
[11] Father also suggests that if the children were in his custody, he could ensure they received any necessary psychological or social work services recommended by their school or pediatrician. Father complains mother has been reluctant to consent to the school social worker providing services for Maelyn. He says Maelyn needs this assistance, but as a non-custodial parent he has no ability to arrange for it on his own.
[12] Mother proposes no change to the current arrangements, other than those that have been made on consent since father launched this motion to change. She says there has been no change in circumstances sufficient to warrant a change in custody. She expresses concern for the children in their father’s custody, particularly in light of what she describes as his propensity to domestic violence. While father asserts he has completed an anger management course, mother’s position is that 3 one-hour sessions are hardly sufficient to address what she views as father’s deep seated and long standing issues.
[13] Mother also takes the position that if the children remain in her custody, father’s child support obligation should be changed to reflect his current income. She says he earns, and has been earning significantly more income than the $24,700 imputed to him in the original order. She seeks both a retroactive and prospective change to child support.
The Evidence and Factual Findings
[14] In all, I heard from ten witnesses. The father, his wife, Ginger, and the children’s current teachers, Mr. Levy and Ms. Kocev, testified for the father. The clinical investigator from the Office of the Children’s Lawyer (OCL) was a neutral witness who was cross-examined by both parties.
[15] The mother, her younger sister Letitia, Children’s Aid Worker Ms. Hazlett, Mr. Terence Chan who is father’s accountant, and Mr. Parker, the principal from the children’s former school testified on behalf of the mother. I will review each in turn.
The Father
[16] The father, Alexander Chan is now 44 years old. He owns a personal training facility which he operates through a limited company, House of Fitness Inc. He is its sole shareholder.
[17] As I have said, father has re-partnered. His wife, Ginger Chan, is now 29. They met in 2011, and had a daughter, Kaelyn Chan, on June 29, 2012. Kaelyn is nearly 5 years old. Ginger is now pregnant and is expecting their second child in September. Father and Ginger and Kaelyn live in North York near Yonge and Sheppard. Father’s business is close by.
[18] In 2012 the father and Ginger had a “commitment ceremony” in Colombia. They legally married on another in Toronto in 2016.
[19] Father described his access visits with the children as being difficult. He complained about mother being late, and his having no way to reach her. Although the final order provided that father was to pick the children up, the pickup locations were places where mother would have to bring the children, and thus she could be late. Also, since two of the locations were large malls, there were often issues about where, exactly, in the mall the children would be picked up. This confusion led to conflict.
[20] All that being said, it was not until sometime in 2014 that father expressed some concern about the children. He testified that in the fall of 2014 the mother called him and proposed that the children be home schooled. He said mother told him the children had been missing a lot of school. Father said this led to his calling the principal of the school to find out what was going on. He testified he was shocked to learn that mother had instructed the school that he was not to get information about the children.
[21] I find this hard to believe. The final order from 2012 had a specific provision that reads at paragraph 4:
The applicant father shall have the same rights to the release of information concerning the children as if he were the party having custody, including, but not limited to matters of education, extra-curricular activities and health, directly from the relevant sources without the necessity of any release, direction or acknowledgement executed by the party having custody, and this order shall constitute sufficient authorization, direction and release for so doing.
[22] For the two years following the final order the father clearly had the ability to receive information directly from the school had he wished or troubled to make inquiries. He testified, however, that he took the court order to the school in 2014, and only then learned the children were missing a lot of school, were often late, and sometimes did not come with adequate lunches. Father was not asked why he had not arranged to have report cards and school information sent directly to him immediately following the court order. The fact he was easily able to obtain information once he provided the school with the order suggests to me any instruction to the contrary from the mother was no impediment to his receiving information from the school.
[23] Father testified, however, he had no idea what was going on regarding the children. He says he was shocked to learn the school had called the Children’s Aid Society (CAS) about mother coming to school smelling of marijuana. Although father says he was shocked and heartbroken that the children were not attending school, he had no idea it was occurring until he looked into it, some two years after the final order. This suggests to me the father was not particularly concerned about how the children were doing at school until the issue of home schooling came up. It must be remembered, of course, that in the fall of 2014 Maelyn had only just begun Senior Kindergarten, and Nathen was only in Junior Kindergarten.
[24] Father describes mother’s suggestion of home schooling the children as somewhat shocking to him. He was not prepared to take on that responsibility. Around the same time as the home schooling discussion occurred, the mother’s family suffered some crises. First, her father had a heart attack, and then her grandfather in California. The mother wished to travel to California to assist her grandfather.
[25] The father testified that during the discussions about home schooling, he and Ginger suggested that the children could come and live with them, and the mother could then go to school. He says mother suggested that the children could live with them for a year or year and a half, while she pursued her studies. Mother describes the discussions differently. I will address her evidence in due course, but by and large find her story more credible.
[26] Suffice to say, the children were registered at Cameron Public School, in father’s neighbourhood, beginning in January of 2015. The mother, as custodial parent, facilitated the school registration. Father says it was only then he learned of mother’s plan to go to California. Whatever the timing of when the father learned of the plan, the mother did indeed travel to California for several weeks.
[27] The Family Responsibility Office was still collecting child support from the father. The father wished them to stop doing so while the children were living with him. When he discovered he would need a court order to effect any change to FRO’s collection efforts it was then father began to take steps to change both custody and child support through a lawyer.
[28] When mother returned from California, the children were with her for the weekend. It was around this time the mother received a letter from father’s counsel, advising of father’s intention to seek sole custody of the children. Needless to say, she was upset. Mother advised father the children would be staying with her. She then re-registered the children at their old school, Macklin Public School.
[29] Father testified that the children were only at Macklin until May of 2015, when they moved to Chartland Public School, another Scarborough school. By this point, father was becoming more proactive, and spoke to Mr. Parker, the principal at Chartland. He says Mr. Parker made him aware of what had been going on in the children’s prior school regarding absences and lateness.
[30] In May of 2015 the parents were invited to meet with the school support team. There had been some suggestion of Maelyn’s needing a social work assist at school. Apparently Maelyn had had a social work assist at Macklin Public School, but with the moves to father’s, and then to a new school, she was somewhat lost in the shuffle.
[31] By this time, father had commenced this motion to change. In the course of various case conferences, some of the issues were addressed, and certain orders were made on consent.
[32] First, in May of 2015 access pickups were changed to the children’s school on Fridays at 3:15, with the children returned to school on Monday mornings. After the end of the school year, the pickups and drop offs were to occur at a Tim Hortons. At the same time, the court requested the assistance of the Office of the Children’s Lawyer, (OCL). The OCL declined.
[33] In December of 2015 father’s pick up time was changed to 3:10, the actual dismissal time from school. Mother was not to be present. The same order required father to provide a prepaid cell phone to the mother to facilitate father’s telephone access with the children. The court renewed its request for the OCL to provide services to this family. This time the OCL agreed.
[34] In May of 2016 the parties consented to an order requiring them to communicate through the use of “Our Family Wizard”.
[35] Throughout the various conferences leading up to the trial, the parties also agreed on holiday and summer access schedules. Despite these consent changes, father takes the position the mother’s continued inability to get the children to school either on time or at all, combined with her use of marijuana constitute a material change in circumstances warranting a change in custody.
[36] Father proposes that the children continue to live with mother and attend their current school until the end of the current academic year. Over the summer, he suggests the regular summer schedule would prevail, and in September the children would come to live with him and would be registered at Cameron Public School, back in his neighbourhood. His wife Ginger Chan supports his position.
Ginger Chan
[37] Ginger Chan is the father’s wife. She is now 29 years old. She and the father met sometime in 2011 and began to live together shortly after. Their daughter Kaelyn was born in 2012. Kaelyn turns 5 next month. Ginger married the father in March of last year.
[38] Ginger currently attends George brown College, pursuing an advanced diploma in accounting. She also works for the father’s company, doing the bookkeeping. She runs both the family finances and business finances. She deals also with the corporate accountant. Ginger testified she is able to do this work from home when she is not at school. Ginger also reported that father’s business requires him at the gym most mornings and evenings. Father provides fitness training for clients and earns fees directly from them. Other trainers work in his gym as well and pay father a percentage of the fees they earn. Depending on where their clients have come from, the father receives a certain percentage of the fees they charge as well as fees from clients he trains himself. When he began his business, the father saw his clients in his home. Once he found commercial space for his training gym, he moved his services out of the home. The business is located very near father and Ginger’s home.
[39] Ginger is pregnant, and is expecting to deliver in mid-September. Her plan is to take one semester off school when the baby is born. She testified that when Kaelyn was born, she took a year off, and felt she “had no life”. Thus, she would prefer to take less time off with this baby. She did say, however, that while this is her plan it will depend how the baby is. Ginger says she has a close relationship with Maelyn and Nathen. Maelyn and Kaelyn get along well, and spent a lot of time together when the children are with them. They do a lot of crafts together, and interact well. She says both she and the father take an active role in parenting all the children. When Maelyn and Nathen are in their home, they all do things together as a family. Ginger struck me as intelligent, caring, high energy and ambitious.
[40] Ginger confirmed that she and the father and Kaelyn met the mother, her partner and Maelyn and Nathen for a meal in late 2014. Ginger testified that the mother had called, saying she had good news, she was going to home school the children. Ginger said the mother also had plans to go to school to train to be a registered massage therapist. She said she and the father proposed to the mother that they would take the children during the week, and the mother would have the children on the weekends.
[41] Ginger testified the mother declined their offer, and asked them to look into the idea of home schooling. Ginger was not very sure about the idea. Ginger said the mother also mentioned something about the children not going to school too much. It was only then father called the school. Ginger reported that father said he could not get information because mother had told him he had no right to it. As I have said, I find this very puzzling, when the original order from 2012 specifically gave father the right to obtain all information about the children as if he were the custodial parent. I have no idea why father would not have obtained information from the schools on a regular basis from the time the original final order was made.
[42] Ginger confirmed that it was only after this meal in 2014 that father took the original order to the school and finally obtained information. She says she and the father then met with the vice principal, both children’s teachers and the assistant. There were concerns raised about attendance. Ginger said they were shocked. Obviously, this was the first time they had taken any steps to find out anything about the children from their school.
[43] As to the period when the children moved to the father’s house, Ginger said they met with mother and her partner Will again in late fall of 2014. Ginger testified mother had said no to their proposal to take the children. Ginger went on to say, however, that father told her he had discussed the matter with the mother who had asked them to take the children. Ginger said they originally proposed to keep the children at the school they were then attending in Scarborough, but the mother and the principal thought they should move schools then.
[44] When the time came for the move, the mother came to sign the registration papers for the children’s new school, and advised Ginger and the father that she would be going to California for 3 weeks. On her return, mother had the children for Maelyn’s birthday on January 27. The following weekend she had the children again. On the Saturday morning she advised the father the children would be staying with her, and returning to Macklin Public School. As I have said, this appears to have coincided with mother’s receiving correspondence indicating father intended to seek sole custody of the children.
[45] Ginger reported that during the period the mother was in California and the children were living with her and the father the children were happy, but missed their mother a great deal. Maelyn is very close to her mother, according to Ginger. Ginger testified that when mother returned, the children were so happy to see her. After the return to mother’s home and the prior custody/access arrangement, she said the children’s behavior changed, and the children appeared fearful. Ginger testified that at this point access exchanges were terrible. The children were crying and very difficult. They were saying they did not want to go with the father and wanted to stay with their mother. It took months for them to be all right with access again.
[46] It was during the time the children were living at father’s house that he commenced this motion to change, seeking sole custody of the children. It seems to me that action was a precipitating factor in the deterioration of the parents’ relationship and their ability to focus on the children’s needs.
[47] Ginger said she and the father met with Maelyn’s teacher again in February of 2016. They learned the teacher had called the CAS because mother smelled of marijuana. Needless to say, this was very upsetting news for them. The CAS worker testified at some length about this issue and her involvement with the family. I will review her evidence below.
[48] Ginger testified she recognizes the importance of the mother in the children’s lives. She, herself, has tried to be polite and civil. From her point of view, the children need structure, routine and a good relationship with both parents. She says they need to be encouraged to love both parents. Ginger recognizes that the children love their mother very much. They need her and need to know it is ok to love their mother. Ginger also says the children need to get to school on time and get their homework done. Ginger acknowledges that the children have been through a lot. She feels they need help. Ginger reports that Maelyn has asked her “why can’t mommy and daddy be together?” As Ginger frames it, Maelyn understands the situation in a way. Her desire to see her parents together is from her heart, because she loves both of her parents. Ginger feels Maelyn would benefit with some professional help because she has feelings about things and sometimes she lies about things. In Ginger’s view, the more support they can give the children the better. As she sees it, therapy “can’t hurt”.
[49] As Ginger sees it, the root problem with the children is the fact the mother and father are not together and don’t get along. Ginger’s insights are correct.
Brian Levy, Nathen’s Teacher
[50] Nathen, age 7, is now in grade 1 at Randall Public School in Markham, where Brian Levy is his teacher. Nathen has attended the school since mid-September of 2016. Immediately before that, he and his big sister Maelyn had been at Chartland Public School in Scarborough. In mid-September had to relocate to Markham. Since their move to Markham, they have attended Randall.
[51] Mr. Levy has been a teacher for more than 25 years. He described Nathan as a “pretty good” student. He has no more concerns about Nathen than he has about any of his other students. Mr. Levy did say that Nathen had a little bit of a hard adjustment to grade 1. From all the evidence from the various teachers, I conclude that many children have difficulty with the transition from the play-based environment in kindergarten to the more curriculum focused one in grade 1. Mr. Levy said, however, that Nathen’s difficulties were not unusual. He discussed them with both parents, and found both of them receptive and supportive.
[52] Nathen’s February report card shows he has been absent 6 times since the beginning of the current academic year, and has been late 8 times. Mr. Levy described this as a higher than average number. However, any issues of lateness and absence are discussed with the school administration, and not with him as the classroom teacher. Mr. Levy did say he was not overly concerned about Nathen’s absences and lates.
[53] Mr. Levy also confirmed there had been some issue with Nathen hitting children. There have also been incidents of bullying – both where Nathen has been bullied, and where he has bullied other children. It has not occurred often and Mr. Levy has addressed it with the parents who have dealt with the issue appropriately. Mr. Levy reported he has definitely seen improvement in Nathen. While Nathen sometimes has difficulty transitioning from activity to activity, and can have issues with distractions, Mr. Levy sometimes seats Nathen next to the teacher’s desk in order to assist him with distractions and help him to focus. Mr. Levy has seen ongoing improvement in Nathen’s behaviour and work habits throughout the course of the year.
[54] Mr. Levy described his interactions with both parents as positive and receptive. Overall, Mr. Levy described Nathen as an asset to the class, a child whom he very much enjoys teaching. In terms of academics, Nathen is above average in the grade 1 class. Mr. Levy has seen ongoing improvement in Nathen’s behaviour and work habits throughout the year.
[55] From Mr. Levy’s evidence I conclude there are no significant issues about Nathen in the classroom, notwithstanding the number of times he has been absent or late. I also conclude both parents are appropriately involved in and supportive of Nathen’s education.
Lila Kocev, Maelyn’s Teacher
[56] Lila Kocev is Maelyn’s grade 2 teacher. She describes Maelyn as one of her best pupils academically. She testified that she did notice some changes in Maelyn’s behavior in around December of last year when Maelyn became quieter and somewhat withdrawn in the classroom, participating less than she had in the past. It was around this time that one of Maelyn’s close friends had moved away, and Maelyn was very sad. This change in Maelyn’s behavior is reflected in Maelyn’s February report card, where her social skills are described as “S”, or satisfactory, as opposed to “G”, or good, as they had been in her fall report card. Since then, however, Ms. Kocev reports that Maelyn has started to participate in class again.
[57] Ms. Kocev describes Maelyn as one of her strongest students academically, even though she is often distracted and fidgeting. Maelyn is doing well, and Ms. Kocev is not worried at all about her academic progress.
[58] Maelyn’s report cards show frequent absences and many lates, where she is not in class on time. Last year, for example, Maelyn’s end of year report card showed her being absent 21.5 days and late 39 times. Maelyn’s most recent report (February 2017) from Ms. Kocev’s class records 8 days absent and 17 times late since the beginning of the school year. Ms. Kocev was asked about the issue of Maelyn’s lates and absences.
[59] Ms. Kocev does not take her own attendance, but did say that children must be at their desks by the time O Canada is sung. If they are at the coat racks, for example, they will be marked “late”. Ms. Kocev could not say how often Maelyn would have been in the building, but not in the classroom, and would therefore be considered late. She said often Maelyn is in the bathroom, and takes her time to get to class. While Ms. Kocev acknowledged 40 lates from the previous year was a “big number”, she said sometimes Maelyn is late by only a minute, and is known to get distracted, chat, or goes to the bathroom. It does not impact her education as far as Ms. Kocev is concerned. Ms. Kocev has seen no need to discuss Maelyn’s lates with the parents. I note that Maelyn has been late many more times than her brother. Assuming both children are dropped off at school at the same time, I infer that Maelyn’s lates are a product of her own dawdling and distraction, rather than any fault of the mother’s.
[60] Ms. Kocev also had some issues with Maelyn taking things from other children, like a fancy eraser, or pencils. There have been a couple of incidents where this occurred. However, Ms. Kocev only remembered these incidents of “stealing” when she was asked specifically about them. From this I infer these incidents have not been of particular concern. While father and Ginger suggested Maelyn had stolen markers from the teacher, herself, Ms. Kocev made no mention of this in her evidence. She was asked nothing about it.
[61] Ms. Kocev expressed no concern about Maelyn’s changes in schools. Maelyn began her school career in September 2013 in Junior Kindergarten at Silver Springs Public School. The following year, she was at Macklin Public School. She remained there (apart from a month at Cameron Public School when she lived with her father) until the spring of 2015. The following year, Maelyn was at Chartland Public School. She stayed there until the mother’s move to Markham and Randall Public School for the current academic year. Ms. Kocev explained she has many pupil who have been to many different schools. Clearly, the changes in schools have had no impact on Maelyn’s academic performance.
[62] Ms. Kocev is aware that Maelyn has been referred for testing regarding a possible diagnosis of ADHD. She testified that when the ADHD assessment finally came in, the principal did not immediately pass it on to the school psychologist. Ms. Kocev explained that this would be the general protocol, but the school principal was new in the role and did not do so for some time. It is the school psychologist who reviews the assessment and then makes recommendations to the Identification Placement and Review Committee (IPRC), which in turn can develop an Individual Education Plan (IEP) for students who are identified as exceptional in some way. At this point, neither the IPRC nor development of an IEP have yet taken place for Maelyn. Given the timing in the school year, it would seem unlikely this will happen until the next academic year.
[63] Ms. Kocev confirmed that mother is an informed parent, in tune with her children.
[64] The only real concern Ms. Kocev expressed about Maelyn gave rise to Ms. Kocev’s calling the Children’s Aid Society the week before the trial began. The class was talking about feelings, and the children were discussing things that made them feel angry or sad. In the course of their discussion, the children were to draw pictures and write down things that made them sad. Maelyn drew a picture of her and her dad, and said if she is not eating fast enough her dad puts more food in her mouth to make her eat faster, until she chokes. When Ms. Kocev asked Maelyn what she did about this, Maelyn reported that she asked her father to stop, and he did. Ms. Kocev was sufficiently concerned about this to call the Children’s Aid Society. I do not know what, if anything, the CAS did about this report.
[65] In all, however, Ms. Kocev described Maelyn as a very sweet, lovely, kind-hearted child. Ms. Kocev said she loves how Maelyn takes care of her little brother. She says Maelyn makes friends easily in class. Maelyn is a good student academically. Overall, Ms. Kocev called Maelyn “a kid, a good kid”.
[66] From Ms. Kocev’s evidence, I conclude there are no significant issues about Maelyn in the classroom, other than fidgeting and lack of focus. These issues are being addressed. Maelyn has been assessed by a specialist and has been diagnosed with ADHD. Although the assessment occurred in the spring or summer of 2016, the doctor did not provide the Maelyn’s referring physician or her parents with a report until the fall of 2016. The father immediately forwarded the report to Maelyn’s school, with a view to the school developing an Individual Education Plan (IEP) for Maelyn. As I have said, the principal did not immediately forward the report to the school psychologist, who has the responsibility for reviewing it and forwarding it to the IPRC. Presumably, this will occur at the beginning of the next academic year. If Maelyn needs an IEP, it will no doubt be developed in the next academic year.
[67] In all, I conclude Maelyn’s educational needs are being met appropriately.
The Office of the Children’s Lawyer
[68] In December of 2015 Chiapetta J. requested the OCL’s assistance in this case. This was the second time the court had requested their assistance. This time, the OCL agreed to provide services pursuant to s. 112 of the Courts of Justice Act. This section permits the OCL to cause an investigation to be made, and to report to the court and make recommendations on all matters concerning the child. Clinical investigator Heather MacInnis, a social worker, was assigned to the case. She conducted the customary investigation mandated by this kind of assignment. In doing so, she met with both parents and obtained a history from each of them. She obtained information from various collateral sources. Ms. MacInnis also met both parents in their respective homes with the children. While she met with father and Ginger with the children, she did not meet mother’s boyfriend, Will, or speak to him at all. Mother had specifically asked the OCL to do so, since Will has played a significant supportive role in the children’s lives. This is so even though mother and Will do not live together.
[69] I see the failure to speak to the mother’s boyfriend as a significant gap in the OCL investigation, particularly in light of the CAS worker’s evidence, which I outline below. The CAS worker testified that she viewed Will’s role as extremely supportive and important to the children. I agree.
[70] All that being said, the OCL delivered its report about a year ago. As is customary, the OCL held a disclosure meeting with the parties shortly before releasing the report. In the disclosure meeting, the parents were told of the OCL’s recommendations. Simply put, the OCL recommended mother retain sole custody, but father have extended access, three weekends out of four. The recommendations included keeping the children in their then current school in Scarborough, attending counselling, and attending school regularly and on time. The recommendations went on to suggest mother continue to see her current therapist, and father engage in anger management counselling.
[71] When this case was nearing trial, the court requested an update from the OCL, given that the trial would be occurring about a year after the initial report, and more than a year after the actual interviews the OCL had conducted. The OCL declined.
[72] As a result, the OCL report and recommendations are out of date, and Ms. MacInnis’ evidence was not particularly helpful. I do not say this out of any criticism of her. I say so because her recommendations were based on a particular set of factual assumptions that were in place about a year ago. Although Ms. MacInnis was presented with various scenarios purporting to reflect certain changes since her recommendations were made, she was unable to advise the court whether these events would have changed her opinion and recommendations. In large part, she said she would have to know more about the context, make further inquiries and investigations before making any other recommendations, or proffer an opinion as to whether her recommendations would change.
[73] For example, when learning that lateness was still an issue for Maelyn, Ms. MacInnis she said she would have to inquire as to reasons this was happening before she could offer an opinion.
[74] Similarly, one of her recommendations was for the children to remain in their school in Scarborough. When asked whether the children’s change in school in mid-September of last year would have changed her recommendations, she responded she was unable to answer without knowing the reasons for the change, and the reasons for the timing of the move. She would have to investigate further before providing any further recommendations.
[75] When asked if knowing the weekends with father now extend from Thursday to Monday morning would alter her recommendations, again Ms. MacInnis responded she would have to investigate further before answering.
[76] Sadly, the OCL declined to provide the court with an update when a further request was made. This, of course, is entirely within their discretion. The result, however, is that the report and recommendations based on circumstances from more than a year ago are no longer particularly helpful.
The Mother
[77] The mother’s evidence focused in large part on the very early days of the parties’ relationship and what she described as father’s controlling and abusive behavior toward her. She excuses many of her subsequent actions on their history and her fear of the father. Without going into detail, it is enough to say their relationship was volatile and marked with conflict, possession of guns and incarcerations.
[78] Although the final order was made in 2012, mother explained that father only became more involved with the children in 2014. At this point, father had repartnered and he and Ginger had a child. The father began to pick up the children from her home, and she felt the children were adjusting to their time with their father. Mother felt and things were progressing more smoothly. At the end of the year father said Maelyn had commented that it was nice to see both her parents together.
[79] Mother testified the children’s frequent absences and lates from school resulted from both her and the children’s health issues. She says these arose in large part from their living in mouldy damp basement apartments. She had difficulty getting the children to school and began to consider the possibility of home schooling the children. She testified she was aware of some children who were being home schooled, and found them to be “spectacular” children. Even though the mother has custody of the children, she did not want to make the decision about home schooling unilaterally. In the fall she approached the father and Ginger with the idea. They rejected it, asserting that social development was more important for the children. Ginger said she needed to grow her own life, and couldn’t home school. Father said his work schedule and lack of knowledge also made it impossible for him to home school.
[80] Mother raised the issue again, sometime in October of 2014. It was then she says father suggested that the children live with him and Ginger during the week, and they would take the children to school. The children could then spend weekends with the mother. This way, father reasoned, the children could stay in school and mother could pursue her own educational goals.
[81] Mother rejected this proposal. As she put it, she did not want the children split between two households. She was not willing to change custody. Instead, she asked the father and Ginger to consider paying more child support, or pay her car insurance, so she could drive the children around. They did not reach an agreement.
[82] In November they all met again for dinner. Mother testified that father suggested if mother was unwilling to give him custody, perhaps she could move to North York, close to father and his family. In this way, the children could go between homes, and go to school in father’s area. This was more appealing to mother, but she could not afford to pay more than $750 per month in rent. With North York rentals being $1,000 or more, this was a stumbling block.
[83] Mother said father began to look at apartments for her and the children. He was friendly and she saw this as a positive sign. She also said since the children were then 3 and 4, perhaps she could “step away” a bit. She had never left the children before, and began to consider a trip. In December, she spoke to the father and Ginger, and discussed some options. This included the pros and cons of a move to North York, goals for co-parenting. She thought they were on good terms.
[84] As mother explained it, they also discussed her wanting to go on a trip, and what would happen with the children if she did. Mother said it would be nice if father stepped up if she went away. Mother testified father declined, saying he couldn’t because he needed to focus on work.
[85] On January 1, 2015 the mother’s father suffered a heart attack. Two days later, her grandfather had an attack as well. The grandfather lives in Los Angeles, and mother felt she needed to go to his aid. She called the father to care for the children. It was a crisis and she felt she had to go. A she put it, she was not bound to work or school, and children had another family. Father ultimately agreed. The mother said they discussed terms briefly. She asked him to continue to take the children to their school in Scarborough, but father said he could not make it out to Scarborough every morning.
[86] Accordingly, mother agreed to register the children at Cameron Public School, in North York, near father’s home. Mother said she continued to discuss a move to North York, if father would pay most of the rent. She says father agreed. They discussed custody and child support, but reached no firm agreement. Mother testified she told father she would be taking the children back, but did not know when. She said she told the father if the children were doing well, they would reconsider the arrangements and consider more access.
[87] The children were registered at Cameron, and mother went to California. On her return, on January 23 she and her partner picked up the children. She told the father she wanted to see the children, but would return them after the weekend. She did. On the following Wednesday or Thursday, she received a letter from the Family Responsibility Office. (FRO).
[88] From this letter the mother learned that father had written to the FRO saying the children were living with him, he was going to get full custody of them, that mother was giving him the children, and child support should not be paid for January. Around the same time, mother received notice from father’s lawyer that he intended to seek sole custody of the children.
[89] The parties’ descriptions of the events of late 2014 and early 2015 differ somewhat. It really does not matter whose description of the events leading to the children’s move to North York is correct. The reality is that whatever good will had been generated prior to the move completely evaporated once mother received the letter from the FRO. She felt betrayed and duped, tricked and manipulated. Her reaction was to swiftly re-assert all her rights under the original order. Father’s reaction was to commence this motion to change. It was issued in March of 2015. From then on, conflict has escalated, and the children have continued to be caught in the middle.
[90] Mother feels father is trying to build a case against her, and is constantly lying to achieve that end. As is often the case, the parents experience the same events from their own particular point of view, coming to very different conclusions about what happened, or what the other parent’s motivation has been. It serves no purpose to determine whose version of events is “true”. Father’s commencement of this motion to change has triggered an escalation in conflict. I doubt this decision will have any salutary effect on the parents’ relationship. This is tragic, since both parents clearly love their children and want what is best for them. The children’s teachers describe both parents as involved, concerned parents. The children love both their parents. The parents have both successfully re-partnered, and their new partners have a positive influence on the children. The ongoing relationship between the parents, however, continues to be toxic.
Mother’s Sister, Letitia
[91] The mother’s younger sister Letitia is now eighteen. Her evidence focused on what she had observed as an eight year old child when the father and mother lived in her parents’ home.
[92] Letitia described the relationship between the mother and father as abusive. She recalled seeing the father strangling the mother on one occasion, and snatching her keys and scratching her arm with them on another. Letitia described her sister as “always crying”. Letitia said she would listen outside her sister’s door to try to tell if the father was hurting her, wondering what on earth her sister had done to make him hurt her like that.
[93] Letitia recalled one incident in particular when the mother was suffering from mastitis after Maelyn’s birth, and father refused to buy a breast pump so she could relieve her pain. The mother borrowed a pump from a friend. Letitia said that when the father saw the breast pump, he took it, threw it on the ground and jumped on it. The mother was nursing Maelyn at the time. Letitia’s evidence was credible. Even though the events she described occurred about eight years ago, they still give some cause for concern. They reflect issues with father’s ability to control his anger and impulses. Last year, the OCL recommended anger management counselling for the father. Ms. Kocev’s recent report to the CAS also raises some concerns. It seems to me father still has some issues in that regard.
[94] Letitia is clearly still quite affected by what she had seen and heard during this time. She said her memories of these things make her feel overwhelming sadness.
[95] Letitia was also able to provide some insight into the current dynamic between the mother and father. She has been there for some access exchanges. During the pickups and drop offs she has seen, she has observed much adult conflict. She says the children see how their father treats their mother. Letitia says the father doesn’t greet the mother, he doesn’t speak to her. Letitia reports the children say they don’t know why their father is so rude, or why he doesn’t say “hi”.
[96] Letitia is concerned about the possibility of a recurrence of the kind of violence she saw. I have no evidence of any domestic violence in the last many years. I have less concern about that than I do about father’s ability to control his anger. More importantly, however, I share the concern Letitia has about ongoing family conflict, and the inability of the parents to speak to one another at all.
Mr. Parker, Principal of Chartland Public School
[97] The children attended Chartland Public School in Scarborough from early April of 2014 until October of 2016. Dayne Parker is the principal of Chartland. He described the children as “wonderful kids”, caring and energetic. He saw Nathen as very curious and joking, while Maelyn is sweet, nice and friendly.
[98] Mr. Parker said there had been some issues with Maelyn stealing. It was around this time Mr. Parker suggested a social work assist might be appropriate for her. The mother was not convinced Maelyn needed the assistance, and was concerned about her having to rehash negative experiences. Nevertheless, the mother did sign the necessary forms. Mr. Parker explained the school social worker’s role, and said that since the social worker did not see any of the typical behaviors that would require social work, she simply spoke to Maelyn a couple of times. After she had done so, Mr. Parker said the social worker did not think Maelyn had the kind of traditional needs that would warrant her involvement.
[99] Mr. Parker also noted that Maelyn’s teacher had some concerns about Maelyn’s lack of focus and organizational skills. Mr. Parker was asked whether he was surprised about Maelyn’s ADHD diagnosis. He responded he was not an expert, but, to be candid, he thought some of Maelyn’s issues might have happened because of the parents’ misinterpretation or ambiguous understanding of co-parenting. Mr. Parker testified that both children love both parents. He said children have a tendency to blame themselves, and this can manifest itself in many behaviors. While such behaviors might be because of ADHD, Mr. Parker wisely emphasized that one must also consider how the parents are, and what effect that has on the children.
[100] Mr. Parker was asked if he had any concerns about the children’s academic performance while they were at Chartland. He did say that Nathen was very silly, but said this is to be expected in SK. Mr. Parker also said there were times Nathen pushed other children, as his way of playing. When Nathen was spoken to about it, however, and given a consequence, the behavior stopped.
[101] As for Maelyn, as I have said, Mr. Parker identified some issues around her organizational skills and inattention. Mr. Parker explained that the transition to grade 1 can be hard. In grade 1 the children have to sit at a desk. The curriculum is more structured than in JK or SK, with no more playing. All that being said, Mr. Parker said any struggles Maelyn had in transitioning to grade 1 fell within the general realm of transition difficulties.
[102] Mr. Parker described the mother as an astute parent. He confirmed she addressed issues appropriately. If Mr. Parker had any concern about the children, he felt he could contact the mother. He observed mother’s loving relationship with the children. He also testified that both parents were interested and involved with the children.
[103] Mr Parker did express some concerns about the children being late to class, or absent. He explained that he and the mother worked on strategies for getting the children to school on time, even if the mother were sick. He did say, however, that the children were mostly picked up on time, and attended school regularly. From Mr. Parker’s evidence I infer that while there were some issues around lateness and absences, he and the mother dealt with them. He confirmed that the mother dealt with issues appropriately.
[104] Father commenced this motion to change while the children were at Chartland. During the currency of the proceedings, the parties entered into a consent which changed the arrangements for pick up and drop off for father’s access. Instead of its being at mother’s home, her parents’ home, or a public place, pick up and drop offs were changed to the children’s school.
[105] Initially, the pickup was to be at 3:15, which is 5 minutes after the children are dismissed. The court order with these provisions caused confusion for the school, in terms of who was to pick up the children. Since dismissal was at 3:10, and pickup at 3:15, mother would be there at 3:10, and father at 3:15, resulting in conflict between them.
[106] Mr. Parker explained that he understood that mother wanted 5 minutes to say goodbye to the children and check their bags for notices and school things before they went for their weekend with the father. This is precisely what the mother testified. This is supported by the actual consent the parties signed. It shows the pickup time of 3:10 being changed to 3:15.
[107] Mr. Parker observed some of the exchanges during this “overlap” period. He said the children were not distressed, and seemed happy to see both parents. There was, however, continued disagreement and hostility between the parents. Ultimately, the order was changed so that father was to pick up the children at 3:10, and mother was not to be in attendance. I have heard nothing about any problems regarding pickups at school since this change occurred.
[108] The children left Chartland at the very beginning of the 2016-17 academic year. Mr. Parker confirmed that the children left his school because the mother had to move. She had explored with him whether there might be a way to keep the children at Chartland, even if she moved. Mr. Parker explained that each school has a 1.3 km. radius around it. If a child lives within the radius, he or she can attend the school. If the child lives outside the radius, it is not possible. Mr. Parker did confirm that finding a home in Chartland’s radius can pose challenges.
[109] Mr. Parker was disappointed when the children left Chartland. He said he had hoped to see them graduate from his school. Mr. Parker testified the school really liked the children, they were involved in activities at the school, and he viewed Chartland as a great place for them.
The Children’s Aid Society of Toronto
[110] The Children’s Aid Society of Toronto (CAS) has been involved with the family for some years. The primary focus of their involvement has been on parental conflict and its effect on the children. Iffeh Hazlett is the CAS worker who worked with the family until the children moved to York Region. Since then, Durham CAS is the society with jurisdiction over this family.
[111] Ms. Hazlett’s evidence was extremely helpful in understanding both the challenges the parents have faced, how they have tried to overcome them, and the continued dysfunctional dynamic between them.
[112] Ms. Hazlett explained that the CAS originally became involved with the family in December of 2014 as a result of a report from Macklin Public School, raising concerns about the children’s attendance at school, and the mother smelling of marijuana. A CAS intake worker conducted a preliminary investigation and concluded the family could use ongoing support. That support was Ms. Hazlett.
[113] Ms. Hazlett was involved with the family between February of 2015 until September of 2016, when the mother and children moved to Markham. Ms. Hazlett said the CAS’ concern arose out of the ongoing conflict between the adults and the resulting potential risk of emotional harm to the children.
[114] During the year and a half Ms. Hazlett was involved with the family, she visited the mother’s home about once a month. She also saw the children once in the father’s home and once at school, meeting with the children privately. Ms. Hazlett explained that the mother agreed to work with the Society on a voluntary basis, and thus their involvement was entirely voluntary, rather than court-ordered.
[115] Ms. Hazlett testified that the mother acknowledged using marijuana on a regular basis, about once or twice a day to assist with pain and health issues. Mother agreed to curtail her use only to times when she was not in a caregiving role to the children. Hair strand testing confirmed a significant reduction in mother’s use. Ms. Hazlett has no continued concerns about marijuana use.
[116] Ms. Hazlett described her relationship with the mother as honest and open. In particular, as far as marijuana was concerned, Ms. Hazlett found mother open about the issue. When she spoke to the mother’s family doctor and the pediatrician, they were both fully aware of mother’s marijuana use. Ms. Hazlett noted that the hair strand testing was not confined to marijuana alone. The test looks for a whole panel of 9 drugs. There was no indication of any other drug use at all.
[117] After resolving the marijuana issue, Ms. Hazlett’s focus became the potential emotional harm to the children resulting from the continued adult conflict. She also addressed the children’s absences and lates from school. Ms. Hazlett reported that by the end of June of 2016 there had been a significant improvement in the children’s attendance. The school had not called, and when she spoke to Mr. Parker, the principal, he would tell her while there had been some absences and lates, nothing was concerning.
[118] As I have said, Ms. Hazlett visited with mother every month. She observed mother with the children, and described a close attachment between them. She observed mother as being loving and kind with the children, attending to their needs, and cognizant of their needs. Ms. Hazlett noted that the mother always made sure they could speak privately, out of the children’s earshot. Ms. Hazlett described the children as kind, affectionate and polite. She said they are sweet children who always gave her a hug.
[119] When asked about the adult conflict, Ms. Hazlett described conflict when pick up and drop off were not at school. What she understood from both parents is that there would be verbal disagreements between them, the children would hear what was said, and see the tense body language between their parents. Ms. Hazlett said the children were aware that their parents did not like each other, and this put the children in an uncomfortable position.
[120] Ms. Hazlett also reported that she and the mother discussed strategies to deal with the ongoing issues of the children being late or absent from school. She did say, however, that once the mother had access to her partner Will’s car, things improved. Ms. Hazlett also met with Will once or twice. She confirmed that the mother spoke of Will as her greatest support, and being good with the children. When Ms. Hazlett met Will, she saw the children’s interactions with him were very comfortable. He was engaging and polite with the children. He tried to help with access exchanges. Ms. Hazlett viewed Will and Ginger as the ones to minimize conflict between the parents. I agree. Ginger’s evidence showed her to be a caring and loving parent and step-parent. She recognizes the loyalty bind the children are in – loving both parents and being hurt and confused by their parents’ ongoing conflict.
[121] Ms. Hazlett also observed the children in father’s home. She reported the children appeared to be happy and having fun. She said overall the children appeared to be fairly happy kids. They spoke to her about friends, weekend activities and school things – what Ms. Hazlett called “regular kid stuff”.
[122] Ms. Hazlett commented that father expressed concerns about the children to her and wanted her to obtain information about the children for him. Ms. Hazlett encouraged him to contact the school and children’s doctor directly instead. As I have said, father clearly had the ability to do this from the time of the final order in 2012. Before Ms. Hazlett’s recommendation he apparently never took any steps to obtain information about his children directly.
[123] Ms. Hazlett was also asked about parental alienation. She explained she had received complaints from both parents about this issue, but found nothing to confirm it. She did however caution both parents about making negative comments about the other, particularly since both children had spoken about overhearing conversations like this.
[124] In Ms. Hazlett’s view, the real ongoing concern is and has been parental conflict. As she explained, it is always better for children if their parents can get along and speak positively about each other. By the time mother was contemplating a move to Markham, Ms. Hazlett felt comfortable in closing the file, but agreed to stay involved with the family until the move was complete. She did so.
[125] Ms. Hazlett also offered some insight into the need for counselling for the children. She recommended the Families in Transition (FIT) programme for the children. She also recommended Aisling for both children, even though the waiting list is long. In addition, Ms. Hazlett recommended Kinark Child and Family Services as another counselling option for the children. Ms. Hazlett recognized that mother was not persuaded Maelyn needed counselling, but was also aware that father wanted counselling for her. Ms. Hazlett testified that although mother did not feel counselling was necessary, mother would reconsider it if the school strongly recommended it.
[126] As far as Ms. Hazlett understood, mother’s resistance to counselling was first, there was no strong recommendation for it from school, and the children’s behavior was fine when they were home. Second, mother was concerned that Maelyn would stand out if she were pulled out of class for counselling and might feel she was in trouble. Last, Ms. Hazlett had spoken with the children’s doctor who was exploring the issue of ADHD and would assess further if necessary. In all, Ms. Hazlett did not seem terribly concerned about Maelyn not pursuing a social work assist in school. In any case, as Mr. Parker explained, the role of the school social worker is quite limited. From all this I infer if counselling is necessary, it should be more focused on dealing with parental conflict and should take place outside of the school.
[127] Ms. Hazlett reiterated that the main concern for the children is parental conflict. Although it has reduced somewhat, things are still up in the air with no final decision regarding the children’s future. Ms. Hazlett was asked specifically whether a change in custody could change any of her concerns. Her response was an emphatic “No”. As she explained it, even if father were to have custody, and mother have access the parental conflict would continue. At one point Ms. Hazlett described the ongoing conflict as chaotic and stressful. She confirmed, however, that once pickups were at school, and there was no overlapping time with both parents, things seemed to settle down a bit.
[128] Ms. Hazlett’s evidence was particularly helpful because of the length of time she was involved with the family. A year and a half is a very long time in the lives of these two young children. Ms. Hazlett’s involvement with the mother was regular and continued throughout the period. She was in regular contact with the children’s schools. She contacted their doctor. She met with the father and Ginger. She also met with the children privately.
[129] Ms. Hazlett was also extremely forthcoming and balanced. She has a real sense of the parents and their new partners. She has a warm relationship with the children. Her observations and comments were very astute. Like everyone else, she has identified the real problem as parental conflict. I agree with her assessment that a change in custody will do nothing to solve that problem.
Father’s Accountant
[130] Mother called the father’s accountant, Mr. Terence Chan, as a witness. Mr. Chan provided the court with some information about the father’s business, and income. He explained that the financial statements he prepares for the business are what are called “Notice to Reader” statements. In statements like these, a chartered accountant expresses no opinion concerning the statements. They are simply compiled using information provided by the client. The accountant does not perform any review of the material provided, but simply compiles it into the statement.
[131] Mr. Chan explained that the salaries shown in the financial statement were paid only to the father and Ginger, but not until the fiscal year end. The total salaries of about $50,000 were split between father and Ginger. Given the nature of his retainer, Mr. Chan would not have offered any advice on how the salaries were to be divided.
[132] This concludes my review of the evidence. I turn now to the legal framework on a motion to change and a more detailed discussion of the evidence within that legal framework.
The Legal Framework and Discussion of the Evidence
[133] This is a motion to change a final, consent order for custody. I begin, as I must, with the order itself, and assume it was correct having regard to the circumstances in existence at the time it was made. I must determine if there has been a material change in circumstances since then that would warrant a different order being made now.
[134] When I consider the original order, I also take into account the changes the parties themselves have made to the order. In that context, it is helpful to set out the current arrangement in place for the children. The current arrangements are a combination of the original order and the changes the parties have made to it since then. It is important to remember both the original order and the subsequent changes have all been made on consent. The current arrangements, as changed, provide generally as follows:
a) Mother has custody of the children;
b) Father now sees the children alternate weekends from Thursdays, after school, until Monday mornings, returning to school;
c) Holidays and special occasions like birthdays and mother’s day and father’s day are generally shared equally;
d) Father has bi-weekly telephone access with the children. He provides a pre-paid cell phone for that purpose;
e) The parties are to use Our Family Wizard for communication about important issues concerning the children.
[135] The father as the moving party seeking to change the final order, bears the burden to show material changes have occurred sufficient to result in a change to the original order.
[136] Although neither party referred the court to any case law, the seminal case on the issue of material change in circumstances relating to custody and access is Gordon v. Goertz. From that case, the following principles emerge.
[137] First, a material change in circumstances in relation to custody or access is one which: (1) amounts to 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) materially affects the child; and, (3) was either not foreseen or could not have been reasonably contemplated by the judge making the original order.
[138] Second, change alone is not enough. The change must have altered the child's needs or ability of the parents to meet the child's needs in a fundamental way.
[139] Third, the change should represent a distinct departure from what the courts could have reasonably anticipated in making the previous order.
[140] As I have said, I must assume Justice Scott’s order was correct, and must only consider changes in circumstances since the order was issued. In order to examine whether there has been a material change, the court must look at the circumstances which prevailed at the time of the original order, namely the circumstances meaningfully proximate to, and prior to, the date of the order. As the Supreme Court put it in Gordon v Goertz, "The question is whether the previous order might have been different had the circumstances now existing have prevailed earlier.”
[141] So what specifically are the material changes father relies on? As I understand it, his concerns are framed around the children’s numerous absences and lates from school, and mother’s differing views from his on whether Maelyn requires counselling and whether Maelyn has been properly diagnosed with ADHD. He also suggests mother’s marijuana use is a changed circumstances requiring a change in custody. Last, he suggests that because mother has moved the children’s home and schools on a number of occasions she is unable to provide the stability the children need.
[142] For her part, mother says nothing has changed that would warrant any further changes to the current arrangements, other than those the parties have already agreed to.
The Children’s Absences and Lates
[143] There is no question there have been issues with the children often being absent from school, or being marked as “late”, particularly Maelyn. The mother attributes the children’s absences from school both to some of the children’s illnesses and to her own. She says illness has resulted in part from the fact the she could not afford anything other than basement apartments while she and the children lived in Scarborough. She says they were damp and mouldy, resulting in frequent illness. As a single parent, she found it nearly impossible to get the children to school if she were ill, or it one of the children were ill. With no one to either take the children to school when she was sick, or no one to leave a sick child with so she could take the other child to school, frequent absences resulted. She is working on strategies to solve this issue. In this regard, she has worked both with Mr. Parker, when the children were at Chartland, and with Ms. Hazlett, when Toronto CAS was providing services to the family. Having access to her boyfriend Will’s car has also helped her to address the issue.
[144] As for frequent lates, I am satisfied they result in large part from Maelyn’s high distractibility and frequent lack of focus. She is a social child who loves to chat, and tries to make sure her little brother gets to his classroom. As I have said, Maelyn has been late far more often than her brother, even though they are both dropped at school at the same time. As the mother put it, it is Maelyn who is late. Maelyn will simply have to learn how to get into her classroom on time. I am satisfied that one of the main reasons for Maelyn’s being late is her own personality, rather than any failure on the mother’s part. In fact, it may be that Maelyn’s ADHD is a significant contributing factor to her being late. Once she is treated, the issue may resolve itself.
[145] I am not persuaded the children’s absences from school or lates are a material change in circumstances that would warrant a change in custody. The evidence of the children’s teachers and former principal supports my conclusion. While they all recognized a significant number of absences and lates, they have not viewed the issue as warranting more than the usual reminder notes home to the parents.
[146] Also, when the original order was made, neither child was yet in school. Father was paying very little child support, and mother was struggling as a single parent. I accept mother’s evidence that in the kindergarten years, attendance is not mandatory, so she was less concerned about the children being late or absent. I also accept the mother’s evidence concerning her difficulties in managing to get the children to school when either she was sick, or one of the children was ill. It was certainly foreseeable that when the children began school these challenges could well present themselves. This is not a material change as contemplated by Gordon v Goertz.
[147] I turn then to consider the father’s assertions that mother has failed to address the children’s need for counselling or a social work assist at school.
The Need for Counselling or Social Work Services
[148] The parents have had some disagreement about counselling and whether Maelyn has ADHD. The mother has been instrumental in arranging for ADHD testing for Maelyn, while father has been pushing for counselling. Maelyn’s school has also recommended a social work assist for Maelyn, but the timing of the recommendation has resulted in delays. Similarly, although Maelyn’s doctor made the referral for ADHD testing last spring, the specialist did not deliver his report until October. Usually, when a report like this is received, the principal immediately sends it to the school psychologist for further investigation and recommendation. Again, there were delays. Ms. Kocev explained that the principal is new to the job, and did not seem to realize that the report should have been forwarded right away. The delay in that occurring means that Maelyn’s IPRC and ultimate IEP have been delayed. I do not see any of this as a material change in circumstances as contemplated by Gordon v Goertz. I am confident that the appropriate steps will be taken and Maelyn will receive the necessary resources she needs.
[149] As to whether Maelyn needs a social work assist at school, the evidence was equivocal. The focus of a school social worker is quite limited in scope. It may be Maelyn would do better with outside assistance. This would address mother’s concern that Maelyn not be “centred out” in the classroom by being removed from it to see a social worker.
[150] There has been some ongoing discussion about obtaining outside social work assistance for the children. Families in Transition, Aisling, and Kinark have all been suggested or recommended. The parties also considered a programme at the Hospital for Sick Children. Sadly, and contrary to their children’s interests, they have been unable to come to any agreement about what services might be best for the children.
[151] For example, for her part, the mother feels that art therapy is the kind of service that would benefit Maelyn the most. Father seems to feel talking therapy would be best. The parents’ disagreement or philosophical difference means that no service has been provided. They must therefore follow the recommendations of the children’s school or doctors. Requiring them to do so will serve the children’s best interests. No change in custody, however, is required to do so.
Changes in Homes and Schools
[152] It is true the mother has frequently changed both homes and schools for the children. For example, the children were doing well at Chartland Public School. The mother was living in accommodation within the school’s district. When mother’s landlord advised her he would have to sell his house in which she rented an apartment, the mother looked for other accommodation that would keep the children within the school’s catchment area. The mother also explored with Mr. Parker whether the children could remain at Chartland even if she were outside of district.
[153] At one point, the landlord told the mother he was trying to find a way to keep his house. The mother hoped this would be the case and she could therefore avoid a move for the children.
[154] Because things were somewhat up in the air, mother did not advise the father about a potential move until it was a firm necessity. The father complains he was informed only at the last minute about the move, supporting his position that mother is impulsive and erratic when it comes to the children.
[155] I disagree. The mother tried her best to keep the children in Chartland public school, but could simply not afford accommodation that would keep them within the school’s catchment area. Chartland’s principal, Mr. Parker, confirmed that mother consulted with him about whether it would be possible for the children to continue at Chartland even if they were out of district. Sadly, it was not.
[156] Mother’s financial circumstances have also been a driving force behind her frequent moves of both housing and schools for the children. Mother points to the fact that father pays only $369 in monthly table support for the children. She survives on Ontario Works and the child tax benefit. Her income is meagre. Given the ages of the children she has found it difficult to be able to retrain or find employment. She was planning to train as a massage therapist, but found the stresses of this litigation made it impossible for her to focus on both school and the proceedings. Rather than do poorly academically, she withdrew from the programme.
[157] Mother testified that when she and father had several family dinners in late 2014 with their new partners and the children, one of the topics of conversation was her moving into North York, closer to where father and Ginger live, and the children attending school there. Mother was looking for father to subsidize her rent so this could be accomplished. The parties failed to reach agreement on this issue. As a result, the children have had to move schools on a number of occasions.
[158] One of those occasions, which father points to as bad parenting on mother’s part, is the short period when the children were enrolled at Cameron Public School, in the father’s neighbourhood. This occurred while the mother was in California to deal with an urgent family situation – her grandfather’s heart attack. She asked the father to care for the children. As the mother explained it (and I believe her), the father said he would be unable to take the children to their school in mother’s area while the children were living with him. Therefore, the children were enrolled in father’s local school for the period they lived with father. On mother’s return from California the children returned to live with her. The circumstances of their return could have been handled better. Mother keeping the children and reverting to strict compliance with the order, coupled with father’s stated intention to seek sole custody of the children acted as a catalyst for the downward spiral into which the parents’ relationship was sucked. Battle lines were drawn. Discussion ended. Conflict accelerated. Mutual mistrust exploded. Both parties are at fault.
[159] In this overall context, however, I do not view the changes in schools for the children a material change in circumstances that would warrant a change in custody.
Mother’s Marijuana Use
[160] Father also suggests that mother’s marijuana use is a reason to change custody. The mother has been extremely candid about her marijuana use. She has used the drug to deal with chronic pain and fatigue, with some success. Her treating physicians as well as the CAS worker have been well aware of this. School officials smelled marijuana on the mother, were concerned, and reported their concerns to the CAS. This marked the beginning of CAS involvement with this family.
[161] When the CAS worker suggested to the mother that she restrict her use of the drug to times when the children were not under her care, the mother readily complied. Hair strand testing conducted at the request of the CAS showed diminished use. I have no ongoing concern about this issue, nor does the CAS. Mother’s marijuana use, now significantly diminished, is not a material change in circumstances warranting a change in custody.
Other Issues
[162] The parties have agreed on some changes to the original order themselves, and have put these changes into place. These include having father’s pick up and drop offs occur at the children’s school, with the proviso that mother not be at the school when pickups or drop offs occur. This has reduced the conflict between the parents to some degree.
[163] There have been some issues around the use of Our Family Wizard. The parties consented to an order in May of last whereby they would use Our Family Wizard as a way to communicate important issues about the children, exchange information and make any necessary changes to the schedule. Unfortunately, the parents use Our Family Wizard in quite different ways.
[164] Father often posts on Our Family Wizard. Mother says she only checks Our Family Wizard every three days or so. She says to do so more often makes her feel threatened and controlled by the father. While I have no doubt she feels that way, her reaction is not in the children’s best interests. The whole point of Our Family Wizard is to facilitate quick and efficient communication about the children. If mother only logs on every three days or so, this simply exacerbates father’s frustration, causing him to post more and more messages, in the hopes of eliciting a response. Lack of response escalates father’s messaging, and feeds into mother’s feelings of being bombarded of harassed. Both parents’ behaviors, while understandable, are contrary to both the purpose of Our Family Wizard and the children’s best interests. Use of Our Family Wizard must be subject to more particular rules. I will outline them in my conclusions, below.
[165] Telephone access continues to be a problem. Ever since the 2012 order, father was to have regular telephone access to the children. Mother had difficulties facilitating telephone access in part because she found seeing father’s identity on her call display acted as a “trigger” regarding their former volatile relationship. During the course of this litigation the parties consented to a change to the initial order whereby father provided a pre-paid cell phone for the children. This phone was to be used only for father’s calls to the children.
[166] Father asserts the problems continue. He says when he calls, the phone is not answered. For her part, mother says sometimes she forgets the phone, or it is not charged. She says, however, that the children always call back, and rarely do they miss actually speaking to their father. She takes the position father’s rigidity about timing creates some of the problems. Both parties, of course, are right. Their behaviour around the use of the phone, and telephone access is yet another indicator of their continued conflict. Father is rigid and persistent. Mother’s response is to be somewhat passive aggressive. All of this leads to parental conflict, as opposed to child-focused behavior.
[167] As with Our Family Wizard, I will set out some additional provisions regarding telephone access in my conclusions, below.
Continued Parental Conflict
[168] The real issue is the continued conflict between the parents. Parental conflict is the underlying cause of most of the difficulties in this case. This was the view of Ginger, Mr. Parker, the OCL and the CAS. Parental conflict is nothing new in this family. It does not represent a material change; instead, it is simply a continuation of the historically toxic relationship between these parents. They had a window of opportunity to improve things when they had dinners in late 2014. The cordiality they were developing abruptly ended with the confusion over how long the children would stay with the father, mother’s decision to revert to the original order, and father’s commencement of these proceedings, claiming sole custody.
[169] Father’s threat to seek custody made mother feel betrayed and violated, resulting in a complete regression in the parties’ ability to relate to or communicate effectively with one another. It is really up to the parents to resolve their conflict and learn methods of dealing with one another cordially and respectfully. They do not have to like each other. They do not have to be friends. They do, however, have to learn how to say “hello, how are you?” and mean it. Only then can conflict begin to dissipate and their children observe respect between the two most important people in their lives.
[170] I agree with Ms. Hazlett’s evidence that a change in custody will do nothing to alleviate the parental conflict. I also have some lingering concerns about some of the father’s history. He has a criminal conviction regarding firearm possession. Although he denies assaulting the mother when she was pregnant with Nathen, he relies solely on his acquittal on those assault charges to support his contention he never assaulted the mother.
[171] Letitia’s evidence was very compelling. I have no doubt she witnessed instances of domestic violence from father directed at mother. These instances were never the subject of criminal charges. Quite apart from physical violence, I am more concerned about a history of father’s angry outbursts and lack of control. The incident with the breast pump is an alarming example. Although it happened many years ago, the incident is an example of uncontrolled anger. Father’s forcing Maelyn to eat faster, resulting in her feeling choked, is an indicator of somewhat angry and controlling behaviour with his daughter.
[172] Father testified he has undergone anger management counselling, as recommended by the OCL. The counselling apparently consisted of three one-hour sessions with the counsellor, together with some “homework”, that seems to have taken father no more than about three hours to complete. The counsellor provided a letter outlining his interactions with the father. In it he notes that the OCL’s recommendation for anger management counselling was made in April of 2016. The father only engaged in counselling a year later. His three sessions occurred in January, February and March of this year – just before the trial.
[173] I would have put more stock in the anger management counselling had it occurred earlier, more frequently, and was not almost completely reliant on the father’s self-reporting to the counsellor. I am also troubled that the counsellor offered the following opinion:
Given what he reported about the current situation and his plans for the future I think that Alex becoming the primary parent would allow the children their best option in terms of their current and future needs being met.
[174] The counsellor has absolutely no expertise in the issue of the children’s needs. For him to offer such an opinion falls completely outside the realm of his providing anger management counselling. I can give no weight to anything in his report as a result. I am therefore not persuaded that the counselling has properly addressed the father’s issues with anger, nor can I conclude the counselling was sufficient to address the deep anger and animosity the father bears toward the mother.
[175] Similarly, the mother seems unable to get past incidents that occurred 7 years ago. Her inability to do so interferes with what is in the children’s best interests. For example, her refusal to answer the telephone when father’s number appears on call display because it upsets her is an indication of her putting her own needs ahead of the children’s. Her checking Our Family Wizard only every three or four days simply exacerbates conflict. It meets her need of reducing her contact with father; however, it increases father’s frustration, results in his sending more messages, and limits meaningful communication about the children. I understand the mother continues to see her therapist. I hope she will continue to do so in order to overcome these obstacles she faces.
[176] I have some other concerns about father’s proposed change to custody. Father and his wife have a new baby on the way. The baby is expected in September, right around the time the father proposes the children would come to live with them in North York. It is then the household will be facing the added stresses that an infant brings to a household, the impact that has on the older sibling Kaelyn, who already lives in the home, and the new dynamic of two older siblings trying to integrate into the home and a new school, all at the same time.
[177] As I have said, Ginger is expecting in September. Her plan is to take the fall semester off from her studies, and return to George Brown in the January term. She quite sensibly said her decision would depend in large part on the baby’s needs. That being said, assuming she returns to school as planned, the baby would be only four months old. Father works evenings a lot of the time and is at work in the mornings. Ginger helps in the business and does all the bookkeeping. All these increased demands may have an impact on the children, were they to live primarily with the father. This is a change in circumstances that militates against a change in custody.
[178] Mother has now moved to Markham, where she is finally able to afford an apartment that is not in a damp, mouldy basement. The children are settled in Randall Public School. Their teachers are pleased with their progress. Ms. Kocev describes Maelyn as one of her brightest and best students. While she noted Maelyn becoming somewhat more withdrawn over December and after, I have no doubt the stresses her parents experienced as a result of the impeding trial have had a ripple effect on her. Her close friend moving away around the same time also made Maelyn very sad. Maelyn has been assessed for ADHD, and the IPRC is likely to lead to an Individual Education Plan for her. A change in schools to father’s neighbourhood would be contrary to her interests.
[179] I therefore conclude there has been no material change in circumstances that would warrant a change in custody, although I will make certain orders relating to counselling for the children, (and by implication, the parents) to assist them in dealing with the particular challenges they face as a separated family. Maelyn, in particular, has expressed a longing for her parents to reunite. There is no question she and her brother love both of their parents. It is telling that Maelyn has expressed bewilderment about why her parents can’t say hello to one another. I said the same thing to the parents at the conclusion of this trial. I asked the parents if they had said hello to one another at the beginning of the trial, or at any time during its five days. They had not. Their failure to extend even the same rudimentary courtesy as they would extend to a stranger in a coffee shop is a sad indicator of their continued conflict. If their children are to have any hope of forming lasting and healthy relationships themselves, the parents must take steps to deal with their hostility to one another and begin to model a cordial and respectful relationship to their children.
[180] The children, as well, would benefit from a professional programme to assist them in dealing with the continued challenges they face as children of separated and re-partnered parents. The programme Families in Transition (FIT) offered by Family Service Toronto has been recommended repeatedly to this family. The children would benefit, particularly Maelyn. As I have said, she has wisely questioned why her parents are unable to say hello to each other. The parents are the most important people in the world to these children. The parents’ palpable hostility to one another is clearly detrimental to their children. The power struggle between the parents has stood in the way of their making important decisions about Maelyn’s needs – both for ADHD testing, and for some social work supports in school.
[181] Maelyn has expressed delight on the few occasions when the parents have been cordial with one another, for example, on the couple of occasions in December of 2014 when they all had a meal together. The deterioration of this cordiality has had a negative effect on the children. In order to assist the children in dealing with their parents’ separation and conflict, I will require the children to attend Families in Transition in Toronto, or another similar programme offered in York Region. If the parents’ participation is required in order for the children to attend, then they shall do so.
[182] Nothing, however, has changed that would warrant a change in the current custody and access arrangements, as amended on consent since the start of this proceeding. The provisions of the order, as amended, meet the needs and best interests of the children adequately, with the proviso concerning the FIT programme I have set out above. Given the fact Maelyn has been diagnosed with ADHD, and given the fact that an Individual Education Plan should be developed for her, it is critical the parents follow the recommendations the school makes. It is also critical the parents ensure that the school implements Maelyn’s IEP once it is developed. All that being said, however, the father’s motion to change custody must be dismissed.
[183] I turn now to the mother’s request for increased child support, both retroactively and prospectively.
Child Support
[184] Mother seeks a retroactive adjustment to child support. She also seeks an increase in ongoing child support. The original child support order of 2012 was based on father’s income being imputed at $24,700, or roughly minimum wage. On the evidence at trial, father’s income for child support is about $49,831 and has been since the beginning of 2016. This includes both the salaries paid to him and Ginger in 2016. Since father is the sole owner of his business, he is in a position to split income with his wife in a fashion that is beneficial to their family. Father’s accountant testified that no salaries were actually paid during the year, but the figure simply paid at the end of the year, and split in this way. Father does not object to child support being based on this level of income.
[185] It is therefore reasonable to use the $49,831 figure as father’s current income for child support. This was his income in 2016, and therefore, since January 1, 2016 the father should have been paying $740 per month in child support. There is therefore a retroactive shortfall of $371/month for the 17 months from January 1, 2016 to and including May 31, 2017. Arrears of child support for this period are therefore fixed at $6,307.
[186] Father’s 2015 Notice of Assessment shows his line 150 income as $30,000. For 2015, therefore, he should have been paying $438 per month in table support. Since he only paid $369/month in 2015 there is a shortfall of $69 per month for a total of $828 in arrears for 2015.
[187] Retroactive child support arrears from January 1, 2015 to and including May 31, 2017 are fixed at $7,135, to be paid within 60 days. From June 1, 2017 onward father shall pay $740/month in table support for the two children, based on his income of $49,831.
Conclusion
[188] For all these reasons, the father’s motion to change custody and access is dismissed. Therefore, the order of Scott J of 2012, as modified by the consent orders since the commencement of these proceedings shall continue in full force and effect, subject only to modification concerning the FIT programme for the children. For clarity, the amalgamated order which shall continue is as follows:
a) Custody: Mother shall have custody of the children;
b) Regular Access (father’s access weekends): Father shall have access to the children in alternate weeks from Thursday, after school, until Monday morning, returning to school. These are defined as “father’s access weekends” for the purpose of this order. During the school year, pick up and drop offs will be from and to the children’s school. The mother shall not be in attendance at school during these times. During summer vacation and any other time when the children are not regularly in school, father shall pick up and drop off the children for father’s access weekends at the mother’s home;
c) Long weekends during the school year (Labour Day, Thanksgiving, Family Day, Easter, Victoria Day): The regular access schedule will continue through any long weekend which occurs during the school year. If the children are with the father for any of the above noted long weekends, father shall return the children to school on the Tuesday morning;
d) Halloween: If Halloween falls on a weekday (other than on father’s access weekend) in an even numbered year the children will spend Halloween with the father. He shall pick them up from school and return them to school the following morning. If Halloween falls on a weekday (other than on father’s access weekend) in an odd numbered year, the children will spend Halloween with the mother. If Halloween falls during a weekend, the usual access schedule shall prevail and the children will spend Halloween with the parent with whom they are scheduled to spend the weekend;
e) The children’s birthdays: The father shall continue to have access to the children on their birthdays in odd numbered years. The mother shall have the children on their birthdays in even numbered years;
f) Christmas and Chinese New Years: The children shall reside with each parent for one half of the Christmas break. In odd numbered years the children will reside with the father for the first half of the break and with the mother for the last half of the break. In even numbered years, the schedule will alternate. The children shall also alternate having Christmas eve and Christmas morning with one parent in odd numbered years and with the other in even numbered years. Commencing in December of 2017 and in odd-numbered years thereafter, the father shall have the children in his care for Christmas Eve and Christmas day until 4:00 p.m. In even numbered years, the mother shall have the children in her care for this period. The children shall spend half of Chinese New Year’s with each parent;
g) March Break: For March break each year, the parent having the children for the weekend at the beginning of the break shall have the children remain with him or her until 2:00 p.m. on the Wednesday of the break. The children will then spend from 2:00 p.m. on Wednesday of the break until the following Monday morning (return to school) with the other parent;
h) Mother’s Day and Father’s Day: Regardless of the regular schedule, the children will always spend mother’s day with the mother, and on father’s day with the father. If mother’s day falls on the father’s regular weekend, father shall return the children to the mother’s care by 11:00 a.m. on the Sunday morning of mother’s day and the mother shall return the children to father’s care by 7:00 p.m. on mother’s day. The children will then remain in the mother’s care for the balance of the weekend. If father’s day falls on the mother’s regular weekend, she shall return the children to the father’s care by 11:00 a.m. on the Sunday morning of father’s day, and father shall return the children to mother’s care by 7:00 p.m. on the Sunday evening of father’s day;
i) Telephone access: Each parent shall have regular telephone access to the children on the Sundays the children are not in their care. Telephone access shall occur between 7:00 p.m. and 7:30 p.m. Each parent shall ensure the children are available to speak to the other parent. Father shall call the children on the prepaid telephone he has provided for the children. He shall continue to provide it for them. Mother shall call the children on either the father’s cell phone or his wife’s cell phone. Telephone access shall continue during the summer holiday schedule set out below. The children are free to call either parent whenever they wish. The father shall also have telephone access with the children on the Wednesday of the weeks he does not have the children for the upcoming weekend. He shall call the children between 7:00 p.m. and 7:30 p.m. on the prepaid telephone he has provided for this purpose. The children shall be available to receive the telephone call. The mother shall ensure that the telephone is fully charged, and switched on during the periods the father is entitled to telephone the children;
j) Summer holidays: The children shall reside with each parent for one half of the summer holidays. Each parent shall have the children for an equal number of days, but the children shall not spend more than three consecutive weeks with either parent. The parents shall agree on the division of the summer holidays by March 15 each year. If they have not, father may choose his weeks/time in odd numbered years, and mother may choose her weeks/time in even numbered years. In either case, the summer schedule shall be set no later than April 15 each year. Each parent is free to arrange activities for the children during the summer period the children reside with him or her. If the parties have not already agreed on arrangements for the summer of 2017, the summer schedule shall be as follows, subject to any changes the parties agree on:
i) The children shall reside with the mother the weeks of July 3, 10 and 17, 2017. If the weekend of June 30 is the father’s weekend, the children’s time with the mother will begin at 9:00 a.m. on July 3. Otherwise, it will begin on Friday June 30;
ii) The children shall reside with the father the weeks of July 24, 31 and August 7, 2017;
iii) The children shall reside with the mother from August 14 to August 23, 2017;
iv) The children shall reside with the father from August 24 to noon on September 1, 2017;
v) The children shall reside with the mother on Labour Day weekend from noon on September 1 until they return to school.
k) The father’s alternating weekends with the children shall begin from after school on Thursday, September 7, 2017. The regular schedule will continue after that;
l) Our Family Wizard: The parties shall continue to use Our Family Wizard to communicate about important issues relating to the children, as set out in the consent order of Moore J dated May 25, 2016. “Important issues” include, but are not limited to: changes to the regular schedule, health and medical issues including doctor and dentist appointments, school issues that have not been communicated to both parents by the children’s schools. Each parent shall check Our Family Wizard on one occasion per day. If there is a message from the other parent, the receiving parent shall respond to it no more than 24 hours after reading the message(s);
m) Access to information and related matters: Both parents shall continue to have access to information directly from the children’s schools and health care providers. The mother shall advise the father immediately of any changes to the above. Both parents are entitled to attend all school functions or extracurricular activities. They shall keep their distance from one another. Both parents may attend parent/teacher interviews separately from one another. Both parties shall provide each other with at least 10 days’ notice of any change of address;
n) Medical emergencies: Both parents shall immediately advise the other of any medical emergency involving the children, including all relevant details concerning the emergency;
o) Families in Transition: The children shall forthwith attend Families in Transition (FIT) in Toronto or similar program in York Region. It shall be at the mother’s discretion which program to enrol the children in. She must, however, enrol or register the children on any waiting list for participation within 30 days of the release of this judgment. If the mother fails to do so, then father shall have the exclusive right and obligation to register the children instead. Each parent will ensure the children fully participate in the FIT program/equivalent. If it is necessary for the parents to participate as well in order for the children to participate, then both parents shall be obliged to participate in order to ensure the children’s continued participation;
p) Recommendations from the children’s schools: The parents shall follow any recommendations from the children’s schools regarding social work assistance or other assistance in the classroom. Once Maelyn’s Individual Education Plan has been completed, both parents shall ensure that the recommendations in the plan are followed.
[189] Mother’s motion to retroactively and prospectively adjust child support is granted in the following terms:
a) Child support arrears from January 1, 2015 to and including May 31, 2017 are fixed at $7,135. Father shall pay these arrears within 60 days;
b) Commencing June 1, 2017 father shall pay child support of $740/month based on his 2016 income of $49,831;
c) A Support Deduction Order shall issue.
[190] If the parties are unable to agree on the issue of costs of the trial, they may make brief written submissions to me. The father’s will be delivered within 3 weeks of the date of this judgment. The mother’s will be delivered within 2 weeks of receiving the father’s submissions. The submissions will be no more than 3 pages in length, double spaced. They will include, as addenda, any offers to settle that might bear on the issue of costs, and a costs outline for any lawyer who provided legal services, including the lawyer’s year of call and actual billing rate to his or her client.
MESBUR J
Released: 20170530