CITATION: Campbell v. Campbell, 2017 ONSC 3787

COURT FILE NO.: FD 1787/13

DATE: 2017/07/19

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

Adam Edward Campbell

Peter D. Eberlie, for the Applicant

Applicant

• and -

Katie Campbell (Wentzell)

On her own

Respondent

HEARD: June 13, 14, 15, 16, 17, 20, 21, 22, 23, September 13, 14, 15, 19, 20, 21, 22, 26, 27, 28, and 29, 2016. Written closing arguments last submitted on December 19, 2016.

McSORLEY J.

Introduction:

[1] The matter before the court involved an application brought by the applicant father, Adam Campbell in December 2013, seeking a divorce; joint custody of one child of the marriage, Chloe Elise Campbell born June 25, 2013, access to the child; prohibition against changing the child’s name; sale of the matrimonial home; occupation rent from the respondent; delivery of personal possessions; a declaration that the cohabitation agreement dated May 4, 2009 was valid and enforceable; and costs.

[2] In her answer, the respondent mother Ms. Wentzell[^1]sought a divorce; custody of the child of the marriage; spousal support; indexing of spousal support; child support (Table amount); child support other than Table amount; equalization of the net family property; exclusive possession of the matrimonial home and contents; freezing of assets; access provisions; life insurance coverage; health insurance coverage; a declaration setting aside the May 4, 2009 cohabitation agreement; a declaration setting aside the mortgage registered on the matrimonial home; and costs.

Background:

[3] The applicant and respondent were first married on December 6, 2009 in London Ontario in a short private ceremony where no guests were present. That ceremony was followed by a second ceremony in Aruba, on January 8, 2010, with family members present.

[4] Prior to marriage, the parties entered into a Cohabitation Agreement, dated May 4, 2009. The agreement was filed at Tab 18 of Exhibit #9. The agreement set out that each of the parties had made complete and reasonably accurate disclosure to the other of his or her respective significant assets, debts and liabilities existing as of the date of the agreement and included them in attached Schedules.

[5] The parties separated in October 2013. Following the separation, the parties agreed that the child would remain in the mother’s care in the matrimonial home and agreed to a schedule for access by the applicant father.

[6] During the period of separation, the trial and following the trial, the parties have continued to argue about parenting time with Chloe and about all issues related to Chloe. There are at least 15 volumes of continuing record and motions continued to be brought after the trial was concluded to deal with the issue of parenting time.

[7] Following three very extensive trial management conferences, Justice Templeton made an endorsement stating that the parties are to be prepared and ready to argue the following issues at trial:

a) Custody of the child Chloe Elise Campbell born June 25, 2013, and

b) Frequency and nature of access by either parent to the said child and incidents thereto including but not limited to location and persons involved in the exchange, removal of the child from the country during access, communication with the child during access; and

c) Method and frequency of communication between the parties regarding the said child; and

d) Rights and obligations of the custodial and access parents regarding the said child (i.e. attendance at school functions and extra-curricular activities; attendance at third party appointments involving the child; disclosure of information concerning the child including the identity of any and all caregivers etc.; and

e) The quantum payable for monthly child support and s. 7 expenses; and

f) Disclosure of financial information and receipts on an annual basis to fix the quantum payable for ongoing child support and s. 7 expenses; and

g) The weights to be given to the report by Morrison Reid regarding the child and the recommendations contained therein, and

h) Occupation rent payable by the respondent mother from October 2013 to August 2015; and

i) Overpayment of spousal support by the applicant father; and

j) Enforcement of costs orders made against the respondent mother in the amount of $60,445 to date; and

k) The validity and enforceability of the Cohabitation Agreement dated May 4, 2009 regarding property and spousal support; and

l) If the above-noted agreement is set aside:

• Equalization of the net family property of the parties and spousal support;

• Fixing the incomes of the parties including but not limited to the skills and employability of the respondent mother; the imputation of income to the respondent mother, and,

m) Costs of the trial and the proceeding.

[8] The mother was to also produce all receipts for s. 7 expenses prior to June 6, 2016; each party was to serve an up-to-date financial statement with his/her income tax return and notice of assessment for the year 2015 and a net family property statement; a copy of the final order each was seeking; and the father was granted permission to bring an interim motion at the commencement of trial to deal with summer access, the Toyota vehicle and reduction of child support.

[9] At the commencement of trial, the respondent mother advised the court and applicant that she was not seeking to set aside the cohabitation agreement, nor was she seeking to set aside the mortgage registered in Mr. Campbell’s name alone on the matrimonial home, or seeking spousal support. Later during the trial, when the respondent sought a division of the contents of the matrimonial home and the cottage in which she and the applicant lived, it became apparent that although contents were purchased during the marriage, she was unable to produce any evidence that she had directly contributed to the purchase. At that point, the issue of contents was also abandoned.

[10] Effectively, the trial dealt with only the following issues: custody/parenting time with Chloe; child support; s. 7 contributions; the applicant’s income; occupation rent claimed by the applicant from October 2013 to August 2015, reimbursement for the cost of the Toyota lease and the cell phone provided to Ms. Wentzell, overpayment of spousal support and costs. The majority of the evidence during the trial dealt with the issue of custody/parenting time.

Issue 1: What Custody/parenting time order should be made in the child’s best interests?

[11] The most pressing issue raised by both parents during this trial and in subsequent motions, relates to the custody of and parenting time with the child Chloe Elise Campbell, born June 25, 2013. The father’s original position was that there should be a joint custody order with equal parenting time; or that there be no order for custody because such an order would empower one parent over the other. The mother’s position was that there should be a sole custody order in her favour with access to the father as suggested in the Assessment report commissioned by the parents and completed by Morrison Reid.

The Law

[12] Section 16 of the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.) c.3 [as am. by S.C., 1997, c. 1], deals with the issue of custody. Pursuant to s. 16(1) a court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage. Subsection 4 provides that the court may make an order for custody and access to any one or more persons (joint custody). Subsection 6 allows the court to impose conditions or restrictions related to custody and access as it sees fit. Subsection 8 notes that the court is to only take into consideration the best interests of the child as determined by the conditions, means, needs and other circumstances of the child. Subsection 10 provides that the court shall give effect to the principle that the child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person with whom custody is sought to facilitate such contact.

[13] As noted by Vogelsang J. in Basley v. Basley, 2016 ONSC 5877, the Divorce Act does not spell out a lengthy list of other factors for the court to consider in assessing the best interests of the child. “The flexible and imprecise nature of the best interests test set out in the Divorce Act renders a measure of indeterminacy inevitable, but recognizes the paramountcy of the child’s needs and interests over the interests of expediency and predictability.” However, it is wide practice that courts across the country have used the provincial legislation criteria as guides in deciding cases under the Divorce Act. [T. (K.A.) v. T. (J.) 1989 8818 (ON SC), 1989, 23 R.F.L. (3d) 214 (Ont. U.F.C.); V. (K.C.W.) v. P. (K.L.), 2010 NBCA 70 (N.B.CA).

[14] The relevant criteria is set out in the Children’s Law Reform Act, R.S.O. 1990, c.C-12, as amended.

[15] Section 24 sets out the following:

Merits of application for custody or access:

24. (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3(1).

Best interests of the child:

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

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

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

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

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

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

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

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

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

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

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

h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3(1); 2009, c. 11, s. 10.

Past Conduct

(3) A person’s past conduct shall be considered only,

a) in accordance with subsection (4); or

b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3(1).

Violence and abuse

(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

a) his or her spouse;

b) a parent of the child to whom the application relates;

c) a member of the person’s household; or

d) any child. 2006, c. 1, s. 3(1).

[16] In addition to the statutory criteria, both parties filed case law to support their positions. Mr. Campbell’s case law supported the view that there should be no custody order in high conflict cases, but rather the court should create a parallel parenting order, and Ms. Wentzell’s case law supported the view that there should be a sole custody order in high conflict cases.

Mr. Campbell’s Book of Authorities:

[17] In M. v. F., 2015 ONCA 277, 2015 CarswellOnt 5630, [2015] W.D.F.L. 2005, [2015] W.D.F.L. 2016, [2015] O.J. No. 2048, 253 A.C.W.S. (3d) 134, 334 O.A.C. 352, 58 R.F.L. (7th) 1, the appellant mother appealed a trial decision that provided the father with overnight access to a child who was six at the time of the appeal. Another issue on appeal, which Mr. Campbell submits is directly applicable to this case, was that the appellant mother argued that the trial judge was required to make an order for custody and that his failure to do so constituted an error of law.

[18] The case before the Appeal Court was argued under the Children’s Law Reform Act, R.S.O. 1990, c. C.12. At paragraph 38 the Court held that the Ontario legislation does not require the trial judge to make an order for custody, noting that s. 28(1)(a) of the CLRA is permissive, not mandatory. Benotto J.A. went on to state in paragraphs 39 and 40:

39. For over twenty years, multi-disciplinary professionals have been urging the courts to move away from the highly charged terminology of “custody” and “access”. These words denote that there are winners and losers when it comes to children. They promote an adversarial approach to parenting and do little to benefit the child. The danger of this “winner/loser syndrome” in child custody battles has long been recognized.

40. It was therefore open to the trial judge to adopt the “parenting plan” proposed by the assessor without awarding “custody”. It was also in keeping with the well-recognized view that the word “custody” denotes “winner” so consequently the other parent is the “loser” and this syndrome is not in the best interests of the child.

[19] Although the case before me is under the Divorce Act, rather than the CLRA, the wording of s. 16 of the D.A. is similarly permissive and not mandatory and as such a court could avoid the making of a custody/access order and deal with the specifics of a parenting plan instead.

[20] In Knop v. Nezami, 2016 ONSC 3179, 2016 CarswellOnt 7802, [2016] W.D.F.L. 3791, 267 A.C.W.S. (3d) 384, the applicant mother sought an order for custody, permission to move to San Francisco, while providing generous access to the father. The respondent father sought a “no custody” order, with shared decision making in a parallel parenting mode; that they have equal parenting time; and that the mother not be permitted to move to California.

[21] In making her decision, Chiappetta J. found that the child was a smart, sweet and happy child who had a special loving bond with both her parents. She noted that the decision was intended to insulate the child as best as was possible, from the conflict between her parents and give her the freedom to continue to enjoy the special bond she shared with both her parents while she grew.

[22] Chiappetta J. found that the behavior of both parties following the separation was egregious; that both shared the blame for their behavior; and that neither of them should be proud of the manner in which they conducted themselves. She found that the conduct of the parties indicated impulsiveness, unhealthy choices and a desire to hurt, embarrass and punish the other. Having commented on the behavior of the parents, Chiappetta J. found that as blameworthy as the conduct was, it was not relevant to the ability of the parties to act as parents to the child on a go-forward basis.

[23] At paragraph 210, the court acknowledged that s. 16 of the D.A. like s. 28 of the CLRA is permissive regarding the making of a custody order. She also agreed that the decision in M. v. F. (supra) was not meant to suggest that in every case there should be no custody order. However, the court felt that the reasoning of M. v. F. applied equally to the case before her.

[24] At paragraph 212, the court held that granting custody to one parent over the other would be viewed as a win by one and a loss by the other and that such feelings would only fuel the conflict so inherent in the parents’ relationship.

[25] The applicant also cited the case of Marello v. Marello, 2016 ONSC 835, 2016 CarswellOnt 1728, [2016] W.D.F.L. 1771, [2016] W.D.F.L. 1792, [2016] W.D.F.L. 1827, [2016] W.D.F.L. 1866, 263 A.C.W.S. (3d) 968, where Matheson J. held that it was neither necessary nor helpful to give one parent or the other sole custody of the child and that to do so would promote an adversarial approach to parenting and would not be in the child’s best interests. In not making a custody order, the court set out specific areas in which each parent would have a final say on decisions regarding the child.

[26] Similarly in Shawyer v. Shawyer, 2015 ONSC 3899, 2015 CarswellOnt 9272, [2015] W.D.F.L. 4777, [2015 W.D.F.L. 4830, [2015] W.D.F.L. 4861, [2015] W.D.F.L. 4901, 255 A.C.W.S. (3d) 394, Templeton J. adopted the observations of Benotto J.A. in M. v. F. (supra) and held that the assignment of parental obligations and duties to each party would address the allegation of power imbalance between them.

[27] Mr. Campbell also referred to the case of Ascani v. Robert, 2015 ONSC 4585, 2015 CarswellOnt 11016, [2015] W.D.F.L. 4593, [2015] W.D.F.L. 4597, [2015] W.D.F.L. 4619, [2015] W.D.F.L. 4621, [2015] W.D.F.L. 4635, [2015] O.J. No 3832, 256 A.C.W.S. (3d) 139, 66 R.F.L. (7th) 149, a decision of Doyle J. That case was similarly marred by ongoing confrontation and conflict by the parents of one child. Despite that the child was happy and healthy and benefitted from exposure to two cultures. At the time of the decision the child was almost 6 years old and had spent approximately equal time with each parent since her birth. The parents agreed that the parenting schedule where the child experienced six transitions in each two week period was not in the child’s best interests.

[28] As in the case before me, there was an assessment prepared in the Ascani case, (albeit prepared by an OCL investigator rather than a private assessor). In that report, it was recommended that the mother have sole custody with specified access to the father. In disputing the report, the father hired an expert to critique the OCL report. Although Doyle J. noted the reasoning of Benotto J.A. in M. v. F. where she questioned the utility of such ‘critique’ reports and ultimately placed little weight on the report, Doyle J. found that the report was very important to consider in the case before her.

[29] Doyle J. found that both parents had been verbally and physically aggressive with each other. She noted in paragraph 119, “Their disdain and utter annoyance with each other seeps through any exchange that they have.” The court found that both parents had acted in ways to marginalize the other and take control of the child and that they were equally responsible for the conflict. She held that as such it would not be in the child’s best interest to give one part the sole decision-making power. She held that such an order could marginalize the parent who did not obtain custody.

[30] Doyle J. also referred to the Court of Appeal decision in M. v. F. stating that the decision illuminate the developing trend in the courts regarding the use of the word ‘custody’. She went on to find that it was not in the child’s best interests to empower either parent with sole decision-making power and held that there needed to be a balance of power that neutralized the parties and prevented either parent from having the upper hand. Doyle J. went on to set out that the challenge was how to structure the decision-making process in a manner that both parents could remain involved.

Ms. Wentzell’s Book of Authorities:

[31] Not surprisingly, Ms. Wentzell referred to case law where the courts refused to make a joint custody order where there was high conflict. All of the cases cited by Ms. Wentzell were decided prior to the Court of Appeal decision in M. v. F. Those cases are discussed below.

[32] Although Ms. Wentzell did not refer the court directly to the Court of Appeal decisions in Kaplanis v. Kaplanis, 2005 1625 (ON CA), [2005] 10 R.F.L (6th) 373, 249 D.L.R. (4th) 620 (Ont. C.A. and Ladisa v. Ladisa, 2005 1627 (ON CA), the first case in her book of authorities, Kenney v. Kenney, 2007 24082 (ON SC), discussed both of those decisions.

[33] In Ladisa, the trial judge had found that despite the intense conflict between the parents, in emergencies and in situations where the parents had the opportunity to consider the real interests of their children, they behaved appropriately and could communicate effectively. As a result of those findings, Weiler J.A. held that the trial judge had not erred in making the joint custody order.

[34] However, in Kaplanis, the Court of Appeal overturned a trial judge’s decision to order joint custody in a high conflict case. At paragraph 11, Weiler J.A. stated:

The fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered. On the other hand, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for making of an order of joint custody. There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another. No matter how detailed the custody order that is made, gaps will inevitably occur, unexpected situations arise, and the changing developmental needs of the child must be addressed on an ongoing basis.

[35] In reviewing the evidence in the Kenney case, Harper J. found that the ability of the parents to communicate had been non-existent; that there had been incidents of conflict and strife; and that the parents never set aside their differences for the benefit of the children. Harper J. found that Mr. Kenney felt that a joint custody order was necessary to “keep Mrs. Kenney in check”. Harper J. held that it was not proper to use a joint custody order as a block or a check and balance.

[36] In Somerset v. Somerset, 2004 16881 (ON SC), the court found that there was not the level of cooperation and respect, or even a history of joint parenting that would warrant an order for joint custody.

[37] Similarly, in Najjardizaji v. Mehrjerdi, 2004 ONCJ 374, Agro J. of the Ontario Court of Justice held that due to the high conflict relationship, it would be best that one parent be the decision maker for the child and awarded sole custody to the mother.

[38] In Parham v. Jiang, 2013 ONSC 6003, the court dealt with the issue of sole custody versus joint custody, where an expert assessor was appointed to provide a report to the court on custody and access. The court found that the assessment was a thorough and well-reasoned report that provided independent evidence regarding the form of custody and access order that would best promote the child’s best interests.

[39] The report found that both parents loved the child; provided quality care to her; and that the child benefitted from having both parents in her life. The assessor raised the question that overall, “it is difficult to see why one parent more so than the other ought to have more time….” The assessor then acknowledged that a sole custody arrangement might be best for the child, even though whichever parent loses custody is likely to feel devastated. He concluded that joint custody was not a feasible solution due to the high level of conflict between the parents. The court found that there was no meaningful communication between the parents at the time of the trial and believed there would be none predictably at any time in the future. He found that the father’s communications were unpleasant and harassing and that he was unable to withdraw from a confrontation in the presence of the child. The court crafted an order where the mother had sole custody of the child and minimized contact between the parents.

[40] In deMelo v. deMelo, 2014 ONSC 6225 the respondent mother brought a motion for summary judgment with respect to the issues of custody and access of two teenaged children. The mother argued that she had had effective sole custody since separation, (3 years earlier); that the children were happy and doing well in school; and had expressed a desire to remain with her. The children were represented by OCL who confirmed the wishes of the children as expressed by the mother. The father wanted joint custody with shared access. His position was that the mother had alienated the children against.

[41] At paragraph 18 Arrell J. found that the case was a high conflict one, involving extensive litigation over several years, with criminal charges being laid, CAS involvement, attempted mediation and counselling. Despite that the couple continued to be unable to cooperate and had no ability to communicate. At paragraph 19, Arrell J. held: “The case law is abundant that joint custody is not appropriate under these circumstances expect in exceptional circumstances. Such exceptional circumstances do not exist within this family” and granted the motion for summary judgment.

[42] In K.H. v. T.K.R., 2013 ONCJ 418 Justice Sherr of the Ontario Court of Justice dealt with the issue of custody and access in a high conflict case. The parents agreed that their relationship had been marked by considerable conflict and that their communication had been very poor. They had brought multiple motions complaining about the other’s conduct and had frequently involved the police and the CAS in their dispute. Although many efforts had been made to reduce the conflict, any progress in communication that was made by the parents was short-lived and quickly regressed. Both parents indicated that the children were distressed by the conflict.

[43] Sherr J. found that the evidence showed a chronic inability of the parents to communicate effectively and to insulate the children from their conflict. He found that neither had learned from the society intervention and that their conflict had intensified. The court held that the mother was sometimes difficult in facilitating access and if the father was unable to comply with the letter of the court order, she would deny a visit. She had not always complied with court orders.

[44] Sherr J. also found that the father was often equally at fault for many of the missed visits. He claimed that the mother denied him access on two separate occasions, which allegations were proved false by the evidence. The court found that the father was unwilling to compromise with any schedule change suggested by the mother. The mother testified that the father was demanding and unyielding, which was verified by his argumentative, frustrated cross examination and his inability at times to control his anger. Sherr J. found that the parents were involved in a power struggle that had little to do with the children.

[45] In determining the issue of custody, Sherr J. discussed in some detail the concept of parallel parenting. He defined parallel parenting in paragraph 45 of his decision as:

Parallel-parenting orders can take the form of “divided parallel parenting”, where each party is given separate, defined areas of parental decision-making, independent of the other; or alternatively, “full parallel parenting”, where both parents are given the right to make major decisions respecting the child in all major areas of parental authority while the child is with them, without the consent of the other parent. See Hensel v. Hensel 2007 CarswellOnt 7010 (Ont. S.C.J.); Izyuk v. Bilousov, 2011 ONSC 6451.

[46] Sherr J. went on to state that parallel parenting orders have been made in high conflict cases, particularly where one parent is unjustifiably excluding the other from the children’s lives and cannot be trusted to exercise sole custody responsibly or where the parents are incompatible with one another but are both capable parents and agree on major issues. He went on to say that a parallel-parenting regime is usually reserved for those cases where neither sole custody nor cooperative joint custody, will meet the best interests of the child. (Baker-Warren v. Denault, 2009 NSSC 59).

[47] Sherr J. also noted that parallel parenting orders will not meet the best interests of the children where the conflict is too high to make such orders work and that such an order would put the “children in the middle of conflict every few days” and “the parents inability to cooperate in such cases may result in frequent visits to court which would present a greater opportunity for conflict”. See Graham v. Bruto, [2007] O.J. No. 656 (Ont. S.C.J.) aff’d at 2008 ONCA 260.

[48] Sherr J. then turned to the factors to be considered when determining whether a parallel parenting order should be made. He, firstly referred to six factors, set out in the decision of Chappel J. in V.K. v. T.S., ONSC 4305, followed by four additional factors that he believed were relevant to a parallel parenting analysis. All ten of the factors are listed below, with the first six ‘lettered factors’ being taken from the V.K. case and the remaining four ‘numbered factors’ arising out of the case before Sherr J.

a) The strength of the parties’ ties to the child, and the general level of involvement of each parent in the child’s parenting and life. In almost all cases where parallel parenting has been ordered, both parents have consistently played a significant role in the child’s life on all levels.

b) The relative parenting abilities of each parent, and their capacity to make decisions that are in the child’s best interests. Where one parent is clearly more competent, responsible and attentive than the other, this may support a sole custody arrangement. On the other hand, where there is extensive conflict between the parties, but both are equally competent and loving parents and are able at times to focus jointly on the best interests of the child, a parallel parenting regime may be ordered.

c) Evidence of alienation by one parent. If the alienating parent is an otherwise loving, attentive, involved, competent and very important to the child, a parallel parenting arrangement may be considered appropriate as a means of safeguarding the other party’s role in the child’s life. On the other hand, if the level of alienation is so significant that a parallel parenting order will not be effective in achieving a balance of parental involvement and will be contrary to the child’s best interests, a sole custody order may be more appropriate.

d) Where both parties have engaged in alienating behavior, but the evidence indicates that one of them is more likely to foster an ongoing relationship between the child and the other parents, this finding may tip the scale in favour of a sole custody order.

e) The extent to which each parent is able to place the needs of the child above their own needs and interests. If one of the parties is unable to focus on the child’s needs above their own, this may result in a sole custody order, even if that parent is very involved with the child and otherwise is able to meet the child’s day to day needs.

f) The existence of any form of abuse, including emotional abuse or undermining behavior, which could impede the objective of achieving a balance of roles and influence through parallel parenting.

1. The court must evaluate the likelihood of one category of decision making conflicting with another (the spillover effect) and the ability of the parents to navigate those conflicts.

2. Whether the parents have the ability to navigate scheduling conflicts between activities and appointments. Since they are each acting independently in their own sphere of decision making, what happens when both a soccer practice and math tutor are scheduled for the same time? Is it possible given the dynamics of the parties’ relationship before the order is made to anticipate, define and create priorities for many of the potential conflicts?

3. The geographical distance between the parties. If the parties reside far apart, the residential parent may not be able to take the children to a doctor, tutor, counselor, school or activity (depending on the area of decision making) chosen by the non-residential parent.

4. Family dynamics – the court must evaluate if a parallel parenting order is more likely to de-escalate or inflame the parents’ conflict.

[49] In refusing to make a parallel parenting order, Sherr J. listed a number of concerns including the father’s controlling, demanding conduct; his unreliability; the possibility of spill- over effect related to decision making; likelihood that the parents would continue to have conflict of scheduling because their communication is so poor; the geographical distance between them (mother lived in Toronto; father lived in Brampton); the conflict was too high; and the father appeared to be more focused on his rights than on the best interests of the children.

[50] In Graham v. Bruto, 2007 4867 (ON SC), Backhouse J. discussed the appropriateness of a joint custody order in high conflict cases. At paragraph 65, she noted:

The single most damaging factor for children in the face of divorce is exposure to conflict. The more repeated or continuing the conflict, the greater the risk to the child. In such a case, a joint custody situation that puts the children in the middle of conflict every few days makes little sense. Second, the parents’ inability to cooperate in such cases may result in frequent visits to court over the mechanics of the joint custody, as the more the court order presupposes, the greater the opportunity for conflict. (“High Conflict and Joint Custody: An Idea Whose Time Has Been? A Cook’s Tour of Current Law” by Justice Alison Harvison Young).

[51] In Moreira v. Garcia Dominguez, 2012 ONCJ 128 Mr. Justice Zuker dealt with the issue of shared and equal time with children in a custody case. At paragraph 95, Zuker J. stated that the court had a duty to consider whether an equal time arrangement is in the best interests of the child and is reasonably practicable. He held that if equal time is not appropriate, then the court had to consider what is termed “substantial and significant time.” At paragraphs 99, Zuker J. stated that “Shared care is a risk factor for poor mental health where there is high, ongoing conflict between the parents. Conversely, children seem most likely to benefit from shared care arrangements where there are low levels of hostility.”

[52] Zuker J. went on at paragraph 100, stating:

Where there are destructive patterns of conflict, there are often dynamics that ought to indicate that children are not the focus of the arrangement. The desire of one parent for an equal time arrangement may be driven by concerns about fairness to that parent, or equality, rather than the needs or interests of the children. It may also be motivated by a desire to control or punish the other parent.

[53] Zuker J. also found that the child’s best interests may be inextricably interwoven with the quality of life of the custodial parent with whom the child lives and depends on emotionally, stating that the determination of the child’s best interests is not done in a vacuum but requires that the interests of the custodial parent also be taken into account. He relied on Kaplanis and the decisions that followed that case where it was found that where there is no communication and no cooperative parenting, joint custody is not appropriate.

[54] Zuker J. also noted the case of Barton v. Hirshberg, 767 A.2d 874 (Md.Ct. Spec. App. 2001) where the court determined that equal contact does not resolve conflict and that inappropriate use of joint custody may “cement rather than resolve chronic hostility and condemn the child to living with two tense, angry parents indefinitely.

[55] The last case referred to by the respondent mother was the decision of Chappel J. in Izyuk v. Langley, 2015 ONSC 2409. In that case, Chappel J. cited the Kaplanis decision stating that where the evidence clearly indicates that there has been an inability to cooperate or communicate effectively, of that one or both parties are unable to put the needs of the child before their own, joint custody is not appropriate.

[56] Notably, all of the cases cited by Mr. Campbell post-dated and adopted the Court of Appeal decision in M. v. F. The mother’s cases all dealt with the issue of joint verses sole custody in high conflict cases. Ms. Wentzell’s understanding of the case before the court, as evidenced by the many questions asked of several of the father’s witnesses, including him, focused on the issue of joint custody and how an order for joint custody was supposed to work when there was such conflict and distrust. The court does not believe that Ms. Wentzell at any point understood the difference between a joint custody order; a parallel parenting order; or a no custody order.

[57] In motions following the trial, Mr. Campbell also asked if he could resurrect contempt motions brought prior to trial. All interim motions were assumed to have been dealt with unless specific mention was made of them. No evidence was provided on these issues, no submissions were made and no case law filed. In reviewing the court file, the court saw that one contempt motion was dismissed by Henderson J. Any other interim motions that were not specifically raised during the hearing of this trial, will be deemed to have been dismissed.

[58] Prior to discussing the evidence presented by the parties, the court must comment on the issue of credibility. The applicant urged the court to find that the respondent had no credibility and that her evidence and the evidence of her parents should not be considered. While there were certainly examples of Ms. Wentzell exaggerating and changing her evidence as she went along, the court noted similar examples of misrepresentation and dishonesty on the part of Mr. Campbell and both sets of grandparents. While this type of testimony is dismaying, it is not unusual in family law cases. Family members caught up in litigation see and remember difficult situations through the lens of their own perspective and feelings. Although there were examples of direct deceit, which the court will reference when dealing with some of the situations that occurred, the court did not find Ms. Wentzell any more misleading than any of the other family members, including members of the Campbell family.

[59] Mr. Campbell also argued that Ms. Wentzell had been taught and learned how to play the victim and was using this knowledge to seek the support of the court. There is no question that Ms. Wentzell has felt bullied throughout the period following the separation. However, if Ms. Wentzell has learned to act the part of the victim, she has been assisted in this by Mr. Campbell playing the part of the bully. Although he would submit that all of his actions were necessary to ensure that he had equal parenting time with Chloe, his methods went far beyond what was necessary. Some of his actions and the actions of his parents were premeditated and had one purpose – to harass or upset Ms. Wentzell. During her cross examination of Mr. Campbell when she asked how she was to simply forget everything that had occurred and suddenly work with him in a joint parenting role, Mr. Campbell’s response was that “she should get over it”. Mr. Campbell Sr. had a similar response to that question. It may be possible that another person would not have been upset by the actions of the applicant and his family, but the court does not doubt that the actions of the Campbell family had a negative effect on Ms. Wentzell, that added to the conflict. The court also has no doubt that Ms. Wentzell took steps that added to the conflict as well. High conflict cannot exist without the participation of both parents and often their supporters, who inject themselves into the conflict to support the family member closest to them. None of the family members in this case is innocent of contributing to the continuation of the conflict.

[60] The court also wants to note, however, that there is no doubt that both parents love Chloe very much and that Chloe loves both of them. In their own way, they each want what is best for Chloe. Unfortunately, they do not agree on what is best for Chloe and have lost the ability to communicate in a positive fashion. Chloe luckily has been immune to the conflict between her parents to this point. That will not continue if the conflict persists as she grows older.

[61] It is within these parameters that the court has considered the evidence.

Custody of Chloe Campbell

[62] Everyone involved in this matter has acknowledged that this is a high conflict case. The conflict began during the marriage and continued throughout the separation, throughout the trial and afterwards. Before the trial there were approximately 18 motions brought by Mr. Campbell and 7 motions brought by the mother. Motions continued to be brought even after the parties were ordered to bring no further motions without leave. Motions were brought between the time the closing submissions were filed in December 2016 to May 2017 and continued to be brought after the final submissions were filed. The court mentions this, because ending the conflict is necessary for Chloe’s sake. The court’s order regarding parenting of Chloe has been crafted in an effort to end the need for the parents to communicate very often and to provide them with equal time with Chloe such that arguments become unnecessary. Without such an order, the court is very concerned that the conflict will continue indefinitely between the parties.

[63] The conflict began when Ms. Wentzell was pregnant with Chloe. The birth of the child and counselling did not alleviate the issue of mistrust and betrayal that the respondent had for the applicant, and Chloe was just short of four months old when Mr. Campbell moved out of the home. Initially, the parties seemed to be able to work out a visiting schedule for Mr. Campbell and he appeared content to leave the child in the care of her mother. Unfortunately, the initial working relationship came to a quick end within weeks of the separation.

[64] On October 27th and 29th, 2013 there were allegations that the mother assaulted the father once by slapping him and secondly by choking him. Police were called on the second occasion, but no charges were laid. Ms. Wentzell denied assaulting Mr. Campbell on both occasions.

[65] On November 15, 2013, Mr. Campbell received an email from Ms. Wentzell advising him that Chloe had croup and felt that she should remain at home the next day and not attend for a visit. In the email, filed as Exhibit #5, Ms. Wentzell was calm; provided medical information about the child to Mr. Campbell, and made no demands nor issued any edicts. She said she would monitor the child, (as she should have), and let him know the next day about her status. The email was as follows:

Adam, Wanted to let you know that I took Chloe tonight to a walk in clinic after thinking during dinner her little cough had gotten worse and while I still had a car and I was advised that she has croup. I know you have her tomorrow, however with this croup she is weezy (sic) and I have put a humidifier in our room and am hoping overnight she will show improvement from her current discomfort. I will let you know by 2 p.m. how she is doing and what if any improvement has been made and if your time tomorrow will work. I have attached the doctor’s note for your reference. Kate

[66] Ms. Wentzell attached the note from the doctor who had seen Chloe at the walk in clinic. It stated simply:

Chloe Campbell November 14, 2013 To whom it may concern This child has croup. I think she need her mom’s care during the next 3-4 days. Thanks. R.

[67] Ms. Wentzell sent all of the information she had regarding Chloe’s health as soon as she had it. She did not say Mr. Campbell could not have access. She said she would monitor Chloe’s progress it and let him know. That was not sufficient for Mr. Campbell. His evidence was that he “immediately” looked into this. He went to the doctor’s office and asked him how he could write a note about him without meeting him.

[68] It is interesting that Mr. Campbell thought the note was about him. The note said nothing about him, just that the child should be left in her mother’s care while she was ill. Chloe was four months old. It was the middle of November. She was ill with an upper respiratory infection and croup. Mr. Campbell’s insistence that she leave her home and be taken out for a short day visit had little to do with Chloe’s best interests and everything to do with Mr. Campbell’s needs. At her age, Chloe had no notion of dates or time. She had no notion that a visit was scheduled or that she was missing one. She had no notion of what a visit was. Chloe would not have missed her father’s visit. Mr. Campbell’s insistence on the visit was about meeting his own needs and had nothing to do with Chloe’s best interests.

[69] The second note written by the doctor was about Mr. Campbell. After meeting Mr. Campbell, the doctor’s note indicated that: “I think he (father) is capable of looking after the baby, with the help of his parents.” (Emphasis mine)

[70] A more common sense view would have been to accept that Chloe was ill, (father had confirmation) and that leaving her home would be best for her. This common sense approach is one the court would expect of either parent when a child is ill. Mr. Campbell missed the opportunity to work positively with Ms. Wentzell and show her and the court that Chloe’s needs would always take priority over his own. Despite Chloe’s illness, and the information provided to her by the doctor, Ms. Wentzell agreed to Mr. Campbell having his access.

[71] This is important to note, 1) because Mr. Campbell spoke a great deal in his evidence about the mother cancelling visits and how she could not be trusted to comply with a court order; and 2) because there was no order for access at the time of this event. Ms. Wentzell could have kept Chloe at home during her illness, but she did not do so. Rather she acceded to Mr. Campbell’s request. At no time during the evidence of the applicant or in submissions did Mr. Campbell mention the times when Ms. Wentzell agreed to something she did not feel was in Chloe’s best interests to allow Mr. Campbell parenting time with his daughter.

[72] The view of the court is that this particular incident was a shot across the bow in this custody case. Ms. Wentzell’s email was everything that Mr. Campbell seeks from her now. The child had been seen by a doctor, she notified immediately, gave him a copy of the doctor’s note; and said she would monitor the situation. Mr. Campbell’s actions in insisting on removing a sick baby from the place where she was being cared for in accordance with the doctor’s instructions, showed clearly that it made no difference to him what information Ms. Wentzell provided to him or how she did it, he wanted what he wanted and would do what was necessary to get it. From this point on, it is not surprising that all communication and cooperation became difficult.

[73] The next incident was the removal of the Lexus from the matrimonial home. The Lexus had been provided to Ms. Wentzell during the marriage for her use. There was evidence from the mother that Mr. Campbell had given her the car in March 2012 for her birthday, although her birthday falls in May. She indicated that they went to the dealership, she had sat in the car and Mr. Campbell had given it to her. Mr. Campbell said in his evidence, he never gave her a car. I will deal with the issue of the car separately.

[74] What was troubling about this incident was that at the time, Ms. Wentzell had no other vehicle to use. Don Campbell’s evidence was that the car was his and that he allowed Katie to drive it. He then went on to talk about two four-way meetings held by the parents and their lawyers. He stated that he remembered the meeting in November 2013 and that “that meeting dissolved into nothing”. It was only weeks later that Don Campbell and Adam Campbell attended the matrimonial home; obtained the keys from the maternal grandfather and drove the car away.

[75] It is apparent that the Campbell family was not satisfied with the way in which the matter was progressing in November 2013. It appears to the court that the removal of the car was done to teach Ms. Wentzell a lesson and pull her into line so that matter could be settled quickly. The Campbells had resources that Ms. Wentzell never had. Don Campbell’s company owned a fleet of vehicles. In fact, he made a point of saying that it cost him $20,000,000.00 per year in insurance. There was no evidence that Don Campbell needed that specific car for any reason, but he certainly decided he would take it back when things were not working the way he felt they should.

[76] At the time, Chloe was five months old. Don Campbell gave no evidence as to whether he considered the fact of Chloe’s young age; the fact that the mother had no other vehicle to use to transport Chloe; or what she was to do in an emergency regarding the child. Adam Campbell’s response to that query, was that she could turn to her own parents to assist her in case of an emergency. Once again, the father showed a complete disregard for Chloe’s health and safety by his actions. On December 18, 2013 Henderson J. ordered, in part, that Mr. Campbell provide to Ms. Wentzell a safe and reliable vehicle, which was to be insured by the applicant. A 2010 Toyota was provided to Ms. Wentzell on December 23, 2017. More will be said of this vehicle later.

[77] It is obvious that Mr. Campbell did not consider Chloe’s interests when he and his father drove away a vehicle that had been for Ms. Wentzell’s use for more than a year. The sole reason to remove the car was to inconvenience Ms. Wentzell as much as possible. This type of action did nothing to improve the relationship between the parents, but rather contributed to its decline. Other incidents that will be discussed only served to strengthen Ms. Wentzell’s feelings of mistrust and inability to work with Mr. Campbell.

[78] In early January 2014, the mother sent an email to the father asking him to “please put on Chloe’s lotion – if you haven’t already.” There was nothing nasty or out of the ordinary about this email. It was one parent simply reminding the other that the use of lotion was necessary for the child. Mr. Campbell then wrote back, “Bottle at 7 Cream couple of times.” The mother then sent an email asking Mr. Campbell to send her a picture of the cream he was using. This was a simple request. The court finds that Mr. Campbell knew exactly what information Ms. Wentzell was requesting.

[79] Mr. Campbell’s response was juvenile, uninformative and again designed to upset Ms. Wentzell. Exhibit 48 shows a picture of what the court assumes is Mr. Campbell’s finger with a smear of cream on it. This was his answer to Ms. Wentzell’s request to know what type of cream was being used on the baby. Perhaps Mr. Campbell thought his response was funny. He had to know the picture provided no information at all. The situation between the parents was already tense and his response only worsened it. In later months, Mr. Campbell would complain bitterly when the mother did not provide him with the name of certain medications for Chloe. Although the court does not condone Ms. Wentzell’s refusal to provide necessary medical information to the father, the father is equally guilty of providing useless misinformation about medication he was using for the child. Neither parent is blameless in this regard.

[80] A separate event that added to the mother’s mistrust of Mr. Campbell occurred in late 2012 and was investigated in early 2014. The person with whom Mr. Campbell had been involved during the marriage worked at Canada Trust, the bank at which Mr. Campbell and Ms. Wentzell banked. Ms. Wentzell had reported to the bank that she believed this person had accessed her personal banking information without her consent and without a valid business purpose. In January 2014 the District Vice President of the London West area wrote to Ms. Wentzell advising her that an investigation was ongoing and that he would report to her any available updates.

[81] On July 4, 2016, a manager of Customer Problem Resolution wrote to Ms. Wentzell to advise on the results of the bank’s investigation. At paragraph 3 of the letter, the following was set out:

We have conducted a review into the matter during which we spoke to the employee involved, our Human Resources department, our Global Security and Investigations department and our Canadian Privacy Office, which has responsibility for privacy matters. The results of our review indicate that your information was accessed by our employee on two occasions without a valid business purpose. (Emphasis mine)

[82] The court has emphasized the last sentence because Mr. Campbell’s evidence on this point was that he gave the employee, who he described as his girlfriend and the person with whom he had the affair during the marriage, permission to access “our accounts” for the purpose of obtaining a mortgage on a property. Had this been the case, the bank would not have verified after a seven month investigation that their employee had accessed Ms. Wentzell’s banking information without a valid business purpose. Had that been the case, Mr. Campbell could easily have notified the bank that he had provided consent to the employee to access his accounts. That did not happen because Mr. Campbell’s explanation for his girlfriend accessing Ms. Wentzell’s account was false. Although Ms. Wentzell was interested in what was done as a result, the bank advised that they were unable to reveal information concerning any actions that may or may not have been taken with respect to any of their employees.

[83] In the early months of 2014, there were various motions for access brought by Mr. Campbell. One motion resulted in his having access to the child on his birthday, (something Ms. Wentzell refused); another resulted in his having overnight access for 24 hours twice in each two week period, (something Ms. Wentzell refused but settled at court); and a third for Easter access (which Ms. Wentzell refused). Ms. Wentzell brought motions during that same period to reduce Mr. Campbell’s access; delete overnight access; and for ongoing increased child and spousal support. (These motions were not granted) Unfortunately, by these actions, Ms. Wentzel was beginning to exhibit behavior that suggested she would not be likely to facilitate access to Mr. Campbell going forward. This behavior was a factor that the court considered in deciding the parenting times for the parties.

[84] In May 2014, Ms. Wentzell discovered a device on the 2010 Toyota that concerned her. She had noticed an antenna earlier on the car, but was told by a service agent that it was probably a radio antenna. Ms. Wentzell continued to be concerned and called police. Her concern was created by the fact that comments regularly made by Adam Campbell suggested that he always knew where she had been, how late she had been out and whether Chloe was at home. This led to a great deal of mistrust of the Campbell family by Ms. Wentzell. She advised the police that although she was not concerned for her safety or the safety of the child, she was paranoid that Adam Campbell was using this device to follow her or that he would get someone to follow her. Police attended at her home and removed a GSP tracking device from the Toyota. It was on this date, that she advised police that Mr. Campbell had stolen the Lexus from her, which was untrue.

[85] Don Campbell explained he had the device installed in all his business vehicles to track his cars; determine hours of pay for employees; explain the costs to customers; and to locate the vehicle if it was stolen. He noted that the Toyota provided to Ms. Wentzell had been used by two of his managers. Adam Campbell testified that he was aware there was a tracking device on the Toyota and that he did not advise Ms. Wentzell of its presence. No such device was installed in the Lexus that had been provided for Ms. Wentzell’s use prior to the separation.

[86] In addition there was no evidence to suggest that the device could not have been removed from the Toyota prior its delivery to Ms. Wentzell, since none of the purposes for having the device listed by Don Campbell in his evidence, were applicable to the car being used by the mother. Having regard to statements made by Mr. Adam Campbell to his wife, such as “you were out late last night”, and “you should watch what you drink when you are at Joe Kool’s”, it is difficult to believe that he was not at times using the device to check on her whereabouts. Adam Campbell suggested in his cross examination that he made the comments because the mother looked tired and awful when she attended the door. There are a multitude of reasons why a mother of a young baby could be up late; be tired and look awful. It is far too much of a coincidence to accept that Mr. Campbell guessed Ms. Wentzell had been out late without his tracking her.

[87] It is also telling that after the GPS tracking device was removed from the Toyota, a private investigator was hired by Mr. Campbell to watch the matrimonial home and to report if a male person was seen coming and going from the home.

[88] Between May 21, 2014 and June 12, 2014, Ms. Wentzell contacted police six times. On May 21, 24, and June 3, 2014, Ms. Wentzell reported her concerns about being followed, but on each occasion advised police she was not concerned about her safety or the safety of the child. On May 21st, she also advised police that Mr. Campbell had stolen the Lexus from her. This was untrue. Her email of November 15, 2013 provides some evidence that Ms. Wentzell knew in advance that the car was going to be removed when she stated:

“ … took Chloe tonight to a walk in clinic after thinking during dinner her little cough had gotten worse and while I still had a car…” (Emphasis mine)

[89] On the fourth occasion she contacted police, it was to complain about unwanted emails from Mr. Campbell. On the fifth occasion, she contacted the police to inquire whether the investigation would be completed in time for Family Court. The officer advised her that the timing of the court appearance was not his concern and that so far there had been no reports of safety concerns. The officer advised her to call 911 if she had safety concerns. The officer noted that Ms. Wentzell was not pleased with the information that the investigation would not be completed in time for family court.

[90] On the sixth occasion, Ms. Wentzell provided a series of emails to the police. According to Mr. Campbell’s evidence, as a result of the unwanted contact through emails and the tracking device found in the Toyota, Mr. Campbell was charged with criminal harassment on June 12, 2014. He was also charged with a breach of his recognizance for directly contacting Ms. Wentzell on one occasion. All of these charges would later be dropped.

[91] Ms. Wentzell described herself to the police during her interviews as being paranoid that Mr. Campbell was tracking her with the device in the car and that he would hire someone to follow her. It is difficult to find that her paranoia was not justified, when in fact Mr. Campbell did not tell her about the tracking device in the car; or have it removed prior to delivering it Ms. Wentzell; and eventually hired a private investigator to watch the home and have her followed. Although he denied instructing anyone to follow Ms. Wentzell, she was followed on different occasions.

[92] Ms. Wentzell consistently throughout the trial and afterwards requested that Mr. Campbell not email her. She made it very clear that she wanted no contact with him at and preferred that all communication related to Chloe go through Family Wizard. Despite this Mr. Campbell continued to email her. However it is also important to note that between December 17, 2013 and June 9, 2014, which includes the period when Ms. Wentzell reported to police that she was being sent unwanted emails, she emailed Mr. Campbell 267 emails. Generally, when someone sends an email to a person, they can expect an email in response. Further, it is understandable that Mr. Campbell might be confused about whether Ms. Wentzell wanted to communicate by email when she was sending multiple emails to him. She had no answer as to why she sent emails to Mr. Campbell if she did not want emails in response from him.

[93] As a result of the charges, the exchange for access visits was varied to allow the paternal grandparents and two friends of Mr. Campbell to assist with pick up and drop offs and the parties were directed to engage Merrymount for exchanges. Unfortunately, Ms. Wentzell, at times, refused to exchange the child with Mr. Campbell’s father, insisting that if Adam Campbell was not around to care for the child, she should remain with her mother. She refused to pay her share of the cost of Merrymount exchanges, claiming that Adam Campbell did not pay child support. This allegation was also false, although there were times when Mr. Campbell’s support did not reach Ms. Wentzell on the specified date, which led her to believe he was in arrears. .

[94] In June 2014, another unnecessary incident occurred that caused stress and upset to Ms. Wentzell. Each year, parents can publish a picture of their babies born in the preceding year in a local newspaper. Ms. Wentzell decided she would do so. However, Mrs. T. Campbell also decided to publish a picture of Chloe. Ms. Wentzell’s picture was accompanied with the caption, “Chloe Elise Campbell, June 25, 2013, Daughter of Kate and Adam Campbell”. The grandmother’s picture was accompanied by the caption: “Chloe Campbell, June 25, 2013, Daughter of Adam Campbell”. Mrs. Campbell testified that she had published similar pictures of her other grandchildren, although she did not indicate whether only her son’s name was attached to the picture. This action was needlessly hurtful to Ms. Wentzell.

[95] During the summer of 2014, Mr. and Mrs. Campbell and Mr. and Mrs. Wentzell indicated that they were prepared to assist with the pick-ups and drop offs for the access exchange. Mr. and Mrs. Wentzell agreed to assist with the access exchanges on July 4, 7 and 18, 2014. Having agreed to do so, Mr. Campbell’s solicitor sent a letter dated July 3rd indicating five different places for the exchange, including Lake St. Clair and Muskoka Ontario. Such an arrangement had never been agreed to and certainly exceeded what Mr. Campbell should have expected any person to do. A letter was sent to Mr. Campbell’s solicitor stating that the maternal grandparents were willing to participate in the transportation and exchanges, from the matrimonial home to Mr. Campbell’s home, but were not willing to travel out of town to Lake St. Clair or to the Muskoka’s to complete the exchanges. It would seem common sense that if Mr. Campbell removed the child from the city for his access, he should bring her back to the city at the end of his access. Otherwise, he could potentially travel anywhere in the world and expect Ms. Wentzell to make arrangements to pick up her daughter at the end of his access visit. Such a result would be ludicrous. This was an example of how Mr. Campbell interpreted court orders and then attempt to push the limits of those orders.

[96] On August 9, 2014, when Adam Campbell advised Merrymount that the court had ordered a change in access, the mother reported that there was nothing in writing yet and that Mr. Campbell owed her a lot of money before there would be any changes. At that time Mr. Campbell did not owe Ms. Wentzell any money and there certainly was something in writing. The court made an order on May 1, 2014. That order was issued on May 28, 2014. The order provided that Mr. Campbell’s access to Chloe was to increased starting July 2, 2014, on alternate Wednesdays, to occur from 4:00 p.m. on the alternate Wednesdays to noon on the following day, Thursday. That order also provided for a further increase to allow the overnight access on Wednesdays to occur every Wednesday from 4:00 p.m. to Thursday at noon, commencing December 3, 2014. This statement to Merrymount staff by the mother was not true.

[97] The applicant pointed out incidents when Ms. Wentzell initially refused to do something in contravention of a court order. For example, he noted on October 24, 2014, she initially refused to release Chloe to Don Campbell and told Merrymount staff that she had the time to look after Chloe and did not think it was right that the paternal grandparents were doing so when she was available. Mr. Campbell’s use of the work “initially” suggests a subsequent change or reversal of her position. In Fact, Ms. Wentzell did release Chloe to her paternal grandfather. She did not breach the order. This incident is no different from the father ‘initially’ refusing to release Chloe to her mother at Merrymount unless her mother handed over house keys in August 2015. It was likely only the intervention of the Merrymount staff who insisted that the exchange would occur with or without the transfer of house keys that Mr. Campbell capitulated in complying with the exchange rules. Despite what a parent might say, their intention to breach a court order does not become a breach until they actually do breach the order.

[98] Mr. Campbell has also manipulated orders to his benefit. When challenged by the court during motions following the trial, his response was: “well the order did not say I could not do it”. This was illustrated by his dealing with the house listing following the order of Mitchell J., which will be dealt with separately. The court has had to explain more than once to Mr. Campbell that it would be impossible to list everything that he cannot do, when making an order setting out what the parties should do. Both parents are equally blameworthy in trying to use the court orders to their advantage.

[99] During the fall of 2014, Mr. Campbell continued to bring motions to increase his access time with Chloe. On November 14, 2014, Mr. Campbell brought a motion asking that the access he had in place continue during the months of January, February and March 2015. That order was granted on November 19, 2014. The access that was in place prior to November 2014, was to continue during the months of January, February and March 2015.Within seven days, Mr. Campbell brought another motion to change his access on December 3rd and 4th and to deal with Christmas access. The court questions why Mr. Campbell did not deal with these issues a week earlier when he brought his motion to continue his access, especially the Christmas access.

[100] As a result of this motion, Ms. Wentzell also brought a motion returnable December 19, 2014, seeking spousal support, interim exclusive possession of the matrimonial home, return of the Lexus, non-removal of chattels from the matrimonial home, release of cell phone and number, and setting a new date for settlement conference to be continued.

[101] Mr. Campbell then filed an amended motion returnable on December 19, 2014 seeking specific Christmas access with pick up and drop offs to be done by the paternal grandparents or the two friends listed in Justice Korpan’s order of June 13, 2014. The motion regarding Christmas access was settled on consent. Within four days of that order, Mr. Campbell made a further request through his lawyer for time with Chloe in order to take her with his family to the United Van Lines convention in San Diego, California in April.

[102] On January 7, 2015, the mother’s lawyer’s staff member sent an email to Mr. Eberlie indicating that Chloe had been vomiting since approximately 1 a.m. and that the mother had taken the child to the doctor. A doctor’s note was attached verifying that the mother had taken the child to a doctor. In the email it was not suggested that Mr. Campbell forgo his access with Chloe, only that the exchange for access occur at the matrimonial home in order “not to disrupt her (Chloe) unnecessarily”. The note went on to state: “It is our hope that Mr. Campbell is agreeable to today and tomorrow’s exchanges taking place at the home in an effort to minimize any stress and disruption to Chloe while she is ill.” It was also suggested that Mr. Campbell was welcome to have a third party accompany him to the exchange if he had concerns about the exchange. (See Exhibit 18)

[103] Mr. Campbell refused to pick up Chloe at the matrimonial home. He was later contacted by telephone that Ms. Wentzell had cancelled the Merrymount exchange. He contacted his mother who went to the matrimonial home and picked Chloe up for her visit. The January 7th visit went ahead as planned. Mrs. T. Campbell testified that she saw nothing wrong with Chloe. However, children can become ill very quickly especially with an upset stomach and then feel and act better shortly thereafter.

[104] Ms. Wentzell then took matters into her own hands. Although she did not cancel Mr. Campbell’s visit, she did cancel the access exchange at Merrymount. Her lawyer sent a fax letter to Mr. Eberlie indicating that the use of Merrymount had been necessary due to the charges against Mr. Campbell and his bail conditions. He went on to state that since the charges had been withdrawn, the use of Merrymount was no longer necessary and exchanges could occur at the matrimonial home. Mr. Campbell did not agree with this and would not attend at the home to pick up Chloe. His visit did not occur but Ms. Wentzell did not cancel it. Mr. Campbell could have attended with his parents or one of his friends and had no direct contact with Ms. Wentzell. He chose instead to miss his visit and bring another motion. Ms. Wentzell’s unilateral act on this occasion was blameworthy, but Mr. Campbell’s response in missing his visit was also blameworthy. This incident was one of many that illustrates how the parents are unable to agree on even the simplest of details regarding their daughter.

[105] On January 16, 2015, as a result of an emergency motion brought by Mr. Campbell, Templeton J. ordered that to ensure ongoing access that weekend and thereafter without prejudice to either party, the exchanges for access by the parties were to occur at Merrymount. There was an exception in the order that provided for the Monday January 19th visit exchange to occur at the matrimonial home. The parents continued to use Merrymount except when it was closed. On those occasions each of them has travelled to the other’s residence for various exchanges.

[106] Although one would have thought the order of Templeton J. was clear about exchanges, the mother again refused to bring the child to Merrymount for the exchange less than a month later. On February 7, 2015, the mother notified Merrymount that she was not bringing Chloe to the exchange and advised that she would be at home where Don Campbell could pick Chloe up, which he did.

[107] In March 2015, Mr. Campbell brought another motion for extended access and for permission to take Chloe to San Diego from April 10 to 19, 2015. At the time, Chloe was less than two years old. The mother did not believe that it was in Chloe's best interests to be away from her primary caregiver for 9 days. Ms. Wentzell brought a cross motion for disclosure and appointment of the OCL. On March 13, 2015, Templeton J. ordered that Mr. Campbell could take Chloe to the convention in San Diego and set out conditions of that travel, including Facetime between the child and her mother for at least 15 minutes, every 3 days. The parents were also ordered to submit a written proposal no later than May 10, 2015 setting out their plan for incrementally expanded access.

[108] It is interesting to note that two of the experts, including Dr. Zayed, testified that a period of 9 days is too long for a child of less than 2 years to be away from their primary parent and that Facetime is not adequate to ensure the child’s best interests.

[109] In his assessment report dated January 2016, Morrison Reid spoke about attachment on page 16. At this point the court is only concerned with this issue as it relates to the two vacations Mr. Campbell was allowed to take with Chloe that lasted 9 and then 10 days. Mr. Reid on page 16 of the assessment:

“A parenting plan that protects and encourages attachment minimizes separation from an infant’s parents. Chloe’s historical and present plan of care has largely done this. Chloe is not apart from either parent for long periods. Infant mental health specialists suggest that three days should be the maximum separation that a child is away from an attachment parent. Anything longer creates stress for a child as the trusted parent is not available to provide hands-on care when needed. The current access plan addresses this issue.

Mr. Campbell argues for an alternate week schedule. This is not appropriate at Chloe’s developmental state of early childhood (0 – 48) months. He has also advocated with success for long vacations with Chloe, one of 10 days, the other 9 days. This is also not developmentally appropriate for Chloe. It can be safely assumed that Chloe being away from her mother for 10 days will have been stressful for Chloe. Ms. Campbell has been Chloe’s primary attachment parent as her home has been Chloe’s primary residence. Chloe is securely attached to her mother and this process continues. Further separations from her longer than 3 days, should be avoided until Chloe is 4 years of age. The same principle applies to Mr. Campbell and Chloe. Chloe also is developing secure attachment to Mr. Campbell, although this would be considered a secondary attachment as Mr. Campbell has not been Chloe’s primary parent.”

[110] Despite vigorous cross examination on this point and alternate week parenting, Mr. Reid did not change his evidence regarding the amount of time a young child between the ages of 0 – 48 months should be away from his/her primary parent. He repeated more than once that the overall effect on Chloe might not show up until she is an adult and that “no one knows what the effect of a bad parenting plan has on an infant”. He stated that when a child is under stress they can look happy and they cannot be picked out of a crowd.

[111] Mr. Campbell’s expert gave very similar evidence. His evidence was designed to show that Mr. Campbell had taken Mr. Reid’s report seriously and had sought out parenting instruction from various experts. Dr. Zayed testified that he was qualified to do “attachment” work with parents and children. Dr. Zayed found Mr. Campbell engaged in the three sessions that they had and felt that he understood everything that was being discussed. Dr. Zayed found Mr. Campbell to be above average in his sense of parenting.

[112] However, with respect to the two vacations taken by Mr. Campbell with the approval of the court, Dr. Zayed stated that he appreciated what Mr. Reid said about more extended periods; that he would not expect a lay person to understand that, especially one who feels he does not see her enough, and his lack of seeing distress when Chloe is away.

[113] Dr. Zayed went on to say that having the child away from either of her parents for more than a couple of days is harmful and not helpful to her. Dr. Zayed talked about Facetime with Mr. Campbell and said that Facetime was not sufficient for a child that age to experience the connection and that she required physical contact. He testified that Mr. Campbell was willing to reflect on this information but was skeptical about it.

[114] Even though Mr. Campbell engaged this expert and had him testify on his behalf, he remained skeptical about the information regarding the amount of time a young child should be away from his or her parents. With respect to the San Diego trip, Mr. Campbell did not have the information from Mr. Reid or Dr. Zayed, although it is doubtful that he would have agreed that Chloe should not spend so much time away from her mother and would had sought permission to take her to San Diego in any event. The trip was ordered and took place. However, it was not without difficulties, which again added to the stress, tension and mistrust between Ms. Wentzell and Mr. Campbell.

[115] Firstly, the Facetime did not occur as ordered. One of the Facetime calls failed. According to Ms. Wentzell, Mrs. Campbell emailed her and suggested a Facetime 8 hours earlier than had been agreed to. The last Facetime did not happen because Chloe was asleep when Ms. Wentzell called. Don Campbell told Ms. Wentzell to call back at 6 because the Campbells were not prepared to wake Chloe up from a nap. However, they then took Chloe out for a dinner engagement and the mother could not reach any of them on the telephone to have her Facetime as ordered. Ms. Wentzell tried again to call just before 8 p.m. San Diego time and there was no answer. This very simple task could have been accomplished by having any one of the Campbells call Ms. Wentzell as soon as Chloe woke up for her nap and before they left for dinner. The calls were only 15 minutes long, at best, and would not have affected the family plans for the evening. It obviously was not important enough for the Campbells to make a bit effort to ensure that Chloe got a chance to see and speak to her mother.

[116] Things went from bad to worse at the end of the trip. As per the court order, an itinerary was provided to Ms. Wentzell. She expected that Chloe would be home by 10 p.m. on the return date, provided that the flight was on time and there were no delays at the border crossings. Ms. Wentzell checked the flight and learned that it was to land shortly ahead of schedule. She also checked the three border crossings, at the Blue Water Bridge, the Windsor/Detroit Tunnel and the Ambassador Bridge. There were no delays at any of the U.S./Canada border crossings. She heard nothing from any of the Campbells until after the time she expected Chloe to be home. At 10:04 p.m. Mrs. T. Campbell sent an email to the mother indicating that they had just crossed the border and expected to arrive at approximately 11 p.m. There was no explanation as to why they were only crossing the border at 10 p.m., at least 2 ½ hours after they had landed. When it came time to explain during the trial, the evidence of the Campbell’s was not consistent with one another, leading the court to question their truthfulness under oath.

[117] In explaining why Chloe’s return was later than anticipated, Mrs. Tracy Campbell said that the flight was uneventful and that Chloe was awake during the flight. She stated that they went to a restaurant to have something to eat before crossing the border. Adam Campbell stated that they stopped to eat because Chloe was hungry. The evidence from Mr. Campbell was that Chloe slept through the meal service on the plane, despite the fact that Mrs. Campbell stated that she was awake during the flight. Prior to stopping, Mrs. Campbell could have easily sent an email or text advising Ms. Wentzell that they were going to stop to eat some dinner and would be on their way home immediately afterwards. None of the Campbells testified that they even thought of telling Ms. Wentzell about the delay or the reason for it.

[118] There was also conflict in the evidence of the Campbells regarding what occurred when they finally reached Ms. Wentzell’s home. Ms. Wentzell was clearly upset by the delay and the lack of explanation for it. She also wanted Chloe’s passport returned to her as ordered. She asked for Chloe’s bag and her passport and Mrs. Campbell told her it was packed and that since it was raining, it would be better for her to go inside and Chloe’s things would be given to her at the next access exchange. Don Campbell said that Ms. Wentzell was upset about getting Chloe’s dolls and comfort items along with the passport. Mrs. T. Campbell very angrily testified that there were no comfort items sent with Chloe. Again their evidence was not consistent. No one was prepared to give Ms. Wentzell Chloe’s bag or her passport.

[119] The family crossed the border at the Blue Water Bridge. When crossing a border in a vehicle, the driver of the car must hand to the officer passports for everyone in the vehicle. Once a vehicle is approved to proceed, the driver continues on. There was no evidence that the Campbell vehicle stopped again after the border crossing. Chloe’s passport had to be in the hands of the driver at the border stop. It was likely still in the front of the vehicle for the remainder of the ride home. In order to make it inaccessible the car would either have had to be stopped to repack the passport in Chloe’s bag or if the bag could be reached by someone in the back seat who packed it, then it should have been accessible when the child arrived home.

[120] Chloe was late arriving home from a 9 day trip; she had missed Facetime with her mother because after her nap, the Campbell’s had taken her out to a dinner engagement without first trying to call her mother; the mother was not told by text or email that the family needed to stop to eat; and was aware that none of the delay was caused by outside sources related to the flight or the border crossing. Ms. Wentzell was upset by the lateness of the arrival and that upset was compounded when the Campbell’s refused to return Chloe’s things. To deny such a simple request escalated an unnecessary area of conflict and raised the tension and mistrust between the parents.

[121] In April 2015, Mr. Campbell sent a redirection notice to Canada Post to have not only his mail redirected to 55 Midpark Crescent in London, but also to have Chloe’s mail sent to that address as well. He testified that he had done so a year earlier. The first page of Exhibit 43 confirms that Canada Post had received the redirection order from Mr. Campbell on March 29, 2014, but there was no indication that Chloe’s mail was also to be redirected. Page 4 of Exhibit 43, which shows the redirection request in 2015, not only sought redirection of Mr. Campbell’s mail, but also sought redirection of Chloe’s mail as well.

[122] Ms. Wentzell’s evidence was that Mr. Campbell had Chloe’s mail redirected in order that he would obtain her new health card that was expected in the mail. Mr. Campbell testified that he took this step in order that he would receive monthly bank statements for an account that he opened for Chloe, although he admitted that he could have ensured receipt of such statements through the bank. Mr. Campbell also testified that he was putting $20 per week into the account and that when he closed the account, there was $280 in it. The court does not accept that the redirection of mail for Chloe had anything to do with the bank account. Based on the amount of money he deposited into the account, a monthly statement was hardly necessary. Further he could have checked the account on line at any time. His very feeble explanation was an attempt to hide the fact that he wanted to obtain Chloe’s new health card. He did in fact obtain Chloe’s health card and rather than provide it to the mother, gave her a copy of it. Whether Mr. Campbell liked it or not, Chloe was in the primary care of her mother, with access to her father. At that point in time, the only refusal to provide Chloe’s documentation has been done by the Campbell family following their return from San Diego. The card should have been provided to Ms. Wentzell. Mr. Campbell could have kept a copy.

[123] Eventually, the Canada Post was advised that Chloe did not live primarily with Mr. Campbell through an inquiry made by Ms. Wentzell. On July 9, 2015, Canada Post sent an email to Mr. Campbell advising him that Canada Post “will not redirect mail for your child and will deliver all mail as addressed.”

[124] On May 12, 2015 a consent order was made for Morrison Reid to complete an assessment. Mr. Campbell’s motion to have the matrimonial home sold; and all other outstanding issues were adjourned to a special appointment date to be set. Both parties were to provide their proposals for expanding access.

[125] On May 21, 2015, Templeton J. made a new order regarding access based on the proposals for access provided by each parent as ordered on March 13, 2015. The order provided that Chloe would be in her father’s care in week one, on Monday from 4 p.m. to 7 p.m.; Wednesday from 4 p.m. to 7 p.m.; and Friday at 4 p.m. to Sunday at 7 p.m.; and in week two, on Tuesday from 4 p.m. to 7 p.m.; and Thursday from 4 p.m. to Friday at 9 a.m.

[126] The May 21st endorsement also provided for week about parenting time during the summer of 2015, with Facetime with the other parent at least every three days. Unfortunately, even that order could not be followed without difficulty. Within 8 days, Mr. Campbell’s lawyer wrote to Templeton J. asking the court to specify when the summer began. Justice Templeton responded by email on June 1, 2015.

[127] The email sent to the parties was included in the Orders and Endorsements Brief, filed as Exhibit 4, at tab 34. The email stated the following:

1. In response to the letter received May 29, 2015 from Mr. Eberlie, the summer schedule starts July 1st through to August 31st.

2. I would have thought that the parents could at least negotiate the issue regarding who has Chloe for the first week given any plans they may have already made. However, given the lack of apparent cooperation, Ms. Wentzell shall have Chloe for the first week of the summer holidays.

3. Counsel are required to negotiate a mutually agreeable place for pick up and drop off. In the event of disagreement, the parties will alternate between the places suggested by each of the parties. Ms. Wentzell’s suggestion will be used first.

My endorsement is clear. Costs on a solicitor and client basis will be ordered against the party failing to act reasonably in all of the circumstances. This acrimony must end. (Emphasis mine)

[128] Unfortunately, this order did not eliminate problems between the parents. As indicated earlier, many orders that appear to be clear and precise become problematic for this couple as soon as they find a way to create a loop hole. With respect to paragraph 3, the court is unsure whether Justice Templeton meant that Ms. Wentzell had the first choice for places of the exchanges on a visit by visit basis or on the basis of each and every exchange. The court would have thought that each parent would be allowed to determine the exchange place for each visit, both drop off and pick up, with one parent choosing for the first visit and the other parent choosing for the second visit and then alternating thereafter. The pickup times were most often at an hour when Merrymount was open, while the drop off times were not. Mr. Campbell interpreted the order to mean that if the mother chose to take Chloe to Merrymount at the beginning of an exchange, he could choose where Chloe was exchanged at the end of each visit. This resulted in Ms. Wentzell having to attend at the father’s residence at the end of every visit. She felt that this was unfair to her, but Mr. Campbell was not prepared to discuss it with her. Even when she brought it up for discussion at a motion prior to trial, Mr. Campbell’s solicitor took the position that the court had no authority to look to the order and make any changes.

[129] Even though Ms. Wentzell or her parents went to the Campbell residence to get Chloe, there continued to be problems. The Campbell’s complained that Ms. Wentzell parked on the street on the wrong side, facing the wrong way, creating a safety issue for Chloe. The court is familiar with the area and street on which the Campbells Sr. reside. The street is not busy and the traffic is fairly light. Additionally, Adam Campbell made it clear that he did not want Ms. Wentzell to even stand on the driveway much less park on it for the purposes of exchanges. On one occasion, while Chloe was present, Mr. Campbell yelled at Ms. Wentzell to “get the f—k off his property”. Ms. Wentzell also did not want the Campbells on her property. This very immature behavior on the part of the Campbells and Ms. Wentzell added to the tension, dislike and mistrust among all of the adults who should have been able to behave better.

[130] In May 2015, Mr. Campbell hired a private investigator to watch the matrimonial home. At that time, he had suspicions that Ms. Wentzell was seeing another man and that this person was regularly staying at the matrimonial home overnight. Mr. Campbell testified that he hired the private investigator to watch the home to see who was living at the house. He indicated that he was not prepared to have Ms. Wentzell’s “boyfriend living there at his expense”. He stated during cross examination that Ms. Wentzell had lied about having someone stay at the home with her and that it was because of her dishonesty that a private investigator was necessary.

[131] Mr. Campbell hired Eagle Investigations to watch the matrimonial home and report on who was in the house. Mr. Michael Wood was the private investigator that was assigned by Eagle Investigations to carry out the investigation. No one in the Campbell family spoke to or instructed Mr. Wood on his duties. Mr. Campbell hired the company and Mr. Wood’s instructions were obtained from his employers. This allowed Mr. Campbell to insulate himself from any steps that Mr. Wood took that had nothing to do with who was in the matrimonial home.

[132] Mr. Wood filed an affidavit dated July 15, 2015 in support of the motion brought by Mr. Campbell in which he stated that “I was instructed by my principal to conduct an investigation into the activities, conduct and actions of Katie Campbell and Chad Powers. In his evidence, Mr. Wood testified that he was told to determine if he saw a male coming and going from the home. No mention was made by Mr. Wood in his oral evidence that he was also reporting on the activities and actions of Ms. Wentzell. Mr. Wood carried out his surveillance both in person and by “planting” a camera on public property across the street from the matrimonial home, focused on the front of the matrimonial home. He reported that his investigation occurred between May 11, 2015 and June 30, 2015.

[133] Mr. Wood reported that Mr. Chad Power, a man that the mother was seeing, was regularly in the home at various times of the day and night and spent nights there. He was seen driving out of the garage; sweeping out the garage, and mowing the lawn at various times. The court did not see any of the video information related to this investigation. During cross examination, Mr. Wood admitted that Mr. Power would leave the mother’s home and not return for days. He stated that he had no idea where Mr. Power went or where he lived. Although Mr. Power was at times visiting the mother’s home and remaining in the home over night, there was no evidence that he was living there.

[134] Mr. Campbell testified that he wanted the home watched in order to obtain evidence that Ms. Wentzell was not living there alone with Chloe, in order that he could sell the home. His reasoning does not explain, however, why Ms. Wentzell was followed at a grocery store and followed out of town to Grand Bend for a birthday party. Information obtained on those occasions had nothing to do with the matrimonial home or who was or was not living there.

[135] Mr. Wood followed Mr. Power to work on several occasions. After Mr. Power parked his car, Mr. Wood videotaped him walking into the police department headquarters. When asked if he was aware that there were signs indicating that no videotaping or pictures were to be taken in that area, he stated that he took the pictures from across the street on public property. When asked by the court, hypothetically, whether he was entitled to take pictures through a window in a courtroom door of events occurring inside the courtroom, where signs were posted that no pictures were to be taken, he initially said “that is different” but did not explain the difference and then angrily stated that he could take pictures of anyone at any time he wished.

[136] During his cross examination, Mr. Wood stated that he had disclosed all of his material related to the surveillance of Ms. Wentzell and Mr. Power. However, Mr. Wood’s initial 16 page report dated June 15, 2015 was attached to an affidavit and served on Ms. Wentzell and filed with the court for the motion brought in the summer of 2015. A subsequent report related to surveillance on Ms. Wentzell was never produced by Mr. Wood or by Mr. Campbell. It was extremely disturbing to learn that Mr. Campbell had Ms. Wentzell followed again in November 2015. At that time, Ms. Wentzell and Chloe were not living at the matrimonial home. The home had been sold and Ms. Wentzell was living at her parent’s home on Grenville Drive. Mr. Campbell provided no explanation as to why he continued to have the mother followed long after she had left the matrimonial home. The court can only assume that he did so to continue to upset and harass her.

[137] Once Mr. Campbell had the report from Mr. Wood he brought a motion for various relief and Ms. Wentzell brought a cross motion. In his motion, Mr. Campbell sought an order for sale and partition of the matrimonial home and permission to control the sale process; possession of his property and personal belongings remaining at the matrimonial home; reduction in child support effective September 1, 2015 together with a reduction of child support retroactive to January 1, 2014, together with a repayment of $8,400 for his overpayment of such support; and to strike certain paragraphs from the respondent’s affidavit as irrelevant. The mother’s motion sought interim spousal support; imputation of income to the applicant for the purposes of determining child and spousal support; exclusive possession of the matrimonial home and its contents; and financial disclosure.

[138] The motions were heard on July 22, 2015. Mitchell J. provided written reasons for her decision on August 26, 2015. The order of Mitchell J. provided that the matrimonial home be immediately listed for sale by a realtor selected by the applicant; that the applicant could unilaterally accept any offer that was 90% or greater than the listing price; and that after payment of commissions, utilities, legal fees and property tax arrears, the balance was to be held in trust by the applicant’s lawyers.

[139] Pending the sale of the matrimonial home, the respondent mother was to have exclusive possession of the home subject to conditions, including: making the home available as often as may be reasonably required to show it to prospective purchasers; allowing the applicant to attend the home on one occasion to remove his personal items listed in Exhibit I to his affidavit sworn April 1, 2014, upon 48 hours’ notice to the respondent; and prohibiting any person other than herself and Chloe from being in the home between the hours of 11 p.m. and 7 a.m. The applicant’s motion to reduce interim child support was dismissed, as was the respondent’s motion for interim spousal support.

[140] At 10:16 p.m. on August 26, 2015, Mr. Campbell sent an email to Ms. Wentzell that he had listed the home for sale as the realtor; that a sign would be installed on the property as soon as possible along with a lock box on the front door; that he required a key by noon the next day; that a showing was booked for 6 – 8 p.m. on August 27, 2015; and that she was to vacate the home during the showing.

[141] Although Justice Mitchell indicated that Mr. Campbell could choose the realtor, she did not indicate that such a choice could include himself. It was clear from the decision that Justice Mitchell was aware that Mr. Campbell was a real estate agent. Had the court expected him to be the agent in charge of the sale of the home, it is likely that this would have been specifically mentioned. In reviewing the decision there certainly is no expectation that Mr. Campbell would list the home himself, thereby being permitted to enter the home upon reasonable notice. The order granted him permission to enter the home on only one occasions with 48 hours notice. If that portion of the order was complied with, then Mr. Campbell could have entered the home only once to show it and never again. This action by Mr. Campbell also allowed him to be in the home while Ms. Wentzell was absent and deal with the contents, including Ms. Wentzell’s property as he saw fit. This court does not believe that this was the intention of Justice Mitchell’s order. This was yet another example of Mr. Campbell interpreting an order on the basis that if an order told him he could not do something, then he could, even if his actions were not in line with the entire order.

[142] On August 28, 2015, Mr. Campbell attended Merrymount for an access exchange. During the exchange, Mr. Campbell requested information about the mother’s new address and asked for her key to the matrimonial home. When the exchange supervisor said that no requests were going through the centre, Mr. Campbell stated that he would not do the exchange. The supervisor said that the exchange would occur. Mr. Campbell then put Chloe down and kissed her goodbye. Chloe was then taken by the supervisor to her mother. Mr. Campbell’s statement showed that he too, was prepared to contravene a court order to get his way, just as he had complained Ms. Wentzell had done.

[143] When Mr. Campbell saw what the access supervisor had written in the exchange notes,, he testified that he had concerns about the content and advised the executive Director that the notes were incorrect. The access exchange supervisor did not agree and would not change the notes. Mr. Campbell’s evidence that he had not said he would not make the transfer without first obtaining the key from Ms. Wentzell is not credible. There would have been no reason for the access exchange supervisor to write such a detail in her notes if it had not occurred. In addition, Mr. Reid testified that he was standing right next to the supervisor when this event occurred and heard Mr. Campbell ask for the house key and then state that he would not exchange Chloe without it.

[144] Issues between the parents continued after the matrimonial home was sold. Exchanges continued to be difficult with the parents swearing at each other in front of the child; Mr. Campbell alleging that the mother grabbed Chloe very roughly on one occasion while Ms. Wentzell alleged that Mr. Campbell yelled at her while swearing to get off his property and pushed, poked or shoved her; the father and his parents complaining that Ms. Wentzell parked on the wrong side of the road facing the wrong direction, while at the same time ordering her not to drive or even step onto the property; and Ms. Wentzell bringing a motion for a restraining order ex parte, that was dismissed. Motions continued to be brought. Some were settled and others were argued. Costs awards started to mount up against Ms. Wentzell to the point that when the trial commenced, she owed Mr. Campbell over $60,000 in costs.

[145] On February 17, 2016, a motion by Mr. Campbell for contempt and to strike Ms. Wentzell’s Answer for her failure to pay costs and for provision of undertakings was dismissed. At that time it was ordered that there were to be no further motions brought without leave of the court. On February 22, 2016 Mr. Campbell brought an amended motion regarding a trip he wished to take with Chloe to Memphis. He did not have leave to do so. Justice Heeney’s endorsement makes it clear that he was only “prepared to deal with it because a consent has been arrived at”. An order was made based on the consent, agreeing to the details of the Memphis trip, with Ms. Wentzell having Chloe on the Mother’s day weekend, which would have been father’s weekend.

[146] In April 2016, Mr. Campbell learned that Chloe had been having dance’lessons’ and asked the mother for details so that he could also attend. Ms. Wentzell did not respond to this request. At trial she indicated that she had not registered Chloe in dance lessons, it was just an activity that she and Chloe sometimes attended together on her time and that she did not want Mr. Campbell present during her time with her daughter. Mr. Campbell later advised Ms. Wentzell that he would be registering Chloe in dance classes. He provided her with all the information about the classes, including material to parents that indicated that consistent attendance by the child was very important to ensure that the child kept pace with his/her class mates. Ms. Wentzell testified that she did not received this email information, but admitted that Mr. Campbell placed the dance package information on the table in court before trial began one morning. Ms. Wentzell refused to take Chloe to the dance classes that occurred during her parenting time because she felt that Mr. Campbell was infringing on her time with Chloe and directing her what to do.

[147] A further incident that occurred in April related to a tee shirt that Mr. Campbell purchased for Chloe. The shirt’s front was covered with large print stating: “I’m going to be a BIG sister.” Mr. Campbell testified that he purchased the shirt as an April Fool’s joke and that he put the shirt on Chloe before taking her to his parent’s home. He noted that his brother had used such a shirt on his oldest son to announce that he and his wife were having another baby. Pictures of both shirts were filed as Exhibits 49 (Chloe) and 64 (Logan – Mr. Campbell’s brother’s son) .

[148] Mrs. Campbell testified that she ‘gasped’ when she saw the shirt, but then looked at Adam and realized it was an April Fool’s joke. Her evidence was that she told her son to take the shirt off Chloe because she did not think Ms. Wentzell would approve. Don Campbell testified that his initial thought was “you are having another one?” and then realized it was a joke. He indicated that the joke was not very well received by anyone, but believed the mother “made a mountain out of a mole hill.” His comment about her reaction to the shirt shows either an insensitivity to the fact that Ms. Wentzell had to undergo medical procedures to become pregnant or a complete lack of thought about the possible effect such a message would have on Ms. Wentzell.

[149] Adam Campbell did not remove the shirt from Chloe before sending her home to her mother. He testified that he should have done so and noted that he was sorry that it went home with Chloe. The print on the front of the shirt was very large and covered most of Chloe’s chest and stomach. It is impossible to believe that the father simply forgot to remove it. It is far more likely that he knew such a message would upset Ms. Wentzell and simply did not care.

[150] In May 2016, at a trial management conference, Ms. Wentzell advised the court that she had enrolled Chloe in daycare as a result of her obtaining employment. Details of the daycare were not shared with Mr. Campbell.

[151] The trial commenced on June 13, 2016 and continued to June 23, 2016. It was then adjourned to September 2016. On June 23, 2016, the court granted permission to the parties to file motion material to deal with parenting time of Chloe pending the adjournment. On June 28, 2016 an order for week about parenting time, with one overnight per week to the other parent and exchange details for the period July 1 to September 6, 2016 was made. The order also provided for parenting time following the summer months, to commence on September 7, 2016.

[152] It is not possible for the court to detail all of the events and incidents that occurred between these parents and their families over the course of the last four years. The court has focused on the events and incidents that were the most disturbing. In addition to the activities of the parents, the numerous motions and court appearances, there was a deluge of letters and emails, making demands and/or accusing the other parent of inappropriate behavior. At times, there were copious amounts of letters and emails sent on the same day, demanding an answer or action immediately. There were times when as soon as one motion was heard, another motion would be brought, most often by Mr. Campbell. It was curious as to why a new motion was needed on an issue that existed and could have easily been determined at the time of the previous motion.

[153] There was an overall feeling by the court that Mr. Campbell wanted to inundate Ms. Wentzell with court appearances, demands, letters and emails so that she would give up and simply accede to his wishes. Although that did not happen, these events served only to escalate the conflict between the parents to the point that Ms. Wentzell made it clear she did not want to talk to Mr. Campbell; did not want phone calls, texts, or emails from him; and did not even want him driving by her home or the homes of her family members. Unfortunately, it is the reactions of Ms. Wentzell that cause the court concern about her ability to ensure a positive relationship between Chloe and her father.

[154] Mr. Morrison Reid was retained by the parties to complete a custody and access assessment. He did so and filed a report dated January 21, 2016. In completing his report, Mr. Reid set out the interviews he had with the parents; the observations of the child with her parents; collateral contacts with whom he spoke, including both sets of grandparents, both partners of the parties, family doctors of the parents, intake worker at Children’s Aid Society of London and Middlesex, Mr. Campbell’s psychologist; and Ms. Wentzell’s psychotherapist. He also reviewed letters, reports and documents from Mr. Campbell’s family doctor; Chloe’s pediatrician; reports from Children’s Aid Society of London and Middlesex; supervised access notes and a report from Merrymount Children’s Centre, Supervised Access Centre; and a report from the London Police Services. He also reviewed the pleadings and supporting documents of both the applicant and the respondent and court orders.

[155] In the “Discussion” portion of the report, Mr. Reid indicated that “the most important thing is that Chloe is a healthy, thriving child,” who had experienced normal development and received consistent medical care. He went on to say:

She presented as a healthy, happy and sturdy toddler who radiates a love of life and love of her family. Chloe is learning to communicate well through vocabulary and sentences. Despite their conflict, Ms. Campbell, as Chloe’s primary parent and Mr. Campbell, as her access parent, are providing Chloe with a good start to her life. In this task, they receive tremendous support from Chloe’s paternal and maternal grandparents.

[156] At page 14, Mr. Reid stated that apart from their conflict, the parents had a good parent capacity, going on to state:

Neither has experienced mental health problems apart from the stress associated with their separation and conflict. There is no history of serious drug or alcohol problems for Mr. or Mrs. Campbell. They do not have criminal records or a pre-separation history of police involvement. They have family support and the financial ability to support Chloe. They have been observed to parent Chloe in a playful, stimulating, positive, loving child-centred way. They talk to Chloe and read to her in a way that helps develop her ability to communicate. These are all indicators of positive parent capacity. Chloe is safe, valued and loved in the care of her mother and father and in their homes.

[157] In reviewing these initial conclusions by Mr. Reid, one might wonder why there was a need for the litigation regarding custody. But Mr. Reid’s discussion regarding the relationship between the parents made it clear that the conflict between them was a serious matter that had the potential to stop Chloe’s good child development; and that there was no doubt that Chloe had already been exposed to stressful parent conflict.

[158] Mr. Reid discussed the well-known effects of a child’s exposure to adult conflict stating:

It is now well known that exposure to adult conflict creates changes in a child’s developing brain that predisposes children to be anxious and have difficulties with emotional regulation. Adult conflict scares and worries children and activates what is commonly known as the fight or flight response. This occurs to help the child protect themselves from a threat or perceived stress. If this response is activated too many times by parent conflict, the child develops difficulty turning it off in the future. The result is chronically worried or anxious children. The impact is cumulative. Chloe is now a happy child but this may not continue if things do not change. At her age,[^2] Chloe will be developing emotional memory of the stress she is experiencing. Many parents and adults misunderstand children and assume because they are happy, smiling and playing, they are fine. Play is the language of young children. They will often look like they are coping well and they may not be.

[159] Mr. Reid went on to discuss some of the stressful parent conflict to which Chloe had been exposed. He noted that the London Police had attended multiple conflict events when Chloe was present, including in November 2013 and December 2013 when the parents were arguing outside the home with Chloe nearby in her car seat. He discussed in some detail the incident in September 2015 on page 15 of his report. He noted that prior to that incident, which involved the London Police and triggered a CAS investigation, Ms. Wentzell had requested that exchanges occur at Merrymount. However, as a result of Mr. Campbell’s interpretation of Templeton J.’s order that the parents would have alternate choices of place of exchange when Merrymount was closed, (and it was almost always closed at the end of Mr. Campbell’s access), he insisted that Ms. Wentzell attend his home to pick up Chloe. In retrospect, it seemed a strange choice when it was clear that none of the Campbell’s wanted Ms. Wentzell on their property, including parking her car on the driveway to pick up Chloe.

[160] In discussing the event in September 2015, Mr. Reid referred to Mr. Campbell’s interview with the police, where he advised that Ms. Wentzell arrived at his residence, and was standing approximately 10 feet on the property. Mr. Campbell ordered Ms. Wentzell off the property, using foul language to do so. Ms. Wentzell demanded that Mr. Campbell put Chloe down so that she could walk to her mother, also using foul language. Mr. Campbell continued to walk toward Ms. Wentzell, putting Chloe down only when he got near to her. Mr. Reid accepted the fact that Ms. Wentzell wanted some space between herself and Mr. Campbell. He opined that Ms. Wentzell’s intention appeared to have been to prevent conflict, while Mr. Campbell’s intention appeared designed to disrespect and inflame.

[161] Of more concern, however, was how Chloe would have interpreted the incident. Mr. Reid indicated that Chloe loves her mother and her father and that it would have caused Chloe stress and confusion when her father ordered her mother off the property. He noted that the parents were devoting enormous personal and financial resources to address the time they have with Chloe and “are doing nothing to resolve their conflict, which is the main problem for her”.

[162] Mr. Reid went on to discuss the parents’ role in the conflict and the effects of the conflict. The court found his comments on page 15 to be insightful and is including much of it here:

Much of the time, separated parents are equally responsible for maintaining conflict. Ms. Campbell is not blameless, however, Mr. Campbell has behaved in a way that has elevated his conflict with Ms. Campbell to extremely high levels. His decision to retain a private investigator perhaps is legal, but is very intrusive. The investigator followed Ms. Campbell and Chloe, when she was with her, taking videotapes and still pictures. This would have been highly stressful for her and for anyone in her shoes. It would be difficult to consider how Ms. Campbell can ever regain trust in Mr. Campbell, for example, to co-parent with him in a joint custody arrangement, which is Mr. Campbell’s goal.[^3] She could not be blamed for rejecting this idea totally.

The Honourable Justice Mitchell clearly anticipated that Ms. Campbell and Chloe would have an orderly and protected transition from the matrimonial home to their new home. Her order of August 26, 2015 anticipated that Ms. Campbell would remain in the home for several months until it was sold. The same order allowed Mr. Campbell to go in the home only one time to remove possessions. This may have been to prevent conflict between the parents and protect Chloe from conflict. It is unlikely that Justice Mitchell anticipated that Mr. Campbell would select himself as the real estate agent for the sale of the home allowing him to obtain keys and entry to the home whenever buyers needed to see it. On being informed of this, Ms. Campbell decided she and Chloe could not live in the matrimonial home under these circumstances. By August 28, 2015, Ms. Campbell and Chloe were experiencing a housing crisis forced to temporarily live with relatives. On August 28, 2015, Mr. Campbell was at Merrymount insisting that supervised access staff get the house keys from Ms. Campbell. According to the notes, he even threatened to withhold Chloe if he did not get the keys.

[163] In analyzing the paragraph above, Mr. Reid opined:

Men often do not understand well a woman’s need for boundaries and a safe space which is often in their home. When a former husband or male partner insists on being in the home against her wishes, this can be very threatening. Few separated women would be able to tolerate this and Ms. Campbell, for good reasons, could not. She moved in a hurry with Chloe and Chloe never returned to the matrimonial home which had been her home since birth with all the associated memories. Again, the possibility that Ms. Campbell can trust Mr. Campbell to co-parent with him appears remote.

[164] Mr. Reid provided much information about Chloe’s age and stage of development and the importance of the “attachment” process to a child her age. At page 16, he stated:

Chloe may be at the most vulnerable stage in her child development. She is in the stage called early childhood which includes the year of being 3 or 0 – 48 months. This is the time period when infant/parent attachment forms. Because of this, a parenting plan must be carefully crafted and designed to avoid disruptions to Chloe’s emotional development and mental health at a very important time in her life. Disruption to the attachment process with either parent may be detrimental to Chloe’s well-being.

Attachment can be thought of as a young child’s drive (0 -48 months) to be close to mommy and daddy for safety and protection. It is often confused with bonding and general relationship formation. Attachment is a discrete process that only occurs when a child is in distress or has a need, for example, to be fed, soothed, protected from real or perceived fear of harm. When an infant has that type of need and the parent is available to respond immediately, attachment forms. This causes the child to learn that certain people, usually mommy and daddy but sometimes others, will protect them and keep them safe. The child learns that mommy and daddy love them and they have high value in the world. This develops into self-esteem and a child’s ability to regulate emotions. A child can stop herself from crying and calm herself because mommy and daddy are there to hold them. This process is thought to be finished by 48 months or earlier and a child is emotionally hard wired to know who the most important adults in their life will be for the rest of their lives. When a parent is unable or not present to respond to infant needs or distress, attachment is disrupted creating gradual harm to the child.

[165] Mr. Reid noted that infant mental health specialists suggest that three days should be the maximum separation that a child is away from an attachment parent. Mr. Campbell’s expert, Dr. Zayed, agreed with this premise. According to Mr. Reid, anything longer creates stress for a child as the trusted parent is not available to provide hands-on care when needed. Mr. Reid also discussed the two vacations taken by Mr. Campbell with Chloe consisting of 9 and 10 days. He stated:

This is also not developmentally appropriate for Chloe. It can be safely assumed that Chloe being away from her mother for 10 days will have been stressful for Chloe. Ms. Campbell has been Chloe’s primary attachment parent as her home has always been Chloe’s primary residence. Chloe is securely attached to her mother and this process continues. Further separations from her, longer than 3 days, should be avoided until Chloe is 4 years of age. The same principle applies to Mr. Campbell and Chloe. Chloe is developing secure attachment to Mr. Campbell, although this would be considered a secondary attachment as Mr. Campbell has not been Chloe’s primary parent.

[166] With respect to the notion that Facetime with the absent parent during longer periods away from that parent would minimize any risk of emotional and mental harm to Chloe from being separated from her mother, Mr. Reid and Dr. Zayed indicated that such was not the case. Mr. Reid indicated:

Face time will not promote attachment because no hands-on caregiving is involved. The child requires physical contact, to be held, soothed, touched and directly hear the parent’s voice. Face time has very limited value and at best can be considered better than nothing.

[167] During his evidence Dr. Zayed indicated that he appreciated what Mr. Reid said about more extended periods away. He went on to state that more than a couple of days away from either parent was harmful to Chloe. He noted that Mr. Reid’s recommendation regarding length that Chloe is separated from either parent was sensible.

[168] Dr. Zayed stated that he spoke to Mr. Campbell about the issue noted above and he also talked to him about Facetime. Dr. Zayed stated that Facetime was not sufficient for child Chloe’s age to experience that connection and that physical contact is required. During cross examination, Dr. Zayed stated that a child could probably cope with an absence from a parent for 10 days when she is 6 or 7. Despite learning this information from his expert, Mr. Campbell arbitrarily lengthened a 2017 mid-winter seven day vacation that had been ordered to a 10 day vacation by adding on his alternate weekend at the end of the 7 days. He clearly does not accept what his own expert says about a child needing to be 6 or 7 before they can tolerate a 10 day absence from the other parent. This is another example of Mr. Campbell interpreting an order to suit himself regardless of the effect on Chloe.

[169] Mr. Reid and Dr. Zayed agreed on the issue of separation of a child from his/her parent for more than three days at a time. Mr. Campbell took the position that Mr. Reid’s assessment had no value to the court. However, when his own expert tried to explain that a child Chloe’s age should not be away from either parent for more than 3 days, Mr. Campbell was skeptical. He asked the court to accept his expert’s opinion on what he had learned and about his ability to parent, but was not willing to accept his expert’s advice about attachment and separation of a young child from his/her primary parent, because that opinion did not support what he wanted.

[170] Dr. Zayed also indicated that fewer transitions for a child are preferable; that three hour visits are not in a child’s best interests because it does not allow enough time with the parent nor allow the child to settle in; and that consistency of routine is definitely preferable. In answer to questions by the court, Dr. Zayed stated that the time a child is with each parent need not be equal, so long as he/she sees a parent at least every three days.

[171] In concluding his report, Mr. Reid suggested that Mr. Campbell’s access increase by way of increasing overnight access. He stated that it was not possible to recommend an increase to equal time, which Mr. Campbell wants and that due to the parent conflict, Chloe requires a primary residence which allows her some stability. He opined that Chloe’s primary residence should be with Ms. Wentzell and noted that the mother’s home had been Chloe’s primary residence since her parents separated and her primary attachment was to her mother. He suggested that Mr. Campbell have two overnight visits weekly and alternate weekends.

[172] Ms. Wentzell took the position during the trial, that she accepted the recommendations of Mr. Reid. Unfortunately, she did not put those words into action. Mr. Reid set out in his recommendations, a gradual increase of time that Chloe was to spend with her father. Had Ms. Wentzell agreed to start that gradual increase at the time the report was released, it may have been possible to avoid the trial entirely. But Ms. Wentzell was not prepared to change any of the father’s time with Chloe without an agreement to the recommendation regarding custody and without court order. Had she been more pliable and implemented some of the gradual changes earlier, the court would have had no reason to think that she would not continue to facilitate good contact between Mr. Campbell and Chloe and would likely be considering the reasons for or against sole custody versus joint custody. The evidence is more than ample to support that a joint custody order could never be made in this case. Unfortuately, it is Ms. Wentzell’s failure to act on the recommendations that forces the court to look to a “no custody” order instead of a sole custody order.

[173] Mr. Reid went on to say that it was not possible to recommend joint custody. He stated that the conditions such as good parental cooperation and communication that would support joint custody were not present. He recommended that the mother have sole custody of the child. He also recommended an increasing period of access for the father, noting that Chloe would be able to tolerate longer periods away from a parent when she was four years of age.

[174] Mr. Reid also recommended that Mr. Campbell obtain personal counselling from a professional familiar with child development. He noted that Mr. Campbell had a wide range of good parenting skills but seemed to lack knowledge of the developmental needs of a child in early childhood. He indicated that Mr. Campbell’s willingness to separate Chloe from her mother for lengthy periods and his belief that this will not harm Chloe’s mental health is a concern.

[175] To his credit, Mr. Campbell did seek attend professional counselling after being referred by his lawyer, with Dr. Zayed, a psychologist in private practice and at CPRI and Sheila O’Donovan who is an art therapist, clinical trauma specialist and children’s counsellor. He also met with Dr. Cory Leduc, who was not called to give evidence.

[176] Dr. Zayed and Sheila O’Donovan provided reports to the court and testified on behalf of Mr. Campbell. Mr. Campbell also participated in a Middlesex Child Health Program; Triple P – Power of Positive Parenting program; a Merrymount program called On Your Own; and a Circle of Security Program.

[177] Dr. Zayed had three sessions with Mr. Campbell. He testified that he found Mr. Campbell to be above average in his sense of parenting and his desire to resolve conflict with Ms. Wentzell. He later stated that he found Mr. Campbell to be an excellent parent, but added that every parent’s parenting can be tweaked. He noted that they had spoken about enhancing his verbal and labelling skills. It is concerning that Mr. Campbell did not accept the advice of Dr. Zayed regarding long absences from the other parent when he determined that he was entitled to keep Chloe away from her mother in the winter of 2017 for 10 days instead of the 7 that had been ordered.

[178] Similarly, Sheila O’Donovan saw Mr. Campbell 6 times for a total of 7 hours. She indicated that she talked to him about the Circle of Security, watched video clips of toddlers; what secure attachment, ambivalent attachment, avoidant attachment and disorganized attachment looked like; and how parents respond to a child’s dysregulation of emotions. Ms. O’Donovan testified that Mr. Campbell would give her examples of how he dealt with Chloe and stated that it sounded like he was reacting in a way that would meet her needs. She indicated that Mr. Campbell learned something about ‘time in’ and described that for the court.

[179] Ms. O’Donovan testified that Mr. Campbell responded very well to her; asked questions; attended every session; and wanted to understand Chloe’s needs. She described Mr. Campbell as an excellent student. She advised Mr. Campbell (and Ms. Wentzell during the trial) that she would be willing to meet with Ms. Wentzell and Adam to continue to build on what she was teaching the father. She noted that Mr. Campbell told her about the conflict with his wife. Ms. O’Donovan said that children struggle with parents who cannot like each other and that litigation does not solve the communication problem, but that the parents could learn to effectively co-parent. Ms. Wentzell declined Ms. O’Donovan’s offer advising that she would not want to see someone who had seen Mr. Campbell first.

[180] Based on her reading of the assessment and her meeting with Mr. Campbell, Ms. O’Donovan stated that it was her opinion that Chloe seemed to have a secure attachment to both her parents and that if something was working well for the child, it should be built upon. She too agreed that if the child was away from a parent for a week, there should be contact with the other parent and that it was preferable that the contact be physical.

[181] With respect to the assessment, Mr. Campbell took the position that the assessment should be given no weight because the assessor did not like him. That conclusion was reached because Mr. Reid commented negatively about the same negative behaviours by Mr. Campbell that has caused the court concern. It is possible to disapprove or dislike the behavior of a person without disliking that person. Mr. Reid was very clear in his assessment about Mr. Campbell’s positive aspects as a parent.

[182] At page 11 of the assessment, Mr. Reid described Mr. Campbell’s interactions and parenting with Chloe, observed at the paternal grandparents’ home as follows:

Mr. Campbell was observed to be child-centred with Chloe allowing her to choose activities. Mr. Campbell provided constant positive communications to Chloe, praising her for accomplishments and good behavior. Mr. Campbell was proactive, ensuring safe play. Mr. Campbell was physically affectionate with Chloe, holding her, hugging her and kissing her. Mr. Campbell informed Chloe that he loved her. Often, Mr. Campbell would incorporate learning into his interaction with Chloe helping her learn colours, eg. where is the red object and counting fingers with her to teach Chloe to count. Mr. Campbell ensured Chloe had a wide variety of activities.

[183] On page 12, Mr. Reid set out his overall impression of Mr. Campbell:

Mr. Campbell provides a home to Chloe that provides her with love and a high level of stimulation. Mr. Campbell communicates with Chloe in a way that builds self-esteem and encourages learning in a fun way. Mr. Campbell enjoys being a father and demonstrates happiness when he is with Chloe. Chloe is happy, calm and confident in her father’s care. Chloe loves her father and is developing a strong and appropriate attachment to him. Mr. Campbell’s home and parenting provides Chloe with all things necessary to meet her basic and higher level needs.

[184] On page 16, Mr. Reid concluded:

Since the separation, Mr. Campbell’s access has gradually increased and overnights have been included. His access should continue to expand. With the exception of his tendency to expose Chloe to his conflict with Ms. Campbell, Mr. Campbell is a good parent. (Underlining mine) He wants more access and it is normal for him to want this. Father involvement is important to children. Increasing amounts of research evidence are available to support the importance of father involvement. Improved self-esteem, confidence, initiative, physical development and school performance are some of the known benefits. Chloe will benefit from increased time in her father’s care.

[185] In reading those passages, it is difficult to agree with Mr. Campbell that the assessor made his recommendations due to some dislike of Mr. Campbell. It is evident to the court that Mr. Reid had a positive opinion of Mr. Campbell’s ability to parent and of his love and dedication to his daughter. However, Mr. Reid also read disturbing information regarding the extent to which Mr. Campbell was prepared to take the conflict in order to achieve his ends. Mr. Reid came to the same conclusion that the court did, that the relationship between the parents had not improved since separation and that exposure of Chloe to the conflict would lead to stress for her and developmental problems. Joint custody (the claim made by Mr. Campbell) requires a level of maturity (something both parents lacked) and a willingness and ability to communicate, cooperate and co-parent. The parents in this case have not been able to reach a joint decision on any major issue concerning Chloe since the separation. Ms. Wentzell has repeatedly stated that she wants no communication with Mr. Campbell; that she does not want him interfering with her during her time with Chloe; and has made decisions regarding the child without notifying the father or seeking his input. To make a joint custody order based on the hope that this will change once the litigation is over is not supported by the law in Ontario and has no hope of working in this case.

[186] It must be remembered that at the time of the assessment, Mr. Reid had read the pleadings and was aware that Mr. Campbell wanted joint custody and an order that all major decisions were to be made by both parents after consultation with respect to education, health, religion and extra-curricular activities. Based on what Mr. Reid learned and based on the evidence heard by the court, such an order was not possible. The only other option claimed at the time was sole custody by Ms. Wentzell. After Mr. Reid found it to be impossible to recommend joint custody due to the lack of good parental cooperation and communication, he came to the obvious conclusion for 29 month old Chloe, that she should remain in the care of her primary parent, with whom she had resided for most of her life and recommended that Chloe be placed in the sole custody of her mother. He believed that Ms. Wentzell had a history of supporting access, (something Mr. Campbell submitted she had not done) and that she understood Chloe’s love for her father and her need for a relationship with him and his family.

[187] Mr. Reid then explained the need for shorter, more frequent visits with Mr. Campbell to take into account Chloe’s age and stage of development. The recommendations go on to suggest increasing Mr. Campbell’s parenting time as Chloe reaches an age where she is better able to tolerate being separated from her primary parent. Those recommendations made in January 2016 are supported by the evidence heard during this trial.

[188] However, the trial ended in September 2016, when Chloe was just past her 3rd birthday and still within that (0-48 month) time frame that the experts testified was crucial to good attachment. As a result of the delay in submitting closing arguments in writing (December 2016) and a delay due to medical reasons in completing this judgment, Chloe is now past her 4th birthday.

[189] The court finds that Mr. Campbell’s request for week about parenting time was not in Chloe’s best interests during the period prior to her fourth birthday. Despite advising Dr. Zayed that he would consider what he had been told about separation and attachment for a child under the age of 4, Mr. Campbell has clearly never accepted nor agreed with this information, and continued to bring motions for extended vacations, equal time and make up time if any of his time was missed from his access, regardless of the reason.

[190] In his endorsement dated April 17, 2014 in this case, Mitrow J. declined to make an interim custody order, although he did order that the child remain in the primary care of the mother. At paragraph 27, he discussed the “maximum contact” principle set out in s. 16(10) of the Divorce Act, stating:

However, adherence to the principle of maximum contact, as set out in subsection 16(10) of the Divorce Act, does not necessarily equate to the applicant having equal time with Chloe, as appears to be the applicant’s view.

[191] In a case provided with Mr. Campbell’s book of authorities, Templeton J. also discussed the issue of ‘time’ with a child in paragraph 18 in Shawyer v. Shawyer, (supra),where she stated:

Further, although a 50/50 division in the management of the children’s time outside of school may be perceived as in the best interests of the parents, there is no probative evidence before me that such a mathematical parsing of time is or would consistently be in the best interests of either or both of these children over the long term.

[192] It is abundantly clear to the court that a joint custody order will not work in this case. However, the court is also not convinced that a sole custody order will be in Chloe’s best interests either. The court is less concerned about the “winner/loser syndrome” in this case, than it is about the fact that after almost four years, these parents are not yet in a place where they are able to be civil and cooperate with one another for the benefit of their child. Mr. Campbell has blamed all of the difficulty on Ms. Wentzell. However, Mr. Campbell’s behavior was equally and sometime more blameworthy in continuing and escalating the conflict.

[193] Having found that a joint custody order is not possible in this case, the court also finds it impossible to grant sole custody to Ms. Wentzell. It is not in the best interests of a child to grant an award of sole custody to a parent who refuses to speak with the other parent; inform that parent of important issues and events; and who has given the court no indication that her attitude toward Mr. Campbell will ever improve. In the court’s view, such an order would lead to more conflict and likely more litigation. The parents have been embroiled in litigation for more than 3 years. Their daughter has just celebrated her fourth birthday. As such, conflict over her has been ongoing for most of her life. Their court file is contained in seven banker’s boxes. There are at least 15 volumes of continuing record. During the time of the litigation, several judges have advised the parents that the acrimony must end, but to no avail.

[194] Ms. Wentzell has made it clear that she wants no communication and nothing to do with Mr. Campbell. She has failed to provide him with information regarding Chloe, to which he is entitled, (eg. where Chloe was attending daycare). She would not take Chloe to her dance classes on days when Chloe was in her care because she believed this interfered with her time with Chloe and that Mr. Campbell was trying to control her life. Her decision was not child focused, but rather focused on her strong need to ignore Mr. Campbell and disregard anything he had to say to her.

[195] Mr. Campbell made it clear, through his actions that he will not stop unless he achieves what he wants. His lack of restraint is evidenced by the fact that he has continued to bring motions even after the court has directed, on more than one occasion, that no further motions be brought regarding parenting time for Chloe. When something is written about him that he does not like, he immediately takes steps to confront the writer in an effort to have the information changed, (eg. the walk-in doctor’s note in November 2013 and the Merrymount notes of August 2015).

[196] Mr. Campbell has the resources to continue to litigate indefinitely. The court has no doubt that if Ms. Wentzell is awarded sole custody, there will be years of further conflict and litigation in the form of contempt motions, access ‘make-up’ motions and motions to change. Somehow, Chloe has been insulated from the conflict to date, but as she grows older she will come to realize that her parents detest one another. As she loves them both, this realization will cause confusion, stress, and hurt to Chloe. The court believes that if the conflict continues, the parents will eventually involve Chloe in the disputes, making her life miserable. This potentially will put Chloe in the position of choosing between her parents and acting as a go between for them.

[197] Ms. Wentzell must understand that she made a choice to have a child with Mr. Campbell. Despite what she may think of him, he is Chloe’s father and will always be involved in her life. His parenting was described as very good by Mr. Reid. Dr. Zayed and Sheila O’Donovan both found him to be an “above average” and “excellent” parent. He was engaged in learning about parenting and prepared to make changes to the way he parented to benefit Chloe. (Eg: using time in rather than time out).

[198] Chloe loves her father and is happy in his care. Mr. Campbell is as capable of caring for Chloe as is Ms. Wentzell. Individually, each of them is able to act as a loving, caring, positive parent to the child, so long as they do not need to consult one another or share decision making, something they have been unable to do. The order must also ensure that neither parent’s relationship with Chloe is marginalized or threatened in any way. Therefore the court must make an order that protects Chloe’s relationship with each of her parents, provides for sensible decision making for Chloe, but does not require much, if any communication or cooperation between the parents. Such an order can only be accomplished with a parallel parenting order.

[199] In making such an order, the court may order “divided parallel parenting”, where each party is given separate, defined areas of parental decision making independent of the other, or “full parallel parenting” where both parents make major decisions respecting the child in all areas when the child is with them without the consent of the other.

[200] Many of the factors set out by Sherr J. in K.H. v. T.K.R., supra, are applicable in this case and support a parallel parenting order. Both parents have strong ties to Chloe and have played a significant role in her life. Both parents are capable and loving and are able to make reasonable decisions regarding their daughter. At this time, there is no evidence of alienation by either parent, although the court is concerned that should the conflict continue, such alienation may occur in the future. For the most part, both parents place Chloe’s needs above their own, although both have also shown an inability to do so. (Eg. Mr. Campbell insisting on removing 4 month old Chloe from her mother’s care for a short visit, when she was ill; and Ms. Wentzell refusing to take Chloe to dance class). In these instances, both parents were thinking only of their own needs.

[201] The court must evaluate the likelihood of one category of decision making conflicting with another (spillover) and the ability of the parents to negotiate those conflicts. Where possible the court hopes to avoid spillovers, however, it is impossible to anticipate or foresee all areas where there may be spillover. Therefore the court will include in the order the necessity of the parties engaging the services of a parent coordinator to assist them with these types of decisions. The parents must stop running to court every time they are unable to do what separated parents everywhere do – that is agree on what is best for Chloe. Instead of the court, the parent will have to pay for the services of a parenting coordinator. That alone may help them become more reasonable.

[202] In this case, the geographic distance between the parties is not an issue, except for the choice of school for Chloe. The court has dealt with this choice later in the decision.

[203] The last factor is whether parallel parenting will inflame or de-escalate the conflict. The purpose of this order is to de-escalate the conflict. Both parents will have equal time with Chloe. Both parents will have equal vacation time with Chloe. Both parents will be able to make decisions for Chloe when she is in their care. The order should stop Mr. Campbell from making demands of Ms. Wentzell and contacting her in his relentless fashion, and Ms. Wentzell can achieve her desire for minimum contact with Mr. Campbell, while enjoying her parenting time with Chloe.

[204] The court has also considered that Chloe is now past her fourth birthday. According to the assessment, she will have passed the crucial period for developing secure attachment and will be able to withstand longer periods of time away from her primary parent, so long as there is physical contact with parent ‘one”, while she is in the care of parent ‘two’ and vice versa. Chloe has successfully spent two summers with a week on/week off schedule. There is no reason to believe that she will suffer any harm by instituting such a schedule on a permanent basis now that she is four and will be attending school in September.

[205] The areas of decision making that were raised during this litigation included, education, religion, health and recreation or extra-curricular activities.

[206] Education: With respect to education, Chloe will be starting Junior Kindergarten in September 2017. She has lived for some time now in a neighbourhood with her mother where she had made friends, attends daycare and has at times visited the school in which the mother would like her enrolled. Ms. Wentzell indicated that she had consulted the Fraser Institute List, which provides ‘grades’ for schools. She testified that she had formulated a plan to move into the neighbourhood of St. George Public School so that Chloe could attend there. She admitted that she had not advised Mr. Campbell of the plan initially. However, the discussion had come up at a court proceeding before the trial and it was obvious from the evidence that Mr. Campbell knew that Ms. Wentzell wished to send Chloe to St. George elementary school.

[207] Mr. Campbell on the other hand indicated that he wanted Chloe to attend a private school in the west end of the city and stated that he would pay the costs of the school. There was no evidence that Mr. Campbell himself ever attended a private school. Since students at the school come from every corner of the city, it would be impossible for Chloe to have made friends in advance of her attendance there. The court assumes that if Chloe attended Matthew’s Hall she would make friends there. But those friends would not necessarily live in the neighbourhood of either her mother’s or her father’s home and her friendships might be limited to school hours and times when play dates might be arranged.

[208] The evidence was that Chloe was familiar with the school and neighbourhood in which she was living with her mother and that she had friendships already formed with children who also would be attending St. George’s school. As such, it makes more sense to allow Chloe to attend the school with which she is familiar, has visited, and where she already has friends.

[209] Therefore, for the elementary school years, Junior Kindergarten until the end of grade 8, Chloe may attend the school chosen by her mother, so long as she continues to live in the St. George school catchment area. If the mother moves from the St. George catchment area, with the result that Chloe will need to change schools, then Chloe’s new school will be selected by her father. If her father chooses a private school for Chloe, he will be responsible for the costs of all the school expenses. The mother’s low income does not allow for the cost of private school education.

[210] When it is time for Chloe to attend high school, the father will choose the high school to be attended, but only with Chloe’s input and consent.

[211] Both parents will be at liberty to meet with teachers, principal and other school officials to discuss Chloe’s progress at school. Both parents will be entitled to all information from the school regarding Chloe and to attend all functions at the school, including special events and parent –teacher interviews. Mr. Campbell will personally attend the school, no earlier than the second week of classes, to introduce himself to the teacher and principal. Mr. Campbell is entitled to request and be provided with all notifications that are sent home with Chloe. Both parents will ensure that any assignments, reading, etc. sent home with Chloe are completed as required while she is in their care.

[212] Religion: Mr. Campbell sought control of all decisions regarding religion. The reason for this request was so that he could have Chloe baptized. Mr. Campbell testified that it was a family tradition to be baptized at St. John’s Anglican Church in St. Thomas. He noted that he had been baptized there and his brother’s children had been baptized there. He noted that he and Ms. Wentzell had never discussed baptizing Chloe prior to their separation and that he was aware that Ms. Wentzell did not want Chloe to be baptized. Based on his testimony and the testimony of his mother, the main reason for the baptism was to get together with the family for a celebration. Neither of them spoke of the religious meaning of baptism or how their religion was important to them. Neither of them spoke about taking Chloe to church on a regular basis or teaching her anything about religion. It was obvious that religion was not at all important to the Campbell family.

[213] Mrs. T. Campbell said that she had had her sons baptized; and that Adam’s uncle was an Anglican Minister. She also testified that she was “not probably as religious as maybe you should be, I do believe in God”. She noted that she did not attend church regularly and that it had been three years since “any of them” had been in a church. Don Campbell also confirmed that he did not attend church regularly. Adam Campbell gave no evidence that he attended church regularly or that he intended to do so in the future.

[214] According to an article entitled “The Ministry of all the Baptized”[^4]:

Baptism is a coming into the Body of Christ, in which we become members of one another and of Christ – it is about who we are in Christ, and whose we are: God’s own. In baptism we are gathered … and sent forth, in the ministry that is God’s own ministry of transformation, reconciliation, healing and salvation of the world. So, baptism is not just about identity and belonging, it’s also about being sent in mission and ministry. The baptismal liturgy speaks of the foundation of that mission and ministry.

[215] The rite of baptism, according to the Anglican Church of Canada requires a promise from the celebrant to continue in the apostles’ teaching and fellowship, in the breaking of bread, and in prayers. What was clear from the Campbell’s evidence was that having Chloe baptized would be reason for a family get together and celebration, but had nothing at all to do with bringing her up in a particular faith. Adam Campbell, Tracy Campbell and Don Campbell had nothing to say about teaching Chloe the faith into which they wanted her baptized, only that other members of the family had had their children baptized and according to Mrs. Campbell, “I mean, it’s a family gathering. What can another family gathering possibly hurt her, …” All of this seems a wrong reason to baptize a child into a faith that is not being followed by her family.

[216] Ms. Wentzell indicated that neither she nor Adam had practiced any religion and she did not intend to do so. Her position was that it was wrong to baptize a child into a religion if that religion was not going to be seriously followed. The court agrees. Chloe is now four years old and has not been exposed to any religion by either of her parents. There is no need to baptize her at this time. If at some point in the future, Chloe expresses a curiousity about any religion, she will be at liberty to explore and experience it on her own without pressure from either parent. Until that time, Ms. Wentzell will be responsible for making any decision regarding religion for Chloe.

[217] Health: Although Mr. Campbell suggested that Ms. Wentzell should make decisions regarding the health of the child, the court believes that each of them will have to deal with any health issues that occur when the child is in their care. As Chloe grows older, she will likely turn to her mother to discuss intimate health issues, but while she is young, either parent may take Chloe to her doctor if such attendance is required while she is in his or her care and will notify the other parent of the reason for such a visit and the outcome of the visit, within 24 hours of Chloe seeing a doctor or a dentist. Each parent will also be responsible for handling any medical emergency related to Chloe when she is in his/her care. In that instance, the parent who has Chloe in his/her care, will notify the other parent within one hour of the emergency, by telephone call, text or email. The parent who does not have Chloe in his/her care may immediately attend at the place where the emergency is being treated or dealt with.

[218] Extra-curricular activities: Both parents have shown an interest in enrolling Chloe in extra-curricular activities. Chloe’s time for such activities may be more restricted once she begins school in the fall. There is also the possibility of ‘spill over’ where each parent enrolls the child in an activity that conflicts with an activity set up by the other parent. There has also been a reluctance on the mother’s part to attend activities scheduled for Chloe by her father because she has felt that he was interfering with her parenting time. Unfortunately, it becomes necessary to restrict what each parent can do, so that Chloe is able to participate in extra-curricular activities.

[219] In school years that begin in September in odd numbered years, (eg. September 2017, 2019, 2021, etc.) the mother will have the first choice of activity over the course of the entire school year and will advise the father by the end of September of the activity in which Chloe has been registered, its frequency, day(s) of the week and time of the activity. The father may then enroll Chloe in one different activity so long as the scheduling of the activity does not conflict with the activity chosen by the mother. If there is a conflict, the activity chosen by the mother will prevail.

[220] In school years that begin in September in even numbered years, (eg. September 2018, 2020, 2022, etc.) the father will have first choice of activity over the course of the entire school year and will advise the mother by the end of September of the activity in which Chloe has been registered, its frequency, day(s) of the week and time of the activity. The mother may then enroll Chloe in one different activity so long as the scheduling of the activity does not conflict with the activity chosen by the father. If there is a conflict, the activity chosen by the father will prevail.

[221] Because extra-curricular activities are solely for Chloe and in her best interests, each parent will ensure that Chloe attends any activities as arranged in the paragraphs above, during the weeks that Chloe is in his/her care. Unless there is agreement by the parties, the parent in whose care the child is not, will not attend the extra-curricular activities that occur during the other parent’s parenting time. This paragraph does not include any activities, functions, special events, trips, etc. that are organized by the school. For those events, both parents may attend.

[222] Because it is likely that the parents will try to arrange holiday time during the months when Chloe is not in school, (July and August) each parent can arrange activities for Chloe during the summer school vacation only during the weeks that Chloe is with him or her. There will be no requirement for the mother to take Chloe to activities arranged by the father during weeks when Chloe is in her care and no requirement for the father to take Chloe to activities arranged by the mother during weeks when Chloe is in his care. It is unfortunate that the parents are unable to work together on something as simple as fun activities for their daughter. But each is determined to have their own time with Chloe undisturbed by plans made by the other party.

[223] During the summer months of July and August, each parent may take one 7 day holiday with Chloe. The vacation period must be taken during one of the regular weeks that Chloe is in the parent’s care and will begin on Friday at the exchange time and will end on the next Friday at the exchange time. No additional time is to be added to this vacation period without the written consent of the other parent. During the one week vacation time, the mid-week access to the other parent will be suspended. In 2017, Mr. Campbell will have the first choice of his 7 day holiday period during one of his weeks and Ms. Wentzell will have the second choice. Each party will give the other at least 5 days’ notice of the week they have chosen in which to have their 7 day holiday with Chloe. In 2018, Ms. Wentzell will have the first choice of her 7 holiday period and Mr. Campbell will have the second choice. Again each party will give each other at least 5 days’ notice of the week chosen each year. The first choice of holiday weeks will alternate each year thereafter.

[224] Other details related to parenting time will be set out in the order at the end of the judgment.

[225] Child Support: Section 3 of the Child Support Guidelines, O.Reg 391/97 [as amended], sets out the presumptive rule that the amount of support of a child support order for children under the age of majority is

a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and

b) the amount if any, determined under section 7.

[226] Because the order being made provides equal custody to each parent, the court must have regard to section 9 of the CSG when determining the amount of support. Section 9, states:

9. Shared Custody – Where a spouse exercises a right of access to or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account

a) the amounts set out in the applicable tables for each of the spouses;

b) the increased costs of shared custody arrangements, and

c) the condition, means, needs and other circumstances of each spouse and of any child for whom support is sought.

[227] Determination of a spouse’s income is done in accordance with sections 16 to 20 of the CSG. Those sections provide the following:

16. Calculation of Annual Income – Subject to sections 17 to 20, a spouse’s annual income is determined using the sources of income set out under the heading “total income: in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with Schedule III.

17. Pattern of Income – (1) If the court is of the opinion that the determination of a spouse’s annual income under section 16 would not be the fairest determination of that income, the court may have regard to the spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years.

(2) Non-Recurring Losses – Where a spouse has incurred a non-recurring capital or business investment loss, the court may, if it is of the opinion that the determination of the spouse’s annual income under section 16 would not provide the fairest determination of the annual income, choose not to apply sections 6 and 7 of Schedule III, and adjust the amount of the loss, including related expenses and carrying charges and interest expenses, to arrive at such amount as the court considers appropriate.

18. Shareholder, Director of Officer – (1) Where a spouse is a shareholder, director or officer of a corporation and the court is of the opinion that the amount of the spouse’s annual income, as determined under section 16 does not fairly reflect all the money available to the spouse for the payment of child support, the court may consider the situations described in section 17 and determine the spouse’s annual income to include

(a) all or part of the pre-tax income of the corporation, and of any corporation that is related to that corporation, for the most recent taxation year; or

(b) an amount commensurate with the services that the spouse provides to the corporation, provided that the amount does not exceed the corporation’s pre-tax income.

(2) Adjustment to Corporation’s Pre-Tax Income -- In determining the pre-tax income of a corporation for the purposes of subsection (1), all amounts paid by the corporation as salaries, wages or management fees, or other payments or benefits, to or on behalf of persons with whom the corporation does not deal at arm’s length must be added to the pre-tax income, unless the spouse establishes that the payments were reasonable in the circumstances.

19. Imputing Income – (1) the court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;

(b) the spouse is exempt from paying federal or provincial income tax;

(c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;

(d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;

(e) the spouse’s property is not reasonably utilized to generate income;

(f) the spouse has failed to provide income information when under a legal obligation to do so;

(g) the spouse unreasonably deducts expenses from income;

(h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and

(i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.

(2) Reasonableness of Expenses – For the purpose of paragraph (1) (g), the reasonableness of an expense deduction is not solely governed by whether the deduction is permitted under the Income Tax Act.

[228] Section 20 of the CSG deals with non-residents and as such is not included here because neither parent is a non-resident of Canada.

[229] Pursuant to an order dated December 18, 2013, Mr. Campbell has paid child support in the amount of $1,434.00 per month. That order was based on Mr. Campbell’s average income for the years 2010, 2011 and 2012. The average of those years was $173,180.00. At the time of that motion, there was no request for a reduction of income having regard to Mr. Campbell’s business expenses. In July, 2015, Mr. Campbell requested that his income be reduced by his 2014 business expenses of $18,000 and rental losses. Justice Mitchell refused to do so indicating that she could “not fathom why this issue was not argued before Henderson J. in December 2013.”

[230] In her decision, Mitchell J. indicated that Mr. Campbell wanted to reduce child support based on a reduced income in each of the years averaged due to business expenses and rental losses. He argued that his business expenses averaged approximately $20,000 per year. This is incorrect. All of the rental losses were claimed and shown on page 2 of Mr. Campbell’s income tax returns and were detailed on the ‘Statement of Real Estate Rentals’ forms attached to his return. Those losses were subtracted from his total income before arriving at his total line 150 income and reduced his line 150 income accordingly. There would not be another reduction from his line 150 income on account of rental losses as those had already been deducted.

[231] With respect to the business expenses, section 19(2) makes it clear that not all business expenses that are allowable under the Income Tax Act, are deductible for the purpose of determining the amount of child support that should be paid. In reviewing the tax returns for 2010 – 2012, the court has not included Mr. Campbell’s personal vehicle and has not included any of the “work-space-in-the-home” expenses, for maintenance, property taxes and insurance, because he would have had to pay these expenses in any event as a home owner. Additionally, the deduction of his work at home expenses reduced his income for tax purposes, providing him with more disposable income, not less. It is the court’s view that these expenses should not be deducted when trying to reach a fair determination of income for the purpose of ordering child support. Having disallowed some of the deductions claimed by Mr. Campbell, the average of his business expenses was $10,000.00 to $14,000, not the $20,000 submitted.

[232] This court is also not prepared look backward on this issue. When the order was made Mr. Campbell had his income tax returns for each of the years considered by Henderson J. This was not a situation where Mr. Campbell had not filed his income tax returns on time or where he had not received his notices of assessment. He received his notices of assessment for the years 2010 to 2012, in either April or May of each year. The motion was heard in December 2013. Therefore, he had the necessary information to argue that his business expenses should be used to reduce his income for the purposes of child support. He either did not provide that information to the court or he did provide it but the court decided that those expenses would not be used to reduce the applicant’s income for the purposes of child support, as per s. 19(2) of the CSG. This court does not intend to second guess which of these events occurred.

[233] It is also notable that at the time of Henderson J.’s order, Mr. Campbell’s income for 2013 was as yet unknown. It is rarely possible to determine ongoing support on current income, especially when the payor parent has not only employment income, but rental incomes, business incomes and can also determine how much he works and earns. It is for this reason that the court looks to previous year’s income to determine child support. Had Mr. Campbell’s 2013 income been known in December 2013, it is likely that his line 150 income less some of his business expenses would have been used to determine interim child support. A review of Mr. Campbell’s 2013 income tax return shows that his total line 150 income was $214,598.73. That figure included the deduction of his rental income losses during that year. The amount of business expenses that Mr. Campbell claimed totaled $12,693.56. Using the same method as above and disallowing the deductions for his work at home expenses and his car, his other expenses for office supplies, insurance, food and beverage totaled $6,657.21. The deduction of this amount results in Mr. Campbell’s income that year being $207,941.52.

[234] Had interim support been based on Mr. Campbell’s 2013 income his interim child support payments would have been $1,691.76 per month, not the $1,434 per month that Mr. Campbell paid. Any adjustment would be made to the next year’s payments based on his 2014 income. However, Mr. Campbell wants the benefit of changing past support to an amount based on income known after the fact as being earned in that year, and also wants future support based on previous year’s income. To do both, would be unfair to the support recipient.

[235] In dealing with retroactive variations, the court must be fair to both parties. To be fair, there must be some consistency in the manner in which the order, past and present, is calculated. The court could base each year’s support on the prior year’s known income and increase it or decreases it the next year, when the last year’s income becomes known. The court could also go back and change all of the support ordered to reflect the amount that was actually made in each year. Mr. Campbell is asking the court to use the latter method.

[236] If the latter method is used, past years of support can be increased or decreased on the actual year’s income, but current support will not be based on the current year’s income. In this case, the court has no information regarding Mr. Campbell’s 2016 or 2017 income. Unless another retroactive variation is brought in years to come, the correct amount of support in 2016 and 2017 may never be ordered.

[237] If the former method is used from the time that the retroactive claim is made, then it is possible to adjust past support by setting it on the previous year’s income and then lowering or raising the amount in the next year based again on the past year’s known income. This adjustment is then made every year, so that the changes in income are recognized and applied to the amount of support. This may result in a higher payment being made during a year when Mr. Campbell makes lower income, but will also result in a lower payment being made during a year when he is making more income. The amounts are also always based on known income as opposed to an estimated income. This method ensures that the correct amount of support is paid over the course of a child’s life.

[238] This method requires the court to determine 2013’s income to calculate 2014’s support; 2014’s income to calculate 2015’s support; 2015’s income to calculate 2016’s support; and so on. Because Mr. Campbell has various sources of income and expenses related to that income, it will never be possible to estimate or know his income until after his income tax return has been filed and assessed. If the information is provided by June 1st of each year, the amount of child support can and should be adjusted by July of each year.

[239] Since ongoing support will always have to be based on the previous year’s income, it is fair and consistent that the court should deal with the issue of adjusting past child support since the interim order was made in a like manner. This will provide the appropriate support based on known figures. Any increase or decrease in income will result in an increase or decrease in the support during the next year. When the obligation to pay child support ends, it may be necessary to make a final adjustment based on the previous year’s income. But so long as that final adjustment is made along with the yearly adjustments, done at the same time and on a consistent basis and using the same methods, the correct amount of child support will have been paid.

[240] The issue of past support is relatively easy to determine. Further support is more problematic because the court has no information regarding Mr. Campbell’s income in 2016 or 2017. Mr. Campbell has submitted that his income should be imputed to him at $100,000.00 per year. The court believes that Mr. Campbell has made much more income in the past and is capable of earning more than $100,000 per year in the future.

[241] Mr. Campbell’s line 150 income, without reduction for business expenses, since 2010 was as follows:

i) 2010 $165,000

ii) 2011 $199,095

iii) 2012 $155,327

iv) 2013 $214,598

v) 2014 $134,883

vi) 2015 $ 51,056

[242] Mr. Campbell’s business expenses remained the same, averaging between $10,000 and $14,000 per year. His rental properties have resulted in losses each year, which were deducted prior to calculating his line 150 income. The losses have been as follows:

i) 2010: ($ 3,618.33)

ii) 2011: ($13,658.54)

iii) 2012: ($17,805.98)

iv) 2013: ($ 7,782.67)

v) 2014: ($11,126.31)

vi) 2015: ($71,105.43)

[243] Mr. Campbell provided no explanation as to why his rental losses suddenly increased by approximately $60,000, resulting in a major reduction in his income in 2015. During that year he also earned no income working as a real estate agent, although he continued to be one. No explanation was provided for that change in his employment.

[244] What was also concerning about Mr. Campbell’s decrease in income in 2015, was that he testified both during oral questioning and at trial that he intended “to voluntarily reduce my hours of work” in order to care for his daughter when she was in his care and which he hoped would be on a bi-weekly basis. He further stated that he was not underemployed and that if he wanted to work full time and not spend time with Chloe, he could do that. He also indicated that his father would “subsidize his living expenses.” Donald Campbell confirmed this when he testified that he “fully expected him (Adam) to be able to meet his expenses working part time” and that “he would not see him on the street.”

[245] Pursuant to s. 19 (1) (a) of the CSG the court may impute income to a spouse who is intentionally underemployed or unemployed unless the under employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse. In the Court of Appeal decision in Drygala v. Pauli 2002 41868 (ON CA), [2002] O.J. No. 3731, 61 O.R. (3d) 711; 29 R.F.L. (5th) 293, the court found that “intentional” underemployment was defined as being a voluntary act. The Court stated at paragraph 28:

“ The parent required to pay is intentionally under-employed if that parent chooses to earn less than he or she is capable of earning. That parent is intentionally unemployed when he or she chooses not to work when capable of earning an income.”

[246] The Court of Appeal found that there was no requirement of bad faith in the provision regarding intentional under-employment or unemployment. In reviewing Mr. Campbell’s income, in the two years following separation he went from $214,598 in 2013 to $51,056 in 2015, a decrease of $163,542. His rental losses went from $7,782.67 to $71,105.43, a increase of $63,322.76. One might expect that if his rental properties were causing him to lose such a substantial sum of money, he would consider selling those properties, in order to prevent a further reduction of his income. With such losses, there appears to be no good reason to keep the properties, except to reduce his taxable income.

[247] Further, Mr. Campbell did not have the care of his daughter every second week, except for 5 weeks in 2015 and 2016 during July and August. Section 9 of the CSG is only operable when a parent has a child in his/her physical custody for no less that 40 percent of the time over the course of a year. Mr. Campbell’s time with Chloe for five weeks in the previous two summers does not add up to more than 40% of time over the year. Child support does not change month to month simply because a parent is able to enjoy good access with a child during the summer months. The shared custody arrangement will come into place at the end of July 2017. It is at that time that the court will consider the applicability of section 9.

[248] Additionally, Chloe does not need her father to remain home from work to care for her. She is a happy healthy little girl who has attended daycare and will be attending school full time in September. She has no special needs. If Mr. Campbell has reduced his working hours in order to spend days with Chloe when she was in his care, that reduction was purely voluntary, unnecessary, and done to meet his own needs. Chloe is like many other children who have working parents. Until she was three, her mother was a stay-at-home mom who met the majority of Chloe’s needs. Her mother now is employed and there was no evidence that Chloe has suffered any harm due to this change or because she has had to attend daycare. In fact, the opposite evidence was provided, that Chloe enjoys her time at daycare with her friends.

[249] Mr. Campbell has obviously done what he stated he would do, reduced his employment resulting in a reduction of income. Any other explanation is not credible when his earning history is reviewed. He also requested that any s.7 expenses be set off against the costs that Ms. Wentzell owes to him and/or that she pay the sum of $98,807.24 as a credit against any child support obligation. If such a sums were set off against Mr. Campbell’s child support obligation, Chloe would likely receive no child support for a period of six to ten years, depending on the amount calculated under the CSG as being owed.

[250] It is clear to the court that Mr. Campbell is hoping to create two realities for Chloe: one of substance and excess in his home, where anything she wants, including first class travel, with trips several times a year and as he stated “lots of money to play with”, juxtaposed against one of poverty in her mother’s care. If this is his intent, the court wonders if he truly has Chloe’s best interests at heart. He may be angry at Ms. Wentzell but these steps will hurt Chloe in the long run. Where the court finds that a parent has voluntarily reduced his/her income, the court should impute a reasonable income to that parent based on his/her income history.

[251] The court is prepared to impute income to Mr. Campbell, but believes that the imputed income should be higher than the $100,000 amount suggested by him per year. Since 2010, Mr. Campbell’s income has been more than $100,000 per year in every year but 2015. If the court averages Mr. Campbell’s income for the years 2012 to 2014, his average income is $168,269. If the income shown by Mr. Campbell in the years 2013 to 2015, (including a very low and unexplained $51,000 in 2015) are averaged, his average income is $133,512. The average of those two amounts is $150,890.

[252] The lifestyle that Mr. Campbell was able to support also supports a higher attribution of income. Mr. Campbell owns multiple properties. He owns two cottages in cottage country. In Exhibit #108, Ms. Wentzell set out the various vacation trips that she and Mr. Campbell took in the years 2010 to January 2013. In 2010, in addition to the wedding held in Aruba, Mr. Campbell and Ms. Wentzell went on six additional trips out of the country. In 2011, the couple took three trips; in 2012 they took three trips and from December 26 to January 19, 2013, they took two trips. At least three of these trips were estimated to cost approximately $20,000. In order to spend $20,000 on a vacation, a person would need to generate approximately $40,000 in pre-tax income. Having regard to all of this, the amount of $150,000.00 is more in keeping with Mr. Campbell’s lifestyle and ability to earn income. This amount will be used for calculating child support for the years 2015, 2016 and 2017. The court finds that Mr. Campbell’s suggestion of $100,000 to be too low.

[253] Mr. Campbell has asked the court to reassess all of the support paid and make adjustments based on his income. In order to be consistent in calculating what amounts should have been paid, the support payable in each year will be based on the previous year’s income, including the imputed amount of $150,000. The sum of $12,000 per year will be deducted as business expenses, except for the year 2014, when his allowable business expenses in 2013 amounted only to $6,657.21. The table set out on the next page shows the income as assessed by the court, the amount of support that was due and the resulting overpayment amount.

Year	Income in Previous Year	Amount Due	Amount Paid	Difference	Owed To:
2014	$214,598 - $ 6,657.21 = $207,941	$1,692 x 12 = $20,304	$1,434 x 12 = $ 17,208	$3,096	Mother
2015	$134,883 - $12,000 = $122,883	$1,060 x 12 = $12,720	$1,434 x 12 = $ 17,208	$4,488	Father
2016	Imputed $150,000 - $12,000 = $138,000	$1,174 x 12 = $14,088	$1,434 x 12 = $ 17,208	$3,120	Father
2017	Imputed $150,000 - $12,000 = $138,000	$1,174 x 7 = $8,218	$1,434 x 7 = $ 10,038	$1,820	Father

Amounts owed to father less amount owed to mother $4,488 + $3,120 + $1,820 = $9,428 - $3,096 = $6,332.00

Total owed to Father $6,332.00

[254] The result of this reassessment produces an overpayment of child support in the amount of $ 6,332.00 that is owed by Ms. Wentzell to Mr. Campbell. The payment arrangement will be dealt with in the ‘Order’ portion of this decision.

[255] The next step will be to calculate the amount of support payable for Chloe in a shared custody arrangement. Commencing at the end of July 2017, Chloe will be spending equal time with both her parents. In order to determine child support, the court must determine the mother’s income and then apply the factors set out in section 9 of the CSG to calculate a fair child support order for Chloe.

[256] Ms. Wentzell’s income since 2012, based on her Notices of Assessment was as follows:

i) 2010 $23,244

ii) 2011 $27,149

iii) 2012 $42,218

iv) 2013 $42,955

v) 2014 $40,727

vi) 2015 $33,971

vii) 2016 $34,957

[257] The income for 2016 was provided by Ms. Wentzell in her financial statement filed with the court in September 2016. Based on her 2016 income the court agrees with the applicant’s submission that the amount of $35,000 should be used for calculating child support.

[258] Having determined the appropriate income for the parties going forward, the court must now turn to the considerations in section 9 of the CSG . With this order, the parents will be sharing Chloe on a 50/50 basis. The considerations set out in section 9, are:

a) the amounts set out in the applicable tables for each of the spouses;

b) the increased costs of shared custody arrangements, and

c) the condition, means, needs and other circumstances of each spouse and of any child for whom support is sought.

[259] The imputed incomes of the parties for an order that will begin on August 1, 2017 are $150,000 for the applicant father and $35,000 for the respondent mother. The table amount of child support for each is $1,263 from Mr. Campbell and $303 from Ms. Wentzell.

[260] Neither parent provided any evidence regarding the increased costs of shared custody. Ms. Wentzell has maintained a home for Chloe since the separation. Mr. Campbell has done so as well. It is likely that both will maintain the same expenses for maintenance of a home for Chloe. Without specific evidence, the court cannot assume or estimate increased costs of shared custody.

[261] The last factor involves the condition, means, needs and other circumstances of each spouse. There is a vast income disparity between Mr. Campbell and Ms. Wentzell and it is unlikely that this disparity will change in the near future. According to 2017 Poverty Free Ontario and Statistics Canada, Table 202-0808, the poverty line cut off for one adult and one child in a household is $28,185.00, a mere $6,815.00 less than Ms. Wentzell’s income. If the amount of child support claimed by Mr. Campbell is paid, her household income will be reduced to $31,364.00, a mere $3,179.00 over the poverty line.

[262] In Pearce v. Murphy, 2004 17996 (ON CA), [2004] O.J. No. 637, 47 R.F.L. (5th) 192 (Ont. S.C.J.), it was held that the court has a broad discretion under s. 9 and that in considering the condition, means, needs and other circumstances of the parties, the court should take into account the goal that the child should, so far as possible, enjoy a comparable standard of living in both households. Further, where a wide disparity of income is evident, the court will need to recognize that the lower income parent spends a greater percentage of his or her income on the child’s expenses, both fixed and variable.

[263] Similarly in Hilliard v. Johnston, [2010] O.J. No. 4665 (Ont. S.C.J.), the court found that if too rigid an approach meant that the child support payable to the mother would be reduced and/or that she would have to pay child support to the father, such would affect her household budget and the standard of living of the children in her home.

[264] It is important to note that Mr. Campbell has more than four times the income as does Ms. Wentzell. He has several properties that he rents out, both in the city and in “cottage country”. He had been able and will continue to take Chloe on trips both in and out of the country. Not only does he want Ms. Wentzell to pay support to him, thus reducing her own ability to meet her needs and the needs of Chloe, he also asked that the court order the that child support he is required to pay be reduced by the amount of money Ms. Wentzell owes him in ‘overpaid’ child support (set out in paragraph 254) and costs that have been ordered during the litigation. Not only will this create a different standard of living for Chloe in her mother’s home, it will create a situation where Chloe lives either below the poverty line or barely above it in her mother’s care, but is provided with everything she needs and wants regardless of cost, in her father’s home. The court does not accept that the Child Support Guidelines was intended to create such a discrepancy and the wide discretion provided in section 9, allows the court to ensure that Chloe is not subjected to such wide differences in her lifestyle in each of her parents’ homes. As such, the court is not prepared to order that Ms. Wentzell pay child support to Mr. Campbell at this time.

[265] Child support is always variable and subject to change as a result of changes in the parties’ economic status. Going forward, each of the parties will provide full copies of their income tax returns and notices of assessment by June 1 of each year. If the parties cannot negotiate a change in the amount of support to be paid, either may bring a motion to change to have the court deal with this issue.

[266] Special and Extraordinary Expenses: Section 7 of the CSG deals with the issue of special and extraordinary expenses. Section 7 sets out the following:

(1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expense may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation:

a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;

b) that portion of the medical and dental insurance premiums attributable to the child;

c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;

d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;

e) expenses for post-secondary education; and

f) extraordinary expenses for extracurricular activities.

(1.1) Definition of “Extraordinary Expenses” – For the purposes of paragraphs (1)(d) and (f), the term “extraordinary expenses” means

a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is appropriate, the amount that the court has otherwise determined is appropriate, or

b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account

i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is appropriate, the amount that the court has otherwise determined to be appropriate,

ii) the nature and number of the educational programs and extracurricular activities,

iii) any special needs and talents of the child or children,

iv) the overall costs of the program and activities, and

v) any other similar factor that the court considers relevant.

(2) Sharing of Expense – The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.

(3) Subsidies, Tax Deductions, etc. – Subject to subsection (4), in determining the amount of an expense referred to in subsection (1) the court must take into account any subsidies, benefits, or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense.

(4) Universal Child Care Benefit – In determining the amount of any expense referred to in subsection (1), the court shall not take into account any universal child care benefit or any eligibility to claim that benefit.

[267] The section 7 expenses claimed by Ms. Wentzell included daycare, dental and drug related expenses. She also included in Exhibit #23, costs for swimming and skating in 2014. Mr. Campbell expressed upset that Ms. Wentzell was making decisions about these items without speaking to him about it first. At the trial management conference in May 2016, Templeton J. had to remind Mr. Campbell at least twice that his attitude was “hugely negative”. When he became upset because Ms. Wentzell had not advised him about the daycare, despite requests earlier on, Justice Templeton reminded Mr. Campbell that he and Ms. Wentzell were separated and that he was not going to have input on a daily basis. Templeton J. also stated that Ms. Wentzell was not going to send his daughter to somewhere where she was at risk. Ms. Wentzell tried to explain that she had not intended to go back to work and that she was concerned that Chloe might not like daycare. She said she had started it part time and had not told Mr. Campbell because at the time she did not know if it would continue.

[268] Certainly Mr. Campbell was well aware that Chloe was in daycare, although he had not been provided with particulars of the daycare. Ms. Wentzell testified that the daycare cost her $120 per week. She produced a receipt from Jody Orr, the daycare operator indicating that Ms. Wentzell had paid the sum of $1,320 for the period June to September 16, 2016.

[269] Ms. Orr attended court on September 28, 2016, as a result of a summons from Mr. Campbell. She provided evidence of her work as a home daycare provider. She indicated that legally she is permitted to care for five children and that she abides by the daycare rules. She reviewed with Mr. Eberlie Exhibit 174, which set out her daycare’s policies and procedures. Ms. Orr testified that Ms. Wentzell paid the costs of daycare and that she had never been late in doing so. She reviewed her receipt book and stated that Ms. Wentzell had paid $800 for the period April to June 2016; $1,320 for the period June to September, 2016 and a further $120 for the period September 19 – 23, 2016, for a total of $2,240.00.

[270] Ms. Orr testified that she was very fond of Chloe and that she was very well behaved, had great manners, was cooperative and wanted to do what everyone else was doing. She testified that she believed Chloe loved being in her care. She confirmed that during daycare time, she walked with the children to St. George’s school where they play. She noted that Chloe had two or three little friends in addition to the children in her daycare.

[271] Unfortunately, as a result of being summoned to court, Ms. Orr wrote to Ms. Wentzell indicating that she would no longer be able to care for Chloe in her daycare. She was upset that she was brought into the situation and did not wish to inconvenience her family or the families of the other children she cared for. Fortunately, Ms. Orr changed her mind after her evidence was completed. She spoke separately to both parents and decided that she would continue with Chloe in the daycare.

[272] Chloe’s daycare costs are clearly a s.7 expense that was incurred as child care expenses related to the custodial parent’s employment. Mr. Campbell wants Ms. Wentzell to remain employed. Currently, he is garnishing her wages to collect the costs awards that have been granted to him. He is entitled to do so. But there is no question that daycare costs incurred by a custodial parent’s employment should be shared by the other parent proportionately having regard to his income. Ms. Wentzell testified that her monthly cost for daycare is $480. That amount will be included for the months October 2016 to July 2017. Those ten months totaled $4,800. Together with the $2,240, confirmed as being paid by Ms. Wentzell to Ms. Orr, the total daycare cost is $7,040.00. Mr. Campbell’s share of past daycare expenses will be set off against the overpayment of child support that Ms. Wentzell owes to him.

[273] It is unknown whether Chloe will need daycare once she starts school in the fall. It is likely that her daycare costs may be incurred for before and after school care, professional development days, and school holidays when her parents need to work. Since most before and after school care occurs either at or near the school that a child attends, while Chloe attends St. George’s public school, the mother will make arrangements for her before and after school care. Chloe’s care on PD days, statutory holidays, March break, Christmas school vacation, except Christmas Eve, Christmas Day and Boxing day, and summer school vacation will be arranged by the parent in whose care Chloe is that week. The parent who pays for care for Chloe during those periods will provide proof of payment and the other parent will pay his or her proportionate share within 30 days.

[274] Once Chloe has started school, the mother will advise the father in writing what arrangements she had made for those days when daycare is required and the cost of that care. During weeks that Mr. Campbell has Chloe in his care, he will use the same before and after school care program that has been arranged by Ms. Wentzell unless he himself is caring for Chloe during those times. The mother will pay the costs of the before and after school care, and provide written proof that she has done so. In the event that Ms. Wentzell must pay for the before and after school care program whether Chloe attends or not, the full amount will be shared by the parents. Mr. Campbell with then reimburse the mother for his share of the costs of the program within 30 days of receiving proof of payment.

[275] Drug and dental costs should also be shared. The fact that Ms. Wentzell took the child for a dental check-up without telling Mr. Campbell is no reason for him to refuse to pay for those expenses. They are undertaken for the benefit of the child and are necessary to ensure her health. The dental costs in 2015 and 2016 totaled $182.00, which will be shared.

[276] The portion of health and dental insurance premiums attributable to the child are also costs that are to be shared. Exhibit 106 was a letter from Ms. Wentzell’s employer indicating that her cost of family coverage on the Health benefits plan was $106.22 per month, while single coverage would be $48.90. The difference of medical and dental difference is $57.32. Mr. Campbell would be required to pay a portion of this amount. However, until Ms. Wentzell is required to pay child support or have her child support set off against Mr. Campbell’s support, she will be responsible for the full costs of her Health Benefit package.

[277] Similarly, eye drops and eczema cream needed by Chloe should be shared. When the parents are sharing custody of the child, they will each need to have the medication on hand. Therefore each should obtain the medication for Chloe and keep it in their homes for her use. Although there is one receipt provided by Ms. Wentzell for $66 representing the cost of eczema cream, and a claim that this expense is incurred monthly, she did not provide receipts showing that this is a monthly expenses. The court cannot simply accept that this amount is spent each month and as such is not prepared to include it in the s. 7 expenses. Going forward, each of the parents will have the same expense for this medication. The cost of this cream should be lower as a result of Ms. Wentzell’s health plan.

[278] With respect to extracurricular activities, each parent will be at liberty to enroll Chloe in one such activity each school year. This may be done without consultation with the other parent, except to provide details as set out in paragraphs 219 – 222 above. Receipts for the costs of the extracurricular activities will be provided to the other parent within 30 days of payment by the parent who enrolled Chloe in the activity, and payment will be due and owing to the parent who enrolled Chloe by the other parent within 30 days of receiving proof of payment. When enrolling Chloe in an activity, the parents must have regard to the standard of living of the other parent. If the expense for an activity is excessive, the parent wishing to enroll Chloe must obtain the consent of the other party, or alternatively enroll Chloe without consent and pay the entire cost on their own. If the parents cannot agree on what is excessive, they will allow the parent coordinator the make the determination.

[279] The proportionate ratio for all section 7 expenses incurred for Chloe will be based on the imputed incomes of $150,000 for Mr. Campbell and $35,000 for Ms. Wentzell. Mr. Campbell will contribute 81% to section 7 expenses and Ms. Wentzell will contribute 19% to section 7 expenses. Each will pay their share of the expenses incurred by the other parent within 30 days of receiving proof of the expense and payment of same.

[280] With respect to past expenses, Ms. Wentzell filed Exhibit 23, which set out day care costs per month and past dental care costs, and the costs of eye drops and eczema cream (1 receipt only). As indicated no further receipts were provided for drug costs. The costs of skating and swimming were minor and therefore are not extraordinary. The total day care costs paid by Ms. Wentzell to July 2017 are $7040.00. Mr. Campbell’s share of those costs is $5,702.00. The total cost of drugs and dental care for Chloe was $276