Tovell v. Jamieson, 2017 ONSC 5079

CITATION: Tovell v. Jamieson, 2017 ONSC 5079

COURT FILE NO.: 162/16

DATE: 2017 08 25

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

JENNIFER JEAN TOVELL

Kristen Morris, for the Applicant

Applicant

• and -

DOUGLAS KEITH JAMIESON

Judith Birchall, for the Respondent

Respondent

HEARD: June 19, 2017,

at Orangeville, Ontario

Price J.

Reasons For Order

NATURE OF MOTION

[1] Jennifer Tovell, who separated from Douglas Jamieson on March 26, 2015, after ten years together, moves for an order requiring Mr. Jamieson to pay child support for their two children, now 11 and 7 years old and requiring him to contribute to the payment of the children’s day care, and of their dance and piano lessons. Mr. Jamieson says that the children should be in the care of both parties, and denies that he failed to pay his share of the children’s expenses. He seeks an order for shared parenting and for child support to be calculated on a set-off basis.

BACKGROUND FACTS

[2] Jennifer Tovell and Douglas Jamieson began living together in 2005, married on July 7, 2007, and separated after ten years together, on March 26, 2015. They have two children, daughters:

a) Keera Tovell-Jamieson, who is 11 (born June 9, 2006); and

b) Naomi Tovell-Jamieson, who is 7 (born February 17, 2010).

[3] Ms. Tovell, a 37 year old interpreter with the Canadian Hearing Society, began the present proceeding by an Application issued on November 11, 2016. She claims divorce, custody of Naomi and Keera, and child support, and insurance to secure child support. Ms. Tovell’s Application was served on Mr. Jamieson on November 14, 2016.

[4] Mr. Jamieson, a 41 years old employee of the City of Toronto Parks Department for the past 7 years, who delivers pizzas for a local pizza establishment, delivered his Answer on December 30, 2016. He claims divorce, spousal support for himself, custody of, or access to, the children, equalization of net family property, and a restraining order against Ms. Tovell.

[5] The children have attended a French Immersion program since they started school. In September 2017, Naomi will be entering grade 2 at Princess Elizabeth School in Orangeville, which offers French Immersion in grades 1 through 3. Keera will be entering grade 6 at Amaranth Public School in the Town of Mono, just north of Orangeville, which offers French Immersion in grades 4 through 8. Before and after school, the children attend daycare in Grand Valley.

[6] On June 12, 2017, Ms. Tovell made a motion for an Order requiring Mr. Jamieson to pay child support for Naomi and Keera, pursuant to the Federal Child Support Guidelines (FCSG), retroactive to the date of separation. She additionally seeks an order requiring Mr. Jamieson to pay his proportionate share of the children’s special and extraordinary expenses, including daycare and dance and piano lessons.

[7] The day after he received Ms. Tovell’s motion, Mr. Jamieson made a motion of his own, to be heard on the same day as Ms. Tovell’s motion, for an order granting the parties joint custody and shared parenting of the children on a week-about schedule, and requiring them to pay each other child support, calculated by setting-off the table amount to be paid by one against the table amount to be paid by the other.

[8] Ms. Tovell’s last affidavit before the hearing of the motion was served on Mr. Jamieson on June 15, 2017. Mr. Jamieson served additional affidavits on Ms. Tovell at 3:15 p.m. the same day. Ms. Tovell opposed the admission of the last affidavits, which were served after the 2 p.m. deadline, provided for by the Family Law Rules.

[9] The Court to adjourn the motions to permit further reply by Ms. Tovell, but this was not practicable, as Ms. Tovell’s counsel was expecting to deliver a child in a week and a half and had no one to take her place, and because her client needed financial support as there had been a ten week strike at her place of employment, which was only settled on May 15, 2017. For these reasons, the Court proceeded to hear argument on June 19. Three issues arose during the hearing which required factual clarification not supplied by the affidavits. As those facts were capable of verification by relatively neutral sources, I gave the parties an opportunity to submit further evidence in writing following the hearing, limited to those issues.

[10] The parties submitted affidavits on the issues in question, and I have now had the opportunity to review them. Although Ms. Tovell objected to the admission of some of the paragraphs of Mr. Jamieson’s affidavit, as they were beyond the scope of the leave granted in my endorsement, I have accepted the affidavit as it is, as doing so will cause no prejudice to Ms. Tovell.

ISSUES

[11] The motion requires the court to determine, on a temporary basis, whether Ms. Tovell should have sole custody of the children or whether the parties should have joint custody, and what child support should be paid.

PARTIES’ POSITIONS

[12] Ms. Tovell claims child support in the table amount of $951 per month, in accordance with the FCSG, for the 29 months from March 2015 to August 2017, based on Mr. Jamieson’s 2016 income of $63,984. She also seeks a one-half contribution from Mr. Jamieson to the payment of the children’s special and extraordinary expenses, pursuant to s. 7 of the Guidelines.

[13] Mr. Jamieson seeks an order for joint custody and shared parenting of the children on a week-about basis, and for child support to be calculated on a set-off basis. He denies owing anything in relation to the children’s special expenses.

CREDIBILITY ISSUES

[14] The affidavits that Ms. Tovell and Mr. Jamieson submitted differed markedly on many issues. Without the benefit of cross-examinations, the court was assisted by documents and affidavits which the parties submitted after the hearing to clarify factual issues that arose during the hearing. These provided reliable substantiation of certain facts and illumination as to credibility of the parties. I pause here to offer some examples of this.

a) The catchment areas for the children’s schools

[15] At the hearing, Mr. Jamieson took the position that both the parties’ homes were within the catchment areas of the children’s schools. As this was disputed by Ms. Tovell, I gave the parties the opportunity to submit evidence from the schools substantiating the boundaries of their catchment areas.

[16] Ms. Tovell filed an affidavit sworn June 22, 2017, attaching an e-mail from Vivian Chan, Member of the Canadian Institute of Planners (MCIP), Registered Professional Planner (RPP), a Planner for Simcoe County District School Board, confirming that Mr. Jamieson’s address at 9375 Simcoe County Road 1, Palgrave (Adjala) is within the Simcoe County School Board’s catchment district and that the designated public school is Adjala Central Public School.

[17] Ms. Tovell provided maps issued by the Upper Grand District School Board, setting out the catchment areas for both Naomi’s school, Princess Elizabeth Public School, and Keera’s school, Mono Amaranth Public School. The eastern boundary of the school catchment area, as appears from the map, is the Mono-Adjala Townline. Mr. Jamieson’s home is located just east of the Mono-Adjala Townline, in Simcoe County, and thus outside the catchment area for the two schools.

[18] Mr. Jamieson tendered an affidavit sworn June 23, 2017, in which he seeks to explain “some confusion” with respect to his address. He states that he was advised by his landlords that the municipal address of his residence was 9375 Simcoe County RR#1, Palgrave, because when the landlord moved to the residence 10 year ago, Canada Post re-directed the mail to their Palgrave Post Office. Canada Post now delivers the mail at the end of the driveway, which is at 9375 Simcoe Road #1, Hockley Valley. He states that he has amended his address on his pleadings to reflect the address change. Nevertheless, it is evident from the maps that were tendered that 9375 Simcoe County RR#1, whether in Palgrave or in Hockley Valley, is outside the schools’ catchment areas.

[19] Mr. Jamieson offers an alternative explanation as to how the children could continue attending the same schools even if his home is outside their catchment areas. He states, in his affidavit sworn June 23, 2017, that the school bus would pick up and drop off the children at the Hockley Valley General Store, 650 meters from his residence. In his affidavit sworn ten days earlier (June 13, 2017), he states that the Store is 100 steps from his residence. These two sworn assertions are apparently contradictory.

[20] Mr. Jamieson states that his residence is considered to be within the Upper Grand District School Board catchment areas for both Princess Elizabeth Public School and Mono Amaranth Public School, as the children’s bus stop is at the Hockley General Store. I do not find this argument to be convincing, without confirmation from the schools. I find that Mr. Jamieson’s home is in Simcoe County, outside the schools’ catchment areas.

b) Requests for child support

[21] At the hearing, Ms. Tovell took the position that she had made repeated requests for child support from Mr. Jamieson from 2015 onward. Mr. Jamieson denied this, stating that her first request was made in 2017. I gave the parties an opportunity to submit evidence from non-parties, including their lawyers, substantiating or negating the fact that earlier requests were made.

[22] Ms. Tovell filed an affidavit sworn June 22, 2017, attaching a Separation Agreement that her then lawyer, Lisa Cherry, had prepared and sent to Mr. Jamieson on June 29, 2015. It provided, in paragraphs 4.1 and 4.2, for the payment of child support and contribution to the children’s special and extraordinary expenses.

[23] Ms. Tovell’s affidavit also attaches a letter dated July 8, 2016, which her current lawyer, Kristen Morris, sent to Mr. Jamieson on December 12, 2016, and a further letter dated December 12, 2016, which Ms. Morris sent to Mr. Jamieson’s lawyer, Judith Birchall. Both letters request child support. Ms. Tovell states that those letters were followed by five additional letters from Ms. Morris to Ms. Birchall in 2017, also requesting child support. Additionally, Ms. Tovell points out that her Application, which was delivered in November 2016, also claims child support.

c) Special and Extraordinary expenses

[24] Ms. Tovell asserted, at the hearing, that Mr. Jamieson has paid no child support since the parties separated, and failed to pay his share of the children’s special and extraordinary expenses, as provided for by s. 7 of the FCSG. Mr. Jamieson denied the latter assertion, stating that he paid his share of the amounts owing for the children’s daycare and their dance and piano lessons, directly to the providers of those services.

[25] Ms. Tovell filed an affidavit from Jennifer Docherty sworn June 21, 2017. Ms. Docherty states that she was the daycare provider for the Tovell-Jamieson children from March 2015 to January 2017. The children came twice per week and the average charge was $60 per week. Following the parties’ separation, they advised her that Mr. Jamieson would be paying for the daycare as Ms. Tovell was paying for Keera’s dance. However, Mr. Jameson did not pay most of the time, as appears from the following:

a) In March, the parties were up-to date on their payments.

b) On June 15, 2015, Ms. Tovell was away, and the children were dropped off by Mr. Jamieson at 5:00 a.m. At that point, there was $94 owing. On July 15, 2017, Ms. Tovell paid her $200, leaving $100 still owing.

c) By the end of July 2015, there was $380 owing. In August 2015, Ms. Tovell paid her another $200, leaving $310 still owing.

d) On August 2, 2015, Ms. Tovell paid another $200, which left $580 still owing. By September 18, 2015, there was $998 owing.

e) By the end of October, 2015, there was $1,200 owing. Despite several attempts to contact Mr. Jamieson by telephone and text, Ms. Docherty received no response from him.

f) By December 18, 2015, there was $1,505 owing. Ms. Docherty began a new tally with Ms. Tovell, who paid $60 per week.

g) On June 29, 2016, Ms. Tovell paid her $2,000 to cover the outstanding $1,505 owed to her by Mr. Jameson, and an additional $376 from the new tally. On September 2, 2016, Ms. Tovell paid her $250 which was the full outstanding amount to that date.

h) After September, 2016, Ms. Docherty did not have the children consistently in her care owing to Ms. Tovell’s and Mr. Jamieson’s changing schedules. The outstanding amount as at November 18, 2016, was $100, which Ms. Tovell paid.

i) On November 25, 2016, there was $35 owing, and Mr. Jamieson paid $20. The following week, after further daycare, Mr. Jamieson paid another $20 on November 28, 2016. Ms. Tovell paid $69 the same week.

j) On December 19, 2016, Mr. Jamieson paid $20. For the week of January 16 to 20, 2017, Mr. Jamieson paid $15 and Ms. Tovell paid $40. After that date, the children were transferred to another daycare provider.

[26] In summary, from March 2015, to January 2017, Ms. Tovell paid $3,328 to Ms. Docherty; Mr. Jamieson paid $175.

[27] Ms. Tovell filed an additional affidavit from Amanda Martin, sworn June 21, 2017. In it, Ms. Martin states that she has been the children’s daycare provider since January 2017. The children were in her care after school on occasional Mondays, Tuesdays, and Wednesdays, until April 2017. She charged $20 per day for her services.

[28] Ms. Martin states that at the beginning of the period, Mr. Jamieson advised her that he would be paying for Mondays every week and that Ms. Tovell would be paying her for Tuesdays and Wednesdays. She states the following regarding payments:

Payments by Ms. Tovell:

a) For January 17, 18, and 23, 2017, Ms. Tovell paid her $100, as she previously owed her $40 for holiday care.

b) For January 25, 31, February 1, 14, 21, 22, 27, and 28, 2017, Ms. Tovell paid her the full amount of $160.

c) For March 27, 2017, Mr. Tovell paid her $50 for a full day of care for both children on a snow day.

d) On May 19, 2017, Ms. Tovell paid her the balance of $100 in full.

Payments by Mr. Jamieson:

a) On February 6, 2017, Mr. Jamieson paid her $15. There were two other dates when she cared for the children for less than 15 minutes, and relieved Mr. Jamieson of the obligation to pay her.

b) On Thursday, May 4, 2017, Mr. Jamieson owed her $50, as she discussed with him the evening he picked the girls up on the Professional Development (PD) day. She sent him a message that day, giving him her email address so that he could e-transfer the payment to her, but received no response. On May 9, 2017, she sent him a further message stating that late fees would be added if she was not paid in full. She received no response. On May 18, 2017, she sent him another message stating that he now owed $42 in late fees and that if he could pay that day, she would waive the late fees. He sent her an e-mail transfer less than an hour later for the $50, with no late fees.

[29] Ms. Martin summarized that she received a total of $410 from Ms. Tovell and $65 from Mr. Jamieson.

[30] With regard to Keera’s dance expenses, Ms. Tovell asserted at the hearing that Keera’s dance instructor threatened to terminate Keera’s participation owing to Mr. Jamieson’s failure to pay his share of her fees. Mr. Jamieson disputed this. I gave the parties an opportunity to submit evidence from the dance studio.

[31] Ms. Tovell attached an affidavit sworn June 22, 2017, to which she attached the receipts for her payments totaling $3,091.08, made directly to the dance studio where Keera received her lessons. The receipt for $1,800, dated July 10, 2016, was for Mr. Jamieson’s share of Keera’s 2015/2016 dance season fees.

[32] A receipt for $707.95 was for Keera’s competition fees. This included $434.65 that was owed by Mr. Jamieson, as noted in text messages from the studio director, Lori Gray, on February 7, 2017. Ms. Tovell paid her own share, which was in the reduced amount of $273.30, owing to Ms. Tovell’s fundraising activities for the event, on December 12, 2016. Her payment was back-dated for tax purposes, as it applied to the 2016 dance season.

[33] Ms. Tovell’s affidavit attaches screen shots of the text messages she received from Ms. Gray on February 7, March 20, and May 23, 2017, in which Ms. Gray states that she may have to make Keera “sit and watch” or “pull her solos” if she did not receive Mr. Jamieson’s payments. Ms. Gray’s text message on May 23, 2017, indicates that she was looking to Ms. Tovell for Mr. Jamieson’s 50% share of the 2016/2017 dance season fees, amounting to $1,325. Ms. Tovell attaches the letter that her lawyer sent to Mr. Jamieson’s lawyer on March 21, 2017, asking that Mr. Jamieson pay the dance studio owner to avoid Keera being pulled from her dance participation. She states that she received no response from Mr. Jamieson’s lawyer.

[34] Mr. Jamieson tendered a receipt dated March 30, 2017, for $77.75 to dance Fuel, Ms. Gray’s studio, and a receipt dated June 3, 2017, for $40.00 to Citrus Dance for a private dance lesson for Keera. He states that he entered into a contract with Ms. Gray on June 13, 2017, six days before the hearing, making financial arrangements to pay the outstanding amount of $1,850.00, less $500.00, for Keera’s competitive dance lessons. This agreement does not detract from the accuracy of Ms. Tovell’s evidence regarding Mr. Jamieson’s past failure to pay his share of the children’s special and extraordinary expenses, or the inaccuracy of the position taken by Mr. Jamieson at the hearing.

d) The parties’ incomes

[35] Mr. Jamieson states that he earns between $38,000 and $46,000 per year. His Notice of Assessment for 2015 discloses total income (Line 150) of $58,475 that year. His pay statement to November 6, 2016, discloses earnings of $53,860 for the first 10.1 months of 2016, which translates to an annual income of $63,984. Mr. Jamieson’s T4 slips for 2016 discloses an income of $63,997.90, as set out more particularly below.

[36] Ms. Tovell says that she earns $62,782 per year from her employment with the Canadian Hearing Society. Mr. Jamieson says that she earns $80,000 to $90,000. Ms. Tovell’s Notice of Assessment for 2015 discloses that her total income (Line 150) that year was $62,782, as she stated.

ANALYSIS AND LAW

a) What parenting arrangement is in the best interests of the children?

Legislative framework

[37] The Court’s determination of custody and access is governed by section 16 of the Divorce Act.[^1] Section 16(1) provides that a court may make an order respecting custody of, or access to, a child of the marriage on application by a spouse or another person. Section 16(4) provides that, in making an order under section 16, the court may grant custody and/or access to more than one person. Section 16(6) gives the court a broad discretion to include any terms, conditions, or restrictions in a custody/access order that it considers fit and just.

[38] Section 16(8) of the Act provides that the sole criterion for determining custody and access issues is “the best interests of the child…, as determined by reference to the conditions, means, needs and other circumstances of the child.”

[39] Section 16(10) provides:

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with 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 for whom custody is sought to facilitate such access. [Emphasis added]

[40] The goal of maximum contact with each parent is not absolute, but can only be restricted to the extent that it conflicts with the best interests of the child.[^2] The child’s best interests must be paramount to any other consideration when access is ordered. The convenience of the parents is not ignored, but is secondary to the welfare of the child.[^3]

[41] The Divorce Act does not set out a detailed list of other factors to be considered when determining the best interests of a child. However, in an effort to apply the best interests test with greater precision and consistency, courts, when applying the “best interests” test, have considered the criteria set out in provincial and territorial legislation. The relevant criteria in Ontario are set out in sections 20 and 24 of the Children’s Law Reform Act (CLRA).[^4]

[42] Under section 20 of the CLRA, both parents are equally entitled to custody of their child. Where the parents live separate and apart, and the child resides with one of them with the consent of the other, the entitlement to access continues, along with the right to visit with and be visited by the child, and to make inquiries and be given information as to the child’s health, education, and welfare.[^5]

[43] The principle of maximum contact is an important consideration under both the Divorce Act and the CLRA when determining the best interests of children. Contact with both parents is the children’s, not the parents’, right. Where, as in this case, one parent argues for unequal contact between the children and each of their parents, the onus is on that parent to rebut the presumption.

[44] Unlike the Divorce Act, which the Court applied in Young, the CLRA sets out specific factors that the court should consider when determining what is in a child’s best interests. The CLRA does not include the principle that a child should have as much contact with each parent as is consistent with the best interests of the child, as s. 16(10) of the Divorce Act does. However, s. 20(1) and (4) of the CLRA require the court, if it finds that maximum contact with both parents is not in the child’s best interests, to explain why this is so.[^6]

[45] The Supreme Court of Canada in Young, (1993),[^7] and Gordon v. Goertz, (1996),[^8] held that a child’s best interests must be ascertained from the perspective of the child rather than of the parents. Parental preferences and rights do not play a role in the analysis, except to the extent that they are necessary to ensure the best interests of the child.

[46] In resolving disputes over access, emphasis must be placed on the critical importance of bonding, attachment, and stability in the lives of young children.[^9] In Young, McLachlin J. (as she then was) discussed the “maximum contact principle” in the context of the Divorce Act. Speaking for the majority of the Court, she stated:

... s. 16(10) provides that in making an order, the court shall give effect "to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child." This is significant. It stands as the only specific factor which Parliament has seen fit to single out as being something which the judge must consider. By mentioning this factor, Parliament has expressed its opinion that contact with each parent is valuable, and that the judge should ensure that this contact is maximized. The modifying phrase "as is consistent with the best interests of the child" means that the goal of maximum contact of each parent with the child is not absolute. To the extent that contact conflicts with the best interests of the child, it may be restricted. But only to that extent. Parliament's decision to maintain maximum contact between the child and both parents is amply supported by the literature, which suggests that children benefit from continued access: Michael Rutter,Maternal Deprivation Reassessed (1981), Robin Benians, "Preserving Parental Contact: a Factor in Promoting Healthy Growth and Development in Children", in Jo Tunnard, ed., Fostering Parental Contact: Arguments in Favour of Preserving Contact Between Children in Care and Their Families (1982). (pp. 117-118) [Emphasis added]

[47] The separation of parents deprives children of their major source of security, derived from an intact family. That security can only be replaced by the security they derive from strong and healthy relationships with each parent separately. Children’s positive self-image, crucial to their ability to adjust successfully to the changes in their family, depends in large measure on the positive regard they have toward each of their parents. If their respect for either parent is diminished, their regard for themselves may also suffer. That said, the court must additionally consider the impact on the children of changing their primary residence.[^10]

[48] Section 24(1) of the CLRA provides as follows:

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).

Best interests of 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 that the child will live;

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

(h) 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.

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.

Applying the legal principles to the facts of this case

[49] I will now turn to the evidence in relation to each of the relevant factors which the CLRA, in s. 24, directs the court to consider when determining what parenting order would be in the best interests of the children.

(i) Love, affection, and emotional ties

[50] It is not disputed that Naomi and Keera have an underlying love and affection for both parents.

(ii) Facilitating contact with the other parent

[51] The court, when making a custody and access order, whether pursuant to sections 20 and 24 of the CLRA, or pursuant to section 16(10) of the Divorce Act, “must give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child”. To that end, the court is required to consider the willingness of each parent who is claiming custody or access to facilitate such contact. As noted above, the goal of maximum contact with each parent is not absolute, but the legislation is clear that maximum contact can only be restricted to the extent that it conflicts with the child’s best interests.[^11]

[52] Mr. Jamieson states, in paragraphs 9 of his affidavit sworn June 13, 2017, “It has been heartbreaking to realize that the Applicant is trying to marginalize me to an ‘every other weekend’ father, when I have been substantially more than that from the day the children have been born.” I find this statement to be suspect for the following reasons:

a) Mr. Jamieson states, “I have had the children in my care almost every day since March 26, 2015.” In his Answer, he stated, “The Respondent has had the children in his care every day since March 26, 2015.” Although this may be regarded as a matter of semantics, I believe that it and other evidence from Mr. Jamieson discloses, at best, a casual approach to the accuracy of his facts.

b) Mr. Jamieson attaches, as an exhibit to his affidavit, a copy of what he says is his most recent parenting calendar with the children. Ms. Tovell states that the handwritten calendar that Mr. Jamieson attaches is fabricated and inaccurate. She notes that it was prepared by Mr. Jamieson and/or another person, as evidenced by the differences in handwriting, solely for the purpose of supporting his false claim that he has had the children in his care more than he actually has. She notes that the calendar is inconsistent with Mr. Jamieson’s own evidence, and points out, for example, that he states at paragraphs 33, that he had the children on May 8 and 9, 2017, where his calendar indicates “returned to mom” on those dates.

c) Mr. Jamieson’s calendar of when he cared for the children is inconsistent with his evidence that he expended $200 per month in after care for the children. According to his “winter” schedule, he did not require after-school care on Mondays, as he finished work at 3:30 p.m., nor did he require such care on Thursdays or Fridays, when he did not work. According to his “summer schedule”, he finished work at 1:30 p.m. There was therefore no day when he would have been required the after school care that, in his Financial Statement sworn December 16, 2016, he says cost him $200 per month.

d) Ms. Tovell states that Mr. Jamieson is attempting to enhance his parenting time in order to avoid paying child support. I find support for this assertion in the fact that Mr. Jamieson failed to pay any child support for over two years from when the parties separated to the date of the hearing, and that he exaggerated the amount of his contributions to the payment of the children’s special and extraordinary expenses. Those contributions were so minimal and inadequate that they jeopardized Keera’s continued participation in dance, which she obviously valued highly.

e) Mr. Jamieson states, “The Applicant and I operated on a joint custody/shared parenting arrangement whereby I had the children at least 40% of the time or more. This only changed after the Applicant sought legal counsel.” He further states, “The Applicant would actually attend at my residence when picking up and dropping off the children and sit down and talk over a cup of coffee or glass of wine.” Ms. Tovell denies that she ever had wine or coffee with Mr. Jamieson after they separated. There was only a brief interval of three months from March 26, 2015, when the parties separated following Ms. Tovell’s complaint that Mr. Jamieson had made death threats to her, and a Police warning to Mr. Jamieson not to contact Ms. Tovell, until June 29, 2015, when Ms. Tovell’s lawyer sent a draft separation agreement to Mr. Jamieson, providing for access by him on alternate weekends. Ms. Tovell, in her affidavit sworn June 22, 2017, states that she retained Ms. Cherry in April 2015, and that “After several months of trying to come to an agreement with the Respondent, I provided my then lawyer with instructions to prepare a draft Separation Agreement on my behalf.” It is unlikely, in the immediate aftermath of their turbulent separation, that the parties calmly agreed to an arrangement whereby Mr. Jamieson cared for the children 40% of the time.

f) Ms. Tovell denies that there was ever a week-about or shared parenting arrangement in place, and denies that the parenting of the children changed when she retained her lawyer.

g) Mr. Jamieson states that before Ms. Tovell began the present proceeding, the parties worked together to arrive at a schedule that had the children spending as much time as possible with either parent and as little time as possible in daycare or before or after-school programs. Mr. Jamieson’s assertion is at odds with Ms. Docherty’s evidence that the parties retained her for after-school daycare services in March 2015, the same month they separated, and continued to employ her until January 20, 2017, at the rate of twice per week, for an average of $60 per week. Ms. Docherty contradicts Mr. Jamieson’s implied assertion that he and Ms. Tovell’s use of after-school daycare and programs was minimal when they first separated and increased markedly after Ms. Tovell began her legal proceeding three months later.

[53] I do not accept Mr. Jamieson’s assertion that Ms. Tovell has impaired his relationship with the children by withholding access to them from him, for the following reasons:

a) Ms. Tovell states that she has offered Mr. Jamieson to have the children overnights on Wednesdays, and that he has used this opportunity on only 50% of Wednesdays, and that on the other Wednesdays, she has had to hire a sitter because of her work commitments. Mr. Jamieson has not contradicted these assertions.

b) Ms. Tovell states that in the past, she had offered Mr. Jamieson overnight access to the children on Thursdays, which he has most often refused because it would require him to take Keera to her dance lesson in Grand Valley and wait for her to finish before bringing her back. Again, Mr. Jamieson has not contradicted this assertion.

c) Ms. Tovell denies that Mr. Jamieson had the children in his care overnight on Thursdays, as his calendar suggests.

d) Mr. Jamieson alleges that he purchased Keera a cell phone to enable her to keep in touch with him, and that Ms. Tovell blocked the number on the phone, making it impossible for him to reach Keera. He further states that during a family holiday with the children to Florida in January 2017, Ms. Tovell used Keera’s cell phone and data while away, which resulted in a bill of over $500, which resulted in his cancelling the cell phone contract. Ms. Tovell denies that she blocked his number, and says that she checked with him as to whether Keera could use the cell phone in the U.S., and upon his telling her that she could do so, she permitted Keera to do so. She denies that she ever used the cell phone herself and Mr. Jamieson has not offered any evidence, from his own phone records, to prove otherwise.

[54] Ms. Tovell asserts that Mr. Jamieson has not co-operated with such ad hoc arrangements as the parties made for the parenting of the children. She states that he has repeatedly threatened to not return the children, to take them from school on unplanned days, and otherwise dictate where and when Ms. Tovell was to collect the children. As an example, Ms. Tovell notes the error in Mr. Jamieson’s affidavit sworn June 13, 2017, where he states at paragraph 34 that he attended the children’s dance competitions on Mother’s Day in May 2017, and her request that he bring the children back for dinner. Ms. Tovell states that there was no dance competition that weekend and that she had made dinner reservations with the children for 7:00 p.m. She states that she and Mr. Jamieson had agreed that he would return the children to her home by 6:30 p.m., so that she could attend dinner in accordance with her reservation. Mr. Jamieson failed the return the children, and instead had Keera contact Ms. Tovell at 6:10 p.m. to tell her to meet them in Orangeville at 6:30 p.m. When she asked him to return the children to her home, Mr. Jamieson responded with threatening texts. Mr. Jamieson has not offered any evidence substantiating his disputed assertion that there was a dance competition that weekend.

(iii) The children’s views and preferences

[55] The children are 7 and 11 years old. Their views and preferences, if they can be reliably ascertained, should be taken into account in the decision as to the parenting arrangements. Mr. Jamieson states that the children have told him they want to spend more time with him. Ms. Tovell does not deny that the children love both parents, but denies that they have ever asked to spend more time with Mr. Jamieson. It may be that the children are telling each of the parents they would like to spend more time with them, which likely is true.

[56] Mr. Jamieson says that he welcomes an investigation by the Office of the Children’s Lawyer, which he says will confirm the children’s preferences as stated by him. I am not prepared to accept the disputed assertions of either party with regard to the children’s preferences, without independent verification.

(iv) Length of time the children have lived in a stable home environment

[57] The children resided with both parents until March 26, 2015. In the two and a half years since then, the children have resided primarily with Ms. Tovell, exercising access to Mr. Jamieson on alternate weekends, and with occasional overnight stays with him on weekdays, as his schedule has permitted. They have lived in a relatively stable family environment in both households.

(v) Ability and willingness of each parent to provide the children with guidance and education, the necessaries of life, and to meet any individual needs they have

[58] Mr. Jamieson states that he was actively involved in all aspects of the children’s care prior to the parties’ separation. Ms. Tovell denies Mr. Jamieson’s assertion that he was a very involved father during their relationship and was actively involved in their care and up-bringing. I find that he was an actively involved parent, even before the parties’ separation, but that he has become more assertive in his involvement in the face of Ms. Tovell’s application and motion.

(vi) Plans proposed for the child’s care and upbringing

[59] Ms. Tovell proposes that the status quo be maintained. Mr. Jamieson seeks a week-about parenting arrangement.

The parties’ homes, in relation to each other

[60] It is helpful, in understanding the parties’ respective households, and how the parties must travel in order to share their parenting of the children, to situate their homes geographically in relation to each other. Mr. Jamieson and Ms. Tovell live at opposite sides of Dufferin County, along Highway 9. Ms. Tovell lives in the Town of Grand Valley, at the southwest corner of the County; Mr. Jamieson lives just northeast of Hockley Village, just beyond the southeast corner of Dufferin County, inside Simcoe County. Highway 9 runs along the southern border of Dufferin County, equidistant from Lake Ontario, to the south, and Georgian Bay, to the north.

[61] If one travels 15 or 20 minutes east from Ms. Tovell’s home in the Town of Grand Valley, along Highway 9, to the County Seat, Orangeville, where Naomi attends school, and just south of the Town of Mono, where Keera attends school, and one then travels 15 or 20 minutes further east along Highway 9, to the southeast corner of Dufferin County, Mr. Jamieson’s home can be reached by travelling just a little north, along the Mono-Adjala Townline, and then a little further east, into Simcoe County. The whole drive will have taken about 45 minutes. Orangeville is on Highway 9, about equidistant between Hockley Village, on the east, where Mr. Jamieson lives, and Grand Valley, on the west, where Ms. Tovell lives. It is about a 20 to 25 minute drive from each of the parties’ homes to the children’s schools.

Adequacy of the children’s accommodations

[62] Neither of the parties offers a description of the accommodation that is available for the children in their respective homes, apart from Mr. Jamieson stating that the children have a trampoline in the backyard, and trails for hiking, which they use frequently. It has not been disputed that accommodations for the children are adequate in both homes.

The parties’ homes, in relation to the children’s schools

[63] As noted above, the children are in French Immersion programs at two different schools, about six minutes from each other. Naomi will enter grade 2 in the fall of 2017 at Princess Elizabeth School, in Orangeville, which offers French Immersion from grade 1 to 3. Keera will enter grade 6 at Amaranth Public School in the Town of Mono, just north of Orangeville, which offers French Immersion from grade 4 to grade 8.

[64] On March 26, 2015, when the parties separated, Mr. Jamieson moved from the matrimonial home in Grand Valley to an apartment in Grand Valley for 4 months, then to a basement apartment in Orangeville for 13 months, and finally, in about August 2016, to the lower level of a 1500 square foot home on a 6 acre property at 9375 Simcoe County Road 1 in Palgrave, just northeast of Hockley Village. His home is about a 15 minute drive from Keera’s school (14.8 to 16.7 kms, depending on the route), and approximately a 20 minute drive from Naomi’s school (18.6 kms to 20.8 kms, depending on the route).

[65] As noted above, Mr. Jamieson’s home is just outside the catchment area of both children’s schools. Even if the schools knowingly permitted the children, at some point last June, to continue attending while residing, at times, with their father at in Simcoe County, the fact that his home is outside the schools’ catchment areas would create uncertainty as to how long they could continue doing so. Mr. Jamieson tendered no evidence from the schools confirming that it was a legal arrangement or one that would be permitted to continue indefinitely.

[66] Additionally, the children’s use of a bus stop 0.7 kilometres from Mr. Jamieson’s home, along a country road with no sidewalks, and requiring one child to wait alone at the bus stop for her bus after her sister had departed on her own separate bus, would entail a risk that Mr. Jamieson understates.

[67] In April 2017, Ms. Tovell moved 5 kilometres from her rural home in Waldemar, where she was a 15 to 20 minute drive from Naomi’s school, and an 18 to 20 minute drive from Keera’s school, to 42 Leeson Street North in Grand Valley, where she is an 18 to 26 minute drive from Naomi’s school and a 21 to 25 minute drive from Keera’s school. She says, and I accept, that this short move, five minutes further from the children’s schools, did not disrupt the children’s school, friends or activities, and increased their involvement with other families and avoids the isolated winters in the country.

[68] Mr. Jamieson states that since Ms. Tovell moved, the children have been staying home alone on Monday and Tuesday evenings from 4:30 p.m. until 7:30 p.m., when Ms. Tovell goes to Yoga. Ms. Tovell states that she does not attend Yoga, or go anywhere else, on Mondays. She says that while she attends Yoga from 6:30 to 7:45 p.m. on Tuesdays, it is located only one block from her home. She leaves the children in the care of a 12 year old babysitter for that hour and a quarter, puts the daycare provider, who lives 2 doors away, on notice, and gives Keera the telephone number where she can reach Ms. Tovell if she should need her. I find that Ms. Tovell’s plan for the care of the children is a viable one.

The parties’ employment obligations, and their availability for child-care

[69] Mr. Jamieson states that he has now secured a full-time day shift, from 7:30 a.m. to 3:30 p.m. He was offered the opportunity to tender evidence from his employer regarding the flexibility of his work schedule that enables him to undertake child care responsibilities. He submitted a letter dated June 22, 2017, from Ed Lewis, General Supervisor for Parks Operation and Technical Services, City of Toronto. Mr. Lewis states that Mr. Jamieson is currently employed on a contract, Monday to Friday, 6:30 a.m. to 2:30 p.m. He does not specify the duration of the contract. He states, “In the event Douglas requires a change in shift or accommodation with work hours for the 2017 season, the City of Toronto can accommodate as required. For future work selection processes, Douglas has the opportunity to choose various shifts that would accommodate and suit his family needs and requirements.” He does not specify what shifts will be available for Mr. Jamieson to choose from.

[70] Mr. Jamieson states that he has arranged before school care with Ange Marshall, a 31 year old unemployed woman who lives in Orangeville, who he says was referred to him by Ms. Tovell’s cousin. He says that Ms. Marshall is willing to attend at his residence to care for the children before school or, in the event he is late, after school. He states that he is always home by 3:30 p.m., and that the children return from school at 3:47 p.m.

[71] Ms. Tovell states that neither she nor Mr. Jamieson knows Ms. Marshall. Additionally, she notes that Mr. Jamieson’s assertion that he is home every day by 3:30 p.m. is inconsistent with his assertion, at paragraph 20 of his affidavit, that he now finishes work at 3:30 p.m. in Toronto, 1.3 hours from his home. Mr. Jamieson’s Supervisor, Mr. Evans, describes Mr. Jamieson’s current shift as ending at 2:30 p.m., so Mr. Jamieson may have described his hours of employment incorrectly.

[72] The workers at Ms. Tovell’s place of employment, the Canadian Hearing Society, were on strike from March 6 until May 15, 2017, but have now returned. Ms. Tovell arrives home from work on weekdays between 6:15 p.m. and 6:30 p.m. Before Mr. Jamieson moved to Palgrave, he was picking the children up from their schools and Ms. Tovell was picking them up from his home between 6:15 p.m. and 6:30 p.m. When Mr. Jamieson moved from Orangeville to Palgrave, and Ms. Tovell moved from Waldemar to Grand Valley, Ms. Tovell proposed that the pick-up and drop-off location be changed to Orangeville, which was equidistant from each of their homes. Mr. Jamieson objected and proposes to rely on the school bus to transport the children to the Hockley Valley General Store, and that Ms. Tovell pick up the children from his home, as before.

[73] If Ms. Tovell is to have the care of the children during the week, which I find to be in their interests, she must assume responsibility for their transportation to and from her home. Each of the parents will be responsible for picking up the children from the other’s home when care of the children changes from one parent to the other.

The parties’ ability to manage their households with the children

[74] Mr. Jamieson states that he has been “drowning in financial debt prior to separation and ongoing.” In his Financial Statement dated December 16, 2016, he reported debts of under $5,000 on the date of separation. In the affidavit he swore six months later (on June 13, 2017), he reports debts of $34,427.46. It is unclear how he incurred $30,000 of debt in six months, having regard to the fact that his income in 2016, according to his T4 slips, was $63,997.90, and his expenses, as he stated them in his December 2016 Financial Statement, were $60,265.32, and these included $200 per month for daycare expenses, which I find he was not paying, based on the evidence reviewed above.

[75] Ms. Tovell asserts that Mr. Jamieson “historically smoked our money away in marijuana and wanted to spend our rent money to pay his dealer off”. It would be speculation to attribute his current debt to marijuana use, but Mr. Jamieson’s own claim that he is drowning in debt, taken with his failure to pay child support or contribute meaningfully to the children’s expenses in the 2 ½ years since the parties separated, leads me to conclude that he is not capable yet of managing a household with two children, and ensuring that their needs are met.

(vii) Permanence and stability of each family unit

[76] I find that each of the parties’ family unit has permanence and stability. However, I find that there is greater economic instability in Mr. Jamieson’s life, based on his evidence that he was dismissed from his employment at Forecast Landscaping in 2016, and is currently pursuing a complaint to the Labour Board over withheld pay. He is employed on contract by the City of Toronto, and says his is “drowning in debt.”

(viii) The ability of each person applying to act as a parent

[77] Ms. Tovell says that she has been the children’s primary caregiver since they were born and continues to be 100% responsible for their care, including arranging and transporting them to before and after school care, feeding them, clothing them, arranging activities and transporting them to their activities and to meet with friends, and taking them to all appointments.

[78] Mr. Jamieson disputes Ms. Tovell’s assertion that she has been the children’s primary caregiver since they were born. He says that the children have been in both parties’ care since they separated, and have been in Mr. Jamieson’s care “almost every day” since March 26, 2015, and on alternate weekends, from Friday until Monday Morning. He says that on weekdays, he picked the children up after school, gave them dinner, and helped them with their homework until 6:30 p.m., when Ms. Tovell returned home and Mr. Jamieson delivered the children to her care.

[79] Ms. Tovell denies that Mr. Jamieson ever had the children in his care until Monday. She says that on his access weekends, he dropped the children off between 1 and 2:00 p.m., explaining that he had “things to do”. At times, he would not return the children to her home and demanded that she meet him in Orangeville. She says that when his work schedule allows, and in order to save on after-school care costs, he picks the children up from school.

[80] Ms. Tovell asserts that Mr. Jamieson has a long history of uncontrolled anger and alcohol and marijuana dependency. She says that she and Mr. Jamieson separated as a result of his ongoing addiction issues and his refusal to seek rehabilitation outside of counselling, which he frequently neglected to attend. Mr. Jamieson denies that he is dependent on alcohol or drugs. I do not find that Mr. Jamieson is incapable of caring for the children by reason of a dependency on alcohol or drugs. Mr. Jamieson says that the children were in his care for nine consecutive weekends in August and September, 2016, when Ms. Tovell volunteered on the Grand Valley Fall Fair Board. Ms. Tovell does not deny this, although she notes that half of those weekends were ones when the children would have been in Mr. Jamieson’s care in any event. Notwithstanding the financial constraints on Ms. Tovell that undoubtedly were a factor in her decision-making, the fact that she called upon Mr. Jamieson to care for the children during her volunteer work for the Fair Board supports the inference that she had sufficient confidence in his competence as to entrust him with them.

[81] Mr. Tovell says that Mr. Jamieson has been charged and incarcerated in the past for aggravated assault and domestic assault. The parties’ separation in March 2015 followed an incident in which Ms. Tovell alleges Mr. Jamieson made death threats to her, resulting in police involvement. The police told Mr. Jamieson that Ms. Tovell would leave, and warned him not to have contact with her or the police would return. Mr. Jamieson then chose to leave voluntarily himself. To his credit, this enabled Ms. Tovell to remain in the home and avoided disrupting the children’s lives any more than necessary.

[82] Ms. Tovell expresses concerns that Mr. Jamieson may be consuming alcohol or drugs while the children are in his care. She says that he has sent her harassing emails and texts weekly, sometimes multiple times a day. He has not paid any child support or made meaningful contributions toward the children’s special and extraordinary expenses since the parties separated. He says that he is drowning in debt and Ms. Tovell wonders whether his debts have resulted from drug use.

[83] Ms. Tovell’s concerns, though as yet un-tested by cross-examination, cannot be completely disregarded. Mr. Jamieson exhibited an unmanaged anger toward Ms. Tovell’s lawyer a year ago, which may reflect a domineering attitude toward Ms. Tovell herself. In a telephone message he left for Ms. Morris, and transcribed by Ms. Morris’ assistant, Mr. Jamieson stated:

Hey Kristen Morris, it’s Doug Jamieson. I’m just calling to let you know I got your letter and your email and both of those letters and emails are not even worth the paper I wipe my ass with. So, I’m letting you know I don’t know where you think that you’re the judge, the jury and the executioner and you’re going to tell me what I’m going to do with my children. Let me tell you something Miss, you represent Jennifer. You stick with Jennifer. Don’t send me this bullshit. Okay…I’m signing paperwork to take my kids. We will stick to the same plan that I’ve had with my kids since Day One. They come to me every single day. That’s bullshit about one dinner a week. Take that and wipe your ass with it because it ain’t happening. Alright? You want to have a fight? Put on your boxing gloves because that’s what we’re going to do. Alright? My lawyer says that this paperwork that you’re sending me is a joke. Nothing but a joke. To rip it up and send it right back to you guys. You want to know about my business? My 2013, 2014, 2015? You ain’t getting shit unless a judge orders that. Alright? If you want a fight, you’ve picked the wrong guy to fight with, Kristen Morris. Anyways, can’t wait to see what your next letter is going to be because I already know about your Law Clerk and your law business. Have a great day.

[84] The negative effects of domestic violence on children are well known. The perpetrator of domestic violence poses a risk of harm to children even after the perpetrator and victim have separated, and even if the perpetrator has not physically assaulted the children. B. MacDonald J. has described this risk in a number of decisions, including LeBlanc v. Khallaf, where she stated:

Children are harmed emotionally and psychologically when living in a home where there is domestic violence whether they directly witness the violence or not. Exposure to domestic violence is not in the best interests of children and those who are the perpetrators of domestic violence, who remain untreated and who remain in denial, are not good role models for their children. The fact that there is no evidence the perpetrator has actually harmed the child is an insufficient reason to conclude the perpetrator presents no risk to his or her child. One risk is that the perpetrator will continue to use violence in intimate relationships to which the child will be exposed in the future. Another is that the child may model aggressive and controlling behaviour in his or her relationships with others. There are many other risks some of which are summarized on the Government of Canada Department of Justice website providing information about spousal abuse.[^12] [Emphasis added]

[85] In certain cases, domestic violence justifies denying the perpetrator access to his/her children. In Children's Aid Society of Toronto v. C.(S.A.), Zuker J. stated:

There is a growing number of cases in which access has been denied to an abusive spouse or partner. Almost all of these cases fit in the category of episodic male battering. [For a case where a mother with a history of drug use and threatening behaviour was given access only with the permission of the custodial parent, see McGrath v. Thomsen (2000), 147 B.C.A.C. 195, 2000 BCCA 640, 241 W.A.C. 195, 11 R.F.L. (5th) 174, [2000] B.C.J. No. 2392, 2000 Cars­well­BC 2383 (B.C.C.A.).] They are situations of repeated physical violence and emotional abuse by a man, directed at his female partner and sometimes at the children as well, and most have also involved some form of post-separation spousal abuse. Although in most of the cases the custodial mother relied on expert testimony to support the application to deny access, there are cases in which access has been denied without such testimony. [^13](Citations omitted)

[86] Beyond the direct harm from domestic violence on a child, the continuing risk that it poses, and the message children may derive from the court validating the perpetrator’s parental competence by granting him custody of the children, is a factor that weighs against a finding that an order for joint custody would be in their best interests. In N.T. v. Y.T., Vogelsang J. granted interim custody to the mother, finding that the father’s need for control undermined his ability to act in the children’s best interests. He stated:

The conduct of the husband is quite relevant in determining which of the parties is better able to meet the needs of the children and to act as a proper parent, not only attending to the physical and emotional needs of their offspring, but also providing an environment of respect for the other, in order that there may be a continuation of the familial bond after separation. In that regard, I worry about the statements made by the independent midwife, Heather Struckett, in her affidavit at paragraphs 7 to 10 on page 106 of the motion record. The tone of the husband’s sworn affidavit is one of control, domination and obsession. If given custody, I fear that his emotions would overcome the best interests of these small children.[^14]

[87] In Kritharis v. Kritharis, Edwards J., granted sole custody to the mother for similar reasons. He stated:

The grant of sole custody to the mother is not made to encourage her to dominate the relationship which the parties must develop to manage their child care responsibilities. It is made to ensure that the father does not dominate it. I cannot over-emphasize that mutual respect and co-operation, with neither party seeking to dominate, is the only way the parties can eliminate their animosity and thereby ensure that the children’s best interests are met.[^15] [Emphasis added]

[88] In J.M.M. v. K.A.M., Leblanc J., of the Newfoundland and Labrador Supreme Court, declined, for similar reasons, to make an order for shared custody and instead granted sole custody to the mother. He stated:

While it is true that parents do disagree on issues related to their children when living together, these parents while being able to agree on some matters, are unable to agree in many areas. This is so in my opinion, as stated earlier, as a result of the rather domineering role claimed by the father and his lack of respect for the abilities of the mother. While an inability to agree or even a high conflict separation will not of themselves absolutely foreclose the possibility of a joint custody order (See Park v. Walsh (2003), 2003 NLSCTD 33, 223 Nfld. & P.E.I.R. 116; 666 A.P.R. 116 (NLTD), and Buckingham v. Bishop (2004), 2004 72611 (NL SCTD), 243 Nfld. & P.E.I.R. 290; 721 A.P.R. 290; 2004 NLUFC 44,), the reality of these parents’ lives and circumstances must be considered. The clear lack of respect that the father has for the mother and her abilities evident in this case and his still present anger towards her dictate to me that a joint custody or shared parenting arrangement is something that would not be in the best interests of A. In my opinion, there is a strong potential in this case that a joint or shared parenting will be used by the father as a tactic to gain control and potentially to exact retribution of some kind against the mother.[^16][Emphasis added]

[89] In D.X. v. M.J.Z., Walsh J. of the New Brunswick Queen’s Bench, in coming to a similar conclusion, stated:

An additional reason for the Court believing that day to day care to the mother is best for the children is that “in assessing the “best interests of the child” a judge needs to consider the respective attitudes of the parents and their relative abilities to foster the parent-child relationship”(L.C.M. v. B.A.C. 2010 NBQB 127). In my assessment the mother is best motivated. The Court’s findings in regard to the control and domination exerted by the father during the marriage and the reasons for it damage the father’s merits in this area.[^17] [Emphasis added]

[90] It would be unfair to Mr. Jamieson to restrict his access to the children based on Ms. Tovell’s unproven allegations of violence against him, at least until her allegations can be tested by cross-examination or by an investigation by the Office of the Children’s Lawyer. Mr. Jamieson has tendered evidence supporting his ability to act as a parent, as follows.

[91] Mr. Jamieson’s landlord, Jermaine Mays, provided an affidavit sworn May 12, 2017. He states that he has known Mr. Jamieson since August 2015. He states that Mr. Jamieson often picked his daughters up from school and brought them to Mr. Mays’ residence until their mother came to pick them up. He confirms that the children stayed over with their father every other weekend, and played with Mr. Mays’ children in the back yard or in their home. He confirms that when Mr. Jamieson picked his daughters up from school, he made them dinner, lunch for the next day, had them do their homework and clean their room. He always had snacks and juice on hand, and food on the table. The girls had clean clothes, as he did their laundry. He notes also that Mr. Jamieson was supportive of Keera’s interest in competitive dance.

[92] Mr. Jamieson’s friends, Joshua Foote and Jessica Kennedy, also provided an affidavit. They have known Mr. Jamieson for two or three years. Their daughter Madison and Mr. Jamieson’s daughter Naomi are class-mates. They get together as a family with Mr. Jamieson and his daughters three or four times a month and attend events such as the CNE together. They have no concerns regarding Mr. Jamieson’s parenting skills and regard him as a good father and role model for his children. They note that he makes sure his girls use their manners, play nicely with other children, and are good hostesses when they have company. They confirm Mr. Jamieson’s involvement in the girls’ extracurricular activities and say that he puts their interests uppermost among his priorities.

[93] Based on the foregoing evidence, I find that both parents are able to act as parents to the children. I find, however, that Mr. Jamieson is unlikely, at this point, to communicate effectively enough with Ms. Tovell to justify an order granting the two of them joint custody. I find that it is in the children’s best interests that, for the time being, they reside primarily with Ms. Tovell, while continuing to spend alternate weekends and regular overnight visits on designated weekdays with Mr. Jamieson.

[94] The Court of Appeal for Ontario, in B.V. v. P.V., (2012), the Court, while up-holding the trial judge’s decision not to award joint custody, or shared parenting, expanded the father’s access to the children beyond alternate weekends and one night per week, directing that the father have access for 35% of the children’s time. The Court stated:

[15] We agree with B.V.’s submission that the trial judge erred by awarding minimal access. In our respectful view, the terms of access ordered by the trial judge fail to respect the “maximum contact principle” contained in s. 16(10) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), directing the court to give effect “to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child”. See also Gordon v. Goertz, 1996 191 (SCC), [1996] 2 SCR 27.

[16] The trial judge did not identify any compelling reason for limiting B.V.’s access to the extent that he did. Indeed, the trial judge’s findings at para. 82, quoted above, support a more generous access order. B.V. has both a high level of education and a stable and welcoming family arrangement with his new wife and child into which Z.V. and E.V. have already been partially integrated. It is apparent to us, particularly from the fresh evidence, that Z.V. would benefit from greater contact with B.V. who has the capacity to assist Z.V. with his special educational needs.

[17] On the other hand, in view of the trial judge’s findings that B.V. tends to be controlling, over-bearing and disrespectful of P.V., we do not agree with the submission that access on a 50% basis would be in the best interests of these children. There is no basis to disturb the trial judge’s finding that P.V. should remain the parent with whom the children spend most of their time.

[18] However, as we have explained, the minimal terms of access are not supportable on the facts of this case, and, taking into account all the circumstances and the principle of maximum contact consistent with the best interests of the children, the appropriate access order would allow B.V. to have significant continuing involvement with the children throughout the year and particularly during the school year. As a result, we order that B.V. be granted access to the children for 35% of the time, so that they will spend the remaining 65% of the time with P.V. Counsel indicated that if the terms of access were changed, they would be able to work out the details. If there is any difficulty in that regard, we will receive brief written submissions.[^18] [Emphasis added]

[95] In the present case, extending the children’s alternate weekend access with their Mr. Jamieson from Friday at 7 p.m. to Monday at 8 a.m., and providing for an overnight visit with him from Wednesday at 3:30 p.m. to Thursday at 7:30 p.m. will increase his access to approximately 35% of the children’s time. This schedule will accommodate the extent of weekend access that Mr. Jamieson said he exercised last year, although Ms. Tovell disputed that his access extended to Monday, and the time he says he can arrive back from work on weekdays, following the end of his work-day at 2:30 p.m. Each of the parties shall be solely responsible for the cost of child-care when the children are in their respective care. Mr. Jamieson shall be responsible for picking the children up from the after-school care provider on Wednesdays and from Ms. Tovell’s home on alternate Fridays, and Ms. Tovell shall be responsible for picking up the children from Mr. Jamieson’s home on Thursday evenings.

b) What Child Support should be paid?

Legislative framework

[96] The Divorce Act, s. 15.1 provides, in part:

15.1 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage.

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to pay for the support of any or all children of the marriage, pending the determination of the application under subsection (1).

(3) A court making an order under subsection (1) or an interim order under subsection (2) shall do so in accordance with the applicable guidelines.

[97] Section 2 of the Act defines “child of the marriage” as follows:

2. “Child of the marriage" means a child of two spouses or former spouses who, at the material time,

(a) is under the age of majority and who has not withdrawn from their charge….

[98] The Family Law Act contains the following provisions regarding a parent's obligation to support a child of the marriage:

31.(1) Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so.[^19]

[99] In determining what amount of child support is appropriate in the present case, I have considered s. 3 of the Guidelines, which states:

3 (1) Unless otherwise provided under these Guidelines, the amount 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.[^20]

[100] Child support may be ordered retroactively to cover at least the period of time from when the applicant notified the payor spouse of her intention to claim such support.

[101] In D.B.S. v. S.R.G., (2006), the Supreme Court of Canada comprehensively addressed how the court should determine claims for “retroactive child support.”[^21] Bastarache J. began his majority reasons by pointing out that the word “retroactive” in relation to child support is a misnomer, because such support sought is only retroactive in the sense that it had not been ordered to be paid during the relevant period, even though it was owed in accordance with the Guidelines. Before discussing the factors a court was to consider prior to ordering retroactive child support, he stressed that such awards should not be seen as exceptional. He stated:

It cannot only be exceptional that children are returned the support they were rightly due. Retroactive awards may result in unpredictability [for the payor parent], but this unpredictability is often justified by the fact that the payor parent chose to bring that unpredictability upon him/herself. A retroactive award can always be avoided by appropriate action at the time the obligation to pay the increased amounts of support first arose.[^22] [Emphasis added.]

[102] Bastarache J. identified four factors that the court should consider when determining whether to order a retroactive award:

(1) unreasonable delay by the recipient parent in applying for the support;

(2) conduct of the payor spouse;

(3) circumstances of the child; and

(4) hardship occasioned by the retroactive award. [Emphasis added.]

[103] Justice Bastarache further indicated that none of these factors is decisive, and that “a court should strive for a holistic view of the matter and decide each case based on its particular factual matrix”.[^23]

[104] Justice Bastarache stated the following regarding the hardship that retroactive support orders may cause:

I agree with Paperny, J.A., who stated in D.B.S. that courts should attempt to craft the retroactive award in a way that minimized hardship (paras. 104 and 106). Statutory regimes may provide judges with the option of ordering the retroactive award as a lump sum, a series of periodic payments, or a combination of the two: see, e.g., s. 11 of the Guidelines. But I also recognize that it will not always be possible to avoid hardship. While hardship for the payor parent is much less of a concern where it is the product of his/her own blameworthy conduct, it remains a strong one where this is not the case.[^24] [Emphasis added]

[105] Justice Bastarache concluded:

The proper approach [for determining the date of retroactivity] can therefore be summarized in the following way: payor parents will have their interest in certainty protected only up to the point when that interest becomes unreasonable. In the majority of circumstances, that interest will be reasonable up to the point when the recipient parent broaches the subject, up to three years in the past. However, in order to avoid having the presumptive date of retroactivity set prior to the date of effective notice, the payor parent must act responsibly: (s)he must disclose the material change in circumstances to the recipient parent. Where the payor parent does not do so, and thus engages in blameworthy behaviour, I see no reason to continue to protect his/her interest in certainty beyond the date when circumstances changed materially. A payor parent should not be permitted to profit from his/her wrongdoing.[^25] [Emphasis added]

Applying the legal principles to the facts of the present case

[106] Ms. Tovell’s lawyer, Ms. Cherry, sent a draft Separation Agreement to Mr. Jamieson on June 29, 2015, which provided for Mr. Jamieson to pay child support and contribute to the payment of the children’s special and extraordinary expenses. Mr. Jamieson was on notice, at least by then, that Ms. Tovell intended to claim child support and a contribution to the payment of s. 7 expenses from him.

[107] If Mr. Jamieson is not ordered to pay child support from June 2015, his delay in paying such support could prejudice Ms. Tovell’s claim for such support. If Mr. Jamieson’s financial circumstances deteriorate, the trial judge would be faced with considering any financial hardship that Mr. Jamieson would suffer at the time of trial if an order for retroactive support were requested then. The delay increases the complexity of the argument and the uncertainty of the outcome.

[108] Mr. Jamieson’s Notice of Assessment for 2015 discloses total income (Line 150) of $58,475 that year. His pay statement to November 6, 2016, discloses earnings of $53,860 for the first 10.1 months of 2016, which translates to an annual income of $63,984. His T4 slips for 2016 discloses an income of $63,997.90 ($5,237.72 from Forest Landscaping + $59,969.12 from the City of Toronto - $1,208.94 union dues).

[109] I find that, in the absence of Mr. Jamieson’s Notice of Assessment for 2016, his T4 slips for that year are the most reliable basis for determining the amount of income he earned, and the amount that he is capable of earning, for purposes of calculating the amount of child support he should pay. The table child support amount payable for 2 children, based on income of $63,997.90, is $951, which I am rounding down to $950.

[110] The evidence does not support a finding that an order for retroactive child support in the amount of $25,650 ($950 x 27 months from June 2015 to August 2017) will not benefit Naomi and Keera, or that it will cause financial hardship to Mr. Jamieson. Mr. Jamieson will therefore be ordered to pay a lump sum in that amount, plus his proportionate contribution to the children’s past special and extraordinary expenses, pursuant to s. 7 of the FCSG. Additionally, he will be ordered to pay child support in the amount of $950 per month from September 1, 2017, onward, and his proportionate share of the children’s ongoing s. 7 expenses.

c) What are the Children’s Special and Extraordinary Expenses?

Legislative framework

[111] The contribution that parents are required to make to their children's education costs is governed by s. 7 of the Guidelines:

7. (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 expenses 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) 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 inappropriate, 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 inappropriate, the amount that the court has otherwise determined is 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 cost of the programs and activities, and

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

Sharing of expense

(2) 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.

Subsidies, tax deductions, etc.

(3) 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.[^26]

[112] The well-established test for whether an expense is extraordinary is whether it is "reasonable and necessary", having regard to the parents' individual and collective means. The court must assess whether the expense is objectively sensible for this particular separated family. It considers a number of factors, including the parties' historic spending patterns.

[113] Once having determined that an expense is extraordinary, having regard to the parties' joint income, and that it is reasonable and necessary, having regard to the means and circumstances of the parents and child, the court must, pursuant to s. 7, apportion responsibility for the expense in proportion to the parties' incomes.

[114] In Titova v. Titov, in 2012, the Court of Appeal for Ontario set out the procedure courts must apply when determining whether to award special and extraordinary expenses pursuant to s. 7 of the Federal Child Support Guidelines, as follows:[^27]

1. Calculate each party’s income for child support purposes

2. Determine whether the claimed expenses fall within one of the enumerated categories of s. 7

3. Determine whether the claimed expenses are necessary “in relation to the child’s best interests”

4. Determine whether the claimed expenses are reasonable “in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation”

5. If the expenses fall under s. 7(1)(d) or (f) of the Guidelines, the trial judge determines whether the expenses are “extraordinary”.

6. Consider what amount, if any, the child should reasonably contribute to the payment of these expenses

7. Apply any tax deductions or credits.[^28] [Emphasis added.]

[115] Having completed this exercise, the court must then determine how the balance of the expenses should be apportioned between the parties.[^29]

Factors Relevant to “Reasonableness”

[116] In Terry v. Moyo, in 2013, Justice O`Connell of the Ontario Court of Justice adopted six factors relevant to determining the reasonableness of a s.7 expense, as enunciated by the Manitoba Court of Appeal in 2002. They include:

1. The combined income of the parties;

2. The fact that two households must be maintained;

3. The extent of the expense in relation to the parties' combined level of income;

4. The debt position of the parties;

5. Any prospects for a decline or increase in the parties' means in the near future; and

6. Whether the non-custodial parent was consulted regarding the expenditure prior to the expense being incurred.[^30]

The Test for “Extraordinary”

[117] Before 2006, when the Federal Child Support Guidelines were amended to add s.7 (1.1), there was disagreement among Canadian courts of appeal about whether the test was a subjective one – where the income of the parents was a relevant factor – and an objective one, which simply looked at whether the expense was “ordinary” or “extraordinary”. The 2006 amendment resolved this dispute in favour of a subjective test.

[118] Section 7(1.1) of the Federal Child Support Guidelines now provides a definition of “Extraordinary Expenses”:

DEFINITION OF “EXTRAORDINARY EXPENSES”

(1.1) 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 inappropriate, 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 inappropriate, the amount that the court has otherwise determined is 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 cost of the programs and activities, and

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

[119] The test set out in section 7(1.1) takes account of the spouse’s income and the amount of child support to be received. In MacNeil v. MacNeil, in 2013, Gauthier J. succinctly sets out the jurisprudence interpreting “extraordinary”:

The real issue is whether the expenses are “extraordinary.”

The question of how to determine whether expenses are “extraordinary” was specifically addressed at paragraph 28 of Titova, based on a British Columbia Court of Appeal decision from 1998:

It also does not appear that the trial judge turned her mind to the question of whether the expense for items such as school books and school registration qualified as “extraordinary”. As set out in McLaughlin v. McLaughlin (1998), 1998 5558 (BC CA), 167 D.L.R. (4th) 39 (B.C.C.A.) at para. 64, the use of the word “extraordinary” in s. 7 implies that ordinary expenses are intended to be covered by the basic table amounts.

This interpretation of “extraordinary” is consistent with the Ontario Court of Appeal decision in Ostapchuk v. Ostapchuk, 2003 57399 (ON CA), [2003] O.J. No. 1733, 64 O.R. (3d) 496, where s. 7 expenses were described as “special or extraordinary expenses that are determined to be additional costs of raising a child that are not incorporated in the table amounts” [emphasis added] (para 13).

“Extraordinary” expenses were described as “unusual”, or “disproportionate” by the Manitoba Court of Appeal in Andries v. Andries, 1998 14093 (MB CA), [1998] M.J. No. 196, 159 D.L.R. (4th) 665:

An expense for an extra-curricular activity is extraordinary only where it is disproportionate to the usual costs associated with that particular activity. The income of the parties is irrelevant in determining whether an expense is extraordinary. It is only if the expense is otherwise found to be extraordinary, in the sense of being unusual or exceptional according to an objective standard, that one looks to the incomes of the parties to determine whether the expense is reasonable and in accord with the spending patterns of the parties prior to the separation.[^31][Emphasis added.]

[120] Some of the cases cited predate the 2006 amendments, although Titova approved the McLaughlin decision in 2012. Thus, any interpretation must take account of the subjective considerations enumerated in the Guidelines.

[121] In Bordin v. Bordin, (2015), Horkins J. stated the considerations as follows:

An extraordinary expense is one that given the combined income of the parties would not be incurred for the children as a matter of course (see Celotti v Celotti, [2007] O.J. No. 2538 (S.C.); Park v Thompson, 2005 14132 (ON CA), [2005] O.J. No. 1695 (C.A.)).[^32]

[122] In Boisvert v. Boisvert, (2007), Whitten J. noted at para. 48:

Section 7(1.1)(a) appears to exclude expenses that would reasonably be expected to be covered by a combination of the custodial parent’s income and the Guideline amount received by that parent. Section 7(1.1)(b)(i) provides that if s. 7(1.1)(a) is not applicable, the court could still exclude such an expense if that expense was disproportionate and not economically justifiable given the income of and support received by the custodial parent. This section includes as factors for consideration the nature and number of extra-curricular activities, their cost, and any other factors considered relevant by the court. The overall thrust of section 7(1.1)(b) appears to be to exclude activities which would be beyond the lifestyle and economic means of the children and their parents. That cannot be said about a claim for extra-curricular activities such as Beavers, gymnastics, sport ball and day camp. These are all extra-curricular activities which are age appropriate and are modest means of developing the socialization and athleticism of young children.[^33] [Emphasis added.]

Applying the legal principles to the facts of this case

[123] Ms. Tovell earns $62,782 from her employment with the Canadian Hearing Society, although her income for 2017 will likely be lower than usual as a result of the ten week strike that ended on May 15, 2017. Mr. Jamieson earns $63,997.90. Each of the parties shall therefore pay 50% of the children’s special and extraordinary expenses from June 2015 to June 2017.

[124] I find the children’s daycare expenses, and the cost of Keera’s dance lessons and competition, and the cost of the children’s piano lessons to be extraordinary, in the sense that they exceed what Ms. Tovell should be expected to pay from the monthly child support she was entitled to receive. Those expenses were also reasonable and necessary, having regard to the parties’ circumstances, the expenses they incurred for the children prior to their separation, and the benefit the children derived.

[125] Mr. Jamieson failed to pay his half share of the annual cost of Keera’s $2,640 dance lessons, in the amount of $1,320, or his half share of the $1,536 annual cost of piano lessons for both children, in the amount of $768, or his half share of the $2,880 annual cost of their after school care costs, in the amount of $1,440. He will be required to reimburse Ms. Tovell for these amounts, totaling $2,338. He will additionally be required to pay 50% of the cost of the children’s future dance and piano lessons, within 7 days of Ms. Tovell sending him an invoice or a receipt or other proof of payment from the provider to him as an attachment to an email or registered mail, or within 14 days of her sending the same to him by registered mail.

CONCLUSION AND ORDER

[126] For the reasons stated above, it is ordered that:

1. Ms. Tovell shall have temporary sole custody of the children:

a) Keera Tovell-Jamieson, who is 11 (born June 9, 2006); and

b) Naomi Tovell-Jamieson, who is 7 (born February 17, 2010).

2. Mr. Jamieson shall have temporary access to the children at the following times:

(b) Every Wednesday, beginning August 30, 2017, from 3:30 p.m. until the following day (Thursday) at 7:30 p.m.

(c) On alternate weekends, beginning September 8, 2017, from Friday at 7 p.m. until Monday at 8:00 a.m., when he shall drop the children at their respective schools.

3. It shall be the responsibility of the parent who is assuming care of the children to pick them up at the other parent’s home or from the children’s daycare provider, at the direction of the parent who has had the care of the children to that point.

4. It shall be the responsibility of the parent who has care of the children in accordance with this Order, to pay any child care costs incurred beginning September 1, 2017, during the period of their care of the children.

5. Mr. Jamieson shall not use the school bus to deliver the children to his neighbourhood, or to pick up the children from his neighbourhood.

6. Mr. Jamieson shall pay to Ms. Tovell, by September 30, 2017, the lump sum of $27,988.00 (retroactive child support in the amount of $25,650, based on $950 x 27 months + $2,338.00 as his 50% of the children’s special and extraordinary expenses, from June 2015 to June 2017).

7. On a temporary basis, Mr. Jamieson shall, beginning September 1, 2017, and continuing on the 1st of each month thereafter, pay to Ms. Tovell child support in the amount of $950 per month, based on his 2016 income of $63,997.90.

8. Each of the parties shall, beginning in 2018, produce to the other, by May 15 of each year, a copy of their Income Tax Return for the previous year, with all schedules and attachments, and, within 14 days of receipt of same from the Canada Revenue Agency, a copy of their Notice of Assessment for the previous year. The parties shall cooperate fully in adjusting the amount of Mr. Jamieson’s payments of child support and s. 7 expenses for the year, effective January 1 of the year in which the tax return was filed, based on their previous year’s incomes, with the new amount to be payable, with any retroactive adjustment since the beginning of the year, to be paid on July 1st of that year.

9. On a temporary basis, Mr. Jamieson shall, beginning September 1, 2017, pay to Ms. Tovell 50% of Keera’s dance costs and 50% of the cost of the children’s piano lessons from July 1, 2017 onward, upon 7 days of Ms. Tovell sending to him an invoice or receipt from the instructor as an attachment to an e-mail, or within 14 days of Ms. Tovell sending such invoice or receipt to him by registered mail.

10. Neither party shall change the children’s schools without written consent of the other or a Court Order.

11. Both parties shall maintain the children under any extended health and medical plan available through their employment for so long as they are required to pay child support for the children and provided that the benefits are available for the children. Each of the parties shall, by September 15, 2017, produce proof to the other of the extent of the children’s coverage and the protocol for claiming reimbursement from the insurer.

12. A Support Deduction Order shall issue.

13. If the parties are unable to agree on costs, they shall submit written arguments, not to exceed 4 pages, plus a Costs Outline, by September 30, 2017. Ms. Tovell submitted her Costs Outline at the hearing.

Price J.

Released: August 25, 2017

CITATION: Tovell v. Jamieson, 2017 ONSC 5079

COURT FILE NO.: 162/16

DATE: 2017 08 25

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

JENNIFER JEAN TOVELL

Applicant

• and –

DOUGLAS KEITH JAMIESON

Respondent

REASONS FOR ORDER

Price J.

Released: August 25, 2017

[^1]: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as amended.

[^2]: Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3, at pp. 46, 117-18.

[^3]: S.(B.L.S.) v. S. (T.M.), 2003 CarswellAlta 133.

[^4]: Children’s Law Reform Act, R.S.O. 1990, c. C-12, as amended, section 24.

[^5]: CLRA, sections 20(1), (4), and (5).

[^6]: Wiedrick v. LeMesurier (2006), 2006 919 (ON SC), 27 R.F.L. (6th) 312 (Ont. Sup. Ct.), per Wood J.

[^7]: Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3, at pp. 46, 117-18.

[^8]: Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27, at pp. 67-68. See also Berry v. Berry, 2011 ONCA 705, 7 R.F.L. (7th) 1, at para. 10.

[^9]: Barnes v. Parks, 2001 241146 (ON CA) (in chambers), at para. 10, per Laskin J.A.

[^10]: Jones v. Jones, 2014 ONCA 822, at para. 9.

[^11]: Young v. Young, at pp. 46, 117-18.

[^12]: LeBlanc v. Khallaf, 2010 NSSC 219, para. 25; C. ( J. R. ) v. C. ( S. J. ), 2010 NSSC 85, para. 17; A.V. v. E. V., 2014 NSSC 204, para. 19;

[^13]: Children's Aid Society of Toronto v. C.(S.A.), 2005 ONCJ 274, para. 98

[^14]: N.T. v. Y.T., 1998 14087 (ON SC), para. 7

[^15]: Kritharis v. Kritharis, 2001 BCSC 258, para. 64

[^16]: J.M.M. v. K.A.M., 2005 78851 (NL SCTD), para. 118

[^17]: D.X. v. M.J.Z., 2011 NBQB 66, para. 35

[^18]: B.V. v. P.V., 2012 ONCA 262

[^19]: Family Law Act, RSO 1990, c F.3

[^20]: Federal Child Support Guidelines, S.O.R. 97-175, s. 3.

[^21]: S.(D.B.) v. G.(S.R.), 2006 SCC 37, [2006] 2 S.C.R. 231. [D.B.S.]. Also: W.(L.J.) v. R.(T.A.); Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, [2006] S.C.J. No. 37

[^22]: D.B.S., at para. 97.

[^23]: D.B.S., at para. 99.

[^24]: D.B.S., at para. 116.

[^25]: D.B.S. , at para. 125.

[^26]: Federal Child Support Guidelines, s. 7

[^27]: Adapted from Titova v. Titov, 2012 ONCA 864, at para. 23.

[^28]: In Wawzonek v. Page, 2015 ONSC 4374, Justice Pazaratz says, at para. 198, that the tax considerations should come before consideration of the child’s contribution.

[^29]: Wawzonek v. Page, 2015 ONSC 4374, at para. 198.

[^30]: Terry v. Moyo, 2013 ONCJ 364, at para. 29.

[^31]: MacNeil v. MacNeil, 2013 ONSC 7012, paras. 31 to 34.

[^32]: Bordin v. Bordin, 2015 ONSC 3730, at para. 116.

[^33]: Boisvert v. Boisvert, 2007 24073 (ON SC), 40 R.F.L. (6th) 158, para. 48.