Buch v Buch, 2017 ONSC 6246

CITATION: Buch v Buch, 2017 ONSC 6246

COURT FILE NO.: 117/15

DATE: 2017-10-19

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Jennifer McIntosh

Applicant

– and –

Stas Buch

Respondent

Malcolm Bennett - Counsel for the Applicant

Robert MacLeod - Counsel for the Respondent

HEARD: October 2, 3, 4, 5, 10 & 11, 2017

The Honourable Justice James W. SloaN

REASONS FOR JUDGMENT

[1] This matter comes to court on the sole issue of whether or not the applicant mother can move with the child of the marriage to Exeter and enroll the child in school in Exeter, while at the same time, trying to maintain a joint custody regime of almost equal sharing of time.

Some Historical Dates

[2] Some of the historical data pertaining to this matter are as follows:

I. September 18, 2004 – the parties are married,

II. August 16, 2008 - Olivia is born,

III. 2014 - the applicant is informed that her employment with the London CAS will be changing,

IV. May 1, 2014 – the parties separate,

V. July 28, 2014 -a separation agreement is signed,

VI. July 2014 to November 2014 – the applicant takes a leave of absence from work,

VII. July 2014 to September 2014 – parenting time remains flexible,

VIII. September 2014 to June 2015 – Olivia is in grade 1,

IX. July 21, 2015 – this application is started,

X. September 2015 – the parties commence a week about parenting regime,

XI. September 30, 2015 - this application is amended,

XII. October 2015, the applicant starts dating Derek Beckette who resides in Exeter,

XIII. September 2015 to June 2016 – Olivia is in grade 2,

XIV. January 2016 – start of the section 30 assessment,

XV. April 13, 2016 - Olivia is diagnosed with diabetes,

XVI. June 28, 2016 – disclosure meeting with respect to the section 30 assessment,

XVII. September 2016 to June 2017 – Olivia is in grade 3,

XVIII. December 2, 2016 – last contact between Olivia and Geraldo,

XIX. December 30, 2016 – last contact between the applicant and Geraldo,

XX. January 17, 2017 – last contact between the respondent and Geraldo,

XXI. January 18, 2017 – disclosure meeting with respect to the updated section 30 assessment,

XXII. September 2017 – Olivia enters grade 4,

[3] The child of the marriage, Olivia Taylor Buch was born on August 16, 2008 and is currently nine years old.

[4] The applicant has worked for the London-Middlesex CAS for approximately 16 ½ years and the respondent works as an electrician for a family business, which includes his father and cousin.

Evidence On Behalf Of the Applicant

Reasons for the Requested Move

[5] The applicant wishes to move with Olivia from Simcoe to Exeter, which is north of London Ontario.

[6] Her reasons for wanting to move include:

[7] She grew up in Exeter prior to marrying the respondent and all of her extended family, who she would like to lean on for support from time to time, including her divorced parents, siblings, nieces, nephew and fiancé all live in the “Greater Exeter” area. Although her sister works in London she commutes to Exeter every weekend.

[8] Both she and Olivia have a great relationship with all of her extended family.

[9] The only reason she moved to Simcoe was because of her marriage to the respondent, which is now over.

[10] Her employment with the London Middlesex CAS has been shifted back to London. When she met and married the respondent, she was able to get a transfer within the London Middlesex CAS network, to service its Crown Ward CAS clients between Simcoe and Niagara Falls, however that job is now redundant.

[11] She has enjoyed several positions with the CAS including one where she was doing training for the agency. She is currently working towards a position within the CAS, in which she would be responsible for coordinating all training both for the London as well as smaller CAS agencies in the area.

[12] She has been dating one Derek Beckette for approximately two years and he lives in Exeter and manages an A&W restaurant in Listowel. She has known Mr. Beckette since grade school.

[13] She and Mr. Beckette are having a home built for them in Exeter, which will hopefully be completed in December 2017.

[14] They are committed to each other and she would like to marry Mr. Beckette and live with him in Exeter, but is currently waiting for a decision from this Court.

[15] She testified that it would be impossible for her to live in Exeter and drive every day to Simcoe, in addition to which, even if she could, it would be unfair to Olivia.

[16] At the start of trial she filed a proposed custody and access order which calls for joint custody, Olivia’s residence to move to Exeter and significant periods of responsibility where the child would be in the care the respondent, including approximately three out of every four weekend days.

Olivia’s Health Situation

[17] Olivia was diagnosed with juvenile diabetes on or about April 13, 2016.

[18] Since that time it appears that both parents have attended meetings at the Brantford Hospital with the diabetes clinic team.

[19] It was the applicant’s testimony that since the diagnosis, she has been the one who primarily looks after Olivia diabetes and orders all of her supplies.

[20] This is at least in part, because her health benefits cover the cost of what she orders and she makes sure, she has extra stock of all the necessary supplies.

[21] She attends at Olivia school each day at approximately 12:25 PM to check her blood sugar reading, calculate the insulin dosage, and perform the injection.

[22] In grade 2 she made sure that the teacher texted her each time the child took a blood sugar reading, however in grade 3, when the teacher did not have a phone capable of texting, she bought one for Olivia to take school with her for the teacher to use.

[23] She makes sure that the child takes her diabetes kit with her to school each day and in addition makes sure there is an emergency kit at the school. This year she prepared two emergency kits, one for the portable classroom and one for the main school building.

[24] She described the contents of the kit which includes a monitor, lancing device, lancets, bag of needles, pen etc. (Ex. 4).

[25] She described briefly that a calculation has to be made which involves knowing the weight of the carbohydrates that the person has or will eat along with the weight of other foods. Then, once that calculation is determined, the person making the injection would know how much insulin to inject.

[26] She testified that there are many other things other than food that can affect a person’s blood sugar, including, excitement, activity, heat and altitude.

[27] Given all these variables she said she would not be comfortable having a rotation of nurses go to the school to make the injection.

[28] At the start of each school year she fills out an emergency form which she makes sure, is posted in Olivia’s classroom, the teacher’s staff room and the office. In addition she contacts the new teacher and meets with him/her approximately one week before the commencement of classes. In addition she makes sure there is an emergency kit in Olivia’s classroom and in the school office.

[29] Currently the child is not comfortable injecting herself, and she had been concerned in the past, when the respondent has tried to get the child to start injecting herself, even to the point where he and his new wife were offering Olivia a monetary reward.

[30] The applicant felt this was putting undue pressure on Olivia.

[31] Approximately every three months since the diagnosis, the parties meet with the diabetes clinic team at a Brantford clinic. After bringing up the issue of when Olivia should start doing her own injections, the parties were informed that the child should not be pressured and that there is no set age for self-injection, every child is different and it depends on the child’s comfort zone and emotional health.

[32] The applicant took the court through a short course in diabetes, explaining in general, short and long term acting insulin, different injection sites in the body (Ex 3) and some of the techniques about pinching the skin so that the needle can be put in a fatty area of the body. She also demonstrated the operation of the insulin pen and stated that Olivia receives between four and five injections per day.

[33] She stated that ideally Olivia’s blood sugar readings should be between 4 and 7, but 8/9 may be okay. She stated the greater concern, is if the blood pressure drops below 4 because the child may become dizzy, shaky, not feel well, have blurry vision and perhaps have a seizure or fall into unconsciousness.

[34] She stated that Olivia is good at alerting both her parents when any of the above symptoms are present.

The Applicant’s Pregnancy & Maternity Leave

[35] The applicant took the court through some unfortunate aspects of her pregnancy which culminated in a cesarean section.

[36] She took a year off work and the nurse visited her for the first two months because her cesarean operation was not healing properly.

[37] She met with other ladies from her Lamaze class and signed up for mother/baby outings which were available in the community.

After Maternity Leave

[38] She sourced home day-care where the child could be dropped off as early as 7:30 AM and picked up by 5 PM. This childcare continued for three years until Olivia was in junior kindergarten and the applicant testified that it was mostly she who would take the child to daycare because it was on her way to work.

[39] She testified that she did the bulk of the child rearing, took the child to the doctor’s, for immunization shots and extracurricular activities such as dance, figure skating and soccer.

[40] Olivia started full day junior kindergarten in September 2012 and either the applicant drove the child or she took the bus. After school Olivia would take a short bus ride to the Calvary afterschool program and either the applicant respondent or respondent’s mother would pick Olivia up from there.

[41] She testified, that at the time her work schedule was flexible since she had 18 Crown wards who she had to visit at least once a month.

[42] She testified that the respondent left for work between 7 and 7:30 AM in the morning until 5 PM or later and he also worked on Saturdays.

Separation/Separation Agreement

[43] The applicant moved out of the matrimonial home and into Simcoe on or about June 28, 2014. At that time the parties were communicating well.

[44] They signed a separation agreement shortly thereafter on July 28, 2014.

[45] She took a leave of absence from work from July through November 2014 and stated that the parenting was flexible and each party had alternate weekends until approximately September 2015.

[46] The respondent’s current wife Kim moved into his home in approximately April 2015 and in approximately September 2015, the respondent started insisting upon week about access.

[47] The applicant testified that she was not notified about the respondent’s change in living arrangements and that when asked, he initially lied about the fact that his girlfriend was living in the house. She thought moving a significant other into either of their homes, was an issue that they should have discussed, so they could both explain to and prepare Olivia.

[48] At that time the applicant confronted the respondent essentially saying that she could not do this anymore, to which she testified that he remarked, something to the effect, if you take me to court you will see Olivia less.

[49] This court action started in July 2015.

[50] Although paragraph 3.2 of the separation agreement states that Olivia will reside with each party equally, she testified that was not the case between July 2014 and September 2015 and she did not hear any complaints from the respondent.

[51] With respect to paragraph 3.5 which states that the parties will live near each other and neither will remove Olivia’s permanent resident residents from Norfolk County without the other’s consent or court order, the applicant testified that she thought that was the best thing at the time because they are both very important to Olivia and she would try to make it work.

[52] However since the separation she states that she is isolated in Simcoe and essentially shunned by the respondent’s family and the friends that they had as a married couple, all of whom were the respondent’s friends first.

[53] She testified that other than a few of the moms of Olivia’s friends, she has no friends whatsoever in the Simcoe area.

[54] She testified that the respondent told her no one he knows will do any work for her and when she once hired a babysitter, the person was told that she was being disloyal to the respondent.

[55] She testified that paragraph 4.2 of the separation agreement states that neither party will pay support to the other even though the respondent makes significantly more money than her.

[56] She testified that she never expected that the respondent would not help out with Olivia’s expenses, however in the first year he hardly paid anything. Although he did pay for some day care, it was difficult to get him to pay a portion of the extracurricular activities including Kumon, and he refused to pay for clothes, saying that he had clothes for her at his house.

[57] She stated that she was under a lot of pressure from the respondent to get the separation agreement signed, as he kept saying that his lawyer needs the separation agreement done.

[58] As of December 9, 2015, there is a court order which obligates the respondent to pay child support in the amount of $377 per month based on his income of $116,000 per year and the applicant’s income of $68,800 per year. In addition he is to pay his share of the section 7 expenses. (Tab 8 of Trial Record)

[59] She acknowledged paragraph six of the separation agreement calling for no spousal support because in her opinion that the time they were both gainfully employed.

[60] She testified that in January and February 2016, Olivia was quite ill and while she got help from the respondent’s mother she had very little help from him.

Olivia’s Education

[61] Because she has a flexible schedule, the applicant testified that she has attended almost every school field trip, has been on parent’s council and has volunteered to assist with the children at such events as, Shrove Tuesday, mad scientist days, making cookies, library trips and attending with the children at nursing homes to interact with the elderly.

[62] In junior and senior kindergarten she attended all the parent-teacher meetings while the respondent looked after the child at home.

[63] In grades 1 and 2, the parties attended the parent-teacher meetings together however in grade 3, although the applicant thought she and the respondent had agreed to go together, it turned out that the respondent went with his new wife so she ended up going on her own.

[64] She was disappointed in this outcome, because she felt they should both attend to speak with the teacher at the same time, so they would both get the same information and be on the same page.

[65] She was concerned enough about Olivia’s reading and writing, that in September 2016 she signed her up at Kumon for remedial help and she paid most of the cost. Initially each party took Olivia to Kumon each Monday and Thursday while she was in their care.

[66] She testified that she worked very hard on a daily basis with Olivia to complete the Kumon work, but found out in December 2016, that the respondent without any discussion with her, had not been taking the child to Kumon since October.

[67] When she became aware of this and asked Olivia why she was not going, Olivia replied, that her dad said she did not have to go, because she did not need it. From that time forward it was always a struggle/fight to get her to go to Kumon and she eventually stopped going.

[68] Olivia was in grade one from September 2014 to June 2015. In January 2015 the applicant received a DRA score sheet from the school (Ex. 5) stating that Olivia was at risk of not achieving the grade one standard for reading by the end of the school year.

[69] The applicant proposed that Olivia stay with her during the school week so she could work with Olivia on a nightly basis, even if she was returned to her home by the respondent at 7 PM. The respondent was not in agreement with this.

[70] She continued to be concerned when she would attend at the school and see examples of other children’s work on the wall. Two examples of Olivia’s grade 1 work entered as Exhibit 9 and they seem to paint the picture of a child, who is struggling to know what to do and how to do it.

[71] The applicant testified that Olivia could tell you about a story if you read it to her, but if she read the story, she would have to put so much focus on each word to master it, that she could not tell you about the story at the end.

[72] Olivia is now in grade 4 and is expected to read chapters.

[73] The applicant testified Olivia remembers a word once she learns it, but does not seem to be able to use phonics to sound the word out. Therefore in grade 1 she got flashcards which contained words of more than one syllable, and which she hoped would help the child achieve the grade 1 standard by June 2015.

[74] Olivia’s report card for grade 1 was entered as Exhibit 10 and shows an improvement in reading from January to June from a C+ to a B. The report card also notes that the child was late 14 time and the applicant said she was never late when she stayed her house.

[75] With respect to a Kumon assessment in March 2015, the applicant testified that the respondent thought that Olivia was lazy, while she was convinced that Olivia was frustrated and overwhelmed.

Grade 2

[76] Olivia started grade 2 and September 2015 and while there were still concerns about reading and writing, the reading had improved.

[77] The applicant testified that she asked for a writing log book from the teacher and that she worked every night with Olivia, but that the respondent did not participate.

[78] She testified that the writing log book helped and Olivia learned to put a couple of ideas together, however it was a struggle and the applicant needed a lot of perseverance and patience.

[79] The applicant next testified about weekly spelling tests, where Olivia was given a list of words at the beginning of each week and tested on them each Friday. The test on Friday consisted of the list of words given on Monday plus 2 bonus words which were not on the list.

[80] She testified that help for Olivia at the respondent’s house was not consistent, based on her correlation of Olivia’s spelling test scores and whom she was living with during that week.

[81] In particular she points to the weeks of October 13, 2015 where Olivia’s score of correctly spelt words, was, on October 13, 2015 - 3/11, November 23, 2015 – 4/11, February 15, 2016 – 2/11 and March 28, 2016 – 6/11. On all these occasions Olivia had been residing with the respondent for the week prior to the test. Although there are some other low scores she was unable to state definitively that the child was residing with the respondent during that week although she is very sure she was. There are no such low scores during the week when the child resided with her.

[82] Exhibit 14 is the child’s grade 2 report card, dated May 2, 2016. It shows improvement in reading from B to B+ an improvement in writing from C to C+.

[83] The applicant contributes to this improvement to all of the extra work she has done with Olivia at home.

[84] At the end of grade 2, two documents came home with Olivia. The first document marked Exhibit 15 consists of three pages containing an orange, purple and blue sheet. The orange informational sheet explains to a parent what the child’s project was, while the purple sheet is an example of one of Olivia’s classmates who got an “A” on the project and the blue sheet is an example of one of Olivia’s classmates who got a “B” on the project.

[85] The second document (Ex 16) consists of two examples of Olivia’s work. The first page consists of three very poorly written lines and the teacher’s comment is “-took 30 minutes to write this - looking for six – eight complete sentences”

[86] The second page of Exhibit 16 is mildly better and the teacher’s comment was “-I need more detailed sentences”.

[87] There is absolutely no comparison between Exhibit 16 and the blue and purple sheets of Exhibit 15.

[88] Exhibit 21 is Olivia’s workbook that the teacher talked to the applicant and respondent about. This was extra work requested by the applicant. The applicant testified that she worked on it with Olivia every second week when Olivia was at her home and that the positive comments in the book in red or blue pen are those of the teacher, however the applicant pointed out that Olivia would work on these projects for two or three nights under her watchful eye to achieve this level of work.

[89] The applicant testified that she was extremely concerned and Olivia was very emotional and was asking for help therefore she signed her up for Kumon in the fall of 2016.

Grade 3

[90] Olivia was in grade 3 from September 2016 to June 2017. When the applicant went to the first parent teacher night, the work up on the walls confirmed that Olivia’s work was below average in comparison to her classmates.

[91] When she noticed the alphabet on the walls with lists of common words listed below each letter, she wondered what Olivia would be able to write if she could not see those works. At her request just before Christmas of 2016, Olivia completed a project outside of the classroom and the mark she achieved on this work was below what she usually achieved in the classroom.

[92] Her work was graded at a level 2 which is a “C”. In addition to the spelling being poor she used the same sentence “I am looking forward to ___” over and over again and simply change the last word of the sentence with each new line.

[93] Her concerns with Olivia’s reading and writing continued into 2017. A reading log was set up which was to go to both houses and be signed off by the parent when the reading was accomplished.

[94] The applicant testified that when you helped Olivia through a book she could read it quite well the next time round. Olivia really struggled when she tried to read two books “Too Busy for Pets” and “Community Garden” both of which books had been signed off by the respondent as having been accomplished.

[95] Because Olivia struggled so hard to read these books, she is convinced that the book was not read at the respondent’s house. In particular she pointed to page 2 of Exhibit 17 under the dates of October 7, 10 and 11 which were signed off by the respondent when Olivia simply could not read the book.

[96] She acknowledges that sometimes Olivia will indicate that she read the book on the bus on the way home, however the applicant states, that she knows that would never happen and that it is very unfortunate if the respondent accepts “that explanation” at face value and does not ask her to read the book. She also acknowledges that Olivia sometimes will not bring a book home and when that happens at her house she simply finds another book in the house for Olivia to read.

[97] The court was also referred to a safety pamphlet (Ex 18), which was an in class assignment for the children to write down safety rules when there are around water, on a bus or in a playground. Olivia’s project was only partly and very poorly completed and the teacher marked it as incomplete level 1+ which is a D+.

[98] Exhibit 19, is Olivia’s writing journal which came home at the end of grade 3 and the applicant was disappointed that she had not seen it before. She drew the court’s attention to the pages marked March 29 and April 6 which are a level 2- or C- and the next page which is a level 1 or D.

[99] The teacher’s comments on the three pages are “good start but much more detail needed”, “this is not enough, you know the expectations, this does not convince me at all” and “so… What happened… Where is the story?” The last two pages have sad faces on them ☹.

[100] Olivia’s June grade 3 report card was marked as Exhibit 20. The applicant stated that she could not explain why the grades went up slightly for reading and writing other than to state that the teacher at the end of the year had filled in at March break for a pregnancy leave.

[101] She stated that at the end of grade 3, Olivia had no skills to try to break down and sound out the word “maintenance” and that often when she is reading and has no idea what to do with a word, she simply skips it.

Grade 4

[102] Olivia started grade 4 last month at which time the parents were informed that the teacher Mr. Morrison was not in favour of homework. Although the teacher does encourage reading at home there would not be any reading or writing logs.

[103] While Olivia was excited about this rule, it concerned the applicant and she expressed her concerns to the teacher. She also pointed out to Olivia that her fiancé’s sons, one in high school and the other in university did hours of homework each weekend when they were in Exeter. The applicant’s concerns are, that if she did not start to do some homework now, how will she ever discipline herself to do homework when the academic load got more onerous.

[104] Sometime after this discussion with Olivia, Olivia indicated to the applicant that she thought she, the applicant was correct and that she was going to try to write something every night.

[105] However, it appeared Olivia was still using the crutch of speaking a sentence into her phone and then writing it.

[106] The applicant said there was very little communication with the respondent at this point in time and she believes he simply did not and does not see what I see and therefore they were not on the same page. This she said was proven when he stopped taking the child to Kumon.

The Applicant’s New Position with the CAS

[107] The applicant described her new position as a general position family service worker. In addition to continuing to work with seven or eight of her former Crown wards she now works with families including infants. In approximately four years all of her Crown wards will be 21 and what has been described as timed out and she will no longer be responsible to assist them.

[108] Rather than seeing Crown wards once a month, when she is visiting families with babies she is obligated to visit them in their home once a week and also to work with their collaterals such as medical advisors, parenting assistors and she often has to assist in facilitating access, sometimes between 3 to 5 times a week.

[109] She also currently assists native families because she has experience, but assisting these families means much more work because of issues between the native bands and the CAS which requires a lot of paperwork including getting permission the to visit and setting up times to visit the native families.

[110] In her new position she has clients that she has to see in London, Lucan, Strathroy, Dashwood, Sarnia, Ailsa Craig and Exeter.

[111] The driving distances and approximate driving times one way from Simcoe to each location are as follows:

i. London – 101.3 km – 1 hour and 17 minutes,

ii. Lucan – 145.1 km – 1 hour and 37 minutes,

iii. Strathroy - 136.2 km – 1 hour and 34 minutes,

iv. Dashwood – 169.3 km – 1 hour and 57 minutes,

v. Sarnia – 199.5 km – 2 hours and eight minutes,

vi. Ailsa Craig - 156.2 km – 1 hour and 44 minutes.

[112] The driving distances and approximate driving times one way from Exeter to each location are as follows:

vii. London – 53 km – 41 minutes,

viii. Lucan – 21.5 km – 15 minutes,

ix. Strathroy – 54.5 km – 42 minutes,

x. Dashwood – 15 km – 15minutes,

xi. Sarnia – 103.1 km – 1 hour and 13 minutes,

xii. Ailsa Craig – 30.8 km – 22 minutes.

[113] She testified that she has to be at the CAS office in North East London on numerous occasions including acting as coverage when another CAS employee assigned to a matter is not available, to meet with clients’ collaterals for the seven cases she has in the greater London area, some of which require weekly visits, to meet at least once a month with her supervisor and to sign numerous documents required of her.

[114] In addition she wishes to continue teaching and training for the CAS both to enhance her career and for job satisfaction. This requires being on committees and being available for committee meetings, the timing of which she does not control.

[115] She currently has an empathetic supervisor Mr. Cvetkovich who was allowing her to fit in her 35 hours of work each week, “however she can”, and she must spend at least two coverage days in the office in London.

[116] Currently she drops Olivia at school, drives to see her babies and makes it back for lunch and Olivia’s injection and then works at home in the afternoon. She is falling behind in her work in part because of the driving and in part because of CPIN which appears to be a province wide CAS information system. This obligates her to update her files and download them to the main computer on a daily basis.

[117] The introduction of CPIN is simply an extra step over and above what she used to do and of course takes time.

[118] In addition workers for the CAS are no longer allowed to make work phone calls while they are driving as this is now considered a health and safety issue. This edict has also increased the hours that she must work to complete all her tasks.

[119] If she is not allowed to move, she testified that she will have to make before and after school childcare arrangements and also make arrangements for Olivia’s noon insulin injections.

[120] She stated this will impact Olivia in many ways. She would not be picked up early from childcare as she had in the past, when either, she the respondent or the respondent’s mother would pick her up and she would be one of the older kids in the afterschool care. She would ask why the applicant cannot simply pick her up. She would not be able to come home with her friends after school and it is difficult for her to go home with friends when she is at the respondent’s home because of the almost one hour bus ride. The applicant would be unable to monitor what she eats after school. It would also cost her $300 a month even though she would only be using it for half the month. In addition Olivia would simply not like such an arrangement.

[121] She would also have difficulty getting home in time to make dinner and get the child ready for any afterschool activities. Since Olivia does not particularly like the long bus ride to the respondent’s home, picking her up at the respondent’s home after school would be a poor/bad option.

[122] In addition, Olivia would be uncomfortable with the attention that a nurse would draw by coming to school to give her, her injections. She did not think the respondent would or would be able to attend daily to give Olivia her injections because he would want her to do it on her own.

[123] In addition both she and Olivia enjoy their mother/daughter time before and after school.

[124] She stated that if she is not allowed to move with Olivia, she and Derek and Olivia will not be able to form a family unit. This she sees as unfair, because her plan would allow Olivia to be a part of two-family units one Exeter with her, Derek his sons her parents and extended family and the other in Simcoe with the respondent, his wife, her two daughters and their extended families.

[125] Olivia has friends in both locations and has even brought friends from Simcoe to Exeter.

[126] Olivia is very happy in Exeter, makes friends easily, and likes the fact that she can bike everywhere including to her maternal grandmother’s place.

[127] Currently Olivia refers to the Exeter home as our house and the Simcoe home as her school house. She is extremely excited about the new home under construction, the progress of the construction and refers to the play room in the basement as a dance room.

[128] In Exeter she would be able to attend the Precious Blood Catholic school which is approximately 3 to 4 blocks from the new home and all kids in the neighbourhood walk to school. Her current teacher would be Jillian McCann one of the applicant’s sister’s best friends.

[129] The school and principal have experience with a current diabetic pupil for whom they have developed guidelines, including allowing him to test his blood sugar before an exam and if necessary waiting until it is in the appropriate range so he has a requisite ability to concentrate. There is a small room within the school that can be used for injections and there is a sink right outside the room.

[130] Both the school that she is at, with 500 students and Precious Blood with 200 students rank favourably. At Precious Blood she can attend mass across the street.

[131] She conceded Olivia may be initially upset with the move, but stated that is how she reacts to change. She knows Olivia would be very comfortable in very little time and particularly after she understood that her schedule would allow her to spend significant time with both of her parents and their extended families.

[132] She opined that Olivia would have the best of both worlds and has been in Exeter each alternate weekend for the last two years. At least initially they would continue with their current doctor and attending each three months with the diabetes team at the Brantford clinic, although the parties would have the option of changing to a diabetes team in London which would include an endocrinologist.

[133] She would also be able to have Simcoe friends to come to Exeter and also see her Simcoe friends when she is at her dad’s.

[134] While she currently does not see one parent for a week, under applicant’s proposal the longest gap of not seeing her father would be three days. In addition she can use face time and text with the absent parent at all reasonable times.

Care and Management of Olivia’s Diabetes

[135] The applicant took the court through the physical problems Olivia was experiencing just before her diabetes was diagnosed on April 13, 2017, she was admitted to the Brantford Hospital for three days.

[136] Although the respondent has attended most of the diabetic team meetings, the applicant testified that it is she who engages the doctor and raises all the concerns and asks all of the questions.

[137] Upon Olivia’s diagnosis, she quickly read books on the subject including “How to Think Like a Pancreas” and “Kids First Diabetes Second”.

[138] At their first meeting with the diabetes team in Brantford they were given a logbook which they continue to use. If a logbook is used properly it records Olivia’s meals every day, and her blood sugar level and units of insulin given five times a day, each day of the week.

[139] In the beginning the applicant would email a picture of the book on a weekly basis to a member of the diabetes team, and now she brings the book to their meeting every three months.

[140] The applicant testified that the purpose of the book is to, alert the other parent as to what has been happening, to identify any trends and to identify if any particular foods would spike her blood sugar.

[141] She stated the logbook should stay in Olivia’s diabetic pack and go to school and to each parent’s home.

[142] Four logbooks were entered as exhibits. Exhibit 26, is for the time period April through August 2016, Exhibit 27, is for the time period August 29, 2016, to the first part of March 2017, Exhibit 28, is for the time period March 6, 2017, to July 31, 2017, and Exhibit 29 is for the time period July 31, 2017 to present.

[143] She explained how she uses the book and tested the child blood sugar five times a day including at 3 AM when she was sleeping. She testified that it was important to test the child at night, to make sure that her blood sugar reading would not fall below 4, before she woke up.

[144] She explained that if there was an X or blank on the page then no blood sugar reading was taken.

[145] She explained that if the letter “R” followed the number of units of insulin given then the insulin was quick acting and if the letter “L” was used the insulin was long acting.

[146] She testified that keeping an accurate log book is very important and was extremely important for the first few months because Olivia had no track record yet and there is often what she described as a “honeymoon period” which can last up to a year.

[147] She described the honeymoon period to be, when it would appear that a diabetic needs less insulin. This is because the pancreas is still discharging some insulin into the body.

[148] She faults the respondent for his lackadaisical attention to the logbook and testified, that she essentially religiously notes Olivia’s daily blood sugar numbers and insulin intake in the log.

[149] She drew the court’s attention to several weekly pages in the logbook as follows:

I. June 6, 2016 – the respondent only made one nighttime blood sugar test and said if he had done more, he could have prevented the child from waking up with a blood sugar of less than 4 on Monday and Sunday.

II. June 13, 2016 – there are no readings in the log for part of Friday and all of Saturday and Sunday.

III. June 20, 2016 – only about half of the log has been completed.

IV. July 4, 2016 – after a discussion between the parties, the respondent did a better job of filling out the log but only did one night check.

V. July 18, 2016 – the respondent did not fill out anything in the log.

VI. August 1, 2016 – the respondent made no night checks on four occasions & Olivia woke up with a blood sugar reading of less than 4.

VII. August 15, 2016 – the respondent only made one night check and Olivia woke up on four occasions with a blood sugar reading of less than 4.

VIII. August 29, 2016 – there was a meeting with the diabetes team on August 30 and a discussion about the quantity of the long-acting insulin at bedtime. The respondent only made two night checks and Olivia woke up on two occasions with a blood sugar reading of less than 4.

IX. September 12, 2016 – the respondent only made two night checks and one was at 11:40 PM which the applicant stated was too early and that it should be between 2 and 4 AM.

X. September 23, 2016 – this respondent only made two night checks.

XI. October 10, 2016 – although this week was not photocopied in Exhibit 27, the applicant testified that there were no night checks and the logbook stopped coming to school from the respondent’s home, so she did not know what the readings were, nor did she have the logbook to enter her readings.

XII. October 17, 2016 - because Olivia was having some high readings the applicant called the hospital and was told to raise the long acting insulin before bed to 4 for three days and then 4.5 for three days and this seemed to work.

XIII. October 24, 2016 – the respondent only made one night check

XIV. October 31, 2016 - the applicant had been informed several days before to lower the quantity long acting insulin at nighttime to 3.5 which she did

XV. November 7, 2016 – the respondent did no night checks, is using four units of long-acting insulin at night and Olivia wok with a blood sugar reading of less than 4 on two occasions.

XVI. November 21, 2016 – the respondent only did one night check and used using 4 units of insulin at night rather than 3.5. She woke up on three occasions with a blood sugar reading of less than 4. The respondent stated that the concern about the blood sugar readings in the morning is heightened, because the child has an almost one hour bus ride from the respondent’s residence to school and she does not know of any plan that is in place for the bus trip if Olivia has a problem.

XVII. November 28, 2016 – Olivia was at her mother and all readings appear to be good. At the November 29 diabetes team meeting the parties were told to stay with 3.5 units of the long-acting insulin and bedtime. There was also discussion about Olivia self-injecting.

XVIII. December 5, 2016 – the respondent did four nighttime tests.

XIX. March 13, 2017 - the respondent was away with Olivia on March break, however no numbers whatsoever, are entered for Monday through Friday of that week and she had a very high reading of 20.4 at bedtime on Saturday.

XX. September 25, 2017 - the respondent did not fill out the other food portion of the chart, failed to fill in a couple of tests in the chart and despite some high readings on Wednesday Saturday and Sunday he did not give any correction ratios of insulin.

[150] Without going through all of the weeks that the child was with the respondent the applicant testified that the nighttime tests always remained an issue.

[151] Because of a trip the applicant had taken with the child to the Bahamas where she had difficulty because of the heat, she passed this information on to the respondent. The respondent took Olivia to the Bahamas for March break in 2017 with this information.

[152] On March 21, 2017 the applicant arrived at the school to inject Olivia when a teacher advised her, that the respondent had just been there and injected Olivia because she was having difficulties.

[153] At that time Olivia’s blood sugar was 32 and the respondent who would have known that the applicant would be coming to give Olivia an injection at noon hour never advised the applicant of what he had done. Not only did he not call the applicant immediately, but he did not write anything in Olivia’s logbook to indicate that he had given her any insulin and how much he had given her.

[154] The applicant testified that by early 2017, the honeymoon period was over and in conjunction with the diabetes team they were told to start focusing on carbohydrate ratios, but she is not sure that the respondent understands the concept.

[155] She testified a diabetic has to try to stay within a certain bold sugar range of between 4 and 8 or 10, to decrease medical risk in the future to their eyes and other organs as well as their overall health.

[156] She testified that the ratio is, 1 unit of insulin for every 20 g of carbohydrates and one extra unit of insulin for every four numbers that a diabetic’s blood sugar reading over 12, such that if a diabetic’s reading is 20, they should take 2 extra insulin units.

[157] The applicant therefore testified that on July 3, 2017 when Olivia had a reading at bedtime of 17.7 the respondent should have given her an extra unit of insulin, but did not.

[158] In addition she stated, that so the other parent knows what is happening, the units of insulin in the log should be written as two numbers, such as, 5 + 1 so that the other parent knows that that an extra unit of insulin was given.

Applicant’s Proposal

[159] The applicant’s proposal for periods of responsibility for each parent if she is allowed to move to Exeter was filed as Exhibit 30.

[160] She stated that Olivia loves both parents and that a week away from either parent would be too long. She stated that she would like to continue to go to school at noon for injections and wants to be involved with Olivia school.

[161] Because she wants to continue to be involved in Olivia school and attend to give noon our injections, she is prepared to give up some of her weekend time.

[162] Because the respondent’s new wife is a teacher, she is prepared to allow him to have March break. She is prepared to celebrate Christmas starting on Christmas day because the respondent’s family has a tradition of celebrating on Christmas Eve.

[163] She is prepared to give the respondent periods of responsibility on teacher’s PD days and an extra week in the summer.

[164] If she is allowed to move, she stated that Olivia would have two houses, being her father’s and the new house being built in Exeter, as opposed to the 3 houses that currently exist. She testified that if she has to stay in Simcoe, she would have to sell her house and rent accommodation.

[165] She also testified that as she is able to move she would be able to do her job more effectively and would have more time for Olivia which would benefit Olivia.

Cross Examination of the Applicant

[166] When she started her application it was to request the right to move to London. She testified that although she always wanted to move to Exeter, the legal advice that she got at the time, was that she should apply to go London because it was closer to work.

[167] The application in this action which at Tab 1 of the trial record indicates that the applicant would like to move back to her hometown which would be Exeter.

[168] Both the original application dated July 21, 2015 and the amended application dated September 30, 2015, predate the applicant’s involvement with her fiancé Derek and the onset of diabetes in Olivia.

[169] She stated she wanted to move out of Simcoe before the separation in May 2014 for various reasons, including stress, which she attributed both to her employment and her marriage, to obtain support from her family, and get away from the isolation she felt in Simcoe.

[170] She said that the last straw for her, was when she found out that Kim had moved in with the respondent. This happened without the respondent telling her, so they could both talk to and prepare Olivia.

[171] She agreed that Olivia is not isolated and has friends and is well integrated into the Simcoe community, except when the two of them are together, she feels that Olivia has anxiety.

[172] She agreed that it was primarily her decision to leave the marriage and that her decision was accepted by the respondent, even though he proposed that they stay together, to try to work it out.

[173] She acknowledged that her job description changed in 2013 when her job was changed from working in a specialized unit to a more mixed general unit.

[174] She acknowledged that on the date of the separation she knew the issues she was having at work, particularly with travel. She also acknowledged that in June 2014 she was not in a good place personally and was seeing a counsellor for anxiety, which she stated came from a combination of everything, including her marriage and her work. She was on medication for anxiety. As a result of everything that was happening in her life, she took a leave of absence from work from June to November 2014.

[175] She acknowledged that the respondent gave her space to deal with her issues and that there was a loose arrangement for child care from June to September 2014, which included assistance from the respondent’s mother.

[176] She acknowledged signing the separation agreement dated July 28, 2014, and that at the time, while she did not want to stay in Simcoe she thought it was best for the Olivia that she reside there, pursuant to paragraph 3.5.

[177] She acknowledged that the respondent’s lawyer told her to get independent legal advice before signing the separation agreement, but she stated she did not want to deal with it at that time.

[178] She confirmed, that she feels isolated in Simcoe and that Olivia is almost attached to her hip when they are together, but that she is not clingy when she is around other adults.

[179] She testified, that she believes the child is aware of her unhappiness in Simcoe, but stated that Olivia wants to stay with her simply because she wants to.

[180] She confirmed that Olivia refuses to go on sleepovers on her parenting weeks, and prefers to have friends over to her house after school rather than going to their house and that this concerns her.

[181] She testified that in comparison, things have improved in Exeter, where Olivia will go to a friend’s house and also her grandmother’s house.

[182] She acknowledged that Olivia would try to please both her mother and father.

[183] She acknowledged that she has not joined any clubs in Simcoe stating that she sleeps in Exeter or works in the evenings.

Applicant’s Employment

[184] She acknowledged that during the marriage her priority was to work with the CAS out of London Middlesex, even though she would have had an opportunity to apply for a job at the Sprucedale Youth Centre and because of her experience to apply to work for the local CAS organization.

[185] She acknowledged that this remained her position, notwithstanding the parties were planning on starting a family and her position continued after Olivia was born.

[186] She stated that the CAS prefers that all client meetings take place before 4:30 PM and not on weekends without a supervisor’s approval.

[187] She acknowledged that the computer system CPIN is not currently up and running, but she stated that all CAS staff must enter their notes into a computer at the end of the day, as if CPIN was functioning in order to get ready for it.

[188] In addition to what she said in her direct testimony, she indicated that she would not take a computer to a family meeting, because most families are not happy that she is there and some family member’s may get aggressive.

[189] She confirmed, that she is obligated to spend two coverage days a month in the office, and stated that because she is part of a team, she has to go in as much as possible to make a positive impact on the people she works with.

[190] She acknowledged that there would be both time-saving and a gas saving expense, if she did not return each day to Simcoe for Olivia’s noon hour injection.

[191] She confirmed, that unlike before her employment change, her employment clock now does not start running and her mileage is not paid, until she arrives in London each day.

[192] She testified that her drive time from Simcoe to London and return each day takes approximately 3 hours, while on alternate weeks when she resides in Exeter, her travel time to London and return is approximately 1 hour. Therefore she saves approximately 2 hours of travelling time each day that she resides in Exeter, and based on a four-week month that would amount to 20 hours per month.

[193] She acknowledged that she would likely not be behind in her work, if she did not attend to give Olivia her noon hour injections.

[194] She testified that the distance between her and the respondent’s home is approximately 10 minutes and acknowledged that Olivia could return to the respondent’s home after school on her weeks of responsibility and she could pick her up from there.

[195] Although acknowledging the above and acknowledging that Olivia would likely prefer the bus to daycare, she stated Olivia does not like going on the bus and would prefer to go to the applicant’s home after school.

[196] She acknowledged that a school bus comes by her house at approximately 8:15 AM, but she has not looked into whether or not Olivia could take a different school bus on alternate weeks, which on her evidence would ultimately save her 25 minutes a day if the child took the bus and she went directly to work.

Olivia’s Academics

[197] Exhibit 34 is an EQAO Ontario Assessment of Reading and Writing and Mathematics, Individual Student Report for Olivia, dated 2017. The report has 4 achievement levels where Level 3 “meets the provincial standard”. Based on the graphics on page 1 of the report, all of Olivia’s results fall within Level 3. Reading and writing appear to be in the bottom 1/3 of Level 3 and mathematics appears to be the middle of Level 3.

[198] The applicant had not seen this report and was quite surprised by it, although she testified that she knew Olivia had prepared for it.

[199] She stated that she wanted the respondent to be more active in Olivia’s education, including getting her extra help in reading and writing, but conceded that this issue would be the same no matter where she in the child reside.

[200] She conceded that wanting consistency in Olivia’s education and medical care is not a mobility issue.

[201] She denied that the respondent told her one of his neighbours was a former Kumon teacher who also taught at St. Joseph’s. She reiterated that the closest Kumon school to the parties, is in Tillsonburg which is 30 to 45 minutes away and classes are from 5 to 5:30 PM during the week. She also reiterated that the respondent failed to appraise her that he did not think Olivia needed Kumon, before telling her she did not need it.

[202] She was not aware that the respondent’s wife Kim, who works for the local Catholic School Board, previously spent 5 years teaching high school English. She has not asked either of them what they do to assist Olivia in their home.

[203] She acknowledged that she does not have a problem with taking Olivia out of school for one week each year to visit her father in the US.

[204] She denied the suggestion that the respondent did not have access to the reading logs and that she kept a logs from him and that she backfilled the logs on occasion.

Olivia’s Diabetes

[205] She conceded that she never asked the respondent if he had addressed the issue of Olivia riding on the bus from his house, in relation to her diabetes. She conceded that currently she and the respondent have poor communications and stated that when she called the bus company two weeks ago she did not get a clear answer about any plan.

[206] She acknowledged that Chloe, who is in grade 8 attended one of the diabetes team meeting. And she conceded that Chloe who is in grade 8 and Emerson who was in grade 6 ride the bus with Olivia who is in grade 4.

[207] When it was suggested to the applicant that the diabetes team believes both parents have managed Olivia’s condition well because the parties only see the team every 3 months, she responded that in the meetings, she is the one asking the questions and giving the team members responses.

[208] She acknowledged that the only current issue with respect to Olivia’s diabetes other than the diabetes itself, is her having to attend at school every noon hour. She acknowledged that possible solutions to deal with that issue would be (1) for her to continue attending at noon hour, (2) for the respondent to attend at noon hour, (3) for a nurse to attend at noon hour, (4) for Olivia to wear a pump and (5) for Olivia to inject herself under adult supervision.

[209] With respect to number (2) that is, the respondent doing the noon hour injections, she conceded that he has done it and says he will do it, but he has only offered to do it here and there and she needs consistency. In addition she stated the respondent did not want to do it and she wanted to continue to do this for Olivia.

[210] With respect to the number (3) she simply does not like the idea of using a nurse for reasons given previously but she agreed that there are other qualified people who could give Olivia her noon hour injection.

[211] With respect to number (4) and the wearing of a pump, she conceded that Olivia would be eligible to wear a pump, that the pump would make her independent and that the diabetes team has stated that one of the goals is to make the child as independent as possible. However, she stated that she and Olivia have discussed this at length and Olivia is adamant that she does not want to have to wear something, at least not at this time.

[212] She indicated that the boy in Exeter wears a high tech device known as a Freestyle Libre System and although Olivia thought it was cool, Dr. Uthayalingam (Dr. U) who is head of the diabetes team is not in favour of it yet, as it has not been approved by Canadian authorities.

[213] Although with respect to number (5), she acknowledged that the time is coming when Olivia will inject herself, she is simply not in favour of it until the child wants to do it.

[214] With respect to her complaint on November 21, 2016 (Ex 27), that the respondent used 4 units of insulin rather than 3.5 units, she denied that she ever told the respondent to change the amount of insulin.

[215] With respect to the incident of March 13, 2017, and the respondent’s return with the child from a March break vacation, the applicant denied that she kept the log book from the respondent.

[216] With respect to the respondent giving the child insulin at noon hour and not advising her, she conceded that she did not know how long before she got there the respondent had been there. She maintained that her concern was serious and that there was no reason that the respondent did not notify her immediately, about what he had done, because he would have known that she was coming at noon hour to inject insulin, because she always did.

[217] The applicant confirmed that if the child has a blood sugar reading of 3.5, she can be back to normal within approximately 10 minutes if she is given a drink of juice.

Family Support

[218] When asked what she meant by her family support, the applicant answered that she wanted, her family around on a daily basis, to assist her aging mother and to do family things like watch her nieces and nephews play sports.

[219] She conceded that a great deal of these reasons were for herself and also conceded, that even under the current week about parenting regime, she could do this 50% of the time.

[220] She conceded that Derek was thinking of getting a larger home before he met her.

[221] She conceded, based on the report of Lourdes Geraldo who was not recommending the applicant’s proposed move at the time of her report, but leaving it open to be reviewed and 12 to 24 months, that her proposed plan to move may not be approved by the court.

[222] She stated that the matter of building the house, will not change no matter what the court decides, because she and Olivia will continue to go there on weekends, holidays and in the summer and she would be able to reside there 50% of the time.

[223] She stated that she needed to sell her Simcoe home, both because she does not need a 4 bedroom home and she requires the equity in that home to assist with the financing of the new Exeter home.

[224] She stated, based on a four-week month, that she would rent something decent for her and Olivia and that they would only be spending approximately 8 nights a month in Simcoe.

[225] When the respondent’s lawyer suggested that her building a home was a bluff, she stated that it was important to her, that she has to have a home, not a house in her hometown and be able to have her family over.

[226] She denied the suggestion that Kim Buch ever tried to talk to her or that she had ever attempted to persuade her that the respondent was a “bad” guy. She stated that she has been asking the respondent over and over again to set up a meeting so that she, Kim and Derek and herself could meet, communicate and move forward.

[227] She denied the suggestion that she had flipped Kim the bird while dancing pictures for being taken, but she did indicate that Kim was yelling and that when she and Olivia left, Olivia said Kim always yells.

[228] She acknowledged that Olivia gets along well with Kim’s daughters Chloe in grade 8 and Emerson in grade 6.

[229] She acknowledged that she and the respondent are able to work out any micromanaging of their parenting, however indicated that her offer to allow the respondent each March break because his wife is a teacher was part of an overall package, and that if she is not allowed to move with Olivia, she would expect that the March breaks should be alternated year by year.

Applicants Reply Evidence

[230] With respect to the October 13, 2016, school bus trip to Backus Mill, the applicant testified that Olivia who had been at her fathers the night before, arrived at Backus Mill and was lethargic and crying because she had had no breakfast or insulin. In addition it was cold and she had no jacket and she was wearing Chloe’s rubber boots which were far too large for her.

[231] On a June 2006 trip to the London Children’s Museum, the applicant was to meet the children in London. On her way from Exeter, she received a text from the teacher stating that Olivia was hungry & all the kids were having a snack, but there were no low-carb snacks in Olivia’s bag. This concerned the applicant because it was only 2 ½ months after the diabetes diagnosis. She stopped at a store to pick up appropriate food for Olivia and met the children at the museum.

[232] In the summer of 2015 shortly after separation, both parties coached Olivia’s soccer team. For the last 2 years only the respondent has coached because he essentially took over and signed Olivia up in 2016 and again in 2017. Although the applicant is a parent, she testified that she has been taken off the parent’s email list and did not get any information concerning Olivia’s team. She did not indicate that she tried to contact the respondent about the situation.

[233] She maintained that the respondent did not have a glucagon pen after his March break trip with Olivia, because he left it on the plane and she did not supply him with one. In support of her assertion, she filed pharmacy records (Ex. 45) which show that the only purchase by her of a glucagon pen in 2017 was in September 2017.

[234] With respect to the respondent assertion that she was setting him up to fail she testified that Olivia was her priority and that she has tried to get the respondent to sit down and talk to her on many occasions. In addition she testified that she could not have made him not read with the child, not attend Kumon or not fill out the log book.

[235] With respect to the issue of the diabetes team never having criticized the respondent she testified that she is very careful how she brings these issues up because Olivia is in the room and she does not want to cast blame on the respondent. Therefore she stated the team’s answers are usually general such as not to pressure Olivia to self-inject.

[236] She denied the respondent assertion that the team told them that the logbook was for newer diagnosed children, and stated that they were told to use the logbook at least and until Olivia might start using a pump.

[237] She testified that the monitor only records the blood sugar readings and not the dosage of insulin or the foods eaten.

[238] She stated that she also bought winter clothing in addition to dance and soccer where.

[239] She stated that for the last two years, each of the parties have hosted a birthday party for Olivia.

[240] She stated that she is aware of Chloe’s friend who has diabetes but it is her understanding that she is on a pump.

[241] She denied ever telling Kim that she could not go to a team meeting stating that they had never discussed it.

[242] Her testimony differed from Kim’s testimony with respect to the grade 2 CCAT test, (Ex 44) stating that when Olivia missed the 1st day she made an arrangement with Olivia’s teacher to delay the second day of the four day test to allow Olivia to catch up. Kim was not cross-examined on this information.

[243] She testified that even though it might be awkward at 1st her and Kim should meet.

[244] She maintained that the respondent never advised her about the 1st Communion.

[245] She denied talking to Olivia about matters involved in this case and stated that she had never seen Exhibit 44 until she was shown it in court.

Cross Examination on Reply

[246] She admitted that when Olivia was first admitted to the hospital and she found out that Kim was coming she texted the respondent to say “I do not need to see her right now”.

[247] She now agrees that Kim should be at the team meetings.

[248] He confirmed that the Derek does not have any education with respect to diabetes.

Mike Cvetkovich (Mike)

[249] Mike is been the applicant’s supervisor at the CAS since 2004.

[250] He essentially confirmed what the applicant had already told the court about her previous specialized position with Crown Wards and the restructuring that was taking place in 2014, when the CAS disbanded the specialized positions and went to a more generic team model where everyone would carry similar files.

[251] He testified that the applicant’s case file substantially changed approximately 2 years ago in 2015.

[252] He also testified that accommodation was made for the applicant because she has a special needs child and wants to provide insulin to her child at noon hour. He testified this was meant to be a short-term accommodation and that it cannot continue long term.

[253] He testified that the accommodation is already leading to workload issues, and effecting CAS standards for response time in certain situations.

[254] He also confirmed that the applicant is a valued CAS employee and has worked as a trainer/facilitator both for the London Middlesex CAS and other CAS personnel.

[255] With respect to coverage days, he stated an employee must be in the office or sent out by the office to somewhere else, between the hours of 8:30 AM and 4:30 PM and that those hours are not flexible.

Derek Beckette (Derek)

[256] Derek testified, that although he and the applicant are thinking of getting married in July 12, 2018, they are not currently officially engaged.

[257] He has known the applicant since he was 13 and has two boys of his own Drew 21, who is at University in Ottawa and Cam 16, who is in grade 11 in Exeter.

[258] He testified that he and the applicant have been together for two years and that Olivia is happy, fun to be around, respectful and very social. In addition she is very attached to her mother.

[259] All five of them have vacationed together, all three children are close and text and tease each other like siblings, and Olivia refers to his sons as her brothers.

[260] He testified the applicant is focused on Olivia’s diabetes and planning appropriate meals etc.

[261] He testified that everyone gets along well with each other’s extended families and they like to get together for barbecues and spent time at the pool and while they are getting to know each other better, because Exeter is a small community, they knew each other before.

[262] He testified that Olivia has sleepovers with cousins and likes to go to her maternal grandmother’s. She seems excited when she comes to Exeter, is outgoing, has relationships with people in Exeter, and fits in very well.

[263] He testified that on weekends, particularly on Sunday the applicant reads with Olivia and that his son Drew has helped her with math.

[264] On cross examination he stated he was planning/dreaming about a new home before the applicant and he re-met, but only if the right one came up.

[265] He said without financial assistance from the applicant, it would be a struggle for him to carry the new home on his own and he probably could not do it.

[266] He confirmed that he and the applicant want to marry and that they need more room, even if Olivia is not living with them full-time.

Evidence On Behalf Of the Respondent

Stas Buch

[267] The respondent confirmed that he is an electrician and works for his father’s company which he has done since 1998 when he was an apprentice.

[268] The parties met through a mutual friend and eventually married and decided to build a house in the Simcoe area.

[269] The respondent felt bad for the applicant who is doing a lot of driving in her employment and was often exhausted. He acknowledged suggesting that she think about finding employment closer the Simcoe, both when they were thinking of starting a family and after Olivia was born.

[270] He testified that it became a touchy subject, even though other members of the applicant’s extended family including her parents suggested that she think about it.

[271] He confirmed the day care which the parties had prior to Olivia entering junior kindergarten and stated that his mother who lives 700 meters away from his home assisted greatly.

[272] He testified, that by the time Olivia was two, the applicant’s arrival times at home from work became more sporadic, but she still refused to consider working for an employer other than the London Middlesex CAS.

[273] He testified that he saw communications breaking down between them and while he suggested that the parties go away for at least a weekend on their own or try counselling, he knew by February 2014 after the applicant returned from a work vacation in Africa and was extremely cool to him, that a separation was likely inevitable.

[274] He admitted to being disappointed and confused especially because the parties seem to get along relatively well. He ultimately accepted that the applicant wanted separate and initially their relationship was good and the applicant took some time off work.

[275] He knew the applicant was not happy and he was concerned with her emotional health, both because the relationship was over and the applicant still had a difficult work/travelling employment schedule.

[276] He assisted the applicant in buying a home by viewing it, to make sure was in decent condition.

Relationship with Kim

[277] He denied misleading the applicant with respect to his relationship with Kim. He testified that at the time he and Kim were getting to know each other, Kim was having a house built but renting a home in Port Dover which she had to be out of by early April 2015.

[278] He stated that in April, Kim moved into his house and stored all her possessions in his garage, but by May they had decided they wanted to stay together as a family.

[279] He stated that during the first three days of testimony, he came to the conclusion that the applicant had a game plan to help her move and to set him up to fail. By which he explained that the applicant had kept material right from the beginning and had presented all of the worst stuff to court. He stated that Olivia also had did some good projects.

[280] He testified that Kim and her former spouse have had an almost equal shared parenting regime over the last 4 or 5 years.

[281] He testified that all three children are treated the same and that there are house rules, such as keeping their rooms clean, clearing the dinner table and doing homework before they embark on other activities.

[282] He described their home as happy with all three children getting along reasonably well. He testified, that at the start he emphasized to Olivia that their relationship would never change and that they were a team.

[283] He acknowledged that Olivia is not the best reader or writer and that she was embarrassed to read in front of others, so the two of them would go and read in her bedroom. He stated that he is ordered children’s magazines for Olivia to read which she enjoys. In addition he said Olivia does some reading with Chloe.

[284] With respect to Kumon, he stated that the applicant essentially went ahead on her own without much consultation with him. This meant a twice-weekly drive to Tillsonburg which is a 30 to 35 minute one way drive from his house.

[285] When he attended at Kumon he noticed that teenagers were helping Olivia. When he mentioned that he thought it would be better if his friend Colin Walsh assisted Olivia, the applicant responded that Kumon was better and that it was a more structured environment. He also stated that his friend Colin Walsh would not charge him for the assistance he would give to Olivia, but the applicant refused to discuss it.

[286] With respect to the EQAO report, he stated he was not satisfied with where Olivia reading and writing were currently at, and that she can do better. He stated she still reads at home and is asked to write down things, like what she did during the day.

[287] He stated the school bus picks up the children between 7 & 7:44 AM in the morning for the 40 minute bus ride to school. He acknowledged that Olivia would like him to drive her and he does pick her up at school at least once a week.

[288] He testified that the bulk of his jobs are within a 10 to 15 minute drive from his home.

[289] With respect to the diabetes team meetings, he acknowledged that he does not ask a lot of questions but stated it is hard to get a word in edgewise and that he is a good listener. He stated that, if he ever had a concern or a problem he would call the team. He also stated that the team was comfortable with Olivia going home with him after her firstthree days in the hospital.

[290] He testified that in the last diabetes team meeting, when he said that Olivia had started doing some of her own injections, the team leader Dr. U said that was good.

[291] The respondent also testified that the diabetes team indicated, it is not necessary to do night checks all the time, unless you are noticing a trend. He further stated that the team checks their log book every time they have a meeting and no one on the team has ever suggested that they have a concern with respect to how either he or the applicant are maintaining the log.

[292] He testified that Kim’s mother is a nurse and has assisted both he and Kim with respect to Olivia diabetes.

[293] He stated on several occasions, that communication between him and the applicant were poor, that neither of them have taken any real steps to try to improve communication and that he would agree to third party intervention if that would be of assistance. He would like both he, Kim, the applicant and Derek to be able to meet and discuss the current situation.

[294] He testified that he could attend at school to give Olivia her injections at noon hour on his weeks and in fact that Olivia has asked him why he does not come on his weeks to do her injections.

[295] He acknowledged that after one court date, when the judge indicated that he could give Olivia her needle’s on his week, he went to do that, however the applicant was also there, however Olivia started to feel uncomfortable and started to cry, so he backed off.

[296] He does not think having a nurse give the injections is a bad idea, but would like to see a lead-in program developed, so that one of the parents were there at the start and admitted it would be nice if the same nurse could be there most of the time.

[297] He is only in favour of Olivia using a pump if she wants to try it.

[298] He testified, that as far as buses are concerned, Olivia can check her blood sugar prior to getting on the bus, and if it’s low she can tell a teacher and he will come and pick her up. In addition to himself and the applicant, both Kim and his mother could also be of assistance in such a situation.

[299] He testified that he has spoken to the current bus driver was also a friend and told the bus driver what to look for. As a result the bus driver now carries some candies, Chloe carries a kit bag, and the bus driver repeatedly checks with Olivia along the route to ask if she is okay.

[300] With respect to their Bahama trip, he testified that they arrived back at the Toronto Airport at 12:55 AM on the Monday, got home and went to bed. When called by the school because Olivia’s blood sugar was 24 he immediately went to school to give her a shot of insulin. He acknowledged that he should have immediately called of the applicant and also noted what he had done, in her log book.

[301] He stated that it was the teacher Mr. Edge’s first day on the job and he was freaking out a little.

[302] He testified, that the first time they attended at the hospital Kim was in attendance, but the applicant told her to leave so she did. He stated that today Olivia accepts Kim’s involvement in her treatment.

[303] The respondent acknowledged that Olivia likes to please both parents and when she says things like I hate Exeter and love Simcoe and I am never going to school in Exeter, he essentially takes those comments with a grain of salt.

[304] He stated that Olivia does not say a lot about her friends in Exeter.

[305] He testified that Olivia has no problem asking Kim for assistance at home.

[306] He testified to the current Christmas access and that he has always had March break, but he testified that he has no problem sharing March break on alternate years and that the parties have really had very little problem, if any, tweaking the parenting schedule until this application. He stated that Olivia does not miss out on anything with either family.

[307] He testified that he never excluded the applicant from Olivia soccer. He stated, there were no emails, but he gave her a list of games and practices. He further stated that the practice times never changed. Although there may have been some communication problems in the third year, he testified that the applicant knew when all the games and practices were, and she never approached him about any problems.

[308] He acknowledged not having much interaction with the applicant’s family other than stating that he receives some texts on his birthday and some videos of certain events.

[309] With respect to the amount of insulin he was giving Olivia during the week of November 21, 2016, (Ex 27) he maintained that the applicant told him to change the dose from 3.5 to 4. He stated he understood the ratio, and took the court through his understanding of same. He acknowledged that it would be good if he and the applicant could sit down and discuss the matter, so that she would then know that he is able to calculate the ratio.

Cross Examination of the Respondent

[310] He acknowledged that good communications are important for people to co-parent in the best interest of their child. He also acknowledged that both parents are devoted to Olivia particularly with respect to her health and education and that neither of them would do anything that would negatively affect either aspects of her life.

[311] He confirmed that the applicant has been more active with Olivia’s school and that she interacts with teachers on a daily basis because she attends to give Olivia her injections.

[312] He acknowledged being aware of the January 2015 DRA (Ex 5) report, which stated, Olivia was at risk for not meeting the grade 1 standard by June 2015. He agreed that both parents must be diligent, but went on to state that the applicant signed up Olivia for Kumon without any discussion.

[313] He acknowledged that the applicant took Olivia to Kumon on her weeks but that he stoped sometime in November without telling her. He acknowledged that the Kumon attendance records (Ex 36) would be correct. His reasons for quitting Kumon, were that it was an hour and 15 minutes of driving, it did not seem to be helping and Olivia did not like to go.

[314] When he asked Kumon if their program was helping Olivia they stated it was too early to tell.

[315] He stated that he reads a lot with Olivia at home and that her teacher never recommended getting professional help. He again confirmed, that he had told the applicant about Colin Walsh who was prepared to tutor Olivia, but the applicant would have none of it.

[316] He confirmed that the report cards and spelling tests show that Olivia has difficulty with reading and writing, & that neither parent was satisfied with her progress.

[317] After making the above comment, he was reminded about his examination for discovery on December 16, 2016, where at questions 422 through 427, he stated that he feels Olivia is a good student, she does well in school and he is satisfied with her progress, developments and grades in school.

[318] In answer to being read the above discovery questions, he indicated that she had improved and he was satisfied.

[319] He acknowledged, that in April 2016 while staying at his place Olivia missed a CCAT aptitude test because Olivia was not feeling well. He noted that this was just prior to her being diagnosed with diabetes. He also acknowledged that the teacher had prepared the children for the test and that the test was to try to determine, at what level the children were functioning.

[320] He acknowledged that the applicant went to Olivier’s teacher to get an extra workbook and helped her through the book, and admits that that was a good thing to do.

[321] With respect to the poor school work of Olivia’s that the applicant presented to the court, he stated that she does well in other subjects however he admitted that Olivia’s reading writing and spelling were often poor.

[322] He confirmed that in grades 1, 2 and 3, Olivia was late approximately 14 times coming from his home, however he stated a lot of those late times would have been by a few minutes. In addition a lot of those late times occurred when Kim was driving her two children to one school, Olivia to another school and then trying to make it to her own school which is not the case anymore.

[323] With respect to the parent-teacher meeting in 2016, he stated that the appellant did not tell him about it, until the day before and he had already sent his form back to the school. He acknowledged that he did not tell the applicant, and agreed that she might have expected them to attend together.

[324] With respect to Olivia missing the CCAT test, he stated this was just prior to the diabetes being confirmed and she was not feeling well that morning and she missed the test.

[325] He acknowledged that the applicant’s career is important to her, that she has done well and she has experience with children, at risk families and has probably taken training in child development and would know about community resources.

[326] He agreed that enjoying one’s job makes a person happy and also agreed that a person’s happiness can be transferred to and have an impact on their children.

[327] He acknowledged that the applicant left her position in London to come to Simcoe and that it may not be unreasonable for her to want to return to London and therefore be closer to Exeter.

[328] He disagreed that the applicant trying to do her job in London from Simcoe negatively impacted her.

[329] He acknowledged that he has always had his extended family support, before, during and after the marriage and that his extended family sees Olivia on a regular basis.

[330] He denied that the diabetes clinic ever said not to pressure Olivia to self-inject and also that the clinic never said that she should not self-inject. He agreed that Olivia has mixed feelings with respect to self-injection, that she would rather have someone else do it and that she should not be pressured to self-inject.

[331] He confirmed that he told Olivia that he would give her $100 when she completed 100 self-injections, but he stated that it was open ended and that she was assured that she did not have to self-inject. He stated that the idea of offering money came from a friend of his. He denied that the offer of money had anything to do with the applicant going to the school for noon hour injections.

[332] He testified that he has never pressured Olivia to self-inject and that he would not let her self-inject without adult supervision.

[333] He stated that in the summer of 2017, he went home at noon at 90% of the time to give Olivia her injections.

[334] He acknowledged that Chloe and Emerson are not on the bus every day because some weeks they are at their father’s on Tuesday and Wednesday.

[335] He acknowledged that he is a primary driver for Chloe’s rep hockey games which occur on the weekend.

[336] He acknowledged that no child support was payable pursuant to the separation agreement, but stated he paid his share of the section 7 expenses when the applicant advised him about them, but he did not contribute to daycare when the applicant went back to work because he did not need daycare.

[337] With respect to advising the applicant in September 2015 that he wanted the custody to go to a week about, he testified that they had already been sharing Olivia 50-50 in the summer and in his opinion, the week about was easier for Olivia when she was in school.

[338] He confirmed an email of his in September 2015, probably after being served with the application this matter which reads:

“FYI I am going to go through everything in your life and bring up every relationship and everything you did in your life. It is going to be so detailed that I am excited. Get ready!!! This is going to be awesome!!!!!!’”

[339] He stated that he never prohibited Olivia from contacting her mother, unless it was too late at night or the children were having a “no electronic time”.

[340] With respect to attending a medical appointment for Olivia’s celiac test he initially stated that he was running late, but when shown texts between the parties from August 9, 2017, (Ex 38) he admitted that he forgot about the meeting.

[341] He testified that Kim has injected Olivia even though she has not gone to any of the diabetes team meetings. He also agreed that Olivia does not want a nurse to come to the school to give her injections.

[342] He acknowledged that the logbook for Olivia have been given to them by the diabetes team. He admitted that he does not always use the log to track the food and if numerical values are not in the log there are simply not there.

[343] He agreed that the diabetes team recommended night checks at the start and that he would want to give Olivia the best care he could. He admitted that doing a night test at approximately 3 AM would be a good practice but that he does not do it every day and sometimes checks between 11 and 12 PM. He admitted that he did not do night checks every night but stated that when her diagnosis was new it would have been important to do them.

[344] He also admitted that there are more morning blood sugar readings that are less than 4 during his weeks, than the applicant’s weeks and he acknowledged that the applicant effectively and diligently manages Olivia’s diabetes.

[345] He acknowledged that one of the symptoms of low blood pressure is that Olivia will be tired and he stated that she knew what the symptoms of low blood pressure were.

[346] He acknowledged that he had the logbook (Ex 28) on March break in 2017, and while he filled out the food portion of the log he did not record any readings for Monday, Tuesday, Wednesday, Thursday, or Friday of that week.

[347] With respect to the log book starting at the end of August 2016, (Ex 27) and in particular the week of November 21, 2016, the respondent testified that the applicant told him to increase the insulin to 4 and he stated he would never have increased it without the applicant or the team telling him to do so. He also admitted that Olivia’s blood sugar was low on 3 occasions.

[348] He acknowledged that the logbook a week before shows 3.5 units of insulin at bedtime and that in the morning Olivia’s blood sugar was always in range.

[349] He wondered out loud, why the applicant would not have called him when she reviewed the book and saw that he was using 4 units of insulin.

[350] The respondent testified that he did know how to use the correction ratios and explained to the court understanding of same.

[351] He conceded that he does not always fill in the logbook properly, however when asked at his examination for discovery and December 16, 2016 at page 75 he stated that he regularly, consistently and properly filled out the log books.

[352] With respect to the incident which occurred when Olivia was going to the London Museum he testified that Olivia had something to eat but not very much and that she did not have any insulin before she left.

[353] The respondent testified that he wants the four-way meeting, but that neither party has reached out to try to make it happen. He acknowledged a text from the applicant dated October 31, 2015 (Ex 39) where she texted:

The three of us really need to sit down and talk. I mean very soon! Or I am going to call Kim and at least have a chat with her.

[354] In answer to the above text, he suggested that the applicant wanted to meet with Kim so she could tell Kim how bad he was and therefore he did not see what positive things could come out of such a three-way meeting.

[355] He conceded that Olivia had connections in Exeter with both Derek’s and the applicant’s extended families.

[356] With respect to comments made by Olivia, that she hates Exeter and that she does not want to move and does not want to change schools, he stated that he did not think Olivia hated anything and that she does wish to please both her parents.

Jennifer’s Proposal

[357] The respondent agreed that Jennifer’s plan was detailed but denied that it was always best for both of them and stated that her plan was what was best for her.

[358] He acknowledged that he has had all of the March breaks for the last 3 years and that he refused to agree to allow the applicant to have Olivia for the March break in 2017, but said that he was open to alternating March breaks going forward.

[359] He confirmed that his family has Polish traditions around Christmas Eve, and that Olivia has been with him and his family for the last three Christmas Eves.

[360] He stated that the applicant’s proposal would mean an awful lot of driving for Olivia and that during the winter it may make some or many of the midweek access is impossible or not advisable for safety reasons.

[361] The respondent acknowledged that each party would have a full family and extended family unit, the applicant’s in Exeter if she moves there and his in Simcoe.

[362] He agreed that under the applicant’s proposal, she would be in charge of Olivia’s health most of the week days. He also stated that he would not have any concerns about the applicant looking after Olivia’s education.

The Respondent’s Reply

[363] The respondent stated with respect to daycare, Olivia could come to his house after school whenever she wanted or whenever the applicant was not available to pick her up. He further stated that his mother is available almost any time to assist either the applicant or him with Olivia’s care.

[364] With respect to the diabetes team, he stated that no one on the team ever said anything to him about how he was keeping the diabetes log.

[365] He stated the applicant’s proposal is not Olivia focused, in part because it would mean the child would have to travel in a car each Wednesday night depending on traffic and weather, between 1½ and 1¾ hours and then get up the next morning at 6 AM for the reverse 1½ to 1¾ hour trip back to school.

[366] Olivia would be subjected to similar long car rides each Friday and alternate Monday mornings.

Kimberly (Kim) Buch

[367] Ms. Buch confirmed that she is a high school teacher at a local Catholic high School, that she used to teach English approximately 15 years ago and still teaches the odd English class depending on her schedule.

[368] She confirmed her that her two children Emerson 10 and Chloe 12 are jointly parented with her ex-husband who has them from Wednesday to Sunday night.

[369] She stated that her children love Olivia and the first thing that the children asked when they get home is where the other children.

[370] She testified that each child has their own bedroom, that the home is very child focused and that Olivia was very warm and welcoming from the beginning, but that they have now melded into a family unit.

[371] She stated all three children are treated equally and that for the last 4 years they have purchased Olivia’s winter clothing and boots.

[372] She stated that she has self-educated herself about diabetes and that her daughter Chloe as a friend who goes by the same name with type I diabetes and that that child who stayed with them on occasions overnight.

[373] She stated that unfortunately she has been told that she is not to attend at any of the diabetic clinic meetings and that on the few occasions that she has tried to engage the applicant she has essentially been ignored as if she was not even there.

[374] She testified that she would love to attend the diabetes team meetings and becoming more involved in the applicant would be comfortable with that.

[375] She described how the $100 for 100 injections came into being, but stated it was only used for one week.

[376] She testified that after Olivia returned home from her mother’s the following week she stated that she cannot do self-injections anymore because she will get lumps in her stomach.

[377] She stated that neither she nor the respondent pressure Olivia to self-inject, that she is only 5 minutes from Olivia’s school if she is needed in an emergency or otherwise and that Olivia is always supervised if she wants to self-inject.

[378] She described an incident after Olivia had broken her arm in the hospital called her home so she made a note, gave it to the respondent who pass the information on to the applicant.

[379] She testified that they have a lot of the resources for reading within their home that while Olivia does not love to read yet she hoped to get her there. She stated that she reads with Emerson every night and that the respondent does the same with Olivia.

[380] Exhibit 42 which is Olivia’s grade to CCAT score was introduced through her. Score shows that Olivia is in the average range and it was her understanding that of a child missed the day of testing that was the end of the matter and the test could not be made up later. This is a test at the respondent testified that Olivia missed because she was late.

[381] She testified that between work and being a father and the respondent is a father first and because he can generally organize the hours that he has to work, he is able to see Olivia get on the bus and be home at 3:30 PM when she arrives.

[382] She testified that there should not be a barrier between her and the applicant however every time she has seen the applicant in public he stated the applicant made it awkward and uncomfortable and that the applicant would not even acknowledge her when she said hello.

[383] She testified that Olivia’s 1st Communion party she and the respondent sat with the applicant’s family and that the applicant refused to speak to her and she felt as if she was not allowed to speak to other members of the applicant’s family when the applicant was present.

[384] She stated that last Monday when Olivia returned to their home after asking where Chloe and Emerson were she asked in rapid succession what reading program she was signed up for, what does Collin Walsh teach, what does EQAO mean and what is a CCAT? Because of these questions she assumes that the applicant has been talking to Olivia about the trial.

Cross Examination

[385] She acknowledged that her daughter Chloe plays rep hockey at the bantam level and some of their opposition includes Mississauga, Niagara Falls, Ancaster and Flamborough. In addition there are 2 weekend tournaments a year and the respondent drives to them if he is not working on the Friday.

[386] She confirmed that when Olivia is in their care she attends and enjoys Chloe’s hockey.

[387] Although Emerson played house league hockey last year, she doesn’t play hockey nor is she dancing this year.

[388] She said it was unfortunate that there was no communication between her and the applicant however when she tried to reach out at the fare she was totally ignored.

[389] She denied ever making disparaging remarks about the applicant even though Olivia told Ms. a Geraldo that Kim said her mother was not smart. She stated that the opposite was true, because Olivia will come home and ask why her mother hates her (Kim).

[390] She confirmed that there are no restrictions with respect to Olivia calling her mother.

[391] She acknowledged telling Olivia that aspartame can cause cancer.

[392] She acknowledged not going to a diabetes team meeting but stated she was not allowed to and that she has self-educated herself with respect to diabetes and is aware that needles are to be given in different locations on the body.

[393] She stated that Olivia has never self-injected without supervision. She agrees that Olivia should not be pressured however stated that Chloe’s friend started self-injecting at age 10 and she was not aware that the clinic suggested waiting until the child was 11 to 13.

Applicants Reply Evidence

[394] In relation to the logbook marked as Exhibit 27, she testified that during the weeks of October 31, November 14 and November 28, 2016, when Olivia was with her all her morning readings were good and she was giving 3.5 units of Lantus at bedtime however during the week of November 21, 2016, when Olivia was with the respondent most of her morning but sugar readings or low.

[395] She denied ever telling the respondent to change the dose from 3.5 to 4 and that it logically makes no sense because her morning readings the week before November 21, 2016, were good.

[396] She stated that once he started giving 4 units he should have seen that it was not working. It was not and tell after the diabetes team meeting of November 9 that he change back to 3.5.

[397] With respect to the respondent’s testimony that he left the glucagon pen on the plane, she stated that this was the 1st time she had ever heard that the pen was left and that prior to the respondent’s testimony she had been told that it was the extra insulin he had forgotten on the plane.

[398] He stated that because she only purchased two glucagon pens in September of 2016, and did not refill the prescription until September 2017, that it likely meant the respondent went without a pen from March through September 2017. This is extremely worrisome to her because the pen is to be used in emergencies such as if the child slips into unconsciousness.

Lourdes Geraldo

Direct Examination

[399] Lourdes Geraldo was retained by the parties to an assessment pursuant to section 7 of the children’s Law Reform Act.

[400] She acknowledged her two reports, which have been marked exhibit’s 32 and 33.

[401] With respect to her September 30, 2017 report (Ex 32), she testified that she would not change anything except with respect to Mr. Beckette, where she would add that he and the applicant are child focused, are in a long term committed relationship, are building a home in Exeter and are prepared to make their relationship work, whether or not Olivia is allowed to move to Exeter.

[402] She stated that both the parties had good parenting skills, both broad good contributions, value and benefits to Olivia’s life and neither party with negative when it came to discussing the other.

[403] In short both parties are caring and competent caregivers who are involved in all aspects of Olivia’s life including her medical educational and extracurricular needs.

[404] Olivia is emotionally connected to both parents

[405] She wants to see both parents as much is possible, and not surprisingly would love it if her parents would reconcile which would mean that their significant others would be out of the picture.

[406] Over the course of the interviews Olivia stated several things, including:

I. She wanted her parents to reconcile,

II. She would hate her life if she only saw one of her parents and weekends,

III. ideally she would like contact with each parent on alternating days,

IV. Being with her father felt a little more like home because she has had always lived there,

V. She did not want to move to Exeter because it was too much change and she stressed “I have had enough”

[407] She stated that while the views of an 8 or 9-year-olds should not be determinative they are part of the consideration.

[408] From her discussions with Joanna Gibson from the diabetes team, she confirmed that the applicant is more proactive in dealing with Olivia’s diabetes, such as asking most of the questions in the quarterly meetings and that the respondent is more laid-back, but that the respondent was managing the diabetes appropriately and the team had no concerns.

[409] She stated she would have no concerns about the management of Olivia diabetes whether she lived in Simcoe or Exeter.

[410] With respect to education, she testified that both parents took an interest in Olivia’s education and no significant concerns were expressed by her teachers and although the child is better in mathematics, the child is not an academic jeopardy.

[411] With respect to the applicant’s proposed parenting arrangements (Ex. 30) she stated that it appeared the applicant wanted to support as much contact as possible between Olivia and her father but that one of the main challenges would be if the almost 2 hour one-way commute would be sustainable.

[412] While the contact between the child and both parents might be reasonable she opined that the midweek access would be exhausting for the applicant and Olivia.

[413] She said that if Olivia stayed in Simcoe it would be the applicant who drives back and forth and not the child.

[414] She testified, given the number of significant changes that have occurred in Olivia’s life in a short period of time, that currently she saw more risks to the child than benefits from the move to Exeter, and that depending how things panned out in the future, the move could be looked at again when the child is older and has a better handle on her diabetes.

[415] Some of the changes in Olivia’s life include, her parents separation, her diabetes diagnosis, being tested for celiac disease, being introduced to each of her parents’ significant others, almost instantly accumulating two sisters and two brothers, travelling to and spending significant time in Exeter at least two weekends per month and on all other holidays etc.

Cross Examination

[416] Ms. Geraldo testified that she met with Olivia on 5 occasions between January and December 2, 2016.

[417] She confirmed that the applicant had two main concerns with respect to Olivia’s well-being which were her diabetes management and her difficulties with reading and writing.

[418] She confirmed that the applicant’s position with respect to her wanting to move to Exeter included that:

I. She can no longer maintain her employment with the London CAS while living in Simcoe,

II. She felt isolated in Simcoe,

III. She is the parent who is proactive and has the better management skills and follows the blood sugar monitoring procedures better with respect to Olivia’s diabetes management,

IV. She is the parent who is proactive with respect to Olivia’s difficulties in reading and writing including asking for extra work and making sure that Olivia does some reading and writing each day that she has with her,

[419] She confirmed that Olivia is a pleaser and appears mindful of each parent’s emotions and feelings.

[420] She was aware that in grade one Olivia struggled with reading and writing and was at risk of not being at the appropriate level by the end of grade one.

[421] She acknowledged that it would not be usual for child not to want to move or not to want to change schools.

[422] She acknowledged that it appeared the respondent does not always do night testing or religiously fill out the log book, however while night testing might be a good or best practice not all families do it and the diabetes team does not demand it nor do they seem to have any stated concern about how the respondent fills out the log book.

[423] She confirmed that the 3rd meeting with Olivia was on May 17, 2016 and that all of those meetings would have been within approximately one month off Olivia’s diabetes diagnosis.

[424] She confirmed that her recommendations are based on the information that she receives, and it was her information that the blood sugar readings would remain on the monitoring device even if they were not written in the log book. She confirmed that it was also her understanding that neither the dosage nor the types of food eaten would be on the monitoring device.

[425] She confirmed, that she has no doubt that Olivia is a priority to the applicant, that low blood sugar readings are harder to fix than high blood sugar readings, that on at least one occasion Olivia did not have a low-carb snack when she went to school from the respondent’s home and that on some occasions she was late for school.

[426] She confirmed, that she was aware that on one occasion the teacher did not want to put Olivia on the bus because her blood sugar reading was low and the applicant was concerned that the respondent was not properly adjusting the amount of insulin he was giving on his weeks.

[427] She was also aware that the respondent was not in favour of taking the child to Kumon because the round-trip twice a week was over an hour in length. She was not asked about whether or not the respondent told her that he had suggested a tutor who was a friend of his.

[428] Ms. Geraldo was not shown the spelling or workbooks that have been entered as exhibits at this trial.

[429] She confirmed her information that the diabetes team does not encourage self-injection until the average child is between 11 and 13 and that a child should not be pressured. She also confirmed, that when she spoke to Olivia, she was not comfortable with injecting herself.

[430] She also confirmed, that Olivia does not want a nurse to come to school for her noon hour injections and stated that Olivia seems to be getting a decent understanding of her diabetes and its management.

[431] She stated that the respondent only let us Olivia self-inject, if she wants to and that Olivia may be saying different things at different times.

[432] She agreed that Olivia could be stating that she does not want to change schools because, from her way of thinking if she changes schools that may mean that her parents may never get back together again. (Anything’s possible)

[433] She recommended that both parties’ significant others get some diabetes education if they are going to be partaking in any aspect of Olivia’s diabetes care.

[434] She agreed that for stable diabetes management, the parents should be communicating at a high level.

[435] Ms. Geraldo acknowledged that Olivia had frequently visited Exeter over the last two years, but was not aware that the applicant and Derek were currently building a new home together in Exeter.

[436] She stated that referring to Derek’s sons and Kim’s daughters as brothers and sisters was positive.

[437] She acknowledged it was positive, that each parent liked their job and also acknowledged that communication problems with respect to education and medical issues can impact the child.

[438] She acknowledged that the applicant’s parenting plan tried to promote the relationship between Olivia and her father, but that the current schedule would have to change.

[439] She acknowledged that children are resilient and that Olivia could adjust to a new school.

[440] When it was suggested to her, when benefits vs. risks were being discussed that the biggest risk was Olivia’s diabetes and secondly her reading and writing problems, she stated that the biggest risk was the impact on the parent child relationship.

[441] Although she did not question the applicant’s commitment to the time sharing, she questioned whether the proposal was feasible and sustainable over the medium-term.

[442] She stated her opinion, that there not be a move at this time is based in part on both parties being able to manage Olivia’s diabetes and that Ms. Gibson from the diabetes team did not say that the respondent was not or was not able to do so.

[443] At the end of her cross examination, Ms. Geraldo was not asked, whether she would change her opinion based on the evidence/facts suggested to her by the applicant’s counsel.

Reply Evidence

[444] Ms. Geraldo stated that in arriving at her conclusions she uses the best interest of the child criteria.

[445] She stated that while the applicant’s proposal might work so would the respondent’s proposal of keeping things the way they are.

[446] She stated that Olivia is beginning to settle the changes in her life, including her parents’ new partners and their children.

[447] She stated that the applicant’s continuing attendance at school for noon hour injections was a short-term and not a long-term situation.

Applicant’s Submissions

[448] Because the parties initially signed a separation agreement and no part of the separation agreement is incorporated into the divorce order, this is not a variation under section 17 of the Divorce Act and it is the best interest of the child test that prevails.

[449] She submits that Ms. Geraldo used the material change threshold test under section 17 of the Divorce Act, and therefore the court should place no weight on her recommendations, but the court may use the information that she gathered during her engagement.

[450] Since Geraldo assumed that the respondent was accurate with his information, her report must be read in light of the fact, that he lied about being late for the celiac test, lied about doing night checks because Olivia says he never gave her juice and lied about injecting Olivia 90% of the time during the summer because Olivia says Kim did it a lot.

[451] She points out that during the report process, Olivia was 7 and 8 and therefore very little weight should be placed on Olivia’s views and preferences.

[452] She asks the court to consider the circumstances of the signing of the separation agreement and in particular, that she had no independent legal advice, she was rushed and she was suffering from anxiety and seeing both a doctor and a counsellor.

[453] She points out that para. 3.2 of the separation agreement speaks about sharing Olivia equally, not necessarily a week about regime.

[454] With respect to credibility, she gave her evidence in a straightforward forthright manner, unlike several instances of the respondent including:

a) Answers he gave at trial verses his examination for discovery held December 16, 2016, and in a particular:

i. at trial he expressed concern with Olivia’s reading and writing, while on discovery (pages 58-59) he stated that Olivia was a good student and he was satisfied with her progress and grades in school, and

ii. at trial he admitted not filling out the diabetic log book consistently, while on discovery (page 75) he testified that he completed the logbook regularly and consistently.

[455] While both parents love Olivia, the applicant submits that the following factors are in favor of her proposal.

[456] The respondent refused/neglected to pay child support after separation notwithstanding his earnings, are well in excess of the applicant and he failed to contribute to expenses including daycare.

[457] Olivia is established in both Exeter and Simcoe,

[458] The applicant has a better ability to parent when it comes to education and diabetes.

[459] She has been diligent and consistent since grade 1 with education, as opposed to the respondent who did not follow through after committing to Kumon, and stopped taking the child without informing her.

[460] She has been diligent and consistent since the day Olivia was diagnosed with diabetes, including doing 3 AM night checks and always completing the logbook, and she does not pressure Olivia to self-inject like the respondent does,

[461] Without night checks Olivia will may wake up with low blood sugar, leading to her feeling lethargic, unwell and with blurry vision.

[462] She did not forget about the celiac meeting, nor did she send Olivia to the London Museum without insulin or adjust her nighttime insulin dose from 3.5 to 4 without checking with the diabetes team,

[463] The respondent has not had a glucagon pen since March 2017,

[464] Olivia is her only priority, while the respondent must also attend to two young stepchildren,

[465] She is proactive in all activities of Olivia’s life, while the respondent is laid-back,

[466] Her proposed parenting plan is detailed and has been carefully thought out and is consistent with the best interests of Olivia, with respect to her current medical and educational issues. She is prepared to give up quality time on weekends for management time of Olivia’s current issues.

[467] The maximum contact principle, while important is only one of many factors to be considered and does not mean that parenting times have to be equal.

[468] Based on the applicant’s in-depth Parenting of Hours Calculation Brief, and treating the school hours as neutral, the applicant would be parenting the child for just under 50.1% of the time and if the school hours are treated as part of the applicant’s time she would be parenting the child for just over 58% of the time.

[469] She submits by contrast, since the respondent has not put forward any other alternative, he simply wants the status quo to continue which will mean that the conflict will continue.

[470] While the respondent is a good father and loves Olivia, his lack of diligence with respect to her medical and educational issues puts Olivia at risk.

[471] She has been the primary caregiver, because she has taken on primary responsibility for all important decisions concerning the health, safety, education and overall welfare of the child since separation.

[472] She relies in part on the case of Burns v. Burns, 2000 NSCA 1, where at paragraph 29 the court stated:

29 …The primary caregiver is the parent who deals with the countless less significant, but nonetheless obligatory, daily arrangements for the children’s clothing, haircut, hygiene, extracurricular activities and every day mundane affairs. Who would buy a present for them to take to a school friend’s birthday party? Who would make the appointments and take them to the dentist? Which parent is keeping a record of their vaccinations, and fills their prescriptions? Who goes to the parent-teacher interviews? Who chose this preschool?...

[473] Based on the case of Gordon v Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 where at paragraph 49 and 50 the court stated:

50. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect.

51. Each case turns on its own unique circumstances. The only issue is the best interest of the child and the particular circumstances of the case.

52. The focus is on the best interests of the child, not the interests and rights of the parents.

53. More particularly the judge should consider, inter alia:

a) the existing custody arrangements and a relationship between the child and the custodial parent;

b) the existing access arrangement and the relationship between the child and the access parent;

c) the desirability of maximizing contact between the child and both parents;

d) the views of the child;

e) the custodial parent’s reasons for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;

f) disruption to the child of a change of custody;

g) disruption to the child consequent on removal from family, school, and the community he or she has come to know.

50. In the end, the importance of the child remaining with the parent to whose custody it has been accustomed in the new location must be weighed against the continuance of full contact with the child’s access parent, it is extended family and his community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new?

[474] Based on the case law since the decision in Gordon v Goertz, the applicant submits the court should consider the following:

a) The views of the custodial parent (primary caregiver) should be awarded great weight,

b) A move must not be viewed as negative to the parent seeking to relocate,

c) The best interest of the child are intertwined with the best interest of the primary caregiver and there would be a positive effect on the child being with a happy primary caregiver parent,

d) Courts are more apt to permit the move when the moving parent is willing to make accommodations to reinforce the relationship between the child and the nonmoving parent,

e) Since financial security is important to the interest of children, the economic effect of the move on the children is a relevant factor to be considered,

f) The unwillingness of the nonmoving parent to make adequate provision for the support of a child is relevant to the child’s best interest, particularly where a move will enable the primary caregiver to provide financially for the child,

g) Every move of children away from one parent involves some disruption and change; however moves are clearly endorsed by the courts in many cases,

h) The disruption to the child of removing a child from the care of their relocating primary caregiver must be considered, not merely the disruption to a child of leaving their community,

i) The disruption to a child inherent in a move can be minimized by other family members, being the other parent or family of the moving parent also relocating,

j) In any event the disruption caused by a move is much less an issue when a younger child is involved,

k) While maximization of contact with both parents is one of the guiding principles in determining what is in the best interests of the child, it must be balanced with all other factors,

l) The maximum contact principle applies and is important in mobility cases, but it remains just one factor and does not mean equalizing time is between the parents,

m) If the moving party is moving for an employment opportunity, the differentials between opportunities, economically, lifestyle-wise, and with respect to personal satisfaction, are all relevant considerations,

n) Where a moving party agrees to financial concessions to assist the other party or the children to travel for access, such concessions are also relevant considerations,

o) Careful attention should be paid to the potential negative effects on the child, should the custodial parent be restricted from relocating, likewise careful attention should be paid to the potential positive effects on the child, should a parent be permitted to relocate,

p) Courts generally prefer a detailed, realistic parenting plan when determining whether a parent will be permitted to relocate with the child. This shows a parent, whether they are the relocating parent or not has turned their mind to the practical and eventual realities of the outcome of the request to move,

q) The courts have also repeatedly stated that it is problematic to rely on representations by the custodial parent that he or she will not move without the children should the application to relocate be denied. This is a two-edged sword potentially being interpreted as self interest in discounting the child’s best interest in favour of his/her own, verses suggesting that the move is not critical to the parent’s well-being or that of the child,

r) The court have recognized the importance to children of a parent attaining career goals or completing education,

s) Contact with extended family is important, but this has to be balanced with the parent’s need for emotional support, financial security and career development.

[475] In short Olivia requires consistent care for her diabetes and education and while a child may say that she does not want to move, at age 9 they are very resilient.

Respondent’s Submissions

[476] The applicant’s whole case is centred around the fact, that she wants to attend at Olivia’s school to give her, her lunchtime injection of insulin. If that one factor is removed from the equation the applicant’s whole case falls apart.

[477] The applicant agreed that childcare could be provided by the respondent, other family members or third party such as a nurse.

[478] The applicant agreed that if she did not have to attend at Olivia school every noon hour, she could go to work from Simcoe and also catch up and keep up-to-date with her work.

[479] She also agreed that childcare, when necessary could be provided by the respondent and his extended family.

[480] The status quo, of week about childcare responsibility is very feasible, because on the alternate weeks when the applicant has periods of responsibility for Olivia, she would at her option, only have to spend 4 or 5 nights in Simcoe, which is approximately 8 to 10 nights per month

[481] The difference in driving time for the applicant from Simcoe to London vs. Exeter to London would be 20 hours per month.

[482] The applicant’s current proposal, would have her driving 35 hours more per month than the status quo, if she does not come to Olivia school for her noon hour insulin injections.

[483] The applicant has acknowledged that she cannot continue attending for the noon hour injections much longer, because her workplace accommodation simply cannot continue for the long-term.

[484] The respondent is prepared to attend at the school each day to give Olivia her noon hour injections, Kim works five minutes away from Olivia’s school and there is always the ability to use a nurse from CCAC.

[485] It is the applicant’s position, that she has to take Olivia away to Exeter because she needs to administer her noon hour injections which may last for another 1 to 2 years.

[486] The applicant decided that she wanted to move to Exeter in May 2015, which was before Olivia was diagnosed with diabetes and before Derek was in the picture.

[487] The applicant’s employment is not in jeopardy, however the noon hour injection accommodation has to come to an end. Therefore the status quo will not impact on the applicant’s job.

[488] Other than having someone other than the applicant attending for the noon hour insulin injections, there will be no other difference in Olivia’s diabetes management, whether she remains in Simcoe or moves to Exeter. The Branford diabetes team will remain in place for the quarterly visits.

[489] Currently there is no one else in Exeter with training in diabetes and the applicant will be working at least 45 minutes away. No plan was presented in court that the Derek would become trained so that he could deal with any diabetes issues and in any event he works in Listowel.

[490] Although the applicant states she wants her family over to her house more often, she never had them over when she lived in Simcoe.

[491] From day one of the parties’ relationship and marriage, the applicant refused to even inquire about employment closer to home, even refusing to talk to the local CAS.

[492] Paragraph 3.5 of the separation agreement signed by the applicant, states that she will not move the residence of the child without a court order. At separation the applicant bought a house and was determined to make the parties shared custody work for the sake of Olivia.

[493] The applicant’s position changed when Kim entered the picture and it was in response to her not being told that Kim was moving in with the respondent that she wanted to move. She stated that she could not live here (in Simcoe) anymore and that she felt isolated.

[494] The respondent submits, that all of the applicant’s reasons for wanting to move begin with I and not with Olivia, and when she commenced this court action in July 2015, Olivia’s diabetes had not been diagnosed and Derek was not in the picture.

[495] Based on the principles set out in the Gordon v Gertz case:

a) There are two custodial parents in this case and the applicant is not the primary caregiver, which was not the fact in the Gordon case where there was a primary caregiver, therefore her views should be given no greater weight than the respondent’s views.

b) The existing status quo of week about has been working well for over two years and there is no evidence that the move to Exeter will improve the applicant’s well-being, health, career, or ability to continue to care for Olivia.

c) Olivia’s best interests are intertwined with both parents best interests not just the applicant’s. Currently the contact between each parent is maximized because they each have equal time with Olivia. In addition to the applicant seeking to increase her time at the expense of the respondent’s time, the proposed Wednesday overnights with the respondent are not likely to last because of the long distance between the parties’ residences.

d) The applicant does not show an ability to make accommodations to her own agenda, to maintain the relationship between Olivia and her family and friends. The only accommodation necessary is for the applicant to stop attending for Olivia’s noon hour injections.

e) There is no evidence that the move will be financially beneficial to the applicant.

f) The respondent has demonstrated a willingness to cover all of Olivia’s needs as they arise.

g) A primary disruption would be a change Olivia’s community, since she would no longer be going to school in Simcoe.

h) Olivia is not being removed from the care of the applicant.

i) The views of Olivia are clear in that she does not want to move and does not want to change schools. Therefore there will be disruption.

j) The status quo perfectly adheres to the maximum contact principle.

k) Jennifer’s employment is not in jeopardy in any way.

l) The applicant’s reasons for moving are not relevant to her ability to meet Olivia’s needs and the applicant would remain as involved as she always has been in the Olivia diabetic care and education (subject to the noon hour injections).

m) Olivia’s life would change because:

i. There would be a change in custody

ii. The move would be disruptive for Olivia,

iii. It would involve a totally new school, new colleagues, new routine and upset the stability she currently enjoys,

iv. Stressors and the impact of change could adversely affect Olivia’s diabetes.

v. She would be removed from the current time she spends with her friends, her extended family in Simcoe, new found sisters and leave the school and community that she has grown up in for the last 9 years.

[496] A main concern of Ms. Geraldo for not recommending the move, was that Olivia has been through much disruption in the last 3 years and she questioned why it was necessary to add a move to Exeter to those disruptions when staying in Simcoe is easy to accommodate.

[497] Ms. Geraldo stated in court, that she based her report on the best interests of Olivia.

[498] Even in light of being able to move into a new bigger house complete with a kitten and dance studio, Olivia clearly articulated that she does not want to move.

[499] Olivia’s relationship with her sisters who are much closer in age to her must be stronger than her relationship with her brothers, one who is in the late stages of high school and the other who is away at university.

[500] The parties in the past have gotten along fairly well.

[501] There is no nexus between the move and Olivia’s health or educational concerns.

[502] Both parents are motivated and because the applicant is more pro-active, she can still “drive the bus”.

Findings

[503] In making these findings I have taken into account what I consider to be the best interests of Olivia.

[504] Both parties love their daughter very much and only want the best for her.

[505] Both parties have excellent extended family support, the applicant in Exeter and the respondent in Simcoe.

[506] Although the child may have expressed her opposition about moving to Exeter and moving to a new school, it would not be unusual for a child to express those sentiments, even if the family was moving as a family unit as opposed to just one parent moving.

[507] Sometime in 2014, the applicant found out that her employment with the London CAS would be changing and that she would no longer only be looking after eighteen Crown Wards, but would have a general caseload including babies and First Nations families.

[508] She knew she would be expected to spend more time in the London office and would have to travel to meet with clients, some of whom would be some distance to the west and north of London and therefore away from Simcoe.

[509] She also knew that her work time of 35/37 hours per week would not commence being calculated when she left Simcoe, but would only commence once she arrived in London, as would her paid mileage.

[510] Despite the fact that she and the respondent were parenting their child in a week about parenting regime, there is no evidence that she considered looking for employment other than with the London CAS.

[511] Although she testified about feeling isolated in Simcoe she did not join any organizations in the Simcoe area, nor did she present any evidence about what efforts she has made to foster friendships with Olivia’s friend’s parents or anyone else.

[512] Although she has in the past, done some training for the CAS, there was little if any evidence about what her career path would be with the London CAS as opposed to some other CAS closer to Simcoe.

[513] She then made plans to commence a new relationship with a man from Exeter, embark on the construction of a jointly owned home with her fiancé (although Derek declined to use that word) in Exeter and now seeks approval from this court for her plan to move the child’s main residence to Exeter.

[514] Her proposal and her submissions to this court are based on several premises including:

I. Both parties would still spend significant time with the child,

II. She is more attuned to, and can manage the diabetic health needs of Olivia better,

III. She is more attuned to and prepared to manage Olivia’s current scholastic problems mostly pertaining to reading and writing

The Applicant’s Proposal

[515] The evidence before me is that the driving distance between Simcoe and Exeter is between at least 1½ and 1¾ hours one way, depending on weather and traffic.

[516] The court takes judicial notice that the area between Exeter and the 401, historically receives a substantial amount of winter weather including blowing snow.

[517] Based on Olivia seeing her father for at least part of every weekend and every Wednesday overnight, means that the applicant proposes to drive the child from Exeter to Simcoe and back twice each week. This would mean that the child would spend at least 6 and 7 hours per week in the car. In addition, on the some Monday mornings and all Thursday mornings, Olivia would likely have to get up by at least 6 AM in order to be picked up by the applicant at 7 AM, so she would be able to make it to school on time.

[518] The child would effectively have two home bases, which would have to be factored in when it came to extracurricular activities.

[519] The applicant would be able to marry and set up a new home in Exeter with her fiancé, and be closer to her extended family, but does that benefit Olivia when she will be spending less time with her father, his new wife, her two new sisters and her Simcoe extended family?

[520] While it can be said, that a happy parent is usually/always good for a child, in this case there are two parents and no matter what decision this court makes, one of them is going to be, at least mildly unhappy.

[521] Although the applicant would be happy if her proposal was accepted by the court, it would mean an inordinate amount of driving well in the foreseeable future for Olivia. Since this driving would be done for the most part by the applicant, it would exacerbate the problems of getting her work done that she testified to in court.

[522] In addition there is an inherent danger for anyone driving on highways and the more one drives the higher potential for an accident. For the applicant to facilitate picking up Olivia in the mornings of her proposal, it would mean her waking up between 4:30 and 5 AM and then embarking on a 3 to 3 ½ hour drive, before assuming her regular driving duties which appear to be in excess of 2 hours per day.

[523] This cannot help but lead to fatigue and stress on the applicant.

Olivia’s Diabetic Health Needs

[524] Notwithstanding the seriousness of the disease, there was no evidence presented to the court that the doctors/diabetes team had any concerns about how either party was managing Olivia’s diabetes.

[525] Although it appears on the evidence before this court that the applicant is more diligent than the respondent when it comes to filling out the log book, neither party testified that the diabetes team commented, much less took the respondent to task for his diligence or lack of diligence when completing the log book.

[526] In addition, neither party testified that the diabetes team took the respondent to task because Olivia woke up on certain days with blood sugar readings of less than 4. The court accepts the fact that the object is to try to keep Olivia’s blood sugar reading above 4.

[527] All of the above information would have been before the diabetes team in the log book.

[528] While it may be laudable that the applicant drives from where ever she is each noon hour to Olivia’s school to give her an insulin injection, on the evidence before me it is unnecessary. In addition it puts pressure and stress on the applicant to try to fit in, what could easily be, at least three hours a day of extra/unnecessary driving not to mention the inherent dangers of driving an automobile.

[529] Although the court understands why a parent may want to please their child by attending when possible to do the injections, there is no evidence whatsoever that it is necessary and the child has now received injections several times a day for over a year and a half. Her total injections to date are well over 2,000. Parents cannot and should not always be their children’s best friend. They are parents and as such have to make decisions that are in the best interest of more than one person in this case Olivia.

[530] The unfortunate reality of Olivia’s diabetes is that she needs injections multiple times per day. The applicant seems to be vastly overprotective when it comes to the child’s noon hour injections.

[531] There does not appear to be any medical reason for the applicant to continue to attend at the noon hour injection. Simply put, because of the hours and driving involved it puts the applicant’s health at risk, both from the amount and stress of driving and the stress of not being able to keep her work up-to-date. Notwithstanding that Olivia might like it when her mom comes to see her at noon hour, this does not appear to be in Olivia’s best interests.

[532] The respondent on the other hand, for some unexplained reason does not fill out the diabetic log book as well as he could, however on the evidence before me this does not seem to have raised any concerns by the diabetes team nor is there evidence of constant emails or texts from the applicant to the respondent regarding this issue.

[533] There is no evidence before the court that the child is currently suffering any ill effects from either party’s management of her diabetes.

[534] It does not appear that Olivia’s diabetes will be impacted either positively or negatively by the applicant’s proposed moved Exeter, since she would be under the watchful eye of both parents for a significant amount of time each month.

[535] Nothing in this judgment should be construed as the court approving of the respondent’s “diligence” with respect to the diabetic log book, nighttime insulin injections or nighttime blood sugar tests. It appears that his outlook with respect to Olivia diabetes is more casual than that of the applicant’s.

[536] It would seem prudent that the parties should specifically raise these and all other diabetic issues with the diabetes team, and with each other and the team before team meetings, so any and all issues can be fully discussed for the benefit of Olivia.

Olivia’s education

[537] There is conflicting evidence before this court on Olivia’s academic abilities when it comes to reading and writing.

[538] Based on the evidence before this court, there certainly appears to be concern for Olivia’s grasp of learning how to read and write.

[539] Notwithstanding the EQAO assessment, (Ex 34) which states that Olivia meets the provincial standard for grade 3 in reading and writing, her very small sample of schoolwork presented at the trial in writing and spelling is abysmal.

[540] It seems virtually impossible, without their having been an epiphany, that the same child who did the schoolwork in Exhibits 11, 16, 18 & 19, somehow at the end of grade 3 met a provincial standard in reading and writing. Unfortunately the court has no evidence with respect to what the assessment entailed, what the procedure for writing it was, how much advance work/assistance the teachers gave the students before the test and what if any politics were involved etc.

[541] The concern any parent should have and the court certainly has, is that very poor marks usually lead to low self-confidence and low self-esteem and the child thinking she is stupid. This can translate into her disliking and avoiding schoolwork, which would turn into a life-long problem.

[542] The expression, “Learners will inherit the world. Non-learners will inhabit a world that no longer exists” comes to mind.

[543] Both parties testified that they were concerned about Olivia’s academics, but unfortunately because of poor communication problems “a full-court press” acceptable to both parties, has not been achieved and time is running out.

[544] Each party had a plan. The applicant wanted to use Kumon and the respondent wanted to use a former Kumon instructor, but it appears currently that no third-party instructor is being used.

[545] Both parties testified that they read with the child on an almost daily basis and have her write stories about everyday events such as what she did that day.

[546] Perhaps the extra work they both testified to doing, is paying off and the EQAO assessment (Ex. 34) is accurate.

Summary

[547] Although the applicant is more proactive that the respondent I do not find that either party should be given the title of primary caregiver. Unlike the Burns case, which was a case where one party had custody and the other party had alternate weekend and one day of midweek access, these parties shared Olivia on a week about regime for over 2 years.

[548] I find that the management of Olivia’s diabetes would not change appreciably if at all, if Olivia’s main residence was moved to Exeter.

[549] I find that management of Olivia’s education would not appreciably change if at all, if Olivia’s main residence was moved to Exeter.

[550] This is not the type of case where a mother requires her extended family for child care assistance, because she needs to work and she can’t afford daycare and the father cannot afford sufficient child support to make it possible for the mother and child to remain in the former matrimonial city.

[551] I find that the main impetus for the requested move has to do with the applicant’s desire to return to her home town where she would be closer to her family, extended family not to mention her fiancé.

[552] I find that the applicant’s current position with the London CAS can be serviced adequately, whether she lives in Simcoe or Exeter.

[553] I find the significant amount of driving, that would be required by the applicant to fulfil her proposal would be excessive for Olivia and not in Olivia’s or the applicant’s best interests.

[554] In all probability the proposed significant amount of driving would cause the proposal to break down within a matter of months, particularly when winter driving is factored in along with the significant amount of driving that the applicant already subjects yourself to.

[555] I find that there is no medical or necessary social reason for the applicant to continue to attend each and every noon hour to give Olivia her insulin injection.

[556] For the above reasons and discussions I dismiss the applicant’s application to move Olivia’s residence from Simcoe to Exeter without costs.

Comments and Recommendations

[557] Aside from the fact that her parents are separated and that she has diabetes, Olivia is a very lucky girl because she is loved by her two parents, their extended families and their significant others.

[558] I remind both parties, that Olivia only gets one childhood and depending on a person’s definition of child, she is more than halfway through it. It should be as happy and carefree as possible.

[559] It is extremely unfortunate that two educated people with the assistance of professionals have not been able to work out, what appears for the most part to be communication problems.

[560] The parties should consider setting up a four-way meeting (mom, dad, Kim & Derek) to discuss Olivia’s academic and diabetes issues and use a facilitator if necessary.

[561] The applicant should devise a plan to wean Olivia off her noon hour dependence on her, discuss this plan with the respondent so that both parties are on the same page, and then have a discussion with Olivia.

[562] The parties should look into using Our Family Wizard for all their non-urgent communications, so that there will be a written record and less chance of misinterpretation going forward.

[563] All schoolwork/projects both good and not so good should be photocopied/scanned and shared with each parent in a timely fashion, so that everybody is up to date on how Olivia is progressing and everyone is working towards the same goal in a unified fashion.

[564] The parties should try to agree in advance, on what extracurricular activities including remedial educational assistance will qualify as section 7 expenses.

[565] To assist the applicant in completing her notes on her computer work, she may want to look into using an oral interface, such as Dragon Dictate, which allows the user to simply talk into a microphone rather than typing on a keyboard.

[566] If the parties require my assistance on any issues, they may contact me at Kitchener.Superior.Court@ontario.ca . Any correspondence to myself must be copied to the other counsel and we will decide how to proceed from there.

James W. Sloan

James W. Sloan

Released: October 19, 2017

CITATION: Buch v Buch, 2017 ONSC 6246

COURT FILE NO.: 117/15

DATE: 2017-10-19

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Jennifer McIntosh

Applicant

– and –

Stas Buch

Respondent

REASONS FOR JUDGMENT

J.W. Sloan

Released: October 19, 2017