Pigott v. Lewis, 2017 ONSC 704

CITATION: Pigott v. Lewis, 2017 ONSC 704

COURT FILE NO.: F1379/14

DATE: 2017/01/30

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Connor James Pigott

Applicant

• and -

Janessa Helen Lewis

Respondent

L. Reich for the applicant

J. McKinnon for the respondent

HEARD: January 11-13 and 16-19, 2016 (at London)

MITCHELL J.:

REASONS FOR JUDGMENT

Overview

1These proceedings were commenced on September 22, 2014, four days following the parties’ separation. At that time, the applicant father claimed custody, access and support with respect to the two children of the marriage, Lillian Emily Mary Pigott born November 22, 2012 (“Lily”) and Caleb James Stewart Pigott (“Caleb”) born October 12, 2013. In her Answer, the respondent mother sought equalization of net family property, spousal support, child support, custody and primary residence of the children.

2Prior to trial, all claims were addressed, resolved or abandoned save and except the issue of primary residence of the children. The applicant, Connor James Pigott (“Connor”) seeks to maintain the interim shared parenting arrangement of “week about” access on a final basis. The respondent, Janessa Helen Lewis (“Janessa”), seeks primary residence of the children with alternating weekend and mid-week access to the applicant.

Interim Orders

3On October 22, 2014 a temporary order was made on consent of the parties providing for the care of the children on an equal basis with each party having the children 7 of every 14 days.¹

4Pursuant to a temporary order made on consent of the parties dated April 15, 2015 the equal parenting arrangement imposed by the October 22, 2014 order was amended to provide for week-about parenting with midweek access to the non-caregiving parent on Wednesdays from 10 a.m. to 4 p.m. Exchanges of the children were agreed to take place at the Tim Hortons located at Oxford Street and Adelaide Street in London. This order also addressed access of the parties during the Christmas season and on Easter weekend, Family Day and Thanksgiving.²

5On June 29, 2016 an order was made maintaining the current status quo as to the parenting schedule and directing Lily be enrolled at Aberdeen Public School starting September 2016. Pursuant to this order, exchanges of Lily on weeks she was in Connor’s care were to take place at Janessa’s residence.³

Background

6The parties are both 26 years of age. They met at the age of 19 while working at a Burger King restaurant in London.

7On March 6, 2010 the parties were married.

8On September 18, 2014 the parties separated.

9Following their marriage the parties moved in with Janessa’s parents, Michael (“Mike”) and Denise (“Denise”) Lewis, who resided (and continue to reside) in Unit 80 of a condominium complex located at 690 Little Grey Street in London (the “Little Grey Condo Complex”). The arrangement was short-lived and approximately one month later the couple moved into a one bedroom apartment at 80 King Edward Drive. A few months later the couple moved into a larger 3 bedroom apartment located at 90 King Edward Drive. From there the couple moved into a townhouse located on Arbour Glen Crescent.

10In 2012 Janessa became pregnant with Lily and moved in with her parents because of a black mold issue in the basement of the townhouse; however, Connor continued to reside there. Ultimately, the couple purchased Unit 54 in the Little Grey Condo Complex at the end of October 2013 approximately 2 weeks after Caleb’s birth. Their townhome unit was “kitty-corner” to the townhome unit of the Lewises. On separation Janessa remained in the Little Grey condo and Connor moved in with his parents. Connor then moved into an apartment on Huron Street in June 2015. Connor currently resides (since May 2016) with his common law partner, Brittney Rudorfer (“Brittney”) in a home located on Trossacks Drive in north London.

11Sometime after Caleb was born, Connor began working in the construction industry with his father. During the relationship, Connor completed his high school diploma at Wheable adult learning centre. During the marriage, Connor completed a course in gaming software programming at triOS College. At present, he is working part time in the construction industry and expects to earn $17,000 per annum in 2017.

12Janessa has her high school diploma and is unemployed. Janessa was last employed in the Winter/Spring 2013 performing administrative duties at H&R Block during the tax season. She has made efforts to gain employment during the times she does not have the children, however, to date those efforts have proved unsuccessful.

13Lilian is 4 years of age and attends JK at Aberdeen Public School in London. Caleb is 3 years of age and is enrolled in the Salvation Army daycare centre which he attends during Connor’s access weeks. During Janessa’s access weeks and alternating Wednesdays, Caleb is cared for by Janessa. It is anticipated that Caleb will be enrolled in Aberdeen Public School commencing in September 2016. The parties agree both children will attend Aberdeen Public School.

14Connor is in a common law relationship with Brittney. Together they have a six month old daughter, Kennah. Brittney has a 3 year old daughter from a prior relationship. Brittney is unemployed.

15Janessa is dating Dan Mungar (“Dan”). At present, Dan resides with his father; however, anticipates he will reside with Janessa once she gives birth to their child whose birth is expected in June.⁴

Evidence

16The trial spanned 7 days. Connor, Patricia Pigott (“Patricia”), the paternal grandmother, Cody and Abilene, Dan’s children, and Trudy all testified as part of the applicant’s case. Janessa, her parents, Dan, Christine Turner, Dan’s sister, all testified in support of the respondent’s case.

Janessa’s Mental Health

17Connor testified that Janessa had confided in him early in their relationship that she would stop breathing in her sleep and heard voices in her head. He claims she also suffered from panic attacks and often Connor would ask his parents for assistance in handling Janessa and calming her down. When she was a teenager she was a “cutter.”

18Approximately 2 weeks after Caleb’s birth (late October 2013), Connor testified that Janessa came into their bedroom pleading with him to take Caleb and threatening to flush Caleb down the toilet if he did not help. Janessa denies she made the threat but does admit she sat with Caleb on the edge of the bathtub. She and Caleb were both in tears. At this point she recognized she was overwhelmed and needed professional help.

19Connor’s father drove Janessa to the hospital where she was assessed, diagnosed, treated, prescribed medication and referred for out-patient psychiatric treatment to Dr. Chamberlaine. She was discharged later that same day. Connor and Patricia both testified that Janessa was diagnosed with post-partum psychosis and advised not to be alone with the children until the prescribed medication took effect. Janessa denies this diagnosis or the requirement she be monitored when with the children. Janessa claims she was diagnosed with post-partum depression, not psychosis. What is particularly troubling with Janessa’s evidence is her denial of the diagnosis despite the text messages exchanged between someone using her phone and Patricia. These texts corroborate Connor’s and Patricia’s evidence. When the printed text exchange was shown to Janessa during cross-examination she claimed it was Connor who had messaged his mother using her phone and purporting to be her. This explanation is not believable. Her evidence on this issue is not credible.

20Following this incident, Janessa was prescribed two medications for depression which she took as prescribed until approximately 4 months ago when she learned she was pregnant. Since the October 2013 incident, Janessa has suffered from no other known incidents of psychosis or debilitating depression which could place the children at risk while in her care.

Care of the Children pre-Separation

21When Lily was born, Connor was not working and was able to and did assist caring for Lily. Neither child was breast fed. Connor claims he slept in the living room with Lily for a couple of months following her birth and would tend to her needs throughout the night. When he began working full-time, he would leave the house around 7 a.m. each day and arrive home around 5 p.m. He worked Monday to Friday each week. When he arrived home he would make supper for the family and enjoy time with the children.

22Both parties admit that Caleb was more difficult to soothe as an infant. He woke every 3 hours and would cry until he fell back to sleep.

23After Caleb’s birth, Connor was working Monday, Wednesday and Friday and would stay home with Janessa to help care for the children on the days he was not working. Both parties would help care for the children and would spell each other off throughout the day to provide the other with some “down time” – Connor would play video games and Janessa would visit with her friend. Both parties would assist with the bedtime routine. At some point following Caleb’s birth, Connor was attending triOS college and working. He would work in the mornings from 7:30 a.m. to noon. He would spend time with the children during the afternoon as well as complete his homework assignments. He would leave for classes around 4:30 p.m. and return home at 10 p.m.

24Janessa testified Connor did little to assist with childcare when he was not at work or school.

Caleb’s Epilepsy

25In February 2015 Connor observed Caleb “spacing out” for 10 to 15 seconds at a time. On June 25, 2015 while in the care of Janessa, Caleb suffered his first grand mal seizure. He was immediately taken by ambulance to hospital and Janessa notified Connor. With the assistance of a social worker, the parties were able to agree to an access schedule during Caleb’s hospitalization. Caleb was discharged from hospital approximately two weeks later. He was diagnosed with epilepsy and prescribed medication. Shortly following his discharge, Caleb suffered cluster seizures and was readmitted to hospital where he stayed for another two weeks.

26An incident occurred between the parties the day prior to Caleb’s discharge during his second stay in hospital. Connor attended at the hospital at approximately 5 p.m. to spend the night with Caleb although he had earlier advised Janessa he was not attending. Despite Connor’s presence at the hospital, Janessa did not leave. Caleb’s dinner arrived and Janessa proceeded to chew his food for him. Connor was upset by this and the parties argued. Janessa advised the nursing staff of the court ordered access schedule (rather than the access schedule agreed to by the parties during Caleb’s hospital stay) and Connor was escorted from the hospital by hospital security. Following his discharge into the care of Janessa, the week-about parenting schedule was reinstated.

27Both parties attended an epilepsy information session offered by the Thames Valley Children’s Centre (“TVCC”). Both parties educated themselves on recognizing signs of an epileptic seizure and administering Caleb’s medication. Since July 2015, Caleb has not suffered a grand mal seizure.

28During his second stay in hospital and following his second grand mal seizure in July 2015, Caleb regressed in his physical development from 18 months to approximately six months of age. Upon discharge he was unable to chew food or walk. He began receiving occupational, physio, and speech therapy through TVCC which continues to this day.

Events of the Date of Separation

29On the day preceding the date of separation, Connor injured his back at work. The next morning he woke and took a bath to relieve the pain. Connor recalls that Caleb had been up frequently throughout the night and Janessa had dealt with Caleb and was exhausted that morning. During his bath, Janessa confronted Connor about her need for assistance with the children and they argued. Connor recalls both children crying. Connor says he calmed them down and placed them in their rooms.

30Connor says later that day Janessa returned home wanting to take a nap and asking Connor to watch the children. Connor refused and a physical altercation ensued. Connor alleges Janessa attempted to push him over the second floor railing and proceeded to scratch and punch him leaving marks and bruises on his skin. Janessa denies this. Janessa called the police. The police arrived and upon observing the bruises and scratch marks on Connor arrested Janessa. The charges were subsequently withdrawn.

CAS Involvement

31CAS became involved with the family on two occasions. The first was following the incident involving Caleb in October 2013. Trudy was the case worker assigned to their file. CAS was involved for approximately 3 to 4 months but after an investigation they closed their file having no protection concerns. CAS’ second involvement was in summer 2014. CAS had received an anonymous call complaining that the home was a pigsty and there was a lot of yelling between the parties.

32The parties met with Trudy in August 2015 following Caleb’s discharge from hospital to develop a family plan. Connor met again with Trudy in November 2015. Janessa refused to attend and advised Trudy she was of the view CAS involvement was no longer necessary.

Daycare and November 4, 2015 Incident

33In November 2015 Connor, without consultation with Janessa, enrolled the children in the Salvation Army Daycare Centre for the weeks they were in his care. Janessa contacted the daycare centre on November 3, 2015 inquiring about the children’s emergency pickup list and was advised that she was not listed as an approved emergency contact. Janessa was very upset with both the daycare and Connor.

34Coincidentally (or more likely, purposefully), the following day Janessa refused to drop the children at the exchange time to Patricia and insisted that Connor be present. Connor was at work. Patricia picked up Connor from work and attended at the Lewises’ condo at approximately 5 PM and parked the van on the street out front of the Lewises’ residence. Dan and Mike were on the front step smoking cigarettes. Janessa was playing with Lily on the front lawn and Denise and Caleb were inside the residence. Connor alleges Mike Lewis approached the van, blew cigarette smoke in his face and pushed him with his stomach against the side of the van. Mike, Denise, Dan and Janessa deny this occurred. However, all witnesses agree that tempers were flared and various heated exchanges took place between the persons in attendance on that day. Following this incident, Connor sought a peace bond against Mike. The court declined to issue a peace bond.

January 13, 2017 Incident

35During the trial, an incident took place between Mike and Janessa, on the one hand, and Abilene and Cody on the other. The parties left the courthouse and proceeded to their respective vehicles to return to their respective homes. Coincidentally (or more likely purposefully) Cody’s vehicle ended up behind Mike and Janessa’s vehicle on Ridout Street. Mike was driving and Janessa was in the passenger seat. Cody alleges Mike was repeatedly applying his brakes in an attempt to have Cody hit the rear of his vehicle. Mike alleges Cody was tailgating. Regardless, Cody followed Mike and Janessa to their residence whereupon he confronted them and an argument ensued. Once again, police were called to deal with this domestic incident.

Analysis

36This is an application for custody and access under the Children’s Law Reform Act⁵(the “CLRA”). Custody and access issues are resolved by determining the best interests of the children. Section 24 of the CLRA is a guide to conducting a “best interests” analysis.

37Section 24 of the CLRA provides as follows:

Merits of application for custody or access

24. (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).⁶

Best interests of child

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

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

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

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

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

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

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

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

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

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

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

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application⁷

Past conduct

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

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. ⁸

Violence and abuse

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

(a) his or her spouse;

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

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

(d) any child.⁹.

38The sole legal issue to be determined is the parenting arrangement which is in the best interests of the children.

39It is largely undisputed on the evidence that Janessa was the primary caregiver for the children prior to the date of separation. Aside from seasonal work in the year of Caleb’s birth, she had been unemployed outside the home since Lily’s birth in November 2012. While Connor assisted with childcare and household chores, work and school took him out of the home for extended periods of time each weekday.

40While Janessa suffered from post-partum psychosis shortly after Caleb’s birth, she voluntarily received psychiatric treatment and was prescribed medication which successfully negated her symptoms. She has not reported any symptoms of psychosis or depression since the Caleb incident. Any historical mental health issues do not affect her ability to care for Lily and Caleb.

41Of all the evidence provided during the trial addressing Connor’s ability to parent the children, Trudy’s evidence was the most compelling by virtue of her independence and objectivity. Her assessment of the parties and their respective abilities to parent the children and provide a positive home environment was provided in her professional capacity as a worker with CAS untainted by any personal relationship with either party. Moreover, the views of Trudy were prospective which is of assistance in this forward-looking endeavor.

42I do not doubt Connor was not as hands on to the same degree as Janessa while the parties were together. However, it does not follow that he remains detached and non-nurturing to this day. Consider the following evidence which establishes he has developed into a mature, responsible and loving parent to Caleb and Lily:

(a) he completed a parenting course as suggested by Trudy;

(b) he registered the children in soccer;

(c) he attended 2 epilepsy information sessions and has educated himself on symptoms and treatment of epilepsy;

(d) he enrolled the children in daycare on the recommendation of Trudy;

(e) he obtained his driver’s license to facilitate transportation of the children; and

(f) he is in a loving, committed relationship with Brittney with whom he shares a child and with whom he has created a child-centred home.

43Janessa submits that her care of Caleb is more beneficial for him than daycare. Her plan of care includes Caleb attending a literacy program offered weekly at Ealing PS to facilitate Caleb’s socialization. She undertakes to continue Caleb’s therapy through the TVCC. Janessa further submits that Lily would benefit from her care before and after school whereas Brittney would provide this same care while Connor is at work. Janessa claims that an order awarding her primary residence with primarily alternating weekend access to Connor would provide stability for the children and maximize the children’s time with both parents.

44I am not persuaded. Trudy testified that socialization is important for young children and is a proponent of daycare rather than homecare. In fact, had Janessa been successful in her search for employment she too would have enrolled the children in daycare. She claims to be “unemployable” because she has been out of the workforce for too long. Janessa is 26 years of age. It is highly unlikely she is “unemployable”. She is capable of working at least another 40 years should she seek out training and/or further education.

45In all likelihood, Caleb will attend public school full-time starting in September 2017 and will then lose any purported benefit of his mother’s primary care during the weekdays. Presently, the children are in Janessa’s care every other week, yet Janessa turns to her mother and Christine Turner for child care assistance during those weeks despite her unemployment. Janessa claims she wants the children to enjoy the stability of sleeping in their own beds in her residence on a consistent and regular basis rather than changing their sleeping routine weekly as is the situation now. However, her mother testified that, should Janessa be awarded primary residence, she intends to purchase bunk beds for the children to use for overnight visits. It was not made clear the reason the children would require overnight visits with their grandparents who live mere steps from their mother’s residence in circumstances where Janessa is advocating for consistency in their sleeping arrangements.

46Last, Janessa is due to give birth in June 2017. I anticipate that, although a joyful event, the addition of a newborn to the family unit will be stressful for Janessa particularly in the circumstances - both of her parents work full-time, the father does not reside with her and she has a history of post-partum psychosis (or at a minimum depression). To entrust Janessa with the primary care and residence of Lily and Caleb will likely prove overwhelming for Janessa.

47Many incidents of conflict as described above were explored during the trial. However, this evidence is largely unhelpful for purposes of deciding a parenting arrangement which is in the best interests of the children. Pointing to incidents which pre-date separation or which occurred years ago, is not helpful. In fact, s. 24(3)(b) of the CLRA mandates that the court shall not take into account the past conduct of a party unless that conduct is relevant to the ability of that person to parent the child.

48It would serve no useful purpose to assess all of the evidence and where it diverges make findings of credibility. To a large extent, the evidence presents as a classic case of “he said, she said”. I suspect the truth lies somewhere in the middle as it typically does in domestic disputes. However, the undisputed evidence establishes that:

(a) Since the shared parenting arrangement was put in place on October 22, 2014¹⁰, the children have thrived in the care of both parties;

(b) There is no evidence of domestic violence in the home of either party;

(c) Both parties deeply love Lily and Caleb;

(d) Each party provides the children with recreational and educational opportunities;

(e) Both parties provide a stable, loving and safe home environment for the children CAS has no protection concerns with regards to the children;

(f) Neither party has physically abused the children or either of them;

(g) Both parties have positive family supports to assist with childcare and transportation, in the case of Janessa;

(h) Both parties have endeavoured to educate themselves with respect to Caleb’s epilepsy both with regards to identifying symptoms of seizure activity and administering medication; and

(i) There is no evidence of drug or alcohol abuse or dependency by either party.

49Despite their obvious hostility towards one another, the parties have managed to agree on:

• changes to the location where the children are exchanged;

• a revised access schedule while Caleb was hospitalized;

• enrolment of Caleb in Aberdeen PS, once eligible;

• two interim orders providing for shared and equal parenting;

• a final order addressing all property issues;

• joint custody; and

• payment of child support by Connor.

50Counsel for the applicant provided me with the Ontario Court of Appeal decisions in Kaplanis v. Kaplanis¹¹and Ladisa v. Ladisa.¹² In both cases, the trial judge’s order of joint custody was in issue. Here, the parties have agreed they shall share joint custody of the children. As such, these decisions are not particularly helpful to my task with respect to the issue of primary residence. However, the court noted in Kaplanis that interim orders made prior to trial and how those orders have worked is a relevant consideration for the trial judge.

51For in excess of two years, the parties, on their agreement, have enjoyed equal parenting time with the children. Since April 15, 2015, a period of some 21 months, the parties have shared parenting of the children on a week about basis. Week about parenting is the status quo. On balance, the status quo is working well. There is no basis on which to disrupt the status quo. The status quo remains in the best interests of the children and shall continue on a final basis.

52As between the parents, both parties readily acknowledge and many witnesses testified to their highly volatile and high-conflict relationship both before and following separation. As is typical (though inexcusable), from time to time, the children have been manipulated by each parent in an attempt to hurt the other. Both parties are to blame. The opportunities for exposure of the children to conflict must be reduced and preferably eliminated altogether. The latter is unlikely. However, to reduce the opportunity for conflict all non-school day exchanges shall take place at a public location - the Tim Horton coffee shop located on the northwest corner of Adelaide and Huron Streets in the city of London or such other public venue as the parties may agree.

Disposition

53A final order shall issue as follows:

1. The Applicant, Connor James Pigott (the “father”), and the Respondent, Janessa Helen Lewis (the “mother” and together with the father, the “parties”), shall share joint custody of the children of the marriage, Lillian Emily Mary Pigott born November 22, 2012 (“Lily”) and Caleb James Stewart Pigott (“Caleb”) born October 12, 2013.

2. The children shall be with the father and mother on a week-about basis from Monday after school or 4 p.m. if there is no school to the following Monday at the commencement of school or 9 a.m. if there is no school.

3. Until such time as Caleb commences school, the non-access parent shall have access with Caleb from 10 a.m. to 4 p.m. on Wednesday of each week.

4. The children shall be in the care of the parties during holiday and vacation periods as follows, which shall supersede the regular schedule set out in paragraphs 2 and 3 above:

(a) in alternating years with the father from December 24, at 4 p.m. to December 25 at 1 p.m. and with the mother for Christmas from December 25 1 p.m. to December 26 at 4 p.m. Commencing 2016 the children shall be with the father from Christmas Eve to Christmas Day and in 2017 the children shall be with the respondent from Christmas Eve to Christmas Day;

(b) Easter weekend from Thursday at 4 p.m. to Monday at 7 p.m. alternating between the parties each year. Starting Easter, 2017 the children shall be with the father on Easter weekend and each odd-numbered year thereafter. Starting Easter 2018 the children shall be with the mother on Easter weekend and each even-numbered year thereafter.

(c) New Year’s shall be from December 31 at 6 p.m. to January 1 at 6 p.m. New Year’s shall alternate between the parties and commencing December 31, 2016 the children shall be with the mother on New Year’s and every even-numbered year thereafter. The children shall be with the father for New Year’s in every odd-numbered year starting December 31, 2017.

(d) Family Day and Thanksgiving shall be from Sunday at 4 p.m. to Monday at 4 p.m. And shall alternate between the parties on an annual basis with the mother having the children on Family Day and Thanksgiving in 2017 and odd-numbered years thereafter and the father having the children for Family Day and Thanksgiving in 2018 and even-numbered years thereafter.

(e) The parties shall alternate annually having the children for the London Santa Claus parade and Halloween with the father having the children on Halloween from 4 p.m. to 9 p.m. and the evening of the Santa Claus parade from 4 p.m. to 8:30 p.m. commencing in 2017 and every odd-numbered year thereafter and the mother having the children for these same holidays commencing in 2018 and every even-numbered years thereafter;

(f) the children shall be with the mother on Mother’s Day of each year from 10 a.m. to 6 p.m.;

(g) the children shall be with the father on Father’s Day of each year from 10 a.m. to 6 p.m.;

(h) the mother and the father shall each have the children for two consecutive weeks in each of July and August. The father shall have the children during the first two weeks of July and the first two weeks of August and the mother shall have the children during the last two weeks of July and the last two weeks of August.

(i) The parties shall alternate March Break on an annual basis with the children being with the mother during March Break 2017 and in all odd-numbered years thereafter and with the children being with the father during March Break commencing in 2018 and all even-numbered years thereafter.

5. With respect to the children’s transition between the parties, the children shall be picked up or dropped off, as the case may be, directly at school and when not in school or with respect to Caleb’s access on Wednesdays, the children or Caleb, respectively, shall be exchanged at the Tim Horton’s coffee shop located at Adelaide and Huron Streets, or such other public venue as the parties may agree.

6. In the event special opportunities for the children or either of them arise, or when unusual situations for either of the parties occur in relation to access, neither party shall unreasonably insist on strict adherence to the foregoing shared parenting arrangement. Instead the parties shall cooperate in making reasonable alternative arrangements to ensure that the best interests of the children prevail.

7. Both parties shall be entitled to attend activities, special events and extracurricular activities in which the children are involved provided that at all times the parties shall behave in such a manner so as to ensure the children are not exposed to adult conflict or hostility and both parties shall facilitate contact between the children and the other parent.

8. Each party shall provide 72 hours advance notice of all appointments for the children including without limitation all medical and dental appointments. Both parties are entitled to attend all such appointments and consult with all medical and other service providers with regards to the children.

9. Each party shall encourage the children to have a positive, respectful attitude toward the other party, and the other party’s family and friends. Neither party shall allow the children to be exposed to any negative comments about the other party, or the other party’s family and friends.

10. The parties shall ensure that the children’s Health Cards, Birth Certificates, Social Insurance Cards and Passports (once obtained) accompany the children at each weekly exchange and the party having possession of such documentation shall, upon all reasonable requests, make such documentation available to the other party.

11. If either party makes travel plans with the children outside Canada the other party shall release the passports for the children to such party and sign all necessary consent documentation to permit the children to accompany that parent outside Canada and such consent shall not be unreasonably withheld. The travelling party shall provide to the other party all details of the trip including but not limited to, a detailed travel itinerary with dates, times and specific details regarding accommodations, and contact information, which information shall be provided to the other parent at least 30 days before the proposed travel.

12. Both parties shall be entitled to be fully advised of the children’s school progress, (including the right to have direct communication with all school authorities and to receive copies of report cards and notices of school events) and to be advised by the other party regarding the health and general welfare of the children while in their care and both parties are entitled to obtain information directly from all medical and educational third-party service providers. In the event that any consent is required, each party shall provide such consent forthwith authorizing the release of information to the other party.

13. The parties shall confer with each other on all important matters relating to the children’s health, residence, education, religious training and upbringing and shall communicate with respect to such matters through text messaging or email. All such communications shall be civil in tone, child-focused and the parties shall refrain from criticizing the other party in any manner whatsoever.

14. Both parties acknowledge and appreciate the benefit of the services being provided to Caleb by Thames Valley Children Services and each party shall ensure Caleb’s attendance and availability for such services for so long as the services remain available and recommended for Caleb.

15. It is contemplated that the children shall continue to reside in London Ontario. Each party shall not change their respective residence to a location outside London Ontario without first providing the other party with three months advance notice and obtaining the consent of the other party or a court order authorizing such a move.

16. The children shall be enrolled at Aberdeen Public School.

17. The father shall pay to the mother support for the children in accordance with section 3 of the Child Support Guidelines in the amount of $256 per month commencing February 1, 2017 based on annual income of $17,000.

18. The father shall pay his proportionate share of the special and/or extraordinary expenses of the children, as provided for in s. 7 of the Child Support Guidelines. Based on current circumstances, there are no special or extraordinary expenses, and the income of the parties for the purposes of apportionment under s. 7 of the Child Support Guidelines is:

(a) the father, $17,000; and

(b) the mother, nil.

19. The father shall maintain the children as the beneficiaries of his medical, extended health and dental benefits, available to him through his employment, for so long as they are available, and the parties are eligible.

20. The father shall reimburse the mother for all amounts the father receives from his benefit provider, for expenses incurred by the father, for the benefit of the children, within five days of the father’s receipt thereof.

21. The father shall irrevocably designate and maintain as trustee for the benefit of his children, including Lily and Caleb, any life insurance policy or policies in which he owns, or has an interest in, as security for his children’s support.

22. Unless this order is withdrawn from the Director’s Office of the Family Responsibility Office, it shall be enforced by the Director and the amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.

23. For as long as child support is to be paid, the payor and recipient, if applicable, must provide updated income disclosure to the other party each year, within 30 days of the anniversary of this order, in accordance with s. 24.1 of the Child Support Guidelines.

24. This order bears post-judgment interest at the rate of ____ percent per year, effective from the date of this order. Where there is a default in payment, the payment in default shall bear interest only from the date of the default.

Costs

54The parties are encouraged to resolve the issue of costs. If an agreement on costs cannot be reached, the parties shall file written submissions, not exceeding 5 pages in length in accordance with the following timeline:

a. The applicant shall serve and file his submissions within 21 days;

b. The respondent shall serve and file her submissions within 14 days of receipt of the applicant’s cost submissions; and

c. Any reply submissions shall be served and filed within 7 days thereafter.

Footnotes

1. 1Order of Justice Templeton dated October 22, 2014.
2. 2Order of Justice Heeney dated April 15, 2015.
3. 3Order of Justice Mitrow dated June 26, 2016.
4. 4At trial, there was a dispute as to whether Dan and the respondent reside together. Janessa and Dan both testified they do not live together. Cody Newby (“Cody”) and Abilene Newby (“Abilene”), Dan’s son and daughter, respectively, both testified Dan and Janessa live together. The evidence supports a finding that Dan is a positive influence in the lives of Lily and Caleb. He has a dated single criminal conviction for common assault. He and Janessa have a close and loving relationship. Accordingly, I need not determine the residency of Dan for purposes of resolving the issue in this trial.
5. 5R.S.O. 1990, c. C-12.
6. 62006, c. 1, s. 3 (1).
7. 72006, c. 1, s. 3 (1); 2009, c. 11, s. 10.
8. 82006, c. 1, s. 3 (1).
9. 9Ibid.
10. 10Pursuant to the order of the Honourable Justice Templeton dated October 22, 2014.
11. 112005 1625.
12. 122005 1627.