CITATION: J.B.-M. v. C.B.-M. 2017 ONSC 7081

OSHAWA COURT FILE NO.: FC-16-1901

DATE: 20171208

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

J.B.-M. Applicant

– and –

C.B.-M. Respondent

Unrepresented

Unrepresented

HEARD: November 23 and 24, 2017

Reasons for Decision

JARVIS J.:

[1] The applicant/father (“the father”) and the respondent/mother (“the mother”) each claims sole custody of, and child support for, C. B-M., a boy almost five years old at the time of trial. The child has resided with the father since the parties last cohabited in mid-October 2016. On February 27, 2017, Hughes, J. made an Order requesting the involvement of the Office of the Children’s Lawyer. A s. 112 investigation pursuant to the Courts of Justice Act was undertaken and a report made (“the OCL report”). That report recommends that sole custody of C. B-M. be granted to the mother. The father disputes that recommendation. He is unemployed, and resides with his mother: the mother is employed and resides with her fiancé.

[2] Each of the parties testified. The father also called his girlfriend as a witness. The mother called her fiancé and the clinical investigator who authored the OCL report. Despite the parties obvious animosity to each other, there was remarkably little conflict in their evidence. Most contentious were the circumstances surrounding their final separation, the inferences to be drawn about each party’s behaviour, and how the child’s best interests were, and could in future be, affected.

Evidence

[3] The parties began residing together mid-2008. The father had been in a prior relationship and had a child of that relationship who lived with the child’s mother. The parties married in June 2010, then separated for a period of time in 2012. Both worked. During their separation, the mother became pregnant with C. B-M. In late 2012 the parties reconciled. C. B-M. was born on […], 2013.

[4] In mid-January 2013, the mother and the child’s birth father agreed that the latter would have no involvement with C. B-M. with no financial responsibility. The child was given the surname of the father in this case and was raised as both parties’ child. There has never been an adoption Order made.

[5] After C. B-M.’s birth, the father was the primary breadwinner for the family and the mother undertook primary care of the child and managing the household. In December 2014, she obtained a part-time job in the hospitality service industry in which she had worked before C. B-M. was born. She testified that she had become unhappy in the parties’ relationship and that she was emotionally and physically abused by the father, which conduct he denies. She needed a job in order to be able to provide for the child and herself.

[6] In January 2015, the mother told the father that she wanted to separate. She began working full-time. The parties continued to live in their matrimonial home until June 2015. During that time they shared parenting duties with the mother assuming daytime care of the child while the father worked, and he the nighttime care when she was working, although the mother maintains that the father was much lesser involved in the child’s overall care than she.

[7] On March 29, 2015 the parties handwrote an agreement which they signed. No lawyers were involved. Although the agreement was silent with respect to the child’s custody, it was clear that C. B-M. would reside with his mother because the agreement provided that the father would pay child support and that C. B-M. would spend alternating weekends with his father “…and a couple of days each week; a more detailed agreement can be drawn up at a later date”. In addition to provisions dividing their chattels and dealing with payment of household bills, the parties agreed that the “…ownership of the Dodge Journey will be put into C.B.-M.’s name”. A few months later, around the time when the parties were physically separating and the mother and C. B-M. moving elsewhere, the father wrote and signed the following note,

“I, J.B.-M., hereby declare C.B.-M. a great mother and will not take her to court for custody other then [sic] the agreed upon. I also sign my 2009 Red dodge Journey to her without question[^1]. Should she choose to leave I will not slander or force otherwise.”

J.B.-M..

[8] C. B-M. resided in his mother’s primary care from June 2015 to June 2016. He resided with his father on alternate weekends and overnights two nights a week on alternating weeks. The mother made appropriate childcare arrangements and advanced to a managerial position where she worked.

[9] In June 2016, the father began living at the mother’s residence. This was a difficult time for both parties. The father had lost his job and was unable to afford his own accommodations. The mother’s step-father, to whom she was very close, was terminally ill, hospitalized and would soon die in early July. Around this time the mother had begun experimenting with street drugs.

[10] The mother was not interested in a reconciliation. She slept on a couch in her home while the father slept in the master bedroom. Except for some modest financial assistance, the father was not contributing to the household expenses. He wanted a reconciliation though. It is clear from the text messages which the parties exchanged that by mid-August 2016, the mother wanted the father to leave her residence, a request which she made on numerous occasions. The atmosphere in the home was “toxic” according to the mother: she began to abuse drugs and alcohol. She was depressed, felt trapped and even expressed suicidal thoughts. The father insisted that the parties reconcile or that he would take the child and move sufficiently far away that the mother would rarely be able to see C. B-M.

[11] On or about October 11, 2016, the father left the mother’s residence for his own parent’s home, taking the child with him. He took the Dodge truck which the mother needed for work and whose ownership had never been transferred to her. He also took her set of its’ keys. The father left the mother with over $3,000 in outstanding cell phone charges which he had incurred on her account since he wasn’t able to afford his own mobile phone. Despite repeated, desperate pleas from the mother, the father either did not permit, certainly he did not facilitate, any contact between the child and his mother.

[12] The mother went to the paternal grandparent’s residence. The father refused to allow her to take C. B-M. The police were called. When the child was not returned to her care, the mother contacted the Children’s Aid Society of Durham Region (“DCAS”)[^2]. Substance abuse and mental health concerns were noted by the DCAS records filed in evidence as was the child’s exposure to adult verbal conflict.

[13] On November 6, 2016, the father started these proceedings.

[14] The following procedural steps are relevant:

(a) on November 18, 2016, the mother brought a motion without notice to the father asking that she be awarded temporary custody of C. B-M. This motion was dismissed by McLeod J. as lacking sufficient evidence of urgency;

(b) on December 22, 2016, the mother brought a further motion for, among other things, temporary custody of C. B-M. No case conference had been held. Rowsell J. dismissed the motion but ordered that C. B-M. not be removed from the Province of Ontario or his residence changed from the City of Oshawa. The endorsement made suggested that the father “would be wise to make arrangements for supervised access”. The parties afterwards agreed that the mother have supervised access on alternating weekends and each alternating Tuesday to Thursday. This meant that the child would not see his mother for about 8 days between access periods;

(c) a case conference was held on January 25, 2017, by Fryer, J. Directions were given with respect to a motion to be brought by the mother dealing with the child’s custody and access;

(d) on February 27, 2017, Hughes, J. made an Order requesting the involvement of the Office of the Children’s Lawyer (“the OCL”) and continuing the mother’s supervised access. The child’s primary care was ordered to remain with the father;

(e) a clinical investigator (Ms. Chris Calley Jones) was assigned to this matter on April 20, 2017. Her report was completed on August 18, 2017 and circulated to the parties;

(f) a settlement conference was scheduled to proceed on September 12, 2017, but was adjourned by Fryer J. to January 29, 2018, because the lawyer for the mother (who was then represented) was unavailable;

(g) the mother renewed her motion for temporary custody. On October 5, 2017, Rowsell J. vacated the January 2018 settlement conference date, directed that a combined settlement/trial management conference take place on October 26, 2017, and that this trial proceed during the November 20, 2017 sittings of the court.

[15] The father testified that after leaving the mother’s residence with C. B-M., he went to live with his mother. He was unemployed, last working around June or July, 2017 as an ironworker. He had no automobile as the Dodge truck was no longer operable (it had been scrapped), and he decided that he would await the outcome of these proceedings instead of seeking new employment. The father doubted that any employer would hire him if he had to take time off work for court purposes. He said that his union would help him find employment, and that he was prepared to commute by GO Train if needed. Once employed, he planned to obtain accommodation near his parent’s residence – his mother would assist in delivering the child to and from school. The father was receiving Ontario Works and some financial assistance from his parents. He had not paid support for the child from his prior relationship since July/August 2017. He also acknowledged using non-prescribed opioids (“street drugs”) to supplement his prescribed medication for pain complaints.

[16] In his mother’s home, the father shared a bunk-bedroom with C. B-M., the child usually sleeping with him, especially when the father’s son from his prior relationship spent time with him. The father said that C. B-M. was doing well at school (he had started Junior Kindergarten in September 2017), and was happy. Shawna Nelson, who had met the father and C. B-M. in May 2017, and was the father’s girlfriend, testified that the child was smart, happy and had what she observed was a close relationship with his father. She never witnessed any abuse or the father bad-mouthing the mother.

[17] The father said that he made no effort to facilitate contact between the child and his mother for almost two and a half months after he left her residence because the child did not want to see her. In response to her unsuccessful pleas to see C. B-M. he sent her a few mobile phone photographs of the child. After these proceedings were started the father dismissed the mother’s evidence about her sobriety efforts and the steps which she had taken to deal with her substance abuse issues: he maintained at trial that the mother was unfit and was unwilling to change. He was concerned that she would revert to the behaviour which she had demonstrated in the several months before he left her house if she was awarded custody.

[18] The father proposed that he be awarded sole custody of C. B-M. In his Application, he requested that no access be granted to the mother due to her drug and alcohol abuse problem. At trial he saw no need to change the child’s then current alternating weekend and weekday unsupervised access with his mother.

[19] The mother testified that until the father began to live in her house there was never any complaint or concern about her parental fitness. She did not wish a reconciliation (she was seeing someone else at the time) but she was concerned that the child’s relationship with his father would be damaged if contact was interrupted and the father homeless. She was experimenting with street drugs. At roughly the same time, her step-father was dying. His death in early July profoundly affected her.

[20] The mother described the atmosphere in her home as increasingly tense, “toxic”. The father wanted a reconciliation, which she did not; there were daily arguments. He was contributing little, if anything, to the expenses of her household and he was using, without contributing to the payment of, her mobile phone account. The father resisted the mother’s repeated requests to leave her home. He wanted a reconciliation and insisted on taking the child with him if that didn’t happen.

[21] The mother was distraught after the father took C. B-M. and he refused to let the child see her. He also took the truck which he had earlier agreed was hers. It was not until the parties attended court on December 22, 2016, that they agreed that the mother could have supervised access to the child, despite no Order then being made. That was the best she could negotiate.

[22] The mother did not work between late December 2016 and April 2017, when she obtained employment with a local restaurant chain serving pub-style family food. Beginning in February 2017, she undertook random drug screens which tested positive for cigarettes and marijuana, for which she had a medical exemption for anxiety purposes. These screens continued until shortly before trial. The DCAS reported that the mother had been co-operative with the Society throughout its involvement, was attending counselling and that the Society did not oppose the child having unsupervised contact/care with her. On October 5, 2017, the parties agreed that the child’s access with his mother would no longer be supervised. On November 6, 2017, the John Howard Society of Durham Region certified that the mother had successfully completed an Adult Anger Management course, for which she paid.

[23] The mother described her current residence as comprising a three-bedroom home in a quiet family-friendly neighbourhood. She lived there with her fiancé (Gregory Cave) with whom she had been cohabiting since December 2016. Mr. Cave had a daughter from a prior relationship who primarily resided with her mother and who enjoyed regular access with him. The mother and Mr. Cave had co-ordinated weekends so that C. B-M. and Mr. Cave’s child shared the same weekend. Mr. Cave testified that their residence shared was clean, happy and that there was a strong child/parent bond. The mother often read to, and played with, the child and was attentive to all of his needs.

[24] The mother proposed that she be awarded sole custody and that the father have alternating weekends and alternating weeknight access similar to the schedule which existed before the 2016 summer.

[25] Three recent incidents involving the child are noteworthy:

(a) on July 11, 2017, the mother took the child to a dentist. There was extensive tooth decay noted. The DCAS supported the child’s referral for dental care. The father told the mother that if the child was administered drugs at the dentist’s offices without his consent first being obtained then he would report the mother to the police. There was no evidence from the father about his efforts to initiate contact, or follow-up, with the dentist before, during or afterwards. The mother paid $310 for the child’s dental assessment and expected to incur a further $986 for treatment. The father did not offer to contribute to these expenses or make any arrangement for their payment;

(b) on July 19, 2017 the mother reported that she noticed red bumps over much of the child’s body after picking him up from the father. At first she thought they were chicken pox but the child’s condition did not improve after his weekend with his mother. These were brought to the father’s attention. When the child was with the mother a week later she took him to a doctor, who diagnosed bed bug bites. The father had not taken any steps to treat the child before then and disclaimed any suggestion that he had neglected to appropriately deal with the child’s presentation;

(c) the child began attending junior kindergarten in September 2017. The father asked the school to ensure that the mother was not on the approved pick-up list.

[26] There was also evidence that once an Order was made which, in effect, left C. B-M. in his father’s care he was taken out of daycare and his swimming lessons by the father. The child’s extracurricular activities were allowed to lapse.

OCL

[27] Chris Calley Jones is a Social Worker who has worked with the Office of the Children’s Lawyer since 2009 as a clinical investigator. Since then, she has completed about 120 court-ordered reports. On April 20, 2017, Ms. Calley Jones was assigned to investigate and report on all matters concerning the custody of, and access to, C. B-M., and to make recommendations. Her report was completed on August 18, 2017, and it recommended that the mother be granted sole custody.

[28] The OCL report was marked as Exhibit 2 in these proceedings. It detailed the background particulars of the parties, the investigator’s survey of the situation, her interviews of the parties (which involved sections on each party’s personal history, marital and co-parenting relationship, parenting strengths and proposed parenting plans), observations of each parent with C. B-M., interviews of the child, a discussion and analysis of the information obtained and, finally, recommendations to the court. The investigator also collected collateral information which, among other things, involved contacting an addictions centre where the mother received counselling and which reported favourably about the mother, criminal information checks on the parents (these were negative), the DCAS, Family Services Durham, the parties’ grandmothers and Mr. Cave. The father disputed several of the report’s findings and criticized the approach taken by the investigator as unprofessional and biased.

[29] Ms. Calley Jones testified.

[30] In making her recommendation that the mother be granted sole custody, Ms. Calley Jones explained that her reasons involved:

(a) the father’s admission that the mother was the primary parent, “a great parent”, prior to the period of her drug use;

(b) the mother’s availability to care for C. B-M. which, unlike the father, did not rely on third parties (such as his mother, or girlfriend);

(c) the mother’s support of the child’s involvement with the father even if he wasn’t the child’s biological father, which contrasted with the father’s failure to facilitate access between the child and his mother for almost three months, despite the mother’s repeated efforts;

(d) the father’s refusal to acknowledge the child’s wishes to spend more time with his mother, and the father’s rejection of any basis for what Ms. Calley Jones described was, in her view, C. B-M.’s separation anxiety from his mother;

(e) the mother’s overall stability compared to the father’s lack of employment and future residential stability.

[31] Ms. Calley Jones thought that the mother demonstrated “effective and attuned parenting”.

My recommendation regarding sole custody was based on C.B.-M.’s history as primary parent to [C. B-M.] Her demonstration of proactive parenting, her availability and ability to care for [C. B-M.] Her support of J.B.-M.’s involvement in [C. B-M.’s] life. The collateral evidence of her sobriety. And, her parenting plan seems solid and reasonable. And, that J.B.-M.and C.B.-M. are not able to communicate effectively, for example, the dental issue that [C. B-M.] could be left without proper care if two parents can’t make a decision.

[32] In cross-examination, Ms. Calley Jones expanded on why the mother’s parenting plan was preferable to the father’s plan.

…in making my recommendations I consider parenting plans. So, I look some of what’s happened in the past, as far as there’s any evidence for that, some of what’s happening now, and what is going to impact [the child.] over the longer term. And so when I look at a parenting plan I look at are the parents stable, do they have a plan for who they’re going to live with, and where they’re going to live, and who’s going to take care of the child, and what school are they are going to go to, and that sort of thing…[I]n this case C.B.-M. had a solid parenting plan, whereas your parenting plan…was vague. It was reliant on your mom to take care of him. You couldn’t have A. [the father’s non-biological child from his prior relationship] because you, this is what you told me, you couldn’t have A. because you couldn’t get him to school in the mornings and you – so, if you were going to rely on your mom, you were at some point maybe going to move in with this girlfriend, who at that point was very new, and she would help take care of him…And your plan did not centre on your ability to care but on pulling other people in. And also when I spoke to your mother, she had expressed concern about, she was kind of hoping to move you on sooner rather than later, as I imagine many parents of adult children living at home want to do and…she expressed concern about your stability as well that you’d… lost jobs, you’d lost vehicles and, during the time I knew you, you had, I think you lost your vehicle. It got impounded or something or you couldn’t pay it. So you lost your vehicle and and then you couldn’t go to work because you didn’t have your vehicle and you talked about not being able to get a job because you can’t get a job without a vehicle so it was kind of this Catch-22.

[33] Ms. Calley Jones’ recommendations dealing with the child’s parenting were comprehensive. She recommended that the father’s access revert to what it had been before the events of mid-summer 2016 and addressed what she felt were needed safeguards for the child’s welfare, such as drug screening for the father, continued counselling and possible therapy for the mother, the child’s healthcare and the parties’ mode of communication.

Credibility

[34] While each party challenged the other’s credibility – and the father challenged the integrity of the OCL report – their dispute was not so much about the facts as it was about the parenting inferences to be drawn from them. The father’s evidence about the mother focused on the brief three to four month period in mid to late 2016, when he lived at her home. He contended that the mother’s behaviour disqualified her from having custody of C. B-M. and that it was likely that she would revert to the behaviour which she had demonstrated then. By contrast, the mother’s evidence more comprehensively dealt with the parties’ historical care of the child, and the circumstances which had led to her parenting breakdown. The mother took full responsibility for her substance abuse and had taken steps to ensure that would not recur.

[35] Assessing credibility is not a science. Many cases have catalogued the factors which courts consider when determining the trustworthiness of witness testimony[^3]. Where the dispute though is less about facts than about how a parent has acted, and will reliably act, in a child’s best interests, the court should consider (as a minimum) the consistency between the parent’s conduct and their testimony; the parent’s insight about how the child was affected by breakdown in the parent’s relationship; the parent’s support or encouragement of the child’s relationship with the other parent; and, the degree to which the parent is prepared to acknowledge the parenting abilities of the other parent even if that should involve good parenting.

[36] This list is not exhaustive, nor is it in any particular order. In this case, a number of conclusions may be drawn from the evidence:

(a) as noted by the investigator and disclosed in evidence, the father’ evidence was often inconsistent. For example, he claimed that he had been a primary caregiver for the child historically in spite of working up to 16 hours a day. He expressed repeated concern about the mother’s substance abuse but justified his use of street drugs beyond those prescribed by his physician as needed to deal with pain complaints;

(b) the father lacked insight about the impact on the child of being removed from his mother’s primary care, and the child’s separation anxiety. His evidence was that since he loved C. B-M., and no one had accused him of abuse, then there was no reason to remove the child from his care. He discounted the child’s separation anxiety as observed and recorded by Ms. Calley Jones. There was no evidence that even after that concern was brought to his attention, he either took it seriously or took steps to address that concern – other than baldly criticizing the investigator’s professionalism;

(c) the father took active steps to discourage or undermine the child’s relationship with his mother. He prevented the child from seeing her for almost three months after he left her residence, taunted her with mobile phone pictures of the child during that time and, even after he was in possession of the OCL report, he refused to authorize the mother to pick up the child from school;

(d) the father focused on the mid-2016 period as disqualifying the mother as a custodial parent. He was not prepared to acknowledge that she had taken steps to successfully deal with what she maintained, and this court accepts, was her short-term substance abuse and mental health issues even though there was evidence of those efforts shortly after he started these proceedings, continuing through to trial, and confirmed by the DCAS;

(e) the father never acknowledged his contributory role in, or accepted responsibility for, the parties living circumstances in mid-2016. He blamed everything on the mother, selectively referencing in his evidence communications between the parties taken out of chronological order. The mother’s evidence, more so than the father’s, placed events in a more comprehensible context, even where they did not cast her in a favourable light.

[37] Taking into account the forgoing, the mother’s evidence and credibility is to be preferred to that of the father where there is any conflict. She took responsibility for her behaviour, took pro-active steps to deal with her substance abuse and any parenting concerns and impressed the court with her insight and perseverance. While the father may have initially acted in what he thought was the child’s best interests, he ignored the historical primacy of the mother’s care of the child and unreasonably rejected the evidence of the mother, the DCAS and the OCL about her.

Analysis

Custody

[38] Sections 24 (1) and (2) of the Children’s Law Reform Act governing matters involving custody of or access to a child are relevant:

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

Best interests of 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, including a parent or grandparent, 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) any familial relationship between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10; 2016, c. 23, s. 7 (1, 2); 2016, c. 28, s. 2

[39] C. B-M.’s best interests shall be considered in the statutory framework.

(a) The child’s love, affection and emotional ties with his parents, extended family members and caregivers.

[40] Both parties reported, as did their witnesses and the investigator, the child’s physical affection with both parents. The investigator noted the paternal grandmother’s significant parenting role, and a more limited role by the father.

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

[41] The investigator testified that the child said that both of his parents loved him. She observed and recorded that child and his father enjoyed each other’s company and had a playful relationship. But she also noted the child’s “repeated references to his mother” and that these “signified some longing” to be with her. The child was clear and consistent in the clinician’s interviews that the child missed his mother. The OCL report noted that the child reported to the investigator that his favourite place to wake was his mother’s house.

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

[42] The child has lived slightly more of his life in the mother’s primary care. He lived with both of his parents after birth until they separated in mid-2015 then solely with his mother until the father began residing with them in July 2016. The father has had the child in his care since mid-October 2016 and during these proceedings. Although the actual allocation of the child’s residency between the parents is almost equivalent, the mother has maintained a more stable and sustainable home environment than the father. While the father disputes that he was evicted from where he was living in June 2016, the fact is (as he acknowledged) that he was unemployed and in light of his living with his parents, at his girlfriend’s residence or, possibly, somewhere else in future, he has lived a nomadic existence. The investigator reported that the paternal grandmother “was kind of hoping to move [the father] on sooner or later”. Her report noted that the father’s “time living in the family home [was] limited” according to his mother.

The mother testified that a major reason for her choice of neighbourhood involved the nearby school.

(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.

[43] The mother impressed the court with the initiatives which she had taken to improve herself both therapeutically and vocationally, rising to a responsible managerial position before the events of mid-2016. Her evidence and that of the investigator and Mr. Cave indicated a more robust parental involvement with the day-to day attention to, and involvement in, the child’s activities. The investigator testified that she was concerned that when the father “took over care of [the child] he let his activities lapse. And [the father] said the only time [C. B-M.] really left the house was when [the father] took him somewhere”. The father, unlike the mother, was significantly reliant on third parties for the necessaries of life.

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

[44] The father lacked any clear plan about living independently of his parents nor had he adequately explored how he would be able to house, clothe and feed the child. The mother shared a residence with her fiancé in a family-oriented neighbourhood near the child’s proposed school.

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

[45] The father resides with his parents who, in the case of his mother, wish him to establish his own residence elsewhere. Since June 2016 the father has not had to assume any responsibility for his own accommodation. Without any reasonable efforts to find, or realistic plans for, employment the father has not demonstrated any permanence or family unit stability preferable to what the mother has shown which would be in the child’s best interests. Reliance on third parties such as his parents or girlfriend, which is all that the father can propose at this time, is a poor and unsatisfactory excuse for the father’s inattention to the child’s long term stability needs. The mother resides in a home in a family-friendly neighbourhood with her fiancé, has steady and remunerative employment.

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

[46] Of concern to the court was the father’s discontinuance of the child’s extracurricular activities and his position about the child’s dental needs. As regards the latter, the father’s focus seemed to the court to be more about his need to exert control over the mother than any real appreciation for the child’s dental health. The DCAS fully supported the mother. The investigator also expressed concern about the need for a sole arbiter, in this case the mother, to deal with the child’s healthcare needs. The court agrees.

[47] Equally perplexing was the father’s failure or refusal to more sensibly facilitate and expand the child’s contact with his mother, not only after he left her residence in mid-2016 but also afterward following his receipt of the OCL report. His refusal to authorize the mother to pick up the child from school was unreasonable. It is the view of this court that the mother will act more responsibly than the father and more than him support a relationship between the child and parent.

(h) Any familial relationship between the child and each person who is a party to the application.

[48] The father has demonstrated a settled intention to treat the child as his child. No person other than the biological mother is a party to the application.

Support

[49] Although child support was a trial issue, and directions were given with respect to the filing of financial statements, only the mother complied. There was no financial statement from the father. Based on the evidence, it is not unreasonable to assume that he has no assets, possibly some debt, and no income beyond what he receives from an Ontario Works (and some financial assistance from his parents). There was no evidence that he is disabled – in fact, his evidence was that he had chosen not to seek out employment pending the outcome of these proceedings.

[50] Section 19(1) (a) of the Ontario Child Support Guidelines (“CSG (Ont.)”)permits a court to impute “such amount of income to a parent… as it considers appropriate…” including where “the parent… is intentionally unemployed…” The evidence in this case is that the father is intentionally unemployed. Income must be imputed to him.

[51] The mother contended that before the parties separated after C. B-M. was born, the father earned a substantial income. He was certainly working in the early part of 2017 but that is no longer the case. The father is a qualified ironworker, a member of his union, with no disabling health condition. There is no reason why there should not be imputed to him an income equivalent to the minimum wage of $29,120 as of January 1, 2018. This amount reflects the new Ontario minimum wage as of that date over a 52 week period working 40 hours per week. If the father obtains employment, there is good reason to believe that he could well earn in excess of that amount. The mother’s assessed income in 2016 was $25,758. For the purpose of determining s. 7 expenses pursuant to the CSG (Ont.), the foregoing are the parties’ qualifying incomes from and after January 1, 2018 until otherwise varied by court Order, filed agreement or consent varying this Order.

Disposition

[52] Accordingly, the following custody and support Orders shall issue:

1. The child C. B-M. born […], 2013 shall reside with, and be in the primary care and sole custody of, the mother effective December18, 2017 (5:00pm).

2. The child shall have access with his father as follows:

(a) on alternating weekends from Friday after school/work to Sunday at 6:30 pm starting December 29, 2017 . The child shall also have access with his father on Wednesday of every week from after school/work until the child’s return to school the following morning starting Wednesday, January 3, 2018. If the father is unable to transport the child to school on Thursday mornings then access shall be limited from after school/work until the father’s return of the child to the mother’s residence by 7:30 pm Wednesday night;

(b) the father shall be entitled to two non-consecutive weeks of summer access each year unless varied by court Order or agreement. He shall communicate his choice of weeks to the mother in writing (email or text is satisfactory) by no later than May 1^st^ of each year;

(c) regardless of the regular schedule, the child shall spend each Father’s Day with his father and each Mother’s Day with his mother from 10:00 am to 6:30 pm;

(d) starting in 2018 and for even-numbered year afterwards, the child shall spend Christmas Eve from 9:00 am to overnight on December 25 (12 noon) with his father and in odd-numbered years with his mother for those times;

(e) such further and other times as the parties may agree. These should include other holidays (such as March Break, or professional development days) and special occasion access.

3. The father shall be responsible for the child’s transportation from and return to the child’s school or, as the case may be, the mother for access purposes.

4. The following provisions shall apply to the child’s parenting:

(a) unless the parties can agree, the child shall attend the school chosen by the mother;

(b) the mother shall ensure that the father is kept up-to-date regarding the child’s education, health, developmental milestones, and extracurricular activities. She shall take all such steps as may be reasonable to notify all of the child’s third party caregivers of the father’s contact details and sign such authorizations from the father as may be required;

(c) the father shall ensure that he is up-to-date regarding education, health, developmental milestones, and extracurricular activities. It shall be his responsibility to, independent of the mother, provide his contact details to all third party caregivers of the child, independent of the mother ;

(d) both parents shall ensure that the other is contacted immediately regarding emergencies, medical appointments, or other serious concerns involving the child;

(e) the father’s access shall take place at his parents’ home until such time as the father shall have obtained his own accommodations;

(f) C. B-M. shall be provided with his own, dedicated bed at each parent’s home;

5. Except as otherwise provided, and unless there is an emergency affecting the child, the parties shall only communicate with the other through Family Law Wizard and then only on matters involving the welfare of the child. By no later than January 1, 2018 the mother shall open a Family Law Wizard account at her expense and provide that information to the father by email.

6. The mother shall continue to participate in any counseling or programs as recommended by her counsellor at Pinewood Addiction Centre, or at Family Services Durham. In addition she shall continue to submit drugs screens, twice monthly until March 31, 2018 and shall provide copies of the screen results to the father and DCAS forthwith upon her receipt of the test results.

7. The father shall serve on the mother and file with the court in the Continuing Record by January 31, 2018 an affidavit evidencing his doctor’s prescriptions for the father’s medication(s). The father shall undertake drug screening twice monthly until March 31, 2018 and shall provide copies of the screen results to the mother, his prescribing doctor and DCAS forthwith upon his receipt of the test results.

8. On or before April 30, 2018 each party shall serve on the other and file with the court in the Continuing Record an affidavit to which shall be attached as exhibits true copies of the screening test results.

9. A copy of these Reasons for Decision and a true copy of the Order shall be provided by the mother to the DCAS and Family Services Durham.

10. The father shall pay to the mother $248 a month for child support starting January 1, 2018.

11. The following assumptions and terms apply to child support:

(a) the father’s income is $29,120 a year;

(b) the mother’s income is $25, 578;

(c) the parties shall share the child’s special or extraordinary expenses in accordance with s. 7 of the CSG (Ont.). Until varied, that ratio is 53% (father)/ 47% (mother);

(d) within 72 hours of his securing any employment the father shall provide to the mother by email full details of that employment to include the employer’s name, address, the remuneration payable and available benefits. In the event that the employer provides healthcare and group life insurance coverage the child shall be named as an eligible dependant and the mother shall be designated as a beneficiary of the insurance in trust for the child in an amount equal to one-half of the face value of the policy. The father shall provide to the mother any benefits booklet or summary as may be made available to him by his employer;

(e) the father shall provide to the mother by January 31, 2018 full details of any benefits coverage available to him through his union.

12. Child support shall be variable every year starting July 1, 2018. The parties shall comply with all CSG (Ont.) financial disclosure requirements and, in particular, sections 21(1), 24.1 and 25 of those Guidelines. If the parties are unfamiliar with those regulations they should attend their local Family Law Information Centre or access those online at http://www.ontario.ca/laws/regulation/970391.

13. A Support Deduction Order shall issue.

14. The court administration is directed to prepare and issue this Order on an expedited basis.

[53] The parties agreed at the completion of trial about the Christmas schedule for 2017 and an Order was made.

[54] The provisions dealing with the child’s parenting and possible continuing drug abuse by either party are intended to make transparent, and hold each parent accountable for, their conduct for any future proceedings involving the child. Money spent on street drugs is money unavailable for the proper support of the child and not in his best interests.

[55] If the parties are unable to settle the issue of the costs of these proceedings then the mother shall no later than January 12, 2018 (4:00 pm) serve on the father and file with the court in the Continuing Record her costs submissions. The father shall serve on the mother and file in the Continuing Record his submissions by January 26, 2018 (4:00 pm). Reply, if any, by the mother shall be filed by February 2, 2018 (4:00 pm). All submissions shall be limited to three double-spaced pages, except for the mother’s reply which shall be limited to two pages. Any Offers to Settle, Bills of Costs or authorities upon which either party may wish to rely shall be served on the other party when their submissions are served and shall be filed with the court, but not form part of the Continuing Record, by February 2, 2018.

Justice D. A. Jarvis

Released: December 8, 2017

[^1]: The evidence was that the vehicle had been leased and that the mother had used a small inheritance to buy-out the lease but the father was identified as the registered owner. [^2]: The endorsement of Hughes J. made February 27, 2017 notes that the mother “self-reported to the CAS” [^3]: See K. (M.) v E. (M.), 2016 CarswellNS 1067, 2016 NSFC 31, 86 R.F.L. (7th) 78 (N.S.F.C.) at paras. [57] – [58].