Neven Pajkic v. Jelena Markovic, 2017 ONSC 7623

COURT FILE NO.: FS-15-20093

DATE: 20171219

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Neven Pajkic

Applicant/Appellant

– and –

Jelena Markovic

Respondent

Jeff Rechtshaffen for the Applicant

Leonard Kotylo, for the Respondent

HEARD: November 20, 2017

C. Gilmore, J.

Overview and factual background

1The appellant/father (“the father”) appeals the order of Paulseth J. of the Ontario Court of Justice dated March 27, 2015. He seeks to set aside the order granting sole custody to the respondent/mother (“the mother”) as well as the access provisions of that order.

2The parties were never married. During the course of a two-year relationship that ended in 2008, the parties had the child who is the subject of this appeal, Jovan Pajkic (“Jovan”). Jovan was born on September 30, 2007. He is now 10 years old. The father has remarried and has two more children, Nina (age 4) and Viktor (age 2). The mother has another child as well, Anastasia, who is younger than Jovan.

3In 2009 the mother filed an application in the Ontario Court of Justice seeking sole custody. The application was finalized by way of a consent order dated May 4, 2012 that was negotiated through mediation. The consent order stipulated shared parenting on a 2/2/5 schedule.

4In August 2012, the mother began a new career and asked to discontinue the 2/2/5 schedule. The child resided with the father full time and the mother saw him when she was able. The mother’s position is that the father agreed to return to the previous access arrangement once the mother had established employment.

5In the summer of 2013 the mother sought to revert to the old schedule. This request was resisted by the father as the child had been living with him full time for a year. The mother brought a motion to change in August 2013 in which she sought sole custody with minimal access to the father. In response to the motion to change, the father also sought sole custody. These motions to change ultimately lead to the trial before Paulseth J. in February 2015 and the order of March 27, 2015, which is the basis for this appeal.

6During the period between the commencement of the motion to change in 2013 and the trial in 2015, there was considerable conflict and litigation between the parties. The police and the CAS were frequently involved. The father brought an emergency motion in September 2013 because the mother had kept the child home from school claiming she intended to home school him. Brownstone J. ordered that the child attend Indian Road Junior Public School. The child continues to attend that school. Brownstone J. also ordered an equal sharing of parenting time on a week on/week off schedule.

7The Office of the Children’s Lawyer (“OCL”) became involved in 2014. A report dated May 7, 2014 (“the first OCL report”) was prepared by Ms. Zaria Duncan. That report recommended a shared parenting arrangement (a 2/2/5 arrangement) with joint decision making, with the father making all major education decisions and the mother making all major medical decisions. This arrangement accorded with the child’s wishes.

8In August 2014 the mother brought another motion to change the child’s school. The motion was dismissed. On August 19, 2014, Waldman J. made an order changing the parenting time from week on/week off to a 2/2/5 schedule as recommended in Ms. Duncan’s OCL report from May 2014. The mother brought two other urgent motions after the August 2014 motion. The case was labeled high conflict by Waldman J. and a trial was scheduled.

9Notwithstanding Ms. Duncan’s recommendations, the March 27, 2015 trial order stipulated that the mother was to have sole custody of the child and the father was to have access on alternate weekends from Friday evening to Monday morning and alternate Thursdays overnight to Friday morning. Each parent received two weeks of consecutive summer vacation with the remaining school vacations to be shared or alternated. The father was permitted one telephone call per week with his son but only if the child initiated it.

10On June 1, 2015, Moore J. ordered a stay of Paulseth J.’s order. Moore J. also ordered that the OCL become re-involved in the case. In granting the stay and ordering more OCL involvement, the court relied, in part, on an email dated May 22, 2015 from the child’s Grade 2 teacher at the time, Ms. McKenna. Ms. McKenna reported that the child had been struggling at school with behavioural issues and failing to complete assignments. The father filed affidavit material deposing that his son was not adjusting to being away from his father for long periods and that the sole custody arrangement that Paulseth J. ordered was not working at all. Following the stay and the reversion to the previous shared parenting arrangement, the child’s school performance and behaviour improved.

11Moore J.’s order resulted in the interim OCL report of Deborah Connerty dated January 7, 2016 (“the second OCL report”). The father wanted the access schedule to remain the same and raised concerns about the mother’s stability and her manner of punishing the child. The mother wanted to revert back to the March 2015 trial order. She felt the shared arrangement was too disruptive. She complained about the child’s lack of respect for her and his half-sister, Anastasia, and expressed her frustration in dealing with the father about parenting issues.

12Pending the final report, the OCL recommended that both parents attend Families in Transition and the Etobicoke Children’s Centre. The case was to be reviewed for progress in six months. Ms. Connerty was concerned that the child had been exposed to parental conflict and that each parent needed counseling as well as the child. She recommended that the shared parenting schedule continue throughout the counseling period.

13The parties took Ms. Connerty’s recommendations seriously and both attended counseling. While there are complaints from the father that the mother did not attend as much counseling as she should have, she did attend. The father attended a total of 25 individual and group sessions at Families in Transition between the spring of 2016 and to date in 2017. The child also attended and completed a six-week program titled “Coping with Life.”

14It was the father’s view that as a result of attending Families in Transitions sessions with the child, the child was doing well and tensions between the parties had drastically reduced. Both parties contacted Ms. Connerty and agreed that no further involvement of the OCL was needed. Ms. Connerty released her report on August 4, 2016 (“the third OCL report”) in which she indicated that the conflict between the parties was reported to have reduced and no further involvement of the OCL was needed.

15The father’s view was that the parties have co-parented in a positive and healthy manner since the fall of 2015 without any major incidents. The parties are very proud of their son who achieved A-level grades in Grade 4, made the school volleyball team and achieved High Honours in his Grade 2 piano exam.

16Given the improvement in communication between the parties and the child’s progress, the father offered to settle matters on a final basis in August 2016. He did not view the appeal as necessary given all of the circumstances and hoped to settle based on the joint parenting arrangement that had been in place since September 2013 (other than the two month period following the trial order) and had been ordered by Brownstone J.

17No settlement was achieved. In January 2017, Wilson J. ordered a further follow up OCL report. Ms. Connerty released her report on May 11, 2017 (“the fourth OCL report”). She reported marked improvement on all fronts. She noted that the parties were consulting with one another on discipline, collaborating, sharing costs for extra-curricular activities and even on familial trips to Serbia. She noted that the father had “made tremendous strides to change his behaviour” as a result of his sessions with Families in Transition. He stopped telling the mother what to do and trusted her parenting abilities. Ms. Connerty felt, however, that one parent needed to be able to make final decisions to ensure that the child was not put into the middle of parental conflict. She recommended that the mother have sole custody and that she consult with the father on all issues. She was to have the final decision if the parties disagreed. The shared parenting time was to continue on the 2/2/5 schedule with shared or alternated vacation time.

18In January 2017, Wilson J. granted the father’s request for leave to file fresh evidence on appeal. She allowed both parties to file further affidavits regarding the circumstances that had taken place since the trial judgment. Those affidavits were relied on by this court and very helpful with respect providing insight into the circumstances since the trial in 2015. In addition to the affidavits, the court heard evidence from Ms. Francis Cuglieri the Senior Director of the High Park YMCA daycare program. Ms. Cuglieri was not permitted to file an affidavit due to workplace rules. It was agreed she would give her evidence orally.

19In August 2017, Wilson J. ordered that a further and final OCL report be prepared. That reported is dated October 23, 2017 (“the fifth OCL report”). It also recommends sole custody to the mother and a continuation of the 2/2/5 access schedule with shared/alternated school holidays.

20The mother resists the appeal and wants to return to the terms of the trial judgment. Her view is that the trial judge was able to effectively assess the credibility of the parties and the child’s best interests. The mother’s position is that the child’s behavioural problems remain outstanding and that he is aggressive towards her and does not view her as an authority figure. She needs more time with him to establish a proper routine and discipline.

21The mother submits that none of the father’s grounds of appeal should succeed, as the trial judge reviewed and considered the first OCL report, observed the parties, made credibility findings and thoroughly reviewed all aspects of the child’s best interests.

22The father’s position is that the child is not aggressive and behaves well when he is with him. The child has made it clear that he did not like the arrangement ordered in the trial judgment. He wants to spend time with both parents. The progress made by the parties as a result of counseling will allow them to co-parent and leave behind their previous parenting clashes.

23The father submits that a traditional review-based appeal does not work in these circumstances as the trial judgment is effectively moot. Reverting to the trial judgment would not be in the child’s best interests given the status quo, the past access history, the OCL reports, the child’s views and preferences, and the counseling progress the parties have made. The father seeks to have this court substitute its own judgment for the trial judgment with a continuation of the current shared parenting arrangement and joint custody.

ANALYSIS

24The father requests that the court substitute its own judgment as per s. 134 (a) or (c) of the Courts of Justice Act. He suggests that the trial judgment is moot and no review of it is necessary. I agree. Even if the trial judgment is set aside on the basis of an error, there is still the question of what should happen to the ongoing custody/access arrangement. In my view, the fresh evidence and additional OCL reports give this court substantial and sufficient evidence to make any required custody/access orders.

25An analysis of the changes that have taken place since the trial judgment is required to confirm that there are proper grounds for this court to substitute its own judgment.

The Reduction of Parental Conflict

26There is no dispute that there was significant conflict and litigation between these parties from the point that the mother started her motion to change in August 2013 until the trial in February 2015. In brief, the mother attempted to take things into her own hands when she perceived that the father was not cooperating by unilaterally choosing to home school the child and, when the court did not permit this, attempting to unilaterally change the child’s school. She blamed the father for the child’s unruly behaviour at her home and felt bullied and intimidated by the father. The father, for his part, had a low opinion of the mother’s parenting abilities and therefore gave little credence to her suggestions. He was critical of her partners and her continual moves and career instability. It came as no surprise that the matter became a high conflict case with the child placed squarely in the middle.

27However, the parties took very seriously Ms. Connerty’s recommendations for counseling in the second OCL report from August 2016. The father in particular went to Families in Transition for 25 group and single sessions in 2016 and 2017. It had an effect. He began to have more respect for the mother’s parenting abilities and to collaborate with her on things such as vacations and extra-curricular activities. For example, both parties have taken Jovan on vacation to Serbia. The father even helped pay for the Jovan’s airfare when he was taken by the mother. For her part, the mother began to notice the effects of this. In the fourth OCL report from May 2017, Ms. Connerty noted the following:

Ms. Markovic advised that Mr. Pajkic is communicating nicely with her, he does nice things like send her photos of Jovan. She reported that things are better between the two of them because Mr. Pajkic has improved the way he interacts with her. Ms. Markovic advised that she has always been respectful to Mr. Pajkic when he is respectful to her.

There has been tremendous improvement in the conflict this family was experiencing since the OCL report was issued on January 7, 2016. Jovan’s relationship with his mother has improved….Jovan identified being close with his father...that he and his father like the same things, that his father listens to him.

28In the fifth OCL report from October 2017, Ms. Connerty noted the following:

Mr. Pajkic’s therapist has noted that Mr. Pajkic has worked hard and has made progress. Mr. Pajkic’s commitment to change has been noted….the parents have been operating well together as parents. Ms. Markovic did unilaterally take Jovan to a doctor, and Mr. Pajkic was happy with her choice in health professional and has participated fully in medical visits. Providing an example of her ability to decide on Jovan’s behalf and then include Mr. Pajkic.

“The parents present as doing well currently the issues that both them are minor [sic], such as what time should Jovan be returned home after a party or at the end of a long weekend.”

What are the Child’s Views and Preferences?

29It is also important to note the child’s views and preferences as stated in the OCL reports. The child was seven years old at the time of trial. He is now 10. His views and preferences, especially his most recently stated ones, must be given some weight.

30The following are quotations directly from a number of the OCL reports. In the second OCL report (at age eight), some of Jovan’s views included the following:

• His mother had been locking him up every single day.
• He misses his father when he doesn’t see him.
• When he gets in trouble at his mom’s she would yell at him, beat him everywhere, pull his nose and twist his ears. She also slaps him and hits him on the head….this would often happen when he would tell his mother that he wanted to live at his father’s, or if he asks to call his father, or when he runs away.
• His mother calls his father bad names that are not true, she also calls his father a Moron and calls both Jovan and his father Jerks.
• He just wanted to live with his father.
• He views almost every aspect of life with his mother in a more negative way then with his father from eating to birthday parties.
• He emphasized at each interview that he would like to spend more time with his father.

31In the fourth OCL report (at age nine), Jovan’s views had changed significantly:

• Jovan reported that things with his mother were now awesome and that things had improved. He liked having his mother coach his volleyball team and talked about what a good volleyball player she is.
• Jovan informed that things at his father’s home are incredible, he had a desk at his father’s and a computer.
• At the first interview when his father was present, he said he would prefer to spend 60% of the time with his father and 40% with his mother. At the second interview with his mother he said that the schedule was working great and that he would like to keep the schedule the way it is.

32In the fifth OCL report (at age 10), Jovan reiterated his positive views:

• At the first interview Jovan reported that the schedule was great and that he likes it… at the second interview Jovan reported that he would like to spend a little more time with his father. He reported he found the schedule confusing but he did not have any suggestions on ways it could be improved.

33It is clear that Jovan wants to spend time with both parents. His improved relationship with his mother is positive and the parties have made progress with their parenting relationship. The father’s counsel points out, and I agree, that if at the time of trial there had been three OCL reports stating that the child wanted shared time with his parents, it is unlikely a trial would even have occurred.

34It is also difficult to envisage returning to a regime in which the father has minimal time (about six days a month) with Jovan in the face of Jovan’s clearly expressed wishes.

What are the Risks in Returning to the Schedule in the Trial Judgment?

35Dismissing the father’s appeal has risks that relate to Jovan’s best interests. They can be articulated as follows:

a. The short time in which the trial judgment access schedule was implemented (late March to end of May 2015) was unsuccessful. Jovan struggled behaviourally and academically as evidenced by the letter from his Grade 2 teacher dated May 22, 2015 (Exhibit “A” to Exhibit “C” of the father’s affidavit of November 10, 2017).

b. When the stay application was brought the parties were given a schedule to serve and file material. On the June 1, 2015 hearing date, the mother sought an adjournment, had filed no materials and failed to adhere to the court-ordered schedule. The stay was granted pending the mother providing a proper record. The matter was heard on July 30, 2015. Horkins J., even in the face of the mother’s responding material, found that “it is in the best interests of this young child to maintain the current schedule as ordered by Waldman J.”

c. It is of note that Waldman J., in his August 2014 endorsement, ordered that the parenting recommendations of the first OCL report be adopted. These recommendations included a shared parenting arrangement (a 2/2/5 arrangement) with joint decision making.

d. The OCL reports are consistent in their recommendation of shared parenting time. They only differ on the issue of decision making. Paulseth J. is the only judge or investigator who has ever ordered or recommended a sole custody arrangement with the father seeing the child on alternate weekends.

e. The child is thriving with the current arrangement. His June 2017 report card can be described as nothing less than stellar. Jovan received only one mark lower than an A, a B+ in writing, which he had moved up to an A by the final report. All of his other marks were either A-, A or A+. The comments about his responsibility, organization, independent work, collaboration, initiative and self-regulation were all positive.

f. While the mother has repeatedly assured the court that she would not misuse the control associated with sole custody, there are concerns. The mother has had instability in her relationships and has moved frequently. The father has always lived in the same neighbourhood and Jovan has always attended Indian Road Junior Public School. In the past, the mother has attempted to unilaterally change the child’s school. The father has some well-grounded concerns about the risks to Jovan’s stability if the mother receives sole custody with minimal access to him.

Is Sole Custody a Logical Recommendation?

36The father submits that there are leaps of logic with respect to the investigative findings of the 2016 and 2017 OCL reports – the second, third, fourth and fifth reports – and their recommendation of sole custody. I agree. The issues may be broken down as follows:

A) The mother’s parenting challenges

37In the January 2016 OCL report, which is the second OCL report, the mother described that Jovan had run away from her home on three occasions in 2015. Her solution was to lock him in his room so he could not get away. She told Ms. Connerty that Jovan needed to go to a “boot camp” to learn respect. She was certain that if Jovan spent more time with her she could teach him respect. She also wanted him to spend more time with her father in Serbia. The mother admitted to using physical discipline on Jovan in the past.

38Ms. Connerty reported that the mother had not responded “ideally” to the challenges she had been faced with.

39In the May 2017 report, which is the fourth OCL report, Ms. Connerty observed that the mother continued to struggle with behavioural issues with the child, none of which were reported by the father. At page 9 of that report she describes that the mother has not followed through with recommended counseling for herself or the child. Ms. Connerty seems to accept the mother’s explanation that counseling does not work for her because Jovan is with her for such a short period of time. This must be contrasted with the father’s dedication to counseling, the 25 sessions he attended and the progress he made, which his counselor and Ms. Connerty both recognized.

B) Missing links

40The father has been married to his current partner for eight years and she has known Jovan since he was two. Ms. Connerty interviewed the mother’s boyfriend by telephone (they are no longer together) but did not interview the father’s wife, which the father claims indicates bias on Ms. Connerty’s part. While the court does not accept that Ms. Connerty was biased, there is a concern that the OCL lacked important information from a person who has been a significant part of Jovan’s life.

41Ms. Connerty makes reference to the parties’ historical conduct prior to 2015 as part of her justification for recommending sole custody. In her October 2017 report, which is the fifth and final OCL report, she refers to the father’s inability to see the mother as a capable parent prior to January 2016. She then lists a series of events in which she is critical of the father, all of which occurred prior to January 2016. At the same time, she makes comments such as the following: “When disagreements occur, each parent must find a way compromise or swallow their pride. Each appears to have managed to do this, and the benefit is that the conflicts are reduced and Jovan is happier.” She goes on to remark that Jovan is “health and happy,” that the parents “have been operating well together as parents,” and that the issues they struggle with now are “minor.” Despite these insights, she recommends sole custody to the mother.

42Jovan’s after-school care provider, Ms. Francis Cuglieri, gave evidence. She is the Senior Director for the YMCA, which runs the after-school program at Jovan’s school. The father summoned Ms. Cuglieri to the hearing as her employer does not permit employees to submit work-related affidavits.

43Ms. Cuglieri was interviewed by Ms. Connerty in the fall of 2015. Ms. Cuglieri estimated that she has participated in about 20 such interviews with the OCL and the Human Rights Commission regarding children who receive care from the YMCA.

44Ms. Cuglieri became concerned when Ms. Connerty repeatedly asked her about the father and whether he made the staff nervous or had outbursts. This was a complete shock to Ms. Cuglieri, who had never seen such behaviour from the father. She saw the father every day because his two younger children were at the daycare as well. Ms. Cuglieri stated that she has seen such behaviour from aggressive fathers and mothers and has reported it to the CAS or given notice to the parents.

45The father submits that Ms. Connerty was biased against him, which is why she did not recommend that he have custody.

C) The mother’s reasons for wanting sole custody

46The OCL reports are consistent in their documenting of the mother’s reasons for wanting sole custody. They can be summarized as follows: the mother wants sole custody because only having more time with her son will improve her relationship with him and his behaviour.

47While the mother equates sole custody with more time, none of the OCL reports recommend anything other than shared time. What the mother really seeks is sole custody and more time as per the trial judgment. The mother’s insistence on this position is problematic for several reasons. First, it flies in the face of multiple OCL reports both pre- and post-trial, which recommend shared parenting time. Second, it fails to take the child’s wishes into account. Third, it is not a child-focused position and instead focuses on what the mother wants without consideration of the child’s attachment to and stated preference for his father. Finally, and most importantly, the difficulty with the mother’s position is that it assumes that more time with Jovan will “fix” her relationship with him. What if it does not? She has failed to take recommended counseling to address her problems and simply takes the view that more time with her son will cure everything. With respect, that position is not tenable.

48Another reason the mother wants sole custody and increased time is that she complains that the current 2/2/5 schedule with Jovan is too confusing and disruptive for him. That may well be the case as there are multiple transitions during the week. However, the mother does not suggest a different schedule (such as week on/week off). She instead insists that the only solution is the child living most of the time with her.

Application of the Best Interests Test

49Section 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as amended, (“CLRA”) stipulates that in applications for custody or access, the court shall consider all of the child’s needs and circumstances. A list of specific factors is set out to ensure that the court undertakes a thorough analysis, which are as follows:

(a) The love, affection and emotional ties between the child and each person claiming custody/access, other members of the child’s family who reside with the child, and persons involved in the child’s care and upbringing

50Both of Jovan’s parents have moved on to other relationships and have had other children since they separated. Jovan has known his step-mother since he was two and has grown up with his two new siblings in his father’s household. He has also grown up with his mother’s other child, Anastasia. He goes to school with his step-siblings and is clearly attached to them based on the OCL reports. It is in Jovan’s best interests to maintain all of these ties. Taking away time in his father’s household would result not only in a reduction of time with his father but a reduction of time with his step-mother, who is a parental figure in his life, and with his younger siblings who look up to him and interact with him positively.

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

51I have already reviewed this issue above, but it is worth noting that throughout the OCL reports Jovan expresses a preference for spending additional time with his father. Over time, he has moderated that to wanting to spend equal time with both parents as his relationship with his mother has improved.

52Jovan is bright and articulate for his age. While he was in the middle of parental conflict prior to the trial in 2015, this has abated and there is less reason to be concerned about either parent influencing Jovan for their own purposes. The 2017 OCL reports do not set out any concerns about Jovan’s views being tainted or unreliable. As such, given that he is 10 years old, his views should be respected and given some weight.

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

53There is no question that the father has provided a stable home environment for Jovan. The OCL reports were initially somewhat critical of the mother because she moved frequently and changed partners. That has lessened since the mother obtained full-time employment. The 2017 OCL reports do not challenge that Jovan is living in a stable home environment with each parent.

(d) The ability and willingness of each parent to provide the child with guidance and education, the necessaries of life and any special needs of the child

54Both parents are willing and able to provide guidance and education for Jovan, which his excellent June 2017 report card reflects. Indeed, it is clear that both parents value and prioritize Jovan’s education. But there is more. Jovan likes athletics and he is very happy to be on the school volleyball team and to have his mother coach the team. He admires her volleyball skill. Jovan also has other sport activities that he does with his father such as skiing. He is engaged in music lessons and excels at piano.

55Jovan should be commended on his level of engagement and excellent academic results but it is also a testament to the dedication of both parents to Jovan’s well-being.

(e) The plan proposed by each person apply for custody/access for the child’s care and upbringing

56Not much needs to be said on this topic as it goes to the very heart of the appeal. The mother wants to revert back to the order made in the trial judgment. The father wants shared parenting and joint custody as per the status quo.

57This court has made its views clear that a reversion to the trial judgment cannot be in Jovan’s best interests and it is certainly contrary to his strongly held views.

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

58Initially, the mother lacked permanence and stability in her family unit and employment. By the time of the 2017 OCL reports, however, that had changed. Both parties offer a permanent and stable family unit for Jovan. If anything, the father’s circumstances can be characterized as more stable since it has been ongoing for a longer period of time.

(g) The ability of each person applying for custody/access to act as a parent

59Both of these parties are good parents, albeit they have different parenting styles. Each has been critical of the other’s parenting in the past. The father, in particular, lacked respect for the mother’s parenting and her parenting decisions. Counseling has helped him enormously and allowed him to change his views about the mother’s parenting. This has resulted in a remarkable improvement in the parties’ ability to collaborate and make joint decisions.

60The mother remains critical of the father and his parenting. According to the OCL reports, at times she blames the father for Jovan’s difficult behaviour. She seems to believe that Jovan having less time with his father will correct this. The concerning issue is that the mother’s lack of commitment to counseling appears to have prevented her from moving forward with respect to her opinion of the father’s parenting.

61For example, in the fifth OCL report from October 2017, the mother stated that she was having to fight for time with her son and that the events that led up to the stay of the order from the trial judgment were entirely orchestrated by the father (page 7). She does not believe that counseling will help her as Jovan is with her for such short periods of time (page 4). In the same report, the father says that things having been going well between him and the mother for the last two years (page 4).

62The mother’s comments make it clear that she is not moving forward at the same rate as the father. As such, I do not agree with the OCL’s conclusion in the most recent OCL report from October 2017 that the mother will not misuse her decision making power if she has sole custody. On the contrary, there is a real concern that she may not act in Jovan’s best interests. Her claim for sole custody, on its own, is evidence of that.

The Trial Judgment

63The trial judge was faced with a difficult dilemma. The parties, at that time, were sharing time with Jovan but each sought sole custody. The trial judge called the parenting order at that time “untenable.” She called the communication between the parties “completely dysfunctional.” She reviewed texts and emails between the parties and concluded that “it was clear that the parents had no ability to connect on the issue at hand nor to mutually set in motion a dialogue aimed at resolving it.” The trial judge was very concerned about the fact that Jovan knew he was in the middle of an ongoing conflict between his parents and the negative impact that was having on him.

64The trial judge and the parties agreed that joint custody could not work at that time. The court was put in a position in which it had to effectively choose a parent, and it chose the mother. The court made only passing references to the first OCL report from May 2014 and its recommendations that the father have primary residence and that parenting time be shared. While the father was critical of this, I am sympathetic to the trial judge who was given an all-or-nothing proposition by both sides. Neither party wanted joint custody or shared parenting time at trial. The trial judge had little choice but to choose a parent. She chose the mother because of her concerns that the father did not fully appreciate the mother’s parenting ability and spoke of her contemptuously at trial. It was clear that the trial judge preferred the mother’s approach, which was to appreciate the nurturing relationship the father provided for Jovan and to be realistic about the impact the parental conflict was having of the child.

65The situation that has existed for the last 30 months is quite different from the one the trial judge had before her. There is a now a recent and concrete history of the parties cooperating and putting the child’s interests before their own. It would not have been appropriate to order joint custody in the circumstances that the parties faced in 2014 and early 2015 when the parties were bringing constant motions and where the CAS and the police were involved.

66In Kaplanis v. Kaplanis, 2005 CanLII 1625 (ONCA), the Court of Appeal discussed situations in which joint custody would not work as follows at paras. 11-13:

The fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered. On the other hand, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody. There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another. No matter how detailed the custody order that is made, gaps will inevitably occur, unexpected situations arise, and the changing developmental needs of a child must be addressed on an ongoing basis. When, as here, the child is so young that she can hardly communicate her developmental needs, communication is even more important. In this case there was no evidence of effective communication. The evidence was to the contrary.

Insofar as the ability of the parties to set aside their personal differences and to work together in the best interests of the child is concerned, any interim custody order and how that order has worked is a relevant consideration for the trial judge and any reviewing court.

While the child’s best interests are not necessarily synonymous with the child’s wishes, the older the child, the more an order as to custody requires the co-operation of the child and consideration of the child’s wishes.

67In Kaplanis, the Court of Appeal overturned the joint custody order made at trial because the parties could not effectively communicate and there was no evidence of the child’s wishes. The court held that imposing a joint custodial order in the hope that the parties will make it work would not be appropriate.

68In the case at bar there is, fortunately, significant information before the court that the parties are no longer in the place they were in 2014. They can and do communicate. Further, there is significant evidence about the child’s wishes. Ordering joint custody in this case is not simply wishful thinking. There is evidence and history that roots such an order in the reality of the current circumstances.

69It should be noted as well that the trial judge also carefully went through the best interest factors in s. 24 of the CLRA and reviewed in detail how each parent fared in relation to those factors. In terms of the child’s views, she did reference the OCL report. However, at that time (May 2014), Jovan was not expressing any clear preference for one parent or the other. He told Ms. Duncan he loved both his parents and was happy when he was with them.

70In C.A.S. of Haldimand and Norfolk v. S.L.T. and D.W.H., 2011 ONSC 4990 at para 130, the court considered the impact of fresh evidence on appeal as follows:

130. Fresh evidence on an appeal becomes relevant at the second of a two-stage analysis. The court must first determine the appeal based on the record (and evidence) which was considered by the original Judge who made the determination being appealed. If that decision withstands appellate review (as is the case here), the appellate court must then consider whether the fresh evidence should be admitted – and how it should be applied (if at all). The appellate court may allow the appeal and order a new trial or decide the matter on the basis of the record now before the court.

71In that case, the court was persuaded, after consideration of the best interests test, that the fresh evidence on appeal could not be overlooked and that the decision to dismiss the Society’s motion for summary judgment could not stand. The court adverted to the fact that there was new and compelling evidence which made an order for Crown Wardship without access the proper decision and summary judgment was granted.

72In summary, I do not find that the trial judge made any factual or legal errors in her judgment. Based on the evidence she had before her, she made the correct decision. The evidence before me, however, is much different almost three years later. Based on the fresh evidence and updated OCL reports, I do not see that sending the matter back for a new trial would assist. Rather, Jovan should remain in the care of both of his parents where he has continuing stability and love. Further, the history of this case shows that when one parent has all of the decision making power, things go awry. It would be unrealistic and not in Jovan’s interest to reduce the amount of time he spends with his father.

73Given all of the above, I make the following orders;

a. The judgment of Paulseth J. dated March 27, 2015 is hereby set aside.

b. In place of that judgment, and based on the fresh evidence available, I make the following orders with respect to custody and access:

i. The appellant/father and the respondent/mother shall have joint custody of their son, Jovan Pajkic, born September 30, 2007.

ii. Day-to-day issues shall be decided by the person with whom the child is living.

iii. Both parties shall have access to all information pertaining to the child and be entitled to attend school interviews, events and volunteer at the school.

iv. Jovan shall continue at Indian Road Junior Public School until the end of Grade 6. He shall attend Grade 7 and 8 at one of the two middle schools into which Indian Road Junior Public School feeds.

c. The current parenting shall continue as follows:

i. The mother shall have Jovan on Mondays and Tuesdays. She will pick up the child no earlier than 3:30 p.m. on Mondays and will drop him off at school Wednesday morning in time for school or no later than 9:00 a.m.

ii. The father shall have Jovan on Wednesdays and Thursdays. He will pick up the child at the end of school or no earlier than 3:30 p.m. on Wednesdays and will drop him off Friday morning at school or no later than 9:00 a.m.

iii. The parties shall alternate weekends beginning on Friday at the end of the school day or no earlier than 3:30 p.m. and will drop off at the school on Monday morning in time for school or no later than 9:00 a.m.

iv. Where one parent’s weekend falls on a long weekend, Jovan shall be returned to the other parent at 7:30 p.m. on the Monday evening.

v. Where a parent’s weekend begins on a holiday Friday or PD day, their weekend shall commence at 9:00 a.m. on Friday morning.

vi. If either parent is going out of town overnight for more than 2 nights, they shall offer the alternate parent the opportunity to care for Jovan before asking anyone else.

d. Summer – Each party shall have three consecutive or non-consecutive weeks of holiday summer. The father shall have the first choice of vacation in even years commencing 2018 and the mother shall have the first choice of vacation in odd years commencing 2019.

e. March Break – The parties shall alternate March Break each year with the father having March Break in odd years commencing 2019 and the mother in even years commencing 2018. March Break shall include both weekends and any PD days that occur on the Friday before March Break. The parent who has March Break shall give notice by January 15 of that year of his/her intention to have the child for March Break. If no notice is given, the regular schedule shall prevail.

f. Orthodox Easter – The parties shall alternate Orthodox Easter with the mother having it in odd years commencing 2019 and the father in even years commencing 2018.

g. Mother’s Day and Father’s Day – If Mother’s/Father’s Day does not fall on a Sunday where the child is already with his mother/father, the other parent shall have Jovan in their care from 10:00 a.m. on the Sunday until school drop off the next day. For example, if Father’s Day falls on a Sunday during the mother’s weekend, Jovan shall be picked up by his father at 10:00 a.m. and shall remain with his father until school drop off the next morning.

h. Saint’s Day – Each party shall spend their respective Saint’s Day with Jovan unless he is already in their care. If the Saint’s Day is on a weekend, the parent celebrating their Saint’s Day shall pick up Jovan at 10:00 a.m. and shall remain in their care until return to school the next morning. If the Saint’s Day falls on a school day, Jovan shall be picked up after school by the parent celebrating their Saint’s Day and he shall remain with that parent until school drop off the next day. In the event that a parent’s Saint’s Day falls on a day when Jovan is out of the country on vacation with the other parent, make up time shall be given on that parent’s return.

i. Orthodox Christmas – The parties shall alternate Orthodox Christmas with the mother having it in even years commencing 2018 and the father having it in odd years commencing 2019.

j. The mother shall hold the child’s health and SIN card. The father shall hold the child’s passport. The mother shall sign passport renewals as required and the father shall pay for all passport renewals. Where the mother requires the passport for travel, it shall be provided at least five days prior to the departure date. The passport shall be returned to the father within 48 hours of the mother’s return.

k. Both parties shall sign travel consent letters when required to do so and at least seven days prior to the travel, so long as the travel occurs during the travelling parent’s scheduled time with Jovan or the parties have otherwise agreed.

l. Itineraries and contact information for the child for any travel outside of Canada shall be provided 14 days prior to departure.

Costs

74If the parties cannot agree on costs, they shall provide written submissions of no more than two pages in length exclusive of any Bill of Costs or Offers to Settle. Written submissions shall be provided to my assistant by email at Natasha.Mirabelli@ontario.ca on a seven-day turnaround from the date of this judgment starting with the father. If no costs submissions are received within 35 days of the release of this judgment, costs will be deemed to be settled.

C. Gilmore, J.