CITATION: Hatcher v. Golding, 2017 ONSC 785

COURT FILE NO.: 4459/15

DATE: 2017-02-15

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Benjamin Paul Hatcher

Applicant

• and -

Jennifer Anne Golding

Respondent

Alisa P. Williams, for the Applicant

Theodore M. Charuk, for the Respondent

HEARD: December 5, 6, 7, 14, 15, 16, 19, 20, 2016

THE HONOURABLE MADAM JUSTICE L. MADSEN

1 INTRODUCTION

1So often we see mobility cases where the issue is how children will spend time with parents residing in different provinces or countries, often separated by thousands of miles. This, by contrast, is a mobility case where the parents live cities apart, not provinces or countries apart.

2Here, the father lives in Hamilton, Ontario and the mother lives about 50 km away in Brampton, Ontario. The Court is asked to decide what parenting arrangement is in the best interests of the children in the context of this distance. Fortunately for the children, it is feasible for them to spend meaningful, regular time with both parents throughout the year, notwithstanding that it is a ‘mobility’ case.

3The Applicant, Benjamin Hatcher [“Mr. Hatcher”] seeks joint custody of the parties’ children Alyssa Emily Hatcher born January 8, 2005 [“Alyssa”] and Addisyn Faye Hatcher, born September 3, 2009 [“Addisyn”]. He also seeks an Order that the children continue to reside on a shared parenting basis with their parents under the schedule in place at the time of the trial. This schedule would permit the children to continue to attend school in Hamilton, Ontario, where Mr. Hatcher resides, while spending three out of four weekends, from Thursday after school to Monday morning, in Brampton, Ontario, where the Respondent resides. In the alternative, Mr. Hatcher seeks an Order that the children reside primarily with him through the school week, with week-end access to the Respondent.

4The Respondent, Jennifer Golding [“Ms. Golding”] seeks sole custody of the children. She also seeks an Order that the children reside primarily with her in Brampton, Ontario, and that they have access to Mr. Hatcher three weekends out of four from Friday after school until Monday morning, as well as one evening per week in Brampton.

5Both parties seek other relief related to the holiday schedule, communication, child support including special and extraordinary expenses, life insurance and benefits. None of these issues were particularly contentious during the trial.

6For the reasons which follow, I have concluded that the residential arrangement which is in the children’s best interests is to reside with Ms. Golding primarily, and have regular parenting time with their father, three week-ends out of four, as well as time during the week, as set out below. I have also concluded that Ms. Golding shall have sole custody of the children and shall make major decisions about their care, on terms also set out below.

2 POSITIONS OF THE PARTIES

Position of the Applicant

7Mr. Hatcher’s position on the children’s residency is that the children should continue to reside with their parents under the schedule developed in September 2015, whereby they would spend most of the school week in Hamilton and three out of four weekends in Brampton. In the alternative, they should reside primarily with him. Mr. Hatcher made several arguments in support of his position:

8First, he argued that the children’s status quo should not be disrupted. He stressed that the children have only ever attended school in Hamilton, and that for well over a year, they have been in a shared parenting arrangement with their parents. Mr. Hatcher argued that the children have been doing well under the schedule in place from September 2015 to December 2016, that they love their schools, and have a good support network in Hamilton. While he has a different parenting style than Ms. Golding, he indicated that he is a loving and involved father and that he has met and would continue to meet the children’s needs under that schedule.

9Second, Mr. Hatcher argued that Ms. Golding had made insufficient efforts to find employment in the Hamilton area. He argued that Ms. Golding selected Brampton as her residence to meet her new husband’s employment needs and requirements with his own children, rather than in the best interests of Addisyn and Alyssa. He argued that while Ms. Golding could choose to live somewhere else, the children should not have to pay for that choice through less time with him. Fundamentally, he argued, Ms. Golding does not respect the children’s relationship with him, and has prioritized her new family over the children’s relationship with their father.

10Third, Mr. Hatcher argued that he and Ms. Golding were and are equal parents to their children. While they may have played different roles, they have each parented their children fully, and it is inaccurate for Ms. Golding now to characterize herself as the primary parent. Further, he argued, even if she had greater parenting responsibilities during the relationship, parenting roles often change at separation, and this in and of itself would not be a reason for the children to reside primarily with her.

11Fourth, Mr. Hatcher argued that if the children have indicated that they would prefer to live primarily with their mother, which he stressed was hearsay which should in any event be disregarded, children generally want to please both parents and would have said that to please their mother. He argued that any views expressed by the children were not independent as their mother had involved them in the court proceeding and put pressure on them to say they would prefer to live in Brampton.

12In terms of custodial decision making, Mr. Hatcher asserts that the parties are able to communicate about major issues affecting the children. He expressed concern that if Ms. Golding were awarded custody, she would disregard his views and marginalize him as a parent.

Position of the Respondent

13Ms. Golding’s position on the children’s residency is that the children should reside primarily with her in Brampton, and attend school there, while having access with Mr. Hatcher three weekends out of four, and one evening per week. She made several arguments in support of this position.

14First, she argued that she has always been the children’s primary caregiver, both during and after their relationship. She asserted that she has always been the parent to ensure that the children’s medical and dental needs were met, that their educational needs were met, and that their day to day needs were met. Mr. Hatcher, she argues, has not been nearly as involved as he asserts and in fact has left most of the main parenting responsibilities to her. Since the parties started the shared parenting arrangement, she asserts, Mr. Hatcher has relied extensively on third parties to meet the children’s needs and is in fact not capable of meeting them on his own. While he loves the children, she argued that she is the more capable parent.

15Second, Ms. Golding argued that the children want to reside primarily in Brampton and attend school in Brampton. She asserted that the children have been clear and consistent with respect to their wishes in this regard. While acknowledging that this evidence is hearsay, she urged the Court to take what she said are the children’s views into consideration.

16Third, Ms. Golding argued that she did look for employment in Hamilton, but in the end was able to find employment in the Halton Board rather than in Hamilton. Further, she argued that she is unable to move closer to Hamilton at this time given the requirements of her husband’s employment. She noted that the parties moved to Hamilton on a temporary basis specifically for her to undertake her academic studies which are now complete.

17Finally, Ms. Golding argued that she offers the children greater stability than Mr. Hatcher. As a teacher, she has a predictable schedule that does not involve shift work, and she is more consistently available to the children. By contrast, Mr. Hatcher, when employed, works shifts, and needs to involve numerous third parties in the care of the children. Further, it is unclear what Mr. Hatcher’s employment plans are, being presently laid off from seasonal employment and on leave from his parking attendant position. She also argues that as a teacher, she can better support the children’s educational needs.

18In terms of custodial decision making, Ms. Golding argues that while it may appear that the parties are able to communicate about major issues affecting the children, in fact, she is the parent who does the communicating, while Mr. Hatcher often fails to respond. She sends detailed, explanatory emails, with follow up, while Mr. Hatcher sends sparse, often delayed responses with little content. She argues that he rarely initiates contact for the benefit of the children, but rather leaves the heavy lifting to her and simply responds, briefly, when it suits him. This, she asserts, is not the level of communication required for effective joint custody.

3 WITNESSES

Mr. Hatcher’s Witnesses

19The following witnesses were called by Mr. Hatcher: himself; Susan Giansante, a law clerk at the office of his counsel; and Stephanie Adams, his sister.

Mr. Hatcher

20In general I found that Mr. Hatcher testified in a soft-spoken, direct manner, and overall, I found him to be a credible witness. He told his story as best he could, and was able to acknowledge candidly where he could have done things differently. While I have made findings of fact below which do not confirm his perspective on some issues, I find that he was forthcoming and straightforward about the facts as he remembered them.

Susan Giansante

21Ms. Giansante is Mr. Hatcher’s counsel’s law clerk. She testified she reviewed the file in this matter and the computer back up of faxes, and it did not contain a request from the OCL Clinical Investigator for Mr. Hatcher’s pleadings. I had no difficulty with her testimony and found her to be a credible witness.

Stephanie Adams

22Mr. Hatcher’s sister, Stephanie Adams, testified about her observations of Mr. Hatcher’s role and relationship with the children, her own role and relationship with the children, and her concerns with respect to Ms. Golding and her plan for the children. Ms. Hatcher is trained as a Child and Youth Worker but is presently not able to work due to health issues. She has two children, aged 7 and 2. Ms. Adams has been involved with the children since the parties moved to Hamilton in 2007.

23I found Ms. Adams to be a credible witness. Like her brother she testified in a direct manner and was able to acknowledge facts that might not support her brother’s case.

Ms. Golding’s Witnesses

24The following witnesses were called by Ms. Golding: herself; Brenda Golding, her mother; and Matthew Humphrey, her husband.

Ms. Golding

25In general I found Ms. Golding to be a credible witness. In her testimony about the relationship with Mr. Hatcher and parenting roles, I found her to be direct and clear. She was candid about the conflict in the parties’ relationship and her role in that conflict. Ultimately she was also candid about not wishing to stay in Hamilton even if she were not in a new relationship. While her testimony and that of her husband, Mr. Humphrey was not quite consistent regarding what she did or did not know about his criminal charges, little turns on it for the purpose of this decision. Similarly, although she had not shared certain details regarding prior mental health issues with her mother, I do not find this significantly diminishes her credibility. She also acknowledged that there were some discussions in her home with the children about where they would live.

Matthew Humphrey

26Ms. Golding’s husband, Matthew Humphrey, testified as to family life in his home when the children are with he and Ms. Golding, to his observations of Ms. Golding’s parenting and his observations of the girls. Mr. Humphrey is a fleet manager for a landscaping company based in Markham, Ontario. He has two children, Amber and Sarah, from a prior relationship.

27I found Mr. Humphry’s evidence with respect to his observations of Alyssa and Addisyn while in their mother’s care to be credible, and largely consistent with Mr. Golding’s testimony about life in her home, although it was my sense that he tended to overstate things a bit.

28I had difficulty with his statements that he and Ms. Golding had not discussed this court proceeding, which did not ring true. I also had some difficulty with his evidence regarding his and Ms. Golding’s priorities when looking for a home in Brampton, on the one hand stating that proximity to Mr. Hatcher was an “equal” priority with other considerations, and on the other hand stating that cost was the primary consideration.

29I find that Mr. Humphrey was quite candid when he stated that there had been some discussion in the home about where the children would live even though it was clear from counsel’s questions that this was not the “right” answer.

Brenda Golding

30Brenda Golding, Jennifer Golding’s mother, testified as to her observations of the children and both parties’ parenting. She is a retired nurse and college instructor and has been assisting Ms. Golding in making the transportation required under the current Order work. I found her to be a credible witness. She answered questions in a direct manner, did not embellish her answers and was straightforward even when her answers were less than helpful to her daughter’s case. The fact that she was unaware of her daughter’s prior mental health issues or the details of the assault which will be discussed below does not in my view impact her credibility or ability to testify about her parenting observations.

4 THE REPORT AND TESTIMONY OF THE OFFICE OF THE CHILDREN’S LAWYER

31On August 5, 2015, Madam Justice Lafrenière requested the involvement of the Office of the Children’s Lawyer. On October 19, 2015, the OCL assigned Ian DeGeer to provide services under section 112 of the Courts of Justice Act. Mr. DeGeer conducted an investigation, and on February 26, 2016, nine months before the start of the trial, his report was served on the parties. Neither party filed a Dispute to the Report.

32The Investigator interviewed the parties and the children, and conducted an observational visit in each household. He also interviewed the mother’s new husband (then-fiancé), and the children and mother’s physician, Dr. Fenti. He reviewed police records, school records, and Children’s Aid Society records. He also reviewed the mother’s pleadings but not the father’s pleadings.

33The Investigator expressed concern about Mr. Hatcher’s anxiety and its impact on his parenting, concern about his inability to manage stress, and about his ability to provide stability and structure. He further expressed concern about violence that took place during the relationship (about which more will be said below). He found that it appeared that Ms. Golding had been the children’s caregiver throughout the parties’ relationship, and found that she appeared to have made decisions in the best interests of the children. He suggested that the current arrangements would be difficult to continue, but also noted that any parenting plan should consider the children’s pre-established relationships with both parents.

34In the result, the Investigator recommended sole custody to Ms. Golding. He also recommended that the children reside primarily with her in Brampton and that they have access with Mr. Hatcher three weekends out of four. He also recommended that the children receive counselling to address having witnessed domestic abuse between their parents.

35There are several difficulties with the OCL report and the oral testimony of the Investigator which affect the Court’s consideration of his evidence.

36First, I am concerned that the Investigator reviewed the pleadings of one party and not the other. While he testified that he had requested Mr. Hatcher’s pleadings, he was unable to provide a fax confirmation sheet, and in fact Ms. Williams’ law clerk, Ms. Giansante, testified that her office had never received a request for Mr. Hatcher’s pleadings. While the Investigator suggested that it would have been counsel’s job to ensure that the pleadings were provided, at the end of the day, he should not have delivered a report having reviewed only one side’s court materials. This affects, at the very least, the perception of his impartiality.

37Second, I have concerns with the choice of collaterals selected by the Investigator. He chose to interview Ms. Golding’s husband, Mr. Humphrey, which is reasonable, as he resides with the mother. However, he failed to interview either Ms. Adams, Mr. Hatcher’s sister, who provides significant assistance to Mr. Hatcher, or either of Mr. Hatcher’s parents, who also assist him in managing the parenting schedule.

38Third, the investigator interviewed Ms. Golding’s physician, Dr. Fenti, gaining information both about the children as well as about Ms. Golding, in particular about the lack of severity of her bi-polar diagnosis. The investigator did not interview Mr. Hatcher’s physician, Dr. Peddler, but nonetheless based part of his recommendation on the father’s “social anxiety disorder.” In oral evidence the Investigator explained that he relied on Mr. Hatcher’s description of how anxiety impacts him. It would have been preferable, however, that if his recommendations were going to be based partly on the father’s mental health, that he interview the father’s physician just as he had interviewed the mother’s physician.

39Finally, Ms. Golding’s husband, Mr. Humphrey, has a criminal record, yet the investigator did not review those records. I appreciate that this is a discretionary call by each Investigator, but in combination with the other procedural issues I have set out, the failure to request and review these records gives me concern.

40On the basis of the forgoing, while I accept the Investigator’s report and testimony insofar as it relates what he was told by each party during his investigation, I am unable to place significant weight on his recommendations due to the procedural flaws in his process.

5 FACTS

Background

41The parties lived together as a couple from January 2005 until they separated in December 2010. For a period of time during the relationship they lived at Ms. Golding’s parents’ home, and for a period of time they lived at Mr. Hatcher’s parents’ home. There was also approximately one year from October 2006 to September 2007 that the parties were separated but working on their relationship. During that time, Ms. Golding and the children resided with her parents and Mr. Hatcher visited her and Addisyn, following which the parties eventually reconciled.

42After separation in December 2010, the parties lived under the same roof in the Westdale area of Hamilton for almost four and a half years until May 2015.

43As noted above, Alyssa was born January 8, 2005. Addisyn was born September 3, 2009. Alyssa was thus five years old when her parents separated, ten years old when they ceased cohabitation and almost twelve years old at the date of the trial. Addisyn was a little over a year old when her parents separated, five years old when they ceased cohabitation, and seven years old at the date of trial.

44The parties have used childcare to assist with the care of the children, both full time care, as well as before and after school care.

45The children have always attended school in Westdale, in Hamilton, and continued to do so at the time of the trial. Alyssa currently attends Dalewood Middleschool and Addisyn currently attends Cootes Paradise Elementary School.

Temporary Orders

46There are five Temporary Orders in this matter:

a. On August 5, 2015, on consent, Justice Lafrenière made an Order regarding Mr. Hatcher’s time with the children during August and September 2015.

b. On September 4, 2015, Justice Brown ordered that the children continue in their schools in Hamilton. This was temporary without prejudice Order;

c. On September 25, 2015, Justice Chappel ordered a shared parenting schedule on a without prejudice basis;

d. On October 6, 2015, on consent, Justice Brown continued the parenting schedule provided for in Justice Chappel’s September 25, 2015 Order, provided for telephone time, and set out the sharing of time over Christmas; and,

e. On June 28, 2016, Justice Brown ordered costs against Ms. Golding in the amount of $3,500.00.

Education and Employment History

47During the early years of the relationship, Mr. Hatcher worked for Annan and Bird Lithographers, a print shop in Mississauga, commuting from Hamilton. This was shift work, whereby he either worked from 7:00 a.m. to 3:30 p.m., 3:30 p.m. to midnight, or midnight to 7:00 a.m. Shifts would rotate every two weeks. In addition to his regular full time shifts, he also worked alternate weekends. This meant that some weeks he worked seven days a week. Mr. Hatcher held the job for ten years, and was let go in January of 2011.

48In the spring of 2011, Mr. Hatcher pursued studies in Police Foundations at a college in Hamilton, but did not complete the co-op portion of the program. He was in school for about nine months. He testified that he did not feel police work was a good fit for him.

49In the three years leading up to the trial, Mr. Hatcher was a parking lot attendant for two employers. From February 2013 to October of 2016, he worked for Precise ParkLink [“ParkLink”], usually from Thursday to Monday, either from 6:30 a.m. to 3:00 p.m. or 3:30 p.m. to midnight (alternating weekly). From mid-September 2015 until October 2016, he also worked part-time at McMaster University in their parking department, often on Tuesdays and Wednesdays, from 8:00 a.m. to 4:00 p.m. Shifts at Precise Parklink could vary depending on the employer’s needs, as could shifts at McMaster. Mr. Hatcher was paid $13.00 per hour at ParkLink, a job which also offered extended health benefits, and $12.30 per hour at McMaster. Mr. Hatcher left both jobs in October of 2016. Mr. Hatcher provided a doctor’s note to ParkLink regarding stress and anxiety and was placed on sick leave. He left the McMaster job permanently.

50From 2012 to 2015, Mr. Hatcher also delivered flyers, earning about $250.00 to $300.00 per month, working 6 to 7 hours per week. He stated that the girls were sometimes with him when he picked up the flyers, and that the whole family would often participate in delivering the flyers.

51Shortly before the trial, Mr. Hatcher had been working for Home Services Teams, a seasonal window cleaning/ Christmas light installation company. He was laid off before the trial due to lack of work but expected to be called back to work. He indicated that his rate of pay with the new employer was $20.00 per hour and that he was getting about 35 to 40 hours per week in the weeks that he had this job. The new job did not provide benefits.

52At the time of trial, Mr. Hatcher indicated that he had applied for Employment Insurance in mid-November and expected to receive his first cheque in the week of December 20, 2016. His testimony on this was a bit confusing and it was unclear how he could have applied for E.I. while he was still employed with Home Services Teams.

53In terms of his employment future, Mr. Hatcher indicated that he hoped to continue at Home Services Teams. He expected to be off work for about six weeks and to be called back when Christmas lights needed to be taken down. He was unsure whether this job would be a long term job. He did not intend to return to Precise Parklink due to the stress related issues at that job, although he indicated that for a period of time it would be open to him to do so.

54The parties moved to Hamilton, Ontario in September 2007 when Ms. Golding started a two-year Master’s Program in Astrophysics at McMaster University. During that time she was also employed as a Teaching Assistant, earning approximately $17,000 to $18,000 per year, after tuition was paid. Upon completion of that program she started the PhD program, but had difficulty with the comprehensive exam. She left the program in February of 2012 but continued as a Researcher until June 2012.

55Ms. Golding started an Early Childhood Education Program in May 2012, but discontinued this when she was accepted to Teachers' College. She attended Teacher’s College through Brock University at their Hamilton campus, completing her studies in May of 2014.

56At various times throughout her education, Ms. Golding has earned an income as a tutor and as a baseball umpire.

57Ms. Golding has been certified to teach in Ontario since July of 2014. She is qualified to teach math and science at the high school level. Although her teaching license provides that she is qualified to also teach grade 7 and 8, in her view she is less likely to obtain positions for those two grades as she has lesser qualifications than many other applicants for those positions. She also holds a certification related to special education.

58Ms. Golding’s first teaching job following her completion of her Teacher’s Certificate was for Newton Grove Public School, located in Toronto. This was a maternity leave contract, teaching math. She held the position from September 2014 until June 2015, during which time she commuted from Hamilton to Toronto for work. Ms. Golding does not wish to pursue private sector teaching jobs as she states that salaries are lower and benefits inferior to the public system.

59At the time of the trial, Ms. Golding was working on a long term occasional contract as a teacher in the Halton Board. She indicated that she has full time hours, and her contract extends until February 2017. Ms. Golding stated that at the conclusion of this contract she anticipates further full time work within the same school board. She indicated that she was guaranteed one day per week, but had been offered to be put on the supply list. She has not looked for work within the Catholic School Board, as she is not Catholic, and has not looked regularly at private school teaching options since July 2015.

Mental Health Issues

60Mr. Hatcher reported to Mr. DeGeer that he has a social anxiety disorder. He testified that he feels anxiety in social situations but that he pushes through it for the sake of the girls. For example, he stated that going to the school open house would cause him to feel anxious but that he would still go. Mr. Hatcher stated that he has not “officially” been diagnosed. His testimony regarding medication was inconsistent. At one point he stated that he has previously taken medication but that the side effects were worse than the anxiety. Later in his evidence he stated that he is presently on medication that is helping to alleviate stress in relation to issues at his former job at ParkLink.

61Ms. Golding advised Mr. DeGeer that as a 17 year-old, she was diagnosed with Psychlothymia, a mild form of bi-polar disorder, and told him that the mood swings are less severe than with “traditional” bi-polar disorder. She testified that she has not been on medication in relation to mental health issues since 13 years ago and that she is not currently taking medication.

Conflict, Domestic Violence, and Self-Harm

62Mr. Hatcher and Ms. Golding both testified that there was a great deal of conflict during the relationship, in particular verbal conflict, some of it in front of the children.

63There were several physical incidents as well.

64There was evidence that Mr. Hatcher could be violent with objects. The parties for example both testified that on one occasion in 2008, Mr. Hatcher had become so angry that he stabbed a refrigerator door with a knife, and then inadvertently hit himself in the mouth causing bleeding when he pulled the knife out of the door. Mr. Hatcher acknowledged having outbursts and testified that he feels he has matured. He regretted the episodes and exposing the children and Ms. Golding to what they saw. He indicated that he has not recently had any violent outbursts. Asked about whether he had taken an anger management course or personal counselling, he indicated that cost has been prohibitive. He had not looked into services through Family Services, but acknowledged that this would be a good idea.

65The parties testified about three incidents involving Ms. Golding. Two incidents took place in 2009 when the parties were still together.

66In early 2009, when the parties were going through difficulties, Ms. Golding engaged in self-harm. She drank alcohol, cut herself on the thigh with an exacto knife, and then texted or called Mr. Hatcher. Alyssa was in her care at the time and she was pregnant. Ms. Golding stated that she is not sure why this incident happened, but that she was upset that Mr. Hatcher was starting a relationship with someone else, while she was pregnant with their child. She said she may have been trying to get Mr. Hatcher’s attention. Ms. Golding made four or five cuts which were not deep and that she did not need medical attention. Following the incident, Ms. Golding consulted with her physician and discussed using meditation to stay calm when things are difficult. Ms. Golding testified that there has never been an incident like this since then.

67In the summer or 2009, the parties were separated again, and Alyssa was with Mr. Hatcher at his parents’ home. Ms. Golding indicated that Mr. Hatcher was not responding to her text messages and she became frustrated and angry. On this particular evening he was not home. Ms. Golding drove to Mr. Hatcher’s parents’ home in the middle of the night, threw his belongings on the lawn, and went into the home to retrieve Alyssa from Mr. Hatcher’s parents. She ripped photos of the two of them in half before throwing them on the lawn. No one was physically hurt in this incident.

68Finally in February 2011, Ms. Golding became violent in response to Mr. Hatcher having taken her phone while she was in the shower and was looking at her emails to see who she had been talking to. At that time the parties were still living together but were separated, and she had been seeing other people. Ms. Golding testified that she “lost it”, yelling at Mr. Hatcher and physically assaulting him. Mr. Hatcher called the police. Ms. Golding was removed from the home and charged with assault. The matter was resolved by Peace Bond, and the charges were withdrawn. Ms. Golding attended what she called anger management style therapy, and found the experience with the counsellor to be beneficial. Ms. Golding testified that she regretted the incident and there had been no other incidents since then.

69With respect to these physical incidents, I note that neither party expressed concern that the other posed physical danger to the children or to one another at this time. I also note that the incidents took place a number of years ago. There is no evidence to suggest that physical violence took place – to people or objects – since the parties physically separated in May of 2015, and no evidence of other incidents of self-harm by Ms. Golding. While the incidents set out above do not reflect well on the parties, I do not find that either of them is presently a risk to the children nor was that alleged in the trial.

70Apart from the physical incidents, Ms. Golding testified and Mr. Hatcher did not deny that he would monitor Ms. Golding’s behavior after separation in 2010. She testified that in and around the time of the assault incident in 2011, Mr. Hatcher had installed an application on her phone that would forward her correspondence to his account and that he had been looking at her cellphone and emails to determine what she was doing in her free time. There was no evidence of this continuing to the present time.

Parenting Arrangements Since September 2015

71Mr. Hatcher and Ms. Golding have both been blessed with kind and helpful family who have assisted in various ways in the care of the children since they were born. After the parties separated, that assistance continued and was an important part the implementation of the parenting schedule.

72At the time of the trial, the children were spending approximately equal time in the care of each parent. They were residing with Mr. Hatcher from each Monday at the commencement of school until Thursday at the end of school, and every fourth weekend from Friday at the commencement of school until Monday at the commencement of school, a total of 15 overnights in each 28 day period. The children would reside with Ms. Golding three week-ends out of four from Thursday after school until Monday morning at the commencement of school, followed by a Thursday overnight until Friday at the commencement of school (to allow Mr. Hatcher to have weekend time with the children), a total of 13 overnights in each 28 day period. Ms. Golding also had time with the children on Tuesday nights in the week prior to Mr. Hatcher’s weekend, in Hamilton. This schedule has been in effect since September 2015, a period of approximately fourteen to fifteen months at the time of the trial.

73Ms. Golding’s mother, Brenda Golding, would assist with the transportation of the children from school on Thursday nights, to and from school on Fridays, and to school three Monday mornings out of four. Jennifer Golding would transport the children part-way to school, meeting her mother at the Go-Station at Trafalgar Road. Jennifer Golding’s mother would then transport the children from the Go-Station to school. At the end of the day. Jennifer Golding’s mother would pick up the children at school in Hamilton and then transport them to Jennifer Golding’s school in Oakville. Jennifer Golding would then take them back to her home in Brampton from there.

74Also to facilitate this schedule, Mr. Hatcher’s parents, sister, or a neighbour would often assist in getting the children to school in the morning. So, for example, if Mr. Hatcher was on the 6:30 a.m. shift on a Monday morning or Thursday morning with ParkLink, his parents would often stay overnight from the day before, and would get the children to school in the morning. Alternately, his sister would assist, arriving early in the morning. Sometimes one of the children’s best friend’s mothers would walk the children to school. Mr. Hatcher’s sister would then assist from time to time by picking the children up from school at 3:20 p.m., with Mr. Hatcher arriving home around 3:30 or 4:00 p.m. if he was on day shift with ParkLink. If he was on the evening shift at ParkLink on a Monday night, Mr. Hatcher’s sister or parents would also assist by making dinner for the children. Mr. Hatcher indicated that on Tuesdays and Wednesdays when he was usually working at McMaster, he did not require assistance with dinner for the girls as his hours were 8:00 a.m. to 4:00 p.m.

Primary Care of the Children

75The parties do not agree on how parenting responsibilities were shared during and after their relationship and on whether there was a primary parent. Specifically, they disagree on who the primary parent was over the course of three time periods: during the relationship and until December 2010 when they separated; from December 2010 until May 2015 when they were separated but cohabiting; and from May 2015 when they ceased cohabiting, until the trial. Mr. Hatcher’s view is that they were both relatively equally involved in a range of parenting tasks, while it is Ms. Golding’s view that she has been the primary parent since Alyssa was born in 2005.

76In reaching conclusions about parenting roles for the purpose of this decision, I stress that this is not a contest about who loves Alyssa and Addisyn more. There is no question that both Mr. Hatcher and Ms. Golding love the children deeply and both want what they feel is best for the children. However, given that the parties are not in the same residence any longer, that they reside in separate cities, and that they seek a Court determination as to ongoing parenting time, an analysis is required as to the parenting roles each party played during the relationship and up until the trial. This prior parenting, including during a long period of separation, is relevant to my determination of the future parenting arrangements that are in the children’s best interests.

77Based on the evidence I find, on a balance of probabilities, that Ms. Golding has been significantly more involved with the care of the children through all three time periods, including when the parties ostensibly had shared care of the children after they physically separated.

2005 to December 2010

78Alyssa was born January 8, 2005 and the parties separated in December 2010, about five years later. This was when Mr. Hatcher was working at the print shop in Mississauga doing full time shift work, and working many weekends in addition to that. He acknowledged that some weeks he was working outside the home seven days per week. From 2007, when the parties moved to Hamilton for Ms. Golding’s studies, until 2010, Mr. Hatcher commuted from Hamilton to Mississauga, extending the hours away from home. Both parties testified that it was difficult when Mr. Hatcher came off a night shift. Mr. Hatcher acknowledged that Ms. Golding provided most of the care during this period, although Alyssa was also in daycare. Mr. Hatcher described this time as stressful, and while he stated that the parties both took care of Alyssa (and then both children after Addisyn was born), he also indicated that his work was not flexible, and that he “helped” with parenting tasks, including bathing, feeding, getting the children ready, and putting them to bed. As he candidly stated, he did what he could when he was there. Ms. Golding testified that during this time, even when the parties were both home, she provided most of the care (exclusive of day care time), and that when she could not be there, particularly when in school, her mother would assist. She indicated that she would ask Mr. Hatcher to spend time with Alyssa but he would want to be on the computer. I believe the evidence of Ms. Golding that she did the majority of the parenting during this period of time and note that this is consistent with Mr. Hatcher’s recollection.

79The parties both acknowledge that for one year of these five years, Ms. Golding and Alyssa were residing with Ms. Golding’s mother, with Mr. Hatcher visiting. Mr. Hatcher acknowledged that Ms. Golding would have had primary parenting responsibility during this and that he was involved in caregiving to a limited extent only during this period.

December 2010 to May 2015

80The parties separated in December 2010 and as noted above continued to cohabit, for financial reasons, until May of 2015. During this time, Mr. Hatcher’s job in Mississauga came to an end, he pursued his Police Foundations studies from March 2011, and then started working at ParkLink in February 2013. Ms. Golding was a student until June 2012, then pursuing the Early Childhood Education program, followed by Teacher’s College. For the final year of cohabitation she was teaching in Toronto and commuting. The parties had many transitions over the course of these years. Meanwhile Ms. Golding was dating, ultimately entering a serious relationship with Mr. Humphrey, her current husband.

81The parties’ time with the children during this period was somewhat non-traditional and it is clear that as with other periods of their lives, their respective parents were involved in assisting them to a significant degree. Mr. Hatcher testified that for a period during this time, when Ms. Golding was dating Mr. Humphrey, she would spend some weekends with Mr. Humphrey while either the maternal or paternal grandparents would take care of the children. This would be arranged by Ms. Golding. On some of these occasions, Mr. Hatcher was working for the weekend, but even if he was not, the children would not stay with him. He stated that he wasn’t going to provide childcare for Ms. Golding to be able to go out. Asked whether he had ever cared for the children for a weekend during this period, he could initially not recall. He stated that even when he had weekends off he did not “watch” the girls. On weekends then, often neither parent was caring for the children, but Mr. Hatcher would care for them only if Ms. Golding was also there.

82The parties’ evidence as to who did which parenting tasks during the school weeks during this period of time diverged. Mr. Hatcher testified that for the nine months that he was pursuing his Police Foundations course, both parents would attend to pick-ups and drop offs from childcare and whichever parent was available would do bath time and meals. However, he acknowledged that he was not familiar with the children’s teachers, or the children’s school routines. He acknowledged that Ms. Golding was responsible for dentist appointments and parent teacher meetings and that Ms. Golding had been the facilitator and organizer. She was the parent who would follow up on school notices. Mr. Hatcher said he was kept out of the loop. One example of this was Mr. Hatcher’s complaint regarding not being told about a book report which was due for one of the children. He was concerned that Mr. Humphrey was helping with this rather than him being told about it. When asked whether he had equal access to the child’s backpack and could have proactively tried to be a part of the school routine, he acknowledged that he didn’t go as far as he could have. It was clear from his testimony that Ms. Golding took the lead on parenting during this period.

83Ms. Golding acknowledges that Mr. Hatcher was involved in some parenting tasks from 2010 to 2015, but testified that she would be primarily responsible, about “70-80%” of the time. For example, according to her, she would arrange for activities for the children and he would take them 20-30% of the time but only if she was not available. On Mr. Hatcher’s own testimony, this rings true.

May 2015 to November 2016

84From May 2015 until the trial, the parties shared physical care of the children. Initially, in May and June 2015, it appears the children were primarily with Ms. Golding, with time being arranged for Mr. Hatcher around his employment schedule. Mr. Hatcher testified that from his perspective access was being denied during this time and that his time with the children should not depend on the schedule. In July and August 2015 it appears that time was shared between the parents, and Ms. Golding acknowledged that Mr. Hatcher’s summary of time spent with the children by each of them during this time was accurate. Commencing in September 2015, the parties began the parenting arrangement set out above, whereby the children are primarily with Mr. Hatcher during the school week, in addition to one weekend each four weeks, and the children are with Ms. Golding three weekends out of four, and every Thursday overnight to Friday. Under this schedule, as noted above, the children have had almost equal time with each parent.

85Both parents have clearly done their best to make this schedule work, notwithstanding its complications. As noted above, Ms. Golding’s mother has been integral to making the transportation work, and Mr. Hatcher’s sister and parents have assisted with child care in the mornings, evenings, and overnights as has been required. A neighbour has also assisted in getting the children to school from time to time when the children are in Mr. Hatcher’s care. Notwithstanding the relatively short distance between the parties’ homes (about 50 k.m.), it is clear that without the support and assistance of third parties, this schedule would be very difficult, if not impossible, to manage over the long term.

86What is striking during this period is that notwithstanding that the children have been in Mr. Hatcher’s care during most of the school week, seeing their mother on most weekends, it remains Ms. Golding who has undertaken the lead on many parenting issues. That is not to say that Mr. Hatcher is not doing his best to make the schedule work and to care for the children. However, I find that Ms. Golding has continued being the primary parent notwithstanding this parenting schedule.

87First, I note that while Ms. Golding’s mother assists with transportation to and from Brampton, and assists with care from time to time, there is no suggestion that when the children are with their mother, anyone other than she has been undertaking the main parenting responsibilities. They are with her most weekends, and she arranges for their care, assists with homework as necessary, makes meals for them, and attends to their daily needs. She is assisted by her husband but it is clear on both her testimony and Mr. Humphrey’s testimony that she takes the lead. For example, she, not her husband, is the one who manages bed time routines each night that they are in her care.

88By contrast, when the children are in Mr. Hatcher’s care, there has been significant direct assistance in caring for the children in order to make the schedule work. As noted above, his work has been such that his sister, or parents are often with the children on school mornings to get them up, ready, and off to school. He testified that every other Thursday, his sister or parents would get the children off to school in the morning. Similarly, assistance is often required on some Monday evenings for meals and evening care when Mr. Hatcher has been working. Mr. Hatcher testified that in the winter of 2016, he was sometimes not home until 9:00 or 9:30 p.m., so his sister or parents would take care of the children from after school through the evening. To be clear, this is not a criticism of Mr. Hatcher who has had to make many arrangements to make this parenting schedule work. Rather it is clear that while he was working not one but two jobs until October 2016, often seven days a week, he needed regular assistance by several people with the physical care of the children. Without that assistance the schedule simply would not have been manageable.

89There are several parenting issues which have arisen from May 2015 to the time of the trial on which Mr. Hatcher has not actively taken a role, and where by contrast, Ms. Golding has taken the lead. For example, in oral evidence it became clear that both parties agree that the children would benefit from counselling. As noted above, this was also recommended by the OCL. To move this forward, Ms. Golding has obtained a referral to the Peel Children’s Centre from the children’s physician, Dr. Fenti, and has followed up on that referral. This organization declined to get involved when they learned there was ongoing litigation. She has also contacted the HEAL network in Brampton. They will work with the children but cannot do so until Mr. Hatcher consents. Ms. Golding has repeatedly requested Mr. Hatcher’s consent to get the counselling started, but despite repeated requests by email, that consent was not forthcoming. She also invited his input on counsellors in Hamilton but none was provided. When he was asked about counselling for the children, Mr. Hatcher indicated he was looking into art and play therapists for the children. Pressed, it turned out he had asked his sister who had made enquiries for him but he had never spoken to that person. He did not speak with Ms. Golding about this potential therapist. He indicated he had gone on the website of an organization called COAST but did not contact them. Notwithstanding that the initial suggestion for counselling was in April 2016, the children still did not have counselling as at the date of the trial. Mr. Hatcher agreed with Ms. Golding’s counsel that the children would benefit from counselling yet clearly very little had been done by Mr. Hatcher to move this forward. This concerns me.

90A second issue which was raised at trial was the parent-teacher meetings in the fall of 2016. Alyssa had transitioned from Cootes Paradise Elementary School to Dalewood Middle School in September 2016. Mr. Hatcher indicated that he attended the open house at Alyssa’s school at the beginning of the year and that the option of parent-teacher meetings was available in November. Notwithstanding that this was Alyssa’s first year at the new school, and that he was the parent primarily having care of the children during the school week, Mr. Hatcher did not think it important to meet with the teacher in the fall for a parent-teacher meeting but instead relied on a phone interview. Oddly, Mr. Hatcher had criticized Ms. Golding by email the previous December for organizing parent teacher-meetings to keep herself apprised of how the children were doing. In an email dated December 1, 2015 he stated “Again you have decided to go ahead and do something pertaining to the girls without informing or discussing it with me. Nor have you emailed me to let me know how those interviews went.” Yet, when the opportunity arose during the following school year he did not organize parent-teacher meetings for himself. I find that as the parent with care of the children during the school week, he should have been availing himself of opportunities to meet the teachers to ensure the children were both doing well.

91In emails starting in June 2016, Ms. Golding identified a health concern of the children, namely that both children were constipated. She sent several emails advising Mr. Hatcher about this and about the steps she was taking to have the issue resolved. She booked an appointment with the children’s doctor to discuss the issue. There was no response to the emails about this issue by Mr. Hatcher until August 20, 2016 at which time he simply thanked Ms. Golding for the update. Again it was Ms. Golding who identified the issue, and Ms. Golding who took the required steps to have the issue treated. Mr. Hatcher does not appear to have taken any steps to help address the concern.

92Over the course of the trial, much time was devoted to a tug of war over a dental treatment when Addisyn cracked a tooth. More will be said about this below. While Mr. Hatcher certainly attempted to address the issue, as did Ms. Golding, I was struck by the fact that Mr. Hatcher testified that he was not aware that the children had a regular dentist and regular pediatric dentist. Advised by counsel that Addisyn had seen the dentist no less than eleven times with her first appointment being in 2008, with regular visits thereafter until August 2016, Mr. Hatcher stated that he did not recall any of these appointments. He acknowledged that it would have been his responsibility to stay informed. I find that the fact that he did not know and did not take steps to be informed or involved is a further factor illustrating that Ms. Golding had primary care responsibilities, including during this period of time.

93A further indication that Mr. Hatcher does not assume a primary parenting role is the manner in which he responded to being advised in Alyssa’s report card that she had frequently been late for class. When he asked Alyssa why this was so, it turned out that she had been walking her sister to her classroom door rather than going straight to her own classroom. Asked whether he had taken steps with Alyssa to explore why she was doing this, he stated that he did not. He acknowledged that he would likely have been aware of this issue if he had made an appointment with the teachers to see how the children were doing. Again, not for lack of love, Mr. Hatcher did not take steps to explore this issue fully although the children had been residing with him during the school week.

94Finally, I note that the email record tendered into evidence, which I was advised contains every email between the parties between November 5, 2015 until December 8, 2016, documents the active parenting role Ms. Golding has continued to have in virtually all areas of parenting, and the lack of active engagement on Mr. Hatcher’s part on a range of issues. I appreciate that parties communicate differently and that some people are “email people” and others prefer other methods of communication. Still, the email record does not reflect Mr. Hatcher as an active parent to the extent that Ms. Golding is, even during this period of time when the parties were residing apart and litigation was ongoing.

95The volume is 176 pages long and contains very few emails from Mr. Hatcher to Ms. Golding engaging her on parenting issues. While on several occasions he quite appropriately advises Ms. Golding of information she should be aware of (for example on January 27, 2016 he sent a short email advising that the children were home from school with a fever, and on May 20, 2016 he advises that Addy had an altercation on the playground), the volume is to a large extent a record of Ms. Golding advising Mr. Hatcher about issues related to the children, or seeking his input. (There is also significant back and forth about a dental issue which is discussed below). For the most part the tone is informative and appropriate (although not always). On many occasions Mr. Hatcher does not respond or acknowledge the communication. On other occasions he responds but only after repeated emails.

96The email record shows Ms. Golding to be an active, engaged, involved parent, who is keeping track of issues related to health and education for the children, and seeking to involve Mr. Hatcher in discussion. It does not show the same with respect to Mr. Hatcher.

97In combination these factors lead me to conclude that Ms. Golding was the primary parent when the parties were together, when they had separated and were still residing under the same roof, and since May 2015.

98I note that this is consistent with what the OCL Investigator reported that Mr. Hatcher himself had told him: namely, that Ms. Golding took most of the responsibility for the care of the children, and that this was the division of labour.

Enrollment of the Children in School for the 2015-2016 School Year

99As noted above, it was not until September 2015 that any Orders were in place with respect to the parenting schedule for the children. During May and June, Mr. Hatcher felt he was being denied time with the children. The arrangements for the children were unsettled.

100Ms. Golding enrolled the children in school in Brampton without consulting Mr. Hatcher. She noted that since she was residing in Brampton it was the only place she could enroll them. She testified that as far as she was aware the children would be unable to continue in their prior schools given that Mr. Hatcher was residing outside the catchment area at his sister’s house, although she did not ask the school that question directly. In fact, Mr. Hatcher was able to enroll the children at their current schools as he was moving back into the catchment area. This lead to a motion in early September 2015, with Justice Brown ordering on a temporary temporary without prejudice basis that the children continue to attend their current Hamilton school.

101I find that while Ms. Golding should not have enrolled the children without a discussion with Mr. Hatcher, this took place at a time when communication was difficult at best, and everything, including the schedule for the children, was unsettled. Neither discussed the issue of schooling for the 2015-16 year with the other.

Ms. Golding’s Efforts to Find Employment in Hamilton

102Ms. Golding’s current job is in Oakville and she is employed on a contract basis by the Halton School Board. Prior to her current position she worked at a private school near Pearson Airport filling a maternity leave position.

103There was considerable questioning devoted to whether she had made adequate efforts to find work in or near Hamilton, exploring for example, whether she had applied to the Catholic Board, whether she had applied to private schools in or near Hamilton, or whether she had taken steps to be in the pool of candidates available for public school board positions in Hamilton. There were also questions about whether she could apply more broadly to grade 7 and 8 positions, or for positions related to children with special needs. The suggestion was that if she prioritized Mr. Hatcher’s time with the children she would have sought employment closer to or in Hamilton.

104It appeared from her testimony that Ms. Golding had not in fact tried very hard to find work in or near Hamilton. She had not made arrangements to have her resume added to the database to which the Hamilton public school board turns when positions become available. Thus she is not in the pool of potential hires for upcoming teaching positions within that Board.

105This is consistent with Ms. Golding’s statements in an affidavit earlier in the proceeding wherein she stated that she had “no reason” to remain in Hamilton given her engagement to Mr. Humphrey and what was then her job in North York. Mr. Hatcher’s counsel was very critical of this statement arguing that it showed that Ms. Golding does not view Mr. Hatcher as an important part of the children’s lives.

106Ms. Golding testified that although she regards Mr. Hatcher’s time with the children as important, she has to balance that against other factors, including her husband’s commute to his work in Markham and his distance from his own children. Mr. Humphrey testified that he cannot really live further away from Markham than he does now, due to the employer’s requirement that employees not live more than an hour away from work. Further, she and Mr. Humphrey both testified that it was important that Mr. Humphrey not be too far away from his own daughters, Sarah and Amber. Mr. Humphrey also stated that cost was a factor and that they could not, for example, afford to rent in Milton. The Brampton rental “checked all the boxes”, being the right cost, the right distance from Mr. Humphrey’s children and his employment, and not too far away from Mr. Hatcher’s residence.

107Ultimately however, towards the end of her testimony, Ms. Golding quite candidly stated to Mr. Hatcher’ counsel that she did not try to stay in Hamilton and that in fact she had tried to “get away from Ben”. Thus, while in her testimony she suggested that she had not applied in Hamilton because schools are closing in Hamilton and she felt she had “no real chance for a job” in Hamilton given the large database, I find based on her own testimony that in addition to the constraints arising from the circumstances in her new family, she also did not want to be in Hamilton or near the children’s father given their history of conflict.

Transportation under the Current Arrangement

108The current transportation arrangements may have a negative impact on both of the children. In her testimony, Ms. Golding indicated that the driving and back and forth can be difficult and stressful for the children, and may cause them some anxiety. They have been travelling between Hamilton and Brampton on Thursdays after school, Friday mornings, three out of four Friday afternoons and three out of four Monday mornings.

109Mr. Hatcher indicates that by and large the schedule, including the transportation, seems to agree with the children, except that they are sometimes tired on Monday mornings. He commented that the children do not complain every Monday but when they do it is more about being tired than about the drive. However, in his affidavit sworn September 21, 2015, at a time when it appears that the children were spending weekends with Ms. Golding and being transported back and forth, he stated that “the children are exhausted. They should not have to battle Toronto traffic (or any traffic at all) to travel from Brampton to Hamilton to go to or from school when I live down the street from the school.”

110On the evidence I find that the travel required to implement the current schedule is difficult for the children. The parents in this case live just far enough apart that it is challenging to manage a schedule for the children that has them in two communities during the school week.

Flexibility regarding the Schedule

111Both parties testified about the extent to which each of them had or had not been flexible with respect to making adjustments to the schedule to accommodate what I would call “real life”, that is, life which doesn’t neatly align with the parenting schedule. Mr. Hatcher’s summary was that he had requested changes to the schedule approximately seven times, two of which had been agreed to and five of which had not. By contrast, he said, Ms. Golding had requested flexibility six times, four of which he had agreed to and two of which he had not agreed to.

112Mr. Hatcher’s summary of refusals included an occasion where he requested a change to be able to see the girls on his birthday, Ms. Golding said yes, and then he requested a further change when his work schedule was altered. I do not find it was unreasonable for Ms. Golding to decline to make the second change, and am not sure that should count as a “decline” at all. Another occasion involved Mr. Hatcher requesting that Alyssa be able to attend a craft show with him and his sister on Ms. Golding’s time, and Ms. Golding declined. Again, I do not find it unreasonable that parents make plans on their scheduled weekends, which can sometimes be adjusted and are sometimes not, depending on how significant the event and how fixed the scheduled parent’s plans are. Mr. Hatcher for example declined to make a switch on an Easter weekend when plans had been made for the children to spend time with his family. That was not unreasonable.

113One of the requests to make adjustments was Ms. Golding’s request in May of 2016 to make a switch in the schedule to accommodate her wedding, her chosen venue not being available on a weekend the children were scheduled to be with her. Despite several requests to change the schedule for this significant event, it took Mr. Hatcher until August 20, 2016 to provide a response. He did agree to the switch but only after causing anxiety about whether the children would be able to attend the wedding, an important event not only in Ms. Golding’s life but for the children.

114Another request was Mr. Hatcher’s request to have the girls for an extended family weekend in the summer of 2015 at South River, near North Bay. He requested a four-day period. Ms. Golding indicated that she was trying to get the kids into a camp for those days, but ultimately they did not attend camp and the children stayed with Ms. Golding. This took place during the early months that the parties were no longer residing under the same roof and before a schedule had been formalized in September 2015.

115In general, my observation is that since they stopped cohabiting, both of these parents have made occasional adjustments to scheduled times to accommodate “real life”. They are sometimes able to accommodate and sometimes not. I am not prepared to find that either party has unreasonably denied a switch in parenting time.

Telephone Time

116Since the parties have been residing separately, they have been having telephone time with their parents in accordance with the Order of Justice Brown dated October 6, 2015, which was made on consent. Under that Order, each party may speak with the children each night that the children are not in their care for ten minutes per child between 7:00 and 7:30 p.m. On the evidence it appears that the parties have managed this reasonably well, and that they arrange for call-backs if a call is missed.

117Mr. Hatcher did express a concern that from his perspective Ms. Golding will from time to time press the children for information regarding who they are with, where daddy is, and similar questions, he says, up to once or twice per week. He also feels that sometimes the calls are too long and Addisyn would rather get off the phone. Mr. Hatcher testified that when the children call him, things sound busy in the background, whereas when the children call from his home, he ensures that the TV is off, and they have quiet time to speak with their mother. He would like to see the calls continue but perhaps be reduced to every other day.

118Ms. Golding indicated that sometimes her calls with the children when they are with their father are up to twenty minutes long. This causes her concern as she feels that the children would not want such long calls if everything was fine at their dad’s house. She clarified that not every long call is because there are issues with their father, but that it is also because the children miss her and want to have interaction with her. Ms. Golding indicated that perhaps phone time could become “more free now,” with less time constraints.

The Dental Debacle

119I prefer not to count the trial time that was devoted to the issue of the children’s dentist which arose in late 2015 and early 2016. In essence this became a tug of war about who should be making decisions about dental care for the children and whether the children’s dentist should be changed. This took place in a context where the children had historically been seeing Dr. Demarchi as their regular dentist and Mr. Layug as their pediatric dentist, and where there was some confusion about whether there was dental insurance coverage available. Mr. Hatcher, who, as became clear during the trial, had not appreciated that the children had regular dental care providers, insisted on taking them to a Westdale Dental and City Smiles near his residence when Addisyn cracked her tooth.

120In the result, the children were seen at the dentist selected by Mr. Hatcher, and x-rays were taken. He finally consented to Addisyn having her tooth removed by her regular pediatric dentist in March 2016, who then needed to take another set of x-rays as Mr. Hatcher had not consented to the release of the set taken at the dentist selected by him. At that point the parties had sent countless emails about the dental issue, the child had duplicate x-rays taken, and the children ended up back in the care of the dentists who had historically provided dental care.

121This dental issue was clearly about more than which dentist the children should see, and in my view, it should never have arisen. The children had dental care providers in place during and subsequent to the parties’ relationship who had been providing care for a number of years. Mr. Hatcher testified, as set out above, that he was not aware that the children had regular dental care providers, but this should have become clear to him over the course of the extensive emails back and forth with Ms. Golding. Once he became aware of this, it was not reasonable for him to continue to insist that the children’s dentists be changed, and certainly not in the face of Ms. Golding’s clear statement regarding not consenting to this change.

122By contrast, Ms. Golding was not seeking to change the dental care arrangements, only to continue the arrangements that had been in place for a number of years including when the parties were together. This was reasonable in the circumstances. I find that this situation became a microcosm in which Mr. Hatcher attempted to assert some control over the children’s care, ignoring the arrangements which had been in place during the relationship and subsequent to it. While he may have wanted to have greater involvement in this aspect of their care, his insistence on a new dental care provider was neither child-focused nor reasonable in the circumstances.

Life in Hamilton

123It was clear on the evidence that if the current schedule were to continue as sought by Mr. Hatcher, or if the children were to reside with him (which he asserted would be preferable to a move to Brampton), a number of aspects of the children’s lives would not be disrupted. They would continue in their current schools, in the Westdale area. The evidence was that they are happy in those schools and indeed enjoy school more generally. They would be able to maintain their school friendships, as well as friendships with children in their current building. They would be in a community which they have been part of for many years. Indeed, Addisyn has lived in Hamilton her whole life and Alyssa since she was two years old. The children would also continue to have frequent time with their aunt and uncle, Ms. Adams and her husband, who also live in Hamilton. Alyssa is involved with making crafts and from time to time selling items at craft shows with Ms. Adams.

124During their time in Hamilton the children reside with Mr. Hatcher in a two bedroom apartment in which they share a room. The apartment allows easy access to their friends and neighbours, and on the evidence, is an appropriate home for the children when they are with their father. The apartment has a pool, which the children enjoy.

125It was also clear, however, that there are unknowns associated with Mr. Hatcher’s future in Hamilton. As noted above, he is currently not employed, being on leave from ParkLink and not intending to return to that position, and temporarily laid off from Home Services Teams, hoping to be called back but having no guarantees of same. He has looked for other work as well. He is hoping to have one job rather than two (as he had from 2013 – 2016) so as to be more available to the children, but it is unclear what his employment future holds. Thus it is uncertain what his work schedule will be when he is next employed, and therefore to what extent his family members will need to continue to be involved on a frequent basis in morning and/or evening care of the children. It is possible that if Mr. Hatcher were to find a Monday to Friday, 9:00 a.m. to 5:00 p.m. job, he would be very available to the children and have a minimal need for family assistance; it is also possible that he would continue to require significant assistance to manage the schedule, as he has required since the parties physically separated. It is simply unknown. Retaining the current schedule should thus not be equated with there being no disruptions to the children. There may or may not be disruptions, we simply don’t know.

126Related to Mr. Hatcher’s employment situation is also a lack of certainty about his upcoming financial situation. While he testified that he believes it will have been a good decision financially to move to Home Services Teams, the fact was that he was laid off at the time of trial having worked a mere six weeks for that company, and that he has no guarantees of being re-hired. There was evidence that his sister would assist him financially if necessary but little evidence of her capacity to do so. Mr. Hatcher’s overall financial situation and his ability to provide stable housing and for the children’s needs overall is uncertain at this time.

Life in Brampton

127There would clearly be some disruption to the children if they were to live with Ms. Golding during the school week. They would both move to new schools, which would necessitate the children adapting to new school environments, and meeting new friends. Ms. Golding testified that the children do not really have friends in her neighbourhood currently and that it has been difficult to make connections for the girls since they are enrolled in school elsewhere. It appears that before-care may be needed for Addisyn, but not for Alyssa.

128As with Mr. Hatcher’s situation, there are some unknowns about Ms. Golding’s employment context which could cause disruption, although it is unclear to what extent. As noted, she is a teacher on the supply list but her current contract ends at the end of February 2017. Although Ms. Golding expressed confidence that she would be working full time within the same Board after February 2017 based on the networking she has done, she also indicated that she has only been guaranteed one day per week, and she indicated in her evidence that she has only one year of seniority within the Board. This means that there is some uncertainty about where she will be working come March 2017. Having said that, she also testified that she is committed to the field of teaching and this is the direction of her career presently. It is thus likely that irrespective of who her employer will be come March 2017, she is more likely than not to be working Monday to Friday, during the hours traditionally associated with teaching. Given the geographic areas where her job search has been focused it is unlikely that a new position would require a change of residence by her. Still, there could be some disruption to the children associated with a job transition for Ms. Golding.

129In other aspects a move to Brampton would not be particularly disruptive. The children have been spending almost equal time with their mother and Mr. Humphrey at the Brampton home. It is a known and comfortable environment for the children. They are also familiar with the neighbourhood in which their mother lives, having spent time there since May 2015, although clearly not as intimately as they are with their neighbourhood in Westdale. The children have also spent considerable time with Mr. Humphrey, whom they refer to as Matt, and on the evidence enjoy spending time with their step-sisters, Amber and Sarah. These are known aspects of life in Brampton which would require little adaptation on the part of the children even if the schedule were adjusted.

130On the evidence, Ms. Golding also resides in an appropriate home. The children each have a room in that home, which sounds pleasant and appropriate. There is a yard, which the children also enjoy.

Children’s Views and Preferences

131In this case, there is little if any reliable evidence about the children’s views and preferences.

132The OCL investigator testified that he does not ask children about where they wish to reside as he regards it as clinically problematic. The children did not volunteer information to him about where they wish to live and his report therefore does not offer insight into whether they have views on this and if so what those views might be. What he did report is that during his home visit with Ms. Golding the interaction between her and the children was positive and the children seemed comfortable. He testified that this was also the case in Mr. Hatcher’s home. He stressed that any plan must consider the children’s pre-established relationships with both parents.

133Counsel for Mr. Hatcher questioned the OCL investigator at length about the decision not to enquire as to their views and preferences regarding a possible change in the residential arrangement, indicating that she was ‘dismayed’ that the question had not been asked.

134Partway through the trial, this Court invited submissions on whether, in the circumstances, a judicial interview with the children should be conducted. Oddly, given the position Mr. Hatcher’s counsel took regarding the OCL not having asked about views and preferences, Mr. Hatcher opposed a judicial interview. After careful consideration of both counsel’s submissions, and a consideration of the other evidence available to determine the parenting arrangements in the children’s best interests, I declined to interview the children.

135There was extensive hearsay evidence throughout the trial about what the children have said to the parties and other witnesses. There were very few objections in this regard, and it was clear from submissions that each party seeks to rely on some aspects of what the children may have said at various points in time. For example, Ms. Golding and Mr. Humphrey both testified that the children had told them that they wish to reside in Brampton and go to school there. Mr. Hatcher testified that Addisyn had told him that she had to keep the move to Brampton a secret.

136In this decision, I have given the hearsay evidence I have heard about statements the children may or may not have made little weight. I regard the parties’ evidence of what the children may or may not have told them as inherently unreliable and the potential for self-serving statements significant. In this case there is adequate evidence to make a determination as to the parenting arrangement that is in the best interests of the children without relying on these hearsay statements.

137Mr. Hatcher testified about a text he received from Alyssa during a Legal Aid Settlement Conference on August 18, 2015, while she was in the care of her maternal grandmother. The text read: “I want to go to school in Brampton I love you (kisses and heart emoji’s) very much I want to live with mommy and visit you. He cited this as evidence that Ms. Golding was influencing the children and putting them in the middle of the conflict. Ms. Golding testified that she did not tell Alyssa to send that text. Ms. Golding’s mother also testified that she did not have Alyssa send that text. I have disregarded the text as I do not have enough information about the circumstances in which it was sent for it to have any probative value.

138There was some evidence about the children’s respective dispositions and states of mind in the midst of their parents’ separation. The evidence was consistent that Addisyn is quite adaptable and would no doubt adjust to a move to Brampton. There was also consistent evidence Alyssa is a bit more withdrawn, and that it might take her a little longer to make new friends as she is not as outgoing as her sister. Ms. Adams testified that it seemed to her that Alyssa may be depressed. Ms. Golding and Mr. Humphrey testified that the children seem needier on Sunday nights before their return to Hamilton on Mondays, with Addisyn being tearful and Alyssa asking for more cuddling time. This is consistent with Ms. Golding’s mother’s observation that the children don’t seem to enjoy heading back to Hamilton on Monday mornings.

Decision-Making and Communication

139On the evidence, it appears that Ms. Golding has been the primary decision-maker for the children, on major issues related to health and education, at least since Addisyn’s birth. Mr. Hatcher would have liked to be more involved, he said, but Ms. Golding’s views would prevail. He gave the example of French Immersion, which he felt would benefit the children. Ms. Golding did not agree, and so the children were not enrolled in French Immersion. This is no doubt related to the parties’ differences in communication styles. On a go-forward basis, Mr. Hatcher wants to be involved in decision making on major issues for the children.

140As noted above, the parties have experienced significant conflict which has at times lead to violence, in one instance, violence against Mr. Hatcher by Ms. Golding and in other instances, violence by Mr. Hatcher against objects. Ms. Golding was volatile for a time in 2009 with an incident of self-harm and attending at the paternal grandparents’ home in the middle of the night. Their communication has at times been fraught and unproductive.

141Subsequent to their physical separation, communication has remained difficult. The parties’ most significant communication challenge was around what I have called the dental debacle. This was a power struggle about decision-making on major parenting issues.

142Mr. Hatcher testified that communicating with Ms. Golding causes him anxiety so he limits his engagement. Face to face communication is particularly difficult for him. In the circumstances his strategy has been to avoid conflict in front of the children as much as possible by avoiding discussions face to face and refraining from speaking with Ms. Golding. This is better than fighting in front of the children but cannot be called effective communication.

143There is, as set out above, communication by email. As noted, Ms. Golding does the bulk of the information sharing by email. Mr. Hatcher often does not respond promptly and sometimes does not respond at all. Although the parties have communicated effectively by email on select issues, overall, email has not been a two-way street. Mr. Hatcher acknowledged that there have been many emails he did not respond to. With little to no face to face communication and difficulties with email communication, it is hard to see how joint decision-making would work.

6 CUSTODY, RESIDENCY, AND RELOCATION

a) A Note About Language

144The language of custody and access is not used consistently in the case law. I observe that many cases, particularly older cases that refer to a parent having “custody” are in fact referring to “physical custody”, meaning the residential arrangements where the children reside primarily with one parent. This can be seen for example in Gordon v. Goertz 1996 191 (SCC), [1996] 2 S.C.R. 27 where Justice McLachlin states after setting out the factors for consideration, “in the end, the importance of the child remaining with the parent in whose custody it has become accustomed, must be weighed against the continuance of full contact…” In my view it is clear that the main focus is on residency and time-sharing, rather than decision-making structure.

145In those older cases, the parent having physical custody often also had legal custody, that is, the right to make major decisions for the child on education, health issues, and religion. Thus “custody” was often used to refer to both concepts: physical residency of the children and decision making on major issues.

146More recently, both as a product of litigation as well as negotiated settlements, “custody” has tended to refer to decision-making on major issues while “residency” or “parenting time” or “residential schedule” has tended to refer to how the children’s time with their parents is shared.

b) The Law in Relation to Custody, Residency and Relocation

“Custody” to be Determined before Mobility

147Gordon v. Goertz, (supra) is of course the leading case to be applied in the context of a mobility case. However, that matter was decided in the context of a variation application under section 17 of the Divorce Act, where a custodial parent had already been designated. That is not the case here.

148This is an initial application for custody and access and neither party has previously been designated the “custodial parent”. The Ontario Court of Appeal has held that Gordon v. Goertz, (supra) nevertheless applies. The trial judge should first decide the issue of custody and then factor that into the mobility analysis. While there may be overlap in the analysis of the custody determination and the relocation determination, one is not determinative of the other.

149As Justice Austin stated in Bjornson v Creighton, 2002 45125 (ON CA), [2002] O.J. No 4364:

“In applying the guidelines provided by Gordon to the instant case, two matters require consideration. The first is that at the outset of the trial, the parents were ‘equally entitled to custody’. As a result, for analysis purposes, the parents could not be divided into ‘custodial parent’ and ‘access parent’. The second is that the organization of his reasons is such that the trial judge appears to have decided the question of mobility first and the question of custody second. With respect, that strikes me as putting the cart before the horse.”

150However, this does not mean that the initial custody analysis is to be undertaken without taking into account all aspects of each parent’s plan for the children, including where they propose to live. “Rather,” as stated by Justice MacKinnon in Terris v. Terris, 2013 CarswellOnt154 at 12, “the issue of custody is to be determined having regard to all relevant factors including place of residence.”

Custody to be Determined Under CLRA

151In this case, the parties are unmarried, and custody and access is to be decided under the Children’s Law Reform Act. Section 24 of that Act provides that custody and access must be decided on the basis of the child’s best interests, determined with reference to all of 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;

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

152In applying these factors under the CLRA in the mobility context, the Court must have regard to all relevant factors, including, as noted above, the proposed placed of residence. Terris, (supra).

Maximum Contact

153Although custody and access in this matter are to be determined under the CLRA rather than the Divorce Act, the maximum contact principle as set out in the Divorce Act is also applicable. See Borsfai v. Hyde 2015 ONCJ 117 at 139. That principle provides that in making a determination on custody and access a Court is to give effect to the principle that a child should have as much contact with each parent as is consistent with the best interests of the child, and shall take into consideration the willingness of each parent seeking custody to facilitate such contact. As stated by Justice McLachlin in Gordon v. Goertz, (supra), “Parliament has indicated that maximum contact with both parents is generally in the best interests of the child.”(see para 25)

154While it has been noted that it is “not simply the frequency of access which is the consideration… it cannot be denied that frequency of access bears some correlation to the child’s relationship with the access parent.” Woodhouse, 1996 902 (ON CA), 1996 CarswellOnt 1906 at 50.

155Maximum contact is limited to contact consistent with the child’s best interests, As noted in Young v. Young, 4 S.C.R. 3, as cited in Woodhouse, (supra) at 13, “[t]he only circumstance in which contact with either parent can be limited is where the contact is shown to conflict with the best interests of the child.”

156A consideration of the maximum contact principle is required both in the determination of custody and access, as well as in the relocation analysis under Gordon v. Goertz, (supra), as is seen below.

Relocation Analysis

157Once “custody” has been determined, the Court is to specifically address the relocation issue in accordance with the principles set out in Gordon v. Goertz, (supra) including, as noted in Terris, (supra), “its direction to accord great respect and the most serious consideration to the views of the custodial parent, and to always be governed by the child’s best interests.”

158The guiding principles set out in Gordon v. Goertz, (supra) as applied in Bjornson v. Creighton, (supra) with respect to initial applications, are as follows:

1. The judge must embark on a fresh inquiry into what is in the best interests of the child, having regard to all of the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them.

2. This inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect and the most serious consideration.

3. Each case turns on its own unique circumstances. The only issue is the best interests of the child in the particular circumstances of the case.

4. The focus is on the best interests of the child, not on the interests or rights of the parents.

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

(a) The existing custody arrangement and relationship between the child and the custodial parent;

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

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

(d) The views of the child;

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

(f) The disruption the child of a change in custody; and

(g) The disruption to the child consequent on removal from family, schools, and the community he has come to know.

159In applying the principles set out in Gordon v. Goertz, (supra), proper weight must be attached to the maximum contact principle, described above. While the principle is not absolute, it is mandatory, including under a Gordon v. Goertz, (supra) analysis, as set out by the Ontario Court of Appeal in Berry v. Berry, 2011 ONCA 705 at 27. In that case, the Ontario Court of Appeal held that the trial judge had “failed to give sufficient weight to the principle that a child should have as much contact with each parent as is consistent with the child’s best interests. Instead the trial judge’s reasons focus almost exclusively on the mother’s reason for moving.”

c) Application of the Law to the Parenting Facts in this Case

Application of Section 24 of the Children’s Law Reform Act

160Below, for clarity, and further to my comment above regarding language in custody and access cases, I use the word “custody” to refer to decision making on major parenting issues such as significant health and education issues; and “residency” or “parenting time” or “parenting schedule” to refer to the timesharing between the parents.

161For the reasons set out herein and based on the facts as I have found them above, I find that it is in the children’s best interests that they live primarily with Ms. Golding, that she have sole custody of them, and that they have specified parenting time with Mr. Hatcher.

Love, Affection, and Emotional Ties

162On the evidence set out above, these children are well loved and have a warm and generous circle of family around them. I have no doubt that there is a deep love between both parents and each of the children. It is clear that Mr. Hatcher loves the children very much and wants what he feels is in their best interests and that Ms. Golding also loves the children and wants what she believes is in their best interests. The evidence is that the children love both of their parents. The children are also loved by their aunt and uncle (Mr. Hatcher’s sister and her husband), and by their grandparents. They have a warm relationship with their step-family members, Mr. Humphrey, and his two daughters. This affection and these emotional ties are a precious resource in the raising of these children, and the parenting arrangements should ensure that the children have access to these sources of love, affection, and guidance.

Views and Preferences

163Views and preferences of children, where they can reasonably be ascertained, are one factor to be considered in the determination of parenting arrangements. In this case, for the reasons set out above, the Court does not have reliable evidence of the children’s views and preferences.

164The older the child and the more mature that child, the more significance a Court will give to those views. In this case, Addisyn is only 7 years of age so the weight of her view would in any event have been modest in this determination.

165Alyssa on the other hand was almost twelve years of age at the time of the trial, so it would have been helpful to have at least some indication of her views and preferences through the Office of the Children’s Lawyer Investigator. Having said that, he did report that the children love both of their parents and are comfortable in both homes. For the reasons set out above I placed little weight parents’ hearsay testimony about the children’s views and preferences.

Length of Time in Stable Home Environment

166The children lived full time in Hamilton, Ontario attending schools in Hamilton until September 2015. In this context they had a familiar neighbourhood, friendships at school and in the community, and familiar local routines. Alyssa has lived in Hamilton since 2007 when she was two years old, and Addisyn for all of her seven years.

167Since May of 2015, the children have lived in two homes, initially somewhat more time with their mother and then on an approximately equal basis with both parents. At first, they divided their time between their mother’s home in Brampton and their aunt’s home while in their father’s care. Subsequently they divided their time between their mother’s home in Brampton and their father’s current residence in Hamilton. Their father’s current residence is in Westdale, where the children’s schools are also located.

168While Ms. Golding has only lived in her current residence for about a year and a half, it is not “new” to the children any longer. They have spent significant time with their mother in that home since May 2015. In Brampton, the children have enjoyed a stable, comfortable, and familiar home environment with their mother, Mr. Humphrey, and Mr. Humphrey’s daughters. They do not yet really have friends in that community but the home, neighbourhood, and community are familiar to them at this point.

169These children, since May of 2015, have had two stable home environments, one of which is in the community in which they have resided since 2007. This is not a case where the proposed residential environment is unknown or unfamiliar to the children. To the contrary, the children have spent approximately half of their time in that environment for over a year and a half.

Ability and Willingness to Provide Guidance, Education, and the Necessaries of Life

170Based on my findings set out above, both parties are willing to provide guidance, education, and “necessaries” of life. However, I find that they have not shown equal ability to do so, either during their relationship, while they co-habited post-separation, nor since they physically separated.

171I found above that through all stages of these children’s lives, Ms. Golding has been the primary parent. While the parties were together (before separation), Mr. Hatcher had significant employment obligations and he acknowledged that Ms. Golding did the majority of the parenting. From separation in 2010 until May of 2015, the parties helped one another with pick-ups and drop-offs of the children, as well as bath time and meals, but is was Ms. Golding who attended to their academic needs, health needs, and dental needs. Mr. Hatcher did not attend parent-teacher meetings for example, and was unaware that there was a regular dentist. From May 2015, until trial, when the parties both had care of the children, Ms. Golding remained the parent who took the lead on education as well as health and dental care, and the issue of counselling for the children. She would seek his involvement in these issues, often through email. I found it striking that even when the children were primarily in Mr. Hatcher’s care during the school week, it was Ms. Golding who continued to take the lead on school-related issues. When issues arose about Alyssa being late regularly, Mr. Hatcher did not, on his own evidence, explore why Alyssa felt the need to walk her sister to class.

172Mr. Hatcher’s counsel suggested that being the primary parent before separation does not mean this cannot change after separation, and I agree that as a general statement, that is certainly the case. However, in this case, both after the parties separated in 2010 and since the physical separation in 2015, it is clear that Ms. Golding was the more active, involved, and attentive parent, even during the period that the parties had roughly equal time with the children. I have not made any presumption that parenting roles pre-separation should determine roles after separation, but have considered what the parties have actually done, as parents, since their separation in 2010.

173As I found above, after the parties physically separated, Mr. Hatcher also required assistance from family and a neighbour to manage the physical care of the children due to his employment obligations. I do not fault Mr. Hatcher for working hard and for managing two jobs for much of this period – he has clearly done what he can to earn an income to support his children – but the fact remains that this has often resulted in the need for third party care to attend to the morning routine, to pick them up and sometimes care for them after school, and to care for them some evenings as well. By contrast, while Ms. Golding has required assistance with transportation, she has largely been available during her parenting time to meet the needs of the children.

174Mr. Hatcher testified that while the parties cohabited, Ms. Golding was not concerned about his parents or sister providing care for the children from time to time. However, he acknowledged in cross examination that at this time, he and Ms. Golding are the primary people with whom the children should be spending their time. On the evidence, Ms. Golding is more likely to be more available to the children than is Mr. Hatcher.

175I recognized above that the parties’ availability may change due to their employment situations, Mr. Hatcher being currently unemployed and Ms. Golding facing uncertainty about her teaching schedule come March 2017. However, on a balance of probabilities I find that even when the parties’ employment situations are resolved, based on what has taken place to date and the parties’ current professions, it is more likely that Ms. Golding will have greater availability to care for the children than will Mr. Hatcher.

176I do have some concerns about Mr. Hatcher’s current unemployment and his ability to provide for the children. However, he has an extensive work history, often working more than full time, and for periods working more than one job. He is clearly a hard worker and not afraid to take additional work to meet his family’s needs. I believe it is unlikely that he would continue to be unemployed over the long term given his obvious work ethic.

177I also have some concerns about the uncertainty of Ms. Golding’s employment situation. However, she stressed her optimism that she will have full time employment after the end of this contract. She also has significant qualifications which should assist her in finding further work as a high school math and science teacher. Further, being married to and cohabiting with Mr. Humphrey, she also has the likely benefit of a financial “buffer” if she experiences some unemployment.

Each Parent’s Proposed Plan for the Children

178Mr. Hatcher’s plan for the children is to continue the current parenting arrangement whereby the children reside with both parents, but attend school in Hamilton and largely see Ms. Golding on the weekends. Under this plan, the children have the benefit of maintaining their current friendships at school and in their neighbourhood, maintaining their existing relationship with their aunt, uncle, and paternal grandparents, and continuing to reside half of the time in the community that they have always known. Although Mr. Hatcher stated that in the alternative he would like the children to reside full time with him, this was not the focus of his testimony or counsel’s argument.

179Ms. Golding’s plan for the children is that they reside primarily with her, and that they reside with Mr. Hatcher three week-ends out of four from Friday after school to Monday morning. She also envisages a visit in Brampton each Wednesday from afterschool until 7:00 p.m. Under this plan, the children would change schools and become more fully integrated in their mother’s community. She also envisages that Mr. Hatcher would speak to the girls by phone and potentially by Skype. There would be disruption in terms of school but from Ms. Golding’s perspective this would be transitional. She believes the girls are resilient.

180Neither plan is perfect from a logistical perspective.

181The challenge with Mr. Hatcher’s plan is that it requires significant transportation assistance by third parties. Ms. Golding’s mother testified that she would continue to assist “if I have to.” It also requires the children to continue to go back and forth during the school week, through traffic, which Mr. Hatcher himself had stated in affidavit material is exhausting for the children. Further, he may or may not again require assistance from third parties to care for the children when he either resumes his employment with Home Services Teams or with another employer – that is unknown.

182The challenge with Ms. Golding’s plan is that Mr. Hatcher expects to have difficulty picking up the children on Fridays as well as returning them on Monday mornings. He also expects that once he is employed, he will not be able to avail himself of the Wednesday parenting time.

Permanence and Stability

183Both proposed plans offer permanence and stability although the specifics differ.

184Under Mr. Hatcher’s plan, assuming he resumes employment and can meet his expenses, the children would continue in their current Westdale home and schools, cared for by him, his sister and his parents, with the assistance of a neighbour, as needed. This is something the girls have known and which is stable and familiar to them. I did not hear evidence about any new partner on Mr. Hatcher’s part. Under his plan they would continue to see their mother on weekends and participate in her new family from Thursdays after school to Monday morning drop off at school, three weekends out of four.

185Under Ms. Golding’s plan, the children would spend more time than they do currently in a family unit comprised of Ms. Golding, her husband, and his children when they come for visits. This is already a known context for them but the time would increase. They would spend time with their father largely on weekends, which would give them access to their Westdale neighbourhood; with their aunt, uncle and grandparents; and with the friends that they have made in that context.

186On balance, while both plans offer permanence and stability, I find that Ms. Golding’s plan offers greater stability as she is able to care for the children more consistently during her time than is Mr. Hatcher. While the children know and love their aunt, uncle, and grandparents, it was evident in the oral evidence that there are many transitions in care between Mr. Hatcher and those who help him when he has to work. Again, while the specifics of a new job are unknown, to date his employment has necessitated the assistance of third parties to manage physical care of the children during his parenting time.

Relationship with Parent by Blood or Adoption

187Both parents have equal ties through blood to the children.

Maximum Contact

188Both Ms. Golding and Mr. Hatcher adore these two girls. However, that does not lead to a presumption of equal time with each parent. The directive is that the children should have as much time with each parent as is in their best interests. There may be cases where this requires more time with one parent than with another.

189I find that in this case, the parenting schedule sought by Mr. Hatcher would in fact conflict with the best interests of the child, in the language of Young v. Young, cited (supra). Their best interests require that they spend more time with Ms. Golding than they do currently.

190Based on all of my findings above, this is a case where it is in the best interests of the children to reside primarily with Ms. Golding with meaningful and frequent parenting time with Mr. Hatcher. In this case, given the relatively short distance between the parties, “frequent” time is in fact possible.

191Without repeating my extensive factual findings above, I have reached my conclusion that it is in the best interests of the children to reside primarily with Ms. Golding for reasons including but not limited to the following: Ms. Golding’s primary parenting role throughout the children’s lives, including during the 18 months of physical separation; her ongoing, extensive, and attentive involvement in the children’s schooling and health care; the stability of the home environment she proposes including her own ability to physically care for the children without significant reliance on third parties; Mr. Hatcher’s more limited ability to physically care for the children on his time up until the date of trial and on a balance of probabilities, thereafter; and Mr. Hatcher’s more limited involvement in educational and health issues of the children since their birth, including when he had roughly equal care of them.

192I have considered, as I am required to do, Ms. Golding’s willingness to facilitate contact with Mr. Hatcher (and for that matter, Mr. Hatcher’s willingness to facilitate contact with Ms. Golding). On a consideration of all of the evidence, I find that Ms. Golding is both able and willing to facilitate the contact between the children and Mr. Hatcher that is in the best interests of the children. I reach this conclusion having considered all of the evidence, including Ms. Golding’s having enrolled the children in school in Brampton without notice to Mr. Golding, and her candid admission that she did not try to stay in Hamilton and indeed wanted to get away from Mr. Hatcher at the conclusion of their spousal relationship. I have specifically considered whether these are indicators that Ms. Golding will marginalize Mr. Hatcher as a parent. I find that in the context of all of the evidence, they are not. I stress that while these were not Ms. Golding’s finer moments, the task before me is not to punish Ms. Golding – rather the task is to determine what parenting arrangements are in the children’s best interests, having regard to the parties’ strengths as parents and the maximum contact with each parent that is in these children’s best interests. I have considered in detail the extensive evidence of how the children have been parented since separation, and how time-sharing has been implemented since September 2015. I have found that both parties have been reasonably flexible in terms of adjusting the parenting schedule as required. Neither party has frustrated the implementation of the current parenting Order. Both parties have been able to make the provisions for telephone time in the current order work reasonably well. Ms. Golding consistently and routinely seeks Mr. Hatcher’s input on parenting issues, large and small. I believe her testimony that she will continue to facilitate contact – both face to face and by telephone – as she has done in the implementation of the current Order. I find that on a balance of probabilities, Ms. Golding will continue to facilitate contact with Mr. Hatcher, for the benefit of their children.

Conclusion Regarding Custody and Residential Arrangement for the Children

193Residential Arrangement: In this case, even if Ms. Golding had not moved to Brampton, I would not have ordered an equal time-sharing arrangement. Had both parties continued to both reside in Hamilton, I would have ordered a schedule under which the children would reside primarily with their mother, and with their father on alternate weekends from Friday after school to Monday morning and one mid-week in alternate weeks before their weekend with their mother. This schedule would have offered consistency and stability, and would have had the children primarily in their mother’s care during the school week, which I regard as being in the best interests of these children. It would have offered the maximum contact with Mr. Hatcher as is consistent with the children’s best interests, and the maximum contact with Ms. Golding as is consistent with their best interests.

194Decision-Making: On the evidence in this case, it is clear that the communication between the parties is strained and often unproductive. Mr. Hatcher avoids face to face communication with Ms. Golding, which makes him feel anxious, and often refrains from speaking to Ms. Golding. Email communication has been largely a one-way street, with Mr. Hatcher by his own admission not responding to many emails sent by Ms. Golding. The majority of the communication about decisions for the children originates from Ms. Golding, not Mr. Hatcher. Where Mr. Hatcher asserted himself on an issue related to the dentist, he did so, ultimately, in manner that was not child focused and did not recognize the children’s existing dental care arrangements. This is not a case in which joint custody would be workable. On the evidence I find that sole custody to Ms. Golding is the appropriate decision-making framework for these parties.

Application of Gordon v. Goertz

195Having applied section 24 of the Children’s Law Reform Act and the maximum contact principle on the facts of this case and having reached the determination that there shall be sole custody to Ms. Golding with the children residing primarily with her, I turn now to the application of the principles set out in Gordon v. Goertz, (supra). In the application of these principles I rely on the determinations above, given the the extent of the duplication between the CLRA analysis and that required under Gordon v. Goertz, (supra).

The existing custody arrangement and relationship between the child and the custodial parent

196I have found above that under the current residential arrangement, notwithstanding the almost-equal time sharing with respect to the children and both parents’ deep love for their children, Ms. Golding has been the children’s primarily caregiver and has managed most aspects of their schooling, health care, dental care, and other needs. As stated, this has been so even during the period since the parties’ separation. While I have found that both parents love the children and are loved by the children, the children would benefit from additional time in the care of their mother. It is not disputed that there is a strong bond between Ms. Golding and the children.

The existing access arrangement and the relationship between the child and the access parent

197It is also not disputed that the children love their father and that he wants what he believes is best for them, and I have found that he has worked very hard to provide for them, working many hours each week. Having said that, as the evidence above set out, the existing residential schedule has been difficult to manage in Mr. Hatcher’s home without considerable assistance by third parties. It has also required significant back and forth through traffic during the school week. The existing parenting schedule is not in the children’s best interests.

The desirability of maximizing contact between the child and both parents

198I have addressed the maximum contact principle above. The parenting schedule that maximizes the children’s time with both parents in a manner consistent with the children’s best interests is one in which the children reside primarily with their mother and have meaningful, frequent parenting time with their father. I have already found that Ms. Golding will facilitate contact with Mr. Hatcher for the children.

The views of the child

199Evidence of the views of the children is not available, except insofar as the OCL Investigator reported that the children love both of their parents and are comfortable in both homes. The children did not volunteer a view about where they would prefer to live.

The custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child

200In my view this is not a case where the mother’s reason for moving is relevant to her ability to meet the needs of the children.

The disruption to the child of a change in custody

201As I set out above in my comments about a “stable home environment”, while there would be disruption to the children in terms of changing the schedule, in many respects the children’s lives would be very similar to how they have been leading up to the trial. They would still spend time in the two homes in the two cities they have been moving between since May 2015. Their mother would continue to take the lead on major parenting issues such as schooling, health care, and dental care. They would spend time in their father’s apartment and neighbourhood where they have friends. They would likely continue to see their aunt and uncle and their grandparents in conjunction with their time with their father. They may even see their paternal grandparents from time to time while in their mother’s care as the grandparents reside only a ten minute drive from Ms. Golding’s home.

The disruption to the child consequent on removal from family, schools, and the community he has come to know

202A move to Brampton during the week would, it is clear, cause disruption to the children in terms of their schooling. The evidence of the parties is consistent that Addyson is bubbly, makes friends easily and is adaptable. The parties agree that it may take Alyssa a little longer to adjust and that she takes longer to make new friends. Mr. Hatcher agreed, however, that the children are capable of making this move. In this context, with communities only 45 minutes apart, and the ability to maintain frequent time for the children at Mr. Hatcher’s home, I find that while there will be disruption to the children from the change in school, this is considerably softened by their ability to maintain contact with both sets of extended family, and their friends in their father’s community. While this is a “mobility” case, much of what the children know in terms of family, community, and friendships, can be maintained through the parenting schedule.

Conclusion regarding Custody, Residential Schedule, and Relocation

203In conclusion I find that Ms. Golding shall have sole custody of the children and they shall reside primarily with her. They shall have specified parenting time with their father, as it set out in greater detail below. Ms. Golding shall be permitted to enroll the children in school in Brampton, Ontario.

204In applying the principles of Gordon v. Goertz, (supra) to the facts of this case and after having applied section 24 of the Children’s Law Reform Act and the maximum contact principle, I find that the regular parenting schedule that is in the children’s best interests is as follows: that the children reside primarily with Ms. Golding, and that they reside with Mr. Hatcher three weekends out of four from Friday after school until Sunday evening. During the second week, if Mr. Hatcher is available, there is to be parenting time in Brampton one day that week from after school until 8:00 pm. During the fourth week the children shall reside with him one overnight, from after school until the following morning at the commencement of school. If the parties cannot agree on the regular weekday that the mid-week time visit and the mid-week overnight time are to take place in weeks two and four respectively, the afternoon/evening visits shall be on Thursdays in week two and the overnights shall be from Thursday after school until Friday morning in week four.

205While this regular schedule is a different constellation of days than I would have ordered if the parties both resided in Hamilton, it is a similar amount of time, after accounting for PD Days and holiday time, set out below. I have ended weekends on Sundays rather than on Monday mornings to avoid the children travelling between cities on Monday mornings before school, and in light of Ms. Hatcher’s testimony that Monday morning returns of the children would not be feasible for him.

206The parties agreed to a significant extent with respect to aspects of the holiday schedule. They also agreed that the children should be enrolled in counselling, with the location of that counselling to follow my decision with respect to the residency of the children. Further, they agreed that it would be useful to use Our Family Wizard for communication. The Order below sets out specifics on all of these issues, based on the facts as I have found it above.

7 CHILD SUPPORT

207There is no disagreement between counsel regarding the child support arrangements that flow from either Mr. Hatcher’s proposed parenting arrangements or Ms. Golding’s proposed arrangements. Having determined residency as set out above, ongoing child support shall be paid under section 3 of the Child Support Guidelines from Mr. Hatcher to Ms. Golding. Counsel have agreed that the parties’ 2015 incomes shall be the basis of the Order. I have particularized this below.

208No child support was paid by either party to the other from the date that they physically separated. Child support was put in issue in Ms. Golding’s Answer dated June 2, 2015. I find that from July 2015, when the parenting arrangements began to stabilize, child support was payable by Ms. Golding to Mr. Hatcher under section 9 of the Child Support Guidelines. The Order below thus provides for a retroactive amount payable to Mr. Hatcher.

8 OTHER ISSUES

209Life insurance coverage as well as benefits coverage for the children were sought in this proceeding.

210Presently, it appears that neither party has benefits coverage. The Order below provides that as and when either or both of the parties have access to such coverage through employment, they name the children as beneficiaries and provide one another with their benefits information.

211Mr. Hatcher’s financial statement disclosed a modest life insurance policy having a face value of $20,000. This will not be enough to secure his child support obligations. The Ontario Court of Appeal has confirmed that the Court has broad scope for securing the payment of a support Order. See Katz v. Katz, 2014 ONCA 606. In this case I find that the appropriate amount of life insurance having regard to child support based on Mr. Hatcher’s 2015 income is $100,000.00 The Order below provides for same.

9 FINAL ORDER

212Based on the foregoing, I make the following Order:

Custody, Residency, and Relocation

213Ms. Golding shall have sole custody of the children, and shall make major decisions concerning their education, health care, and religion. Before making any major decision for the children she shall meaningfully consult Ms. Hatcher, and she shall give due consideration to his views. Upon making any major decision, she shall promptly inform Mr. Hatcher in writing.

Day to Day Decisions

214Day to day decisions shall be made by the parent having care of the children at any given time. Day to day decisions include decisions such as bed times, what the children wear, screen-time, homework routines, chores, and other similar issues.

Emergency Decisions

215Emergency decisions shall be made by the parent having care of the child when the emergency arises. That parent shall promptly attend to the emergency and notify the other parent as soon as possible.

Access to Information

216Both parties shall have the right to make inquiries and to be given information by physicians, dentists, teachers, counsellors, and other professionals involved with the children. If Mr. Hatcher has any difficulty accessing information about the children, Ms. Golding shall sign an Authorization and Direction to assist Mr. Hatcher in accessing information.

Regular Schedule

217The children shall reside primarily with Ms. Golding. They shall reside with Mr. Hatcher on a four week rotating schedule as follows:

a. Week One:

1. From Friday after school until Sunday at 7:00 p.m.;

b. Week Two:

1. One weekday afternoon from afterschool until 8:00 p.m., in Brampton (to be on a Thursday if the parties do not agree otherwise in advance in writing);

2. From Friday after school until Sunday at 7:00 p.m.;

c. Week Three

1. From Friday after school until Sunday at 7:00 p.m.;

d. Week Four

1. From after school on a week-day to be agreed upon until the following day return to school (to be from Thursday to Friday if the parties do not agree otherwise in advance in writing).

School Enrollment

218Ms. Golding is permitted to enroll the children in school in her catchment area in Brampton. If the parties cannot agree on when the transition shall take place, it shall be on the Monday following the children’s March Break from school, at which time the first week of the parenting schedule provided for above at paragraph 217 shall take effect.

PD Days

219If Mr. Hatcher is available to care for the children, they shall reside with him during all of the children’s PD Days from school. If a PD day is a Friday, the children are to come into his care on Thursdays after school until Friday at 7:00 p.m.; if PD days are a Monday and the children were scheduled to be with him on the immediately preceding weekend, they shall continue in his care until Monday at 7:00 p.m. If the Monday follows a weekend when the children are in Ms. Golding’s care, the children are to be in Mr. Hatcher’s care from Sunday at 7:00 p.m. until Monday at 7:00 p.m.

Holiday Schedule

220The holiday schedule is to override the regular schedule and unless the parties agree otherwise, shall not cause an adjustment to the underlying regular schedule.

221The children shall spend their time approximately equally with their parents during the holidays each year, making arrangements by email or otherwise in writing at least 30 days in advance of each holiday. In the event that they have not agreed at least 30 days in advance of each holiday, the following schedule shall prevail:

a. Christmas:

1. The Christmas Break begins on the last day of school before the Christmas holiday at the conclusion of the school day and ends on the Sunday before the children’s return to school at 7:00 p.m.;

2. In 2018 and even-numbered years, the children shall reside with Mr. Hatcher from December 24 at 2:00 p.m. until December 25 at 2:00 p.m. and the Ms. Golding from December 25 at 2:00 p.m. until December 26 at 2:00 p.m. The reverse schedule shall be in effect in 2017 and odd numbered years.

3. In 2018 and even-numbered years, the children shall spend the first half of the balance of their Christmas break from school, which may be interrupted by the period provided for in paragraph 220(a)(2), with Mr. Hatcher. The reverse schedule shall be in effect in odd-numbered years.

b. March Break: March Break is defined as the period from Sunday at 7:00 p.m. on this first weekend of the break until Friday at 7:00 p.m. In even numbered years, the children are to reside with Mr. Hatcher for March Break and in odd numbered years they are to reside with Ms. Golding.

c. Summer: The children are to reside on a week-about basis with the parties for the first eight weeks of the summer, with transition times to be from Friday at 7:00 p.m. unless the parties agree to a different transition time. During the ninth week, the children will reside in accordance with the regular schedule. Ms. Golding shall have the children in her care for weeks 1, 3, 5, and 7 and Mr. Hatcher is to have them in his care for weeks 2, 4, 6, and 8 in even numbered years, with the reverse schedule to take effect in odd-numbered years. In summers where there are ten weeks off from school, the children will reside on a week-about basis for the ten weeks.

d. Easter: Easter is defined as the period between Thursday after school until Easter Monday at 7:00 p.m. In even-numbered years, the children shall reside with Ms. Golding from the Thursday after school until Saturday at 7:00 p.m. and with Mr. Hatcher from Saturday at 7:00 p.m. until Monday at 7:00 p.m. The reverse schedule shall be in effect in odd-numbed years.

e. Thanksgiving: Thanksgiving is defined as the period between Friday after school until Thanksgiving Monday at 7:00 p.m. In even-numbed years, the children shall reside with Mr. Hatcher from the Friday after school until Saturday at 7:00 p.m. and with Ms. Golding from Saturday at 7:00 p.m. until Monday at 7:00 p.m. The reverse schedule shall be in effect in odd-numbed years.

f. Long Weekends (Family Day, Victoria Day, Labour Day): The children shall spend the long weekend Monday in the care of the parent with whom they are scheduled to spend the immediately preceding Saturday and Sunday, until 7:00 p.m. For clarity, the August Civic Holiday is accounted for in the week-about summer schedule provided for above.

g. July 1: The children shall follow the regular schedule for July 1 each year.

h. Mother’s Day/ Father’s Day: If the children are not already scheduled to reside with the honoured parent, they shall spend Mother’s Day with Ms. Golding from Saturday at 7:00 p.m. until Sunday at 7:00 p.m. and Father’s Day with Mr. Hatcher from Saturday at 7:00 p.m. until Sunday at 7:00 p.m.

Transportation

222The transportation of the children is to be shared equally between the parties. Unless the parties agree otherwise in advance in writing, the party who has the children in his or her care shall deliver the children to the other parent at the end of his or her time, with the exception of Mr. Hatcher’s afternoon/evening time in week 2 when the transportation both directions will be Mr. Hatcher’s responsibility.

Counselling

223On consent, the parties shall enroll the children with a qualified counsellor/therapist. The parties shall seek the guidance of the counsellor/therapist as to the scope and duration of his or her involvement with each child. Cost, after accounting for any benefits that may be available to the parties, shall be shared in proportion to income as a special and extraordinary expense.

Our Family Wizard

224On consent, the parties shall enroll in Our Family Wizard and shall share the cost equally.

Telephone Time

225Each party having the children in his or her care shall ensure that the children telephone the other parent between 7:00 and 7:30 p.m., for up to ten minutes per child. The parent facilitating the call shall provide the children with quiet and privacy to speak with the other parent.

Child Support

226Commencing the first day of the first month following the children’s move to Brampton, table child support for the children shall be paid by Mr. Hatcher to Ms. Golding for Addisyn and Alyssa based on his 2015 income of $36,865 in the amount of $533.00 per month, which shall be paid on the first day of each month.

227The parties shall share the children’s special and extraordinary expenses on a proportionate basis, based on Mr. Hatcher’s 2015 income of $36,865 and Ms. Golding’s 2015 income of $48,461, Mr. Hatcher’s proportionate share being 43% and Ms. Golding’s being 57%. The parties shall discuss and agree on proposed special and extraordinary expenses in advance, and neither shall unreasonably withhold consent.

228By May 31 each year, commencing in 2017, the parties shall exchange income tax returns and notices of assessment for the prior calendar year and any other information reasonably required to determine child support and shall adjust child support on that basis. The new amount of child support shall take effect on July 1 until the following June 30.

229Ms. Golding shall pay to Mr. Hatcher retroactive child support in the amount of $3,760, being 20 months (July 2015 – February 2017) of child support at $188.00 per month, based on Mr. Hatcher’s 2015 income of $36,865 and Ms. Golding’s 2015 income of $48,461. That amount shall be payable in monthly installments of $200.00 from Ms. Golding to Mr. Hatcher until it has been paid in full.

Life Insurance

230Within 60 days, Mr. Hatcher shall secure life insurance having a minimum face value of $100,000.00 and shall designate a third party as trustee for the children. By May 31 each year he shall provide to Ms. Golding proof that the policy and designation are in place as required herein.

Benefits

231As and when each party becomes entitled to extended benefits coverage for the children through employment he or she shall advise the other party, and designate the children as beneficiaries. The marginal cost (over and above the cost of benefits coverage for the party) shall be shared as a special and extraordinary expense. A party having access to benefits coverage through insurance shall advise the other party of the details of the benefits coverage, and if permissible by the benefits provider, authorize the other party to deal directly with the benefits provider.

Costs

232If counsel cannot agree upon costs, counsel may provide written costs submissions, not to exceed five pages, and bills of costs within 30 days.

SDO

233Support Deduction Order to Issue.

10. OTHER

234I thank counsel for their able assistance to their clients throughout the trial and their helpful submissions and case briefs. I thank Mr. Hatcher and Ms. Golding for their composure and civility throughout the trial.

Madsen J.