Joshua Louis Goldstein v. Evelyn Walsh

COURT FILE NO.: FS-16-20931

DATE: 20181207

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JOSHUA LOUIS GOLDSTEIN Applicant

– and –

EVELYN WALSH Respondent

COUNSEL:

Avra Rosen/Kelly Eckert, for the Applicant

Harold Niman/Donna Wowk, for the Respondent

HEARD: April 23, 24, 25, 26, 27, 30, May 1, 7, 9, 10, 11, 31 2018

Kristjanson J.

Overview and Positions of the Parties

[1] AB is three years old. Since she was 11 months old AB has lived one week in Buffalo with her mother, Evelyn Walsh, and the next in Toronto with her father, Joshua Goldstein. The time has come to decide all aspects of AB’s parenting schedule on a permanent basis that will provide AB with stability and consistency. The issues are custody, access, child support, and section 7 expenses.

[2] AB’s parents never married. They were both medical students in Ireland when Evelyn found out she was pregnant just before final exams in April, 2015. Evelyn, an Irish citizen, was starting a neurology residency in Buffalo in the Fall, while Josh, a Canadian citizen, was starting a physiatry residency in Toronto. It was an unplanned pregnancy. AB’s parents were separated for the majority of her mother’s pregnancy, which her father initially did not support. Evelyn gave birth to AB in Buffalo in November, 2015, and the couple reconciled for the next five months. Evelyn spent her 10 weeks of maternity leave in Toronto, staying with Josh’s parents, while Josh lived in his condominium downtown. Evelyn returned to work in Buffalo, leaving AB with Josh’s parents while she arranged child care in Buffalo that would be acceptable to Josh. She visited AB weekly on her day off, taking the bus from Buffalo. Josh moved back in with his parents. When AB was 8 months old, Josh obtained an ex parte order granting custody to Josh and supervised access to Evelyn, on the basis of misrepresentations to the court in his affidavit evidence. The ex parte order was set aside, and AB commenced her week-about schedule following October, 2016.

[3] The future plans of both parents are uncertain. Evelyn is in Buffalo on a visa which requires her to leave the United States for two years when she completes her medical fellowships, likely August 2021; Evelyn’s evidence is that she will seek a visa waiver. Josh lives with his parents in Toronto. Although he states his plan is to remain in Toronto, I find that under the terms of his International Medical Return of Service contract with the Ontario Crown, Josh must work for five years in an underserviced area approved by the Ontario Ministry of Health and Long-Term Care, and that his future location after August, 2020 is uncertain.

[4] The issue is what custody and parenting arrangements are in AB's best interests. From the time the application was commenced in June 2016, until April 2018, Josh sought sole custody of AB. He amended his Application 10 days before trial to seek joint custody with a temporary continuation of the existing week-about parenting schedule, coupled with a review of AB’s primary residence and parenting schedule in June 2019. In the alternative, he seeks an order that AB should reside primarily with him, with generous parenting time for Evelyn once her residence and immigration status has been determined, or a two year schedule with primary residence with her September 2019 to June 2020, and primary residence with him September 2020 to June, 2021.

[5] Evelyn seeks sole custody of AB, and that AB’s primary residence is to be with Evelyn with generous access by Josh.

[6] For the reasons set out below, I order that Evelyn have sole custody of AB, with primary residence in Buffalo, and generous weekend and holiday residence with Josh in Toronto. The parties are to pay section 7 expenses proportionate to income.

PART I: The Facts

A. Background of the Parties and the Child

[7] Josh and Evelyn began dating in 2012 at the University of Limerick, Ireland where they both attended medical school. Josh is Canadian, and Evelyn is Irish. They graduated in April 2015. Evelyn found out that she was pregnant in early April 2015, just before final exams. This was an unplanned pregnancy. They were both 27 years old, and were starting first year residencies in September 2015, which they knew would be grueling with many on-call hours. Evelyn was commencing a neurology residency in Buffalo, N.Y. and Josh would be doing a physiatry residency in Toronto. Josh proposed that Evelyn terminate her pregnancy at the end of exams; Evelyn refused. In mid-May, Josh ended their relationship and returned to Toronto. They didn’t see each other in person until Labour Day. The communications between Josh and Evelyn were very strained prior to AB’s birth.

[8] Evelyn left Ireland for Buffalo on July 2, 2015. She arranged for prenatal care in Buffalo. Both parties had agreed that Evelyn would give birth in Buffalo. AB was born in Buffalo the end of November 2015. Josh and his mother Marilyn were present for the birth. Evelyn was discharged on December 1 and spent a week in Buffalo with Josh; he returned to work on December 5, having used seven days of his 37-week parental leave.

[9] Josh and Evelyn reconciled after AB’s birth, from December through mid May 2016. Josh invited Evelyn to spend her ten-week maternity leave in Toronto. Evelyn stayed with Josh’s parents; she had expected that Josh would be staying with AB and her, but Josh continued living in his condominium downtown. He would visit 2-3 evenings a week for 2-3 hours, and would generally stay overnight on weekends. Evelyn was the primary caregiver during her maternity leave; Josh did not provide much care; his parents provided support to Evelyn in caring for AB.

[10] Evelyn had explored daycare options in Buffalo prior to AB's birth, which was the only affordable option for her. Josh insisted that AB stay temporarily in Toronto until they could agree upon childcare in Buffalo, and Evelyn agreed. I find that Josh, Evelyn and their parents all knew the plan was for AB to return to Buffalo to live with Evelyn once she found a nanny.

[11] Evelyn returned to Buffalo on February 7, 2016. Evelyn commuted weekly to Toronto by bus on her one day off to see AB, since she didn’t drive. Between February 7 and June 23, 2016, Josh drove AB to Buffalo only twice. On her day off Evelyn would take the 2 hour bus ride to Toronto; walk to the subway and then take a bus to North Toronto unless David Goldstein picked her up; spend her day with AB at Josh’s parents’ house; and make the same trip home in the evening, unless Josh drove her to the bus station or David dropped her at the subway.

1. Search for Child Care in Buffalo

[12] Evelyn faced a number of obstacles in her search for child care, many of which were created by Josh. She testified that it mattered to her that Josh approve of her choice because he was AB’s dad, and they should both be happy with the child-care arrangements. I note that Josh never showed the same concern for Evelyn’s involvement or acceptance of childcare arrangements he made. Although Josh was eligible for paternity leave, he opted to not take leave. Instead, he hired a night nanny, Mary Lou, five nights a week for two months, and Chita, who was the daytime nanny. He did not consult with Evelyn prior to hiring the two nannies, or seek her approval. He did not involve Evelyn in the selection or hiring process for the two nannies.

[13] The first obstacle in Evelyn’s childcare search in Buffalo was Josh’s requirement for a nanny, rather than daycare. Evelyn arranged for daycare, which Evelyn testified was what most parents did and what she could afford on her salary; prior to the birth, Evelyn signed AB up for three daycares. Since most parents in the U.S. have six weeks maternity leave, daycares accept babies 6 weeks of age. However, Josh and his parents insisted on a nanny, and made it clear that daycare was not acceptable to them. Josh’s parents eventually offered to pay half the nanny’s salary, and Evelyn began to seek a nanny.

[14] The second and more problematic obstacle was Josh’s racial bar. Evelyn’s criteria were that the nanny had to be a non-smoker, CPR certified, with childcare experience. Josh’s criteria were that the candidate had to be “white”, over 50 with no children. Josh’s racial bar is borne out by several contemporaneous messages sent to Evelyn on Facebook, clearly setting out his prohibition on non-white nannies.

[15] Dr. Yi Chang, a friend of Evelyn’s in the neurology residency program in Buffalo, confirmed the difficulties created by the racial bar in significantly narrowing the pool of candidates.

[16] At trial, Josh agreed that his comments were “obscenely racist”, “rude”, “inexcusable”, he took full responsibility and agreed there was no justification. He stated he had “matured since that time”, and he “was not in a good place.” He agreed it was not in AB’s best interests to be exposed to a parent who is a racist, although he denied being a racist. At the time, however, the racial bar clearly limited Evelyn’s nanny search.

[17] By April, given the difficulties in meeting Josh’s criteria, Evelyn was again raising daycare, reporting on how impressed she was by the daycare she visited that day. Josh refused to even consider daycare. By this time, Josh was refusing to discuss childcare, ignoring Evelyn’s calls, and as Evelyn put it in an April 15 text, “just saying no without coming up with any alternatives.” Josh implemented a “rule” that Evelyn not contact him after 9 pm. Josh agreed that Evelyn would try to involve him in searches, and he agreed that he could have done a lot more.

2. February 2016

[18] In mid-February Josh told Evelyn that his mother was having difficulty coping, and his father insisted that AB had to be out of the house in two weeks. Josh’s text message of February 19, 2016 to Evelyn is that his father “thinks the solution is moving AB out asap.” Evelyn responded saying: “we just need to get AB home soon as we can because it not a good environment for her anymore,” and Josh replied “I know.” I accept that it was in this context that Evelyn volunteered that her father could take AB to Ireland while she looked for childcare in Buffalo, as a short-term solution to a mutual problem. Josh agreed that he and Evelyn were looking for childcare in Buffalo, and he came to Buffalo to conduct interviews.

3. Evelyn Feels Excluded From AB’s Decision-Making

[19] In April 2016, Josh began a plastic surgery rotation at Sunnybrook, close to his parents’ home. He began staying with his parents and AB in their house rather than his condominium downtown sometime between the end of March and the end of May. Evelyn continued visiting every week. She was becoming increasingly concerned about her separation from AB and concerned that Josh and his parents were making decisions for AB without involving her, for example introducing solids and administering Tylenol.

[20] In early May, in a phone call, Josh informed Evelyn that their relationship was over. Sometime after that, Josh made a decision he would not return AB to Buffalo, but did not tell Evelyn of this plan.

[21] Evelyn spent two nights in Toronto, May 11 and 12. On May 11 there was an argument where Evelyn was extremely upset with Josh, feeling that the Goldsteins were excluding her from AB’s care and decision-making. Evelyn suggested to Josh that AB could spend a few weeks in Ireland with her parents, until she arranged childcare. I accept her evidence that she did not discuss this idea with her parents; she and Josh talked it through, and she agreed it was a terrible idea. Although Josh relied on this discussion as a “threat” to remove AB from the jurisdiction in his June, 2015 ex parte application, I find this not to be true. It is clear that by the end of the weekend, Evelyn advised Josh that she would not be requesting that her father come over from Ireland. On May 13, 2016, on her way back to Buffalo, Evelyn and Josh texted as follows:

Evelyn: We’re still on the same page that AB will be in buffalo as soon as I have good care?

Josh: Ya

Evelyn: and will you bring her to see me when you can??

Josh: Could we talk about this stuff later plz

Evelyn: ok, I’m going to tell dad not to come over but just please don’t let me down I’m trusting you ok

[22] Josh’s evidence was that he felt threatened and he said yes to appease her. I do not accept this; it is inconsistent with the contemporaneous written evidence of this entire period; Evelyn’s persistent efforts to obtain childcare shared with Josh every step of the way; and the parties’ common plan discussed since February to have AB live with her mother in Buffalo.

4. Evelyn Finds a Nanny: Josh Starts An Ex parte Application for Custody

[23] Evelyn’s nanny service had screened and found an approved nanny, MG, a nurse, CPR-certified, and a non-smoker. Her references were enthusiastic. MG had a young child. MG would be coming to Evelyn’s home; MG’s husband would look after their own child. Evelyn told Josh on June 1 and they spoke on June 2. Evelyn provided Josh with MG’s complete resume on June 6. She heard nothing back from Josh. She visited Toronto June 10, and told Josh she wanted to hire MG, a qualified nurse, as she’d been waiting a very long time for this. This precipitated a very difficult weekend. Although I heard a great deal of evidence, it is not relevant to the main issue of the parenting of AB.

[24] After returning to Buffalo, Evelyn continuously followed up with Josh about hiring the nanny. On June 14 she wrote: “I’m concerned by the fact that I was unable to discuss AB’s nanny with you once again, because you wanted to exercise.” Josh’s response was that he had to prepare for an exam, he’s not able to resolve these things tonight, and “We can chat about the care tomorrow when I have time.” Evelyn responded: “AB’s nanny is fantastic, she’s a registered nurse and is far more qualified than her caregiver at the moment. So far, I haven’t been able to finalize things with her and that’s not fair to AB, or me, or her.” When Josh requested the proposed nanny’s number, on June 16 Evelyn provided MG’s phone number to Josh again and asked Josh to call the nanny “as soon as possible.” She returned to Toronto on June 19 for Father’s Day, when she brought Josh a present and card from AB, signed by AB’s hand. Both parties agree that on the weekend, after a fight, Josh told Evelyn he’d call the nanny. On June 20, Evelyn again asked “did you manage to call MG at all?”. Josh texted Evelyn that he’d tried calling MG.

[25] Between June 6 and June 22, there were numerous texts between the two, in which Evelyn requested that Josh call the nanny, and Josh confirmed that he was trying to do so. Evelyn was child-focused in her sincere efforts to secure Josh’s consent to good childcare arrangements in Buffalo.

[26] While reassuring Evelyn that he was trying to contact the prospective Buffalo nanny, MG, Josh was actually preparing an ex parte motion, heard June 23, which he used to obtain interim custody, restricting AB to residence in Toronto, and an order that Evelyn have supervised access. Having heard all the evidence, I conclude that Josh misled the ex parte motion court in order to obtain a strategic advantage in the litigation, thereby depriving AB of contact with her mother contrary to AB’s best interests.

B. Ex parte Order Based on Josh’s Misrepresentations: June 23, 2016

[27] Josh obtained an ex parte order giving him sole custody of AB on a temporary, without prejudice basis on June 23, 2016. Key terms of the Order were that AB would reside with Josh; Evelyn would have supervised access to be facilitated by Josh; AB would not be removed from Ontario; the RCMP and Ontario would place the names of Evelyn, her parents and AB on a border watch list; and Evelyn was prohibited from obtaining a passport for AB.

C. Credibility and Parenting Concerns

[28] I must evaluate the credibility and reliability of the witnesses, primarily Josh and Evelyn and the grandparents, and their evidence. I do so by referring to facts proved independently of their testimony including documents, the evidence of other credible witnesses, and considering whether the evidence is corroborated or contradicted by other evidence. I consider whether questions are answered in a frank and forthright fashion. I consider the motives of the witnesses, the internal consistency of their evidence, and assess overall probabilities and plausibility. In assessing the plausibility of a witness’ story, I must determine what is “in harmony with the preponderance of probabilities, what a practical and informed observer would readily recognize as reasonable in that place and in those conditions”: Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.) at 356-357. I may believe none, part or all of the witness’ evidence, and may attach different weight to different parts of the witness’ evidence: R. v. D. R. Square 1996 CanLII 207 (SCC), [1996] 2 SCR 291 at paragraph 93. Finally, I do not weigh the evidence in isolation, but evaluate credibility on the evidence as a whole.

1. Josh Goldstein

[29] Josh obtained the ex parte Order through misrepresentations, both direct and by omission, in his sworn affidavit evidence. The misrepresentations are significant both in assessing Josh’s credibility, and in assessing the best interests of AB for the purposes of custody and access, as discussed below.

[30] Josh swore that:

AB has lived with me in Toronto since December 5, 2015, and since February, 2016 has had only brief, weekly (at times bi-weekly) access with Evelyn. To date, all of Evelyn’s access has been supervised, by either me or my parents. (emphasis added).

[31] He went on to state that “I do not intend to interfere with Evelyn’s ongoing access…except to say that such supervision can no longer take place at my parents’ home (given the conflict to date, I do not think it is appropriate, or safe…)”. The key misrepresentations are:

• Evelyn was never subject to supervision; all the Goldsteins conceded this at trial.

• AB did not reside with Josh in Toronto from December 2015 as he swore. Josh conceded at trial that he continued to live in his downtown condominium, visiting 2-3 evenings a week and on weekends until at least the end of March, 2016.

• Evelyn and AB resided with Josh’s parents in Toronto from December 5 until her return to work on February 7. Evelyn spent her maternity leave as the primary caregiver for AB, from November 29 to February 7, 2016.

[32] It was clear from the evidence of Josh at trial, as well as the evidence of both his parents and Evelyn, that Josh was not living with AB in December 2015 nor was he living with her for months after that date.

[33] When questioned about the inconsistencies in his affidavit evidence during cross-examination at trial, Josh prevaricated, as evident in the following exchanges:

Q. I know that, but when you swore your affidavit on June 22nd, you said that AB had lived with you and your parents in Toronto since December 5th, 2015, one week after she was born?

A. Yes.

Q. That wasn’t totally true?

A. I understand that it was vague in that way. If, if I could provide more detail…

Q. But it wasn’t true?

A. It’s not that it wasn’t true; it wasn’t very specific.

[34] In fact, it was untrue, but even under cross-examination at trial, Josh was combative and unwilling to concede the obvious.

[35] Josh did not inform the motion’s judge that the plan of all of the parties since December, confirmed by him to Evelyn in a text one week prior to the motion, was that AB was to reside with Evelyn in Buffalo. In light of this clear understanding, many other of Josh’s statements in his affidavit are clearly misleading. His statements that he was “continuing to facilitate Evelyn’s visits” and he was taking AB to Buffalo to spend time with Evelyn because Evelyn “did not choose to maximize her already limited time with AB,” clearly misrepresents the true state of affairs. In his evidence at trial, Josh acknowledged that the plan agreed upon by the parties was that AB would return to Buffalo to live with Evelyn upon her securing what they both agreed was appropriate childcare. Josh also acknowledged that Evelyn continued to believe this remained their plan after he changed his mind, in April or May of 2016.

[36] Josh conceded in cross-examination that he misled the court on the ex parte motion about Evelyn’s search for childcare in Buffalo. Josh did not tell the truth about Evelyn’s search for childcare in swearing in his affidavit on the ex parte motion that Evelyn “failed to make meaningful effort, or progress, in securing childcare in Buffalo”, which I find is contradicted by the extensive contemporaneous messages between the parties. He withheld extremely important information about the multiple communications and details known to him about Evelyn’s nanny search. He concedes that Evelyn had wanted daycare, but he did not feel that this was a viable or appropriate solution. He did not mention the completely inappropriate limit he placed on the search for a nanny – race.

[37] Josh misled the court about steps taken by Evelyn regarding a prospective nanny, MG. His affidavit states that Evelyn told him she had “decided to hire” a “25/26 years old” with a nine -month old baby, to care for AB in Buffalo, who would care for AB both at Evelyn’s home and her own home, but that “Evelyn provided few other details.” He stated he looked MG up on Facebook and determined she was 21 or 22 years old, with a two-month-old baby, resided 65 kms from Evelyn, and had a boyfriend who would be present in the home at times when AB would be there. This whole narrative is replete with serious misrepresentations. I am satisfied on the evidence, including contemporaneous documents and messages, that:

• Evelyn had retained a nanny agency which screened MG;

• Evelyn provided Josh with MG’s complete application, including contact details, on June 6;

• MG was much better qualified than the nannies retained by Josh. She was a registered nurse and CPR certified, with excellent references;

• MG would not provide care in her own home, but solely in Evelyn’s home;

• MG’s boyfriend would never be in the home with AB;

• Evelyn did not decide to hire MG. Rather, she was fully – indeed overly – consultative in requesting Josh’s approval. She had been requesting Josh to call MG for an interview throughout the month of June. Josh failed to respond to these requests, which were made in person and by text. On June 20, two days before the ex parte Order, Josh told Evelyn that he had tried calling MG but she hadn’t answered and he would try again. Between June 6 and 22, the day he swore the affidavit for the ex parte order, Josh and Evelyn exchanged numerous Facebook messages where Evelyn was trying to get Josh to approve the nanny.

[38] In addition, I also find that Josh gave misleading evidence at trial regarding his concerns with the prospective nanny, MG. It was Josh's evidence at trial that his concerns about MG in June 2016, which he raised with Evelyn, were MG’s age, his understanding that she had a two-month-old child, and his reading of her boyfriend’s Facebook profile including messages about drug use by her boyfriend and photos of her pet pitbull. There is no evidence that Josh ever shared his alleged concerns about MG with Evelyn, other than his trial evidence. At no time between June 6 and June 20th in the messages sent did Josh raise any concerns about MG.

[39] Josh’s trial evidence is clearly not plausible when considered in light of contemporaneous documents. In Josh's affidavit in support of the ex parte motion, he said nothing about any drug use by MG’s boyfriend or issues related to her ownership of a pitbull. The only concerns he raised in the affidavit, sworn in June 2016, were her age, her having a young child of her own, and the distance between her residence and Evelyn's residence. Common sense leads me to conclude that if Josh had concerns about the boyfriend's drug use or the pitbull, he would have placed them before the court on the ex parte motion.

[40] Evelyn's evidence, which I accept, is that the first she heard about Josh having any concerns about MG was when she read his affidavit on the ex parte motion in June, 2016, and that the first time she heard him make allegations about drug use by MG's boyfriend and concerns about MG's dog was when Josh gave evidence at this trial in 2018.

[41] The significant misrepresentations by Josh in his ex parte affidavit are critical to my assessment of Josh’s credibility, as well as his parenting, in assessing AB’s best interests. The initial affidavit was made on an ex parte motion, where fair and full disclosure is essential. After Evelyn was provided with the motion materials, the parties exchanged further affidavits. Josh did not at that point withdraw the untrue statements. He buckled down. He labelled Evelyn as “unhinged.” He fought to keep sole custody, in Toronto. While Josh’s lawyers argue that he is remorseful and apologized at trial for many of his actions which excluded Evelyn’s role in AB’s life, I do not find that he has demonstrated true remorse for his misleading, sworn affidavit evidence. He continued his misrepresentations until he got caught, gave misleading evidence at this trial, and continued exclusionary actions well after the ex parte order was set aside.

[42] Josh’s conduct leading to the ex parte Order is also important in respect of the assessment of the best interests of AB. Until the day the ex parte Order was obtained Josh deceived Evelyn into believing that he was going to talk to the proposed Buffalo nanny MG, and that the plan that AB return to Buffalo with Evelyn was still in effect. This deception, coupled with misleading the court through his affidavit evidence, are relevant to Josh’s ability and willingness to promote Evelyn’s relationship with AB, and to his willingness to be honest and open with Evelyn. His conduct in obtaining the ex parte order, including seeking supervision on the basis of a misrepresentation, and then ordering the supervision reports in an effort to obtain a litigation advantage, is relevant to Evelyn’s ability to trust him to promote her relationship with AB, and to trust his communications with her. At trial he acknowledged the importance to AB of both parents; his actions leading up to and following the ex parte motion, however, demonstrate a failure to understand this and a failure to put AB’s needs first.

[43] Throughout his evidence, Josh was frequently combative during cross-examination. He acknowledged a number of significant failures of judgment, but kept asserting he had changed, or now recognized his errors. In his pleadings and trial testimony, he continued to undermine Evelyn’s role and question her judgment. His evidence was often contradicted by contemporaneous documents. As noted above, I find that he was prepared to and did mislead the court under oath in the ex parte motion process. Deliberately misleading a court under oath to achieve an advantage in litigation is a serious matter, which undermines the credibility of the witness. Where Josh’s evidence conflicts with that of Evelyn, I prefer Evelyn’s evidence.

2. Evelyn Walsh

[44] By contrast, Evelyn gave her evidence in a straightforward manner. It was consistent with contemporaneous documents. She was responsive to the questions posed to her both on examination in chief and on cross-examination. Her testimony was internally consistent, and plausible in contrast to that of Josh. I find Evelyn to be both a reliable and a credible witness.

[45] Evelyn is a very petite, very soft-spoken woman, collected in her manner. By contrast, Josh is very tall and rangy with a loud voice, histrionic in his presentation, and often combative on cross-examination. David Goldstein is also a very large presence with a strong voice and often combative and evasive in cross-examination. As they each gave their evidence, I found Evelyn’s evidence of feeling intimidated and controlled was plausible and consistent with the presentation by each of these witnesses on the witness stand.

3. David and Marilyn Goldstein

[46] There were certain contradictions between the evidence of Evelyn on the one hand and Josh, together with his parents Marilyn and David, on the other hand. These relate largely to the period prior to the ex parte order, and partly to the parenting arrangements following the transition to Buffalo. I do not need to resolve most of these contradictions, as they are not relevant ultimately to the question of the parenting schedule. It is clear to me that David and Marilyn Goldstein truly love AB, but they are very closely aligned with their son and their son’s interest in this litigation. In their testimony they support their son’s views. Where their evidence contradicts the evidence of Evelyn, I prefer the evidence of Evelyn. A few examples suffice.

[47] David Goldstein answered several questions beginning with "I believe" when his understanding of events did not accord with the facts. David was also evasive; for example, although Evelyn requested he not attend at exchanges, David continued to do so; he said he “didn’t know” whether Evelyn found him intimidating, even though he had previously apologized to her for calling her a “borderline”, and agreed that when Evelyn had requested him to secure a car seat he refused, and she had to get her father, Paschal Walsh, to come and speak to him before he would do so.

[48] Paschal confirmed the incident with the car seat, which occurred during an exchange. Evelyn went outside to do the exchange of AB. She came back inside moments later and was trembling. She asked Paschal to come outside to help her. David was sitting in the back of the car with his legs crossed and the child seat was beside him. Evelyn was asking him to secure AB’s car seat. David said: "I have my own procedure for doing that." Paschal asked him to facilitate the securing of the car seat the way that Evelyn had asked (to secure the seat in the back of the car and tie it in first). When he asked David to do it, there was no difficulty, but when Evelyn had asked, he insisted on his way. It was apparent to Paschal that there was an element of bullying going on.

[49] When asked if Evelyn’s views or her requests following Justice Stevenson’s Order that he not be present at exchanges mattered to him, David Goldstein stated "I wouldn't necessarily agree with that or interpret it that way".

[50] The ex parte Order was issued on June 23. Evelyn sent Marilyn Goldstein a Facebook message on June 23 stating she was trying to get through to Josh; the message was read, and shortly thereafter Evelyn’s evidence is that Marilyn deleted or deactivated Evelyn’s ability to communicate with her on Facebook. Marilyn’s evidence was that she left for New York that weekend and wanted to disconnect from social media and Facebook; it just happened to coincide with the ex parte Order, but her evidence is that disconnecting from Evelyn is not related to the Order. After about four days she returned from her trip. She did not explain why she did not at any point after that contact Evelyn, who she testified was like a second daughter to her, at the most crucial point of Evelyn’s life. I do not find her explanation to be plausible. I found Marilyn to be evasive. When asked whether her son began these proceedings, she said she did not recall; when asked if she had concerns about Evelyn as a mother in June, 2016 she said she can’t recall.

[51] Josh’s parents took his side in this litigation. I accept that they love AB and support their son in his parenting of AB, but where the evidence of Evelyn contradicts the evidence of the Goldsteins, I prefer Evelyn’s evidence. For the reasons given here regarding credibility, and the contemporaneous evidence of Evelyn’s continued and committed child care search throughout June, 2016, and the evidence of Paschal and Evelyn Walsh, which I accept, I find that Evelyn did not threaten in May or June 2016 to quit her residency and take AB to Ireland. The real threat that Josh was facing was that Evelyn had finally secured a nanny who met all his criteria, and following extensive consultation with him, she was now in a position to bring AB back to Buffalo.

D. Parenting During Ex parte Order Period, June 23–July 26, 2016

[52] Josh took approximately 8 weeks of his remaining 35 weeks of paternity leave after the ex parte Order. He never took the balance of the time remaining.

[53] Pursuant to the Order, Evelyn was now subject to supervised access by Michele Hughes, a person chosen by Josh and not known to Evelyn. The affidavit evidence specified that Josh was seeking supervision on the grounds of both safety and flight risk. Evelyn offered to deposit her passport with counsel while with AB; Josh refused to waive supervision. Josh also ordered the supervision reports. Both of these indicate that Josh was using a supervision requirement, which I find was based solely on his misrepresentations to the ex parte motion’s judge, in order to create difficulties for Evelyn, strain her relationship with AB, and potentially find evidence to use in the litigation.

[54] Evelyn had to spend her parenting time with AB in hotels around Toronto, which she could ill afford; Josh conceded at trial that it was not in AB’s best interests to spend parenting time with her mother at hotels.

[55] Between June 23 and July 26 Evelyn had only two weekends of supervised access, because the appointed supervisor, Ms. Hughes, was not available for other weekends. This was not in AB’s best interests, in reducing time spent with her mother.

[56] In mid-July, Josh agreed not to enforce the supervision provision; that lasted one day. At the end of the first unsupervised visit, July 16, Evelyn mentioned she had given AB breast milk. The next morning, as Evelyn waited for AB to be dropped off, Josh’s lawyer wrote stating that access would be delayed until she ceased providing breast milk and agreed to provide “written confirmation” that she would “cease any attempts to reintroduce breast milk to AB” or alter any other routines. This is but one example of Josh’s controlling behaviour.

E. Temporary Parenting Orders Prior to Trial

[57] The ex parte Order remained in effect until July 26, when Justice Conway made an order pending the next case conference that the ex parte Order was of no force and effect and that there were no custody or primary residence orders in place for AB. Conway, J. further ordered on a temporary basis that AB would continue to live in Toronto with Josh and his parents, Evelyn was entitled to spend up to 50% of the daytime hours with AB in Toronto, her father was to attend with Evelyn in order to facilitate and develop his bond with AB, AB was to sleep at the Goldsteins’ house so her nighttime routine was not disrupted, AB was to remain in Toronto and her counsel was to hold Evelyn’s passport when she spent time with AB.

[58] On September 2, Corbett J. continued parts of the order of Conway, J., but provided that the parties could agree to changes. However, Josh refused all requests by Evelyn for overnight parenting time, and all requests by Evelyn to exercise her parenting time in Buffalo.

[59] On September 22, Kiteley, J. made a consent, temporary without prejudice order (a) adjourning Evelyn’s motion for primary residence and Josh’s motion for a section 30 assessment, (b) setting a parenting schedule, including overnight parenting time for Evelyn, and (c) directing that Evelyn make best efforts when exercising her parenting time to stay at a hotel within 15 minutes of the Goldstein’s home.

[60] On October 16, 2016, Justice Stevenson heard Evelyn’s motion seeking primary residence for AB with her in Buffalo, or alternatively a 50/50 parenting schedule. Josh sought an order that AB not be removed from Ontario, and that Evelyn have access up to 50% of the time in Toronto. AB was 10 months old.

[61] There were 26 affidavits filed before Stevenson, J. on the motions, containing what she found to be “highly conflicting” evidence, raising “significant credibility issues” requiring an expedited trial. Stevenson, J. found on the affidavit evidence before her, and I accept on the trial evidence before me, that:

• Josh did not place all of the evidence before the ex parte motion judge concerning the parties’ agreement that AB would be returning to Buffalo to reside with Evelyn once childcare was in place;

• He did not place before the court the evidence that Evelyn had made many inquiries with respect to appropriate childcare in Buffalo, and that “much effort” was being made by Evelyn to secure childcare;

• Josh did not present evidence that he presented many objections as to who an appropriate caregiver for AB in Buffalo would be, including concerns about the race of the caregiver.

[62] Justice Stevenson concluded, and I agree, that:

As a result of the court not having the full evidence before it at the time the order without notice was made, I agree that the status quo that was created denying AB the opportunity to spend any time with Evelyn in Buffalo was created improperly.

[63] Justice Stevenson ordered the parties to immediately implement a 50/50 parenting schedule, based on a two-week rotation (3 days one week, 4 days the second week) and a six-week transition to overnights. AB was to reside with Josh in Toronto and Evelyn in Buffalo; AB was not to be removed from Ontario or New York state without further order, and the Ontario Superior Court of Justice was to retain jurisdiction over all custody and access issues. The parties subsequently agreed to a week-about schedule which continues to the present.

F. Parenting Arrangements After October 2016

1. Medical Care and Duplication of Medical Providers

[64] For a significant period of time, AB has had mirror physicians in both Toronto and Buffalo. This created difficulties for AB. Josh’s failure to accept the recommendations of Buffalo physicians, and insistence on obtaining second opinions from Toronto physicians, was not in AB’s best interests, and again demonstrates his controlling behaviour. I accept Evelyn’s evidence that there has been a "huge amount of difficulty" with respect to coordinating care between AB's multiple doctors in both cities. Josh has also shown resistance to medical directives and treatment recommendations given by AB's physicians in Buffalo, sometimes only agreeing to provide AB with medication after a confirmatory second opinion from a physician in Toronto.

(a) AB’s Pediatricians

[65] Both of AB’s pediatricians, Dr. Fretz (Buffalo) and Dr. Kupfert (Toronto) testified.

[66] Dr. Stephanie Fretz is a pediatrician in Buffalo, where she has practiced for approximately 25 years. She began seeing AB within five days of birth. She testified that Evelyn is an attentive mother who does not challenge physician recommendations and follows those recommendations. Dr. Fretz testified that having physicians in two jurisdictions was responsible in part for ongoing disjointed medical care due to difficulty with the child’s medical needs. For example, she found that on well baby visits she was awaiting immunization records from the Canadian pediatrician despite multiple requests, that the timing was very important and the failure to coordinate records was an issue. She testified that this disjointed medical care was stressful for a toddler. Part of the difficulty was different parenting styles and part of the difficulty was in Evelyn not getting information. She felt that the father was resistant or distrusted certain treatment recommendations. An example she gave was of the father double-checking with respect to a prescribed antihistamine, and the commencement of a medication in Canada that is not used in the United States.

[67] The primary impact of two physicians in different jurisdictions was difficulty in obtaining information, different FDA recommendations and different medications, a different style of practice, and the back-and-forth between the physicians causing interference with the continuity of information. She had no concerns that Evelyn was not seeking treatment appropriately. She agreed that continuity of care is less of an issue now as AB is older. She found that AB had met her developmental milestones, verbal and social and was thriving.

[68] Each pediatrician was supposed to fax records to the other; Dr. Kupfert was told that she was to share information from the beginning of the file. She had no explanation for why the faxes were not getting to Dr. Fretz, the Buffalo pediatrician, and starting in September 2017 she gave her records to Josh directly to transmit to Evelyn. I find that Dr. Kupfert’s office did not fax the records properly (for example, on one occasion they faxed another child’s records to Dr. Fretz, and on two occasions, they faxed Dr. Fretz back her own records). In light of these issues, Evelyn asked Josh to obtain the records and provide them to her at exchanges; Josh did not do so until a year after she requested them. By contrast, Dr. Fretz provided two copies of her records to Evelyn, and Evelyn provided them after each visit to Josh at exchanges.

[69] I accept Dr. Fretz’s evidence at trial that because of the information exchange difficulties, it was “very difficult to get a sense of the continuity of the condition and what exactly was happening because I had such limited information.” On June 22, 2017, Dr. Fretz’ notes indicate “still awaiting full immunization schedule from Canadian pediatrician despite multiple attempts and requests for same”, and “ongoing disjointed medical care due to difficulty between parents regarding child’s medical needs.”

[70] Dr. Kupfert, AB’s pediatrician in Toronto, also testified that having two pediatricians in different jurisdictions was not ideal from a practical standpoint, including conflicting opinions/recommendations which may lead to conflict and a potential for delay in treatment. She also agreed that the U.S./Canada treatment issues created complexities due to the different regimes (for example, prescriptions), and the idea was to agree on a specialist. She confirmed that Josh’s instructions were to fax the records to Dr. Fretz.

(b) AB’s Allergists

[71] AB first saw Dr. Greenwald in Toronto for a persistent cough. Evelyn understood Josh would take AB to the appointment; when she found a note in AB’s bag authorizing David Goldstein to take AB to the appointment, Josh denied that he had done so and explained it was written in case of emergency. However, David Goldstein testified at trial that he had taken AB to this appointment without Evelyn’s knowledge, and possibly one other appointment.

[72] The Toronto allergist prescribed a medication, Zenhale, which is not FDA approved in the United States and not to be given to children under the age of 12. Evelyn was concerned and told Josh; Josh took AB to see Dr. Greenwald despite Evelyn’s protests. Evelyn coordinated a call between Dr. Fretz (in Buffalo) and Dr. Greenwald, and they agreed to switch to different medications available in both countries.

[73] Josh agreed that Evelyn could bring AB to an allergist in Buffalo, Dr. Lehman. Both Dr. Lehman and AB’s Buffalo pediatrician, Dr. Fretz, recommended an additional medication, Cetirizine. Josh would not agree, and the medication was not administered. AB continued to cough, struggling to nap due to her coughing. There was a lengthy exchange of texts between the parties. Evelyn expressed a concern that rather than implement the advice of the specialist, Josh was “whisking her off to see another doctor.” Josh took AB to Dr. Kupfert, who felt that the medication was not indicated. Josh then proposed taking AB to see the Toronto allergist, Dr. Greenwald. Eventually Josh did agree to administer Cetirizine; the cough that had been troubling AB for months improved dramatically, and Evelyn testified “she was like a different baby”, and it made a “massive difference.”

[74] Josh was resistant to the advice of the Buffalo specialist, Dr. Lehman, and attempted to arrange for AB to see a third allergist in Toronto despite Evelyn’s protests. It was only after an exchange of correspondence between counsel that he agreed not to take AB to a third allergist.

(c) AB’s Ophthalmologists

[75] AB also has two ophthalmologists, Dr. Reynolds in Buffalo and Dr. Furlonge in Toronto. The initial referral for eye issues was from the Buffalo pediatrician for May 1, 2017, and the date fell in Josh’s week. Instead, he took AB to a Toronto ophthalmologist, Dr. Furlonge, on April 22 even though they had previously agreed that AB would see Dr. Reynolds. Dr. Furlonge suggested conservative management of eye issues, with a six month follow up. Josh did not schedule a six month follow up.

[76] When AB’s eye issues recurred in December and January, Josh agreed that Evelyn could take AB to the Buffalo specialist, Dr. Reynolds. Dr. Reynolds made the same diagnosis as Dr. Furlonge, and identified two surgeries, either a silicon duct intubation or a nasolacrimal duct probe, recommending the first. Josh then wanted to take AB back to Dr. Furlonge for a second opinion, even though the diagnosis was the same, and the issue was which one of the two surgeries identified by Dr. Reynolds should be performed. Evelyn wrote to Josh on February 2 asking him to respect her wish “to avoid unnecessary examinations for AB” and expressing concern that he had scheduled an appointment with Dr. Furlonge knowing that she did not agree, and that she feels “once again that my input is of no importance to you.” Evelyn clearly identified that her concern was based on AB’s best interests:

AB has had two ophthalmologist appointments in a very short period of time. She has had her eyes dilated for a slit lamp exam, which is not a pleasant experience, especially for a toddler. We have been told that she does not need to be examined further prior to the procedure. There is absolutely no reason to subject her to a third examination to confirm what we already know.

[77] Evelyn testified that the dilation of the pupils and a slit lamp exam was an unpleasant experience for AB and not necessary. Eventually Evelyn’s counsel wrote to Dr. Furlonge stating that Evelyn did not consent to AB being examined again, and Josh agreed not to take Dr. Furlonge to the appointment. Josh attended an appointment with Dr. Furlonge without AB. The surgery (the nasal probe) was eventually conducted by Dr. Reynolds in Buffalo, and Josh and Evelyn both attended. Josh testified that AB would have undergone the more invasive silicon intubation if he had not been involved. I find that either of the two surgeries was medically recommended.

[78] Josh also attempted to involve two additional eye specialists during this period of time, including an ophthalmologist Evelyn first heard about through Dr. Kupfert’s evidence at trial.

[79] Josh’s counsel used the eye surgery as evidence that the parties were able to agree on a major medical decision, and both were present and able to parent and care for AB together. I do not agree. The process, rather, demonstrates that Josh is unable to accept medical recommendations if they are not from doctors he selects. They demonstrate his need to control. He was willing to subject AB to the discomfort of an additional, and unnecessary, physical examination to obtain his way and stood down only when Evelyn specifically contacted the Toronto ophthalmologist to deny consent. Continuing involvement by Josh in joint medical decision-making would lead to significant conflict.

[80] The process with both the allergists and the ophthalmologists demonstrates Josh ignoring Evelyn’s wishes; allowing his father to take AB to appointments without informing Evelyn, and indeed misrepresenting that he had done so; scheduling appointments and referrals without her consent; and resisting medical directives and treatment recommendations given by Buffalo physicians and seeking continual second opinions, resulting in physical stress to AB.

[81] I find in contrast Evelyn has notified Josh of all medical appointments and referrals and has continued to involve him in decisions. I find she is more likely to consult and involve Josh in medical decision-making.

2. Activities in Buffalo and Toronto Including Communication

[82] Josh has consistently failed to advise Evelyn of AB’s activities and has failed to seek her consent or input. For example, Josh enrolled AB in Temple Sinai in January, 2017 for a Tuesday and Thursday morning program which ran February to June. He did not advise Evelyn of this for six months, until July, after he enrolled AB in a subsequent summer camp program. It was also the first time he advised her that the extracurricular program was associated with a synagogue, in response to her questions. She responded by noting that the name sounded religious, that they had not discussed religion, and she had avoided enrolling AB in any activities relating to Catholicism “pending a discussion between you and I.”

[83] When Josh enrolled AB at Temple Sinai in January, 2017, he did not list Evelyn as a parent or provide her contact information to Temple Sinai, and did not do so for 4-6 months after registration. Josh conceded on cross-examination that he understands how Evelyn felt marginalized in how he enrolled AB at Temple Sinai, and he now appreciates he made an error. He did not provide Evelyn with contact information for AB’s nanny for 1.5 years, despite her requests.

[84] In September 2017 Josh advised Evelyn of his intention to enroll AB in the Temple Sinai nursery school program, Monday to Friday mornings, in advance. However, he conceded on cross-examination that he enrolled AB in this program over Evelyn’s objections. He acknowledges Evelyn had requested that the parties avoid signing AB up for activities that take place in churches and synagogues “pending a discussion between you and I regarding AB’s religious upbringing.” Evelyn throughout this period kept requesting a discussion about religion, about coming to a long-term arrangement that would let AB participate in both religious traditions while minimizing confusion for AB. It is remarkable in light of the sustained pleas for discussion on a question of such importance that Josh failed to respond to messages, failed to engage in a meaningful dialogue, and simply enrolled AB without Evelyn’s consent.

[85] Josh claims he was not informed of AB’s baptism in advance, but states he would have consented. Evelyn’s evidence is that she told him about the baptism. For the credibility reasons given earlier, I prefer Evelyn’s evidence.

[86] There are other examples of Josh enrolling Evelyn in activities without Evelyn’s knowledge or consent, including Gymboree and swimming, and failing to engage when Evelyn sought to discuss activities. Josh unilaterally changed the transition times for AB’s travel between Buffalo and Toronto, without consultation.

[87] By contrast, Evelyn informed Josh before enrolling AB in activities in Buffalo and asked his opinion. The one notable exception is when she moved AB from Westminster to Journey’s End daycare. I accept her evidence that she “was not able to pay my rent anymore while paying for Westminster” as well as paying her caregivers, “it was a financial emergency essentially” and she made a quick decision. She told Josh with one days’ notice. She said that it was the only thing she could afford at that time. However, when Journey’s End subsequently closed suddenly, she sent Josh detailed emails with pros/cons and descriptions of available choices, consulted, and made a choice after soliciting and considering his views.

3. Flexibility and Accommodation

[88] Both parties testified about adjustments to the schedule to accommodate circumstances when the parenting schedule wouldn’t work. There were certainly some occasions where the parties showed appropriate flexibility. However, all of Evelyn’s family is in Ireland. Josh failed to reasonably accommodate requests for extended travel to allow Evelyn to take AB to Ireland. He failed to reasonably sign travel consents in March 2017 and September 2017. Although he testified that he understands the importance in AB’s life of her extended family on both sides, he does not act in support of AB’s connection with her Irish family or Evelyn.

[89] It was put to Evelyn in cross examination that she and Josh have been able to adjust exchanges based on work schedules. Evelyn testified that, in some instances, they have agreed to changes and make up time but there have been many occasions when they have not been able to agree, or have agreed but only after significant conflict. I accept the submissions of Evelyn’s counsel of the following examples.

[90] With respect to the September, 2017 trip to Ireland, on June 19th Evelyn requested two weeks because of a wedding of a cousin, two of her best friends, a baby shower and a visit with her grandmother. She blocked off the time in the shared calendar. Josh did not respond until August 3, when he took the position that he would only consent to one week. Evelyn explained that she has four weeks per year, in two week blocks, and sought additional time because of the distance; she offered every Canadian long weekend for the next six months. His position was that he would only consent to one week’s travel, and forwarded the issue to his lawyer. Ultimately, Evelyn was forced to obtain a court order, made on consent at a case conference, causing her great anxiety about whether AB could attend the wedding, an important event not just in Evelyn’s life, but in AB’s relationship with her family in Ireland.

[91] Although the parties agreed on implementing a week about schedule, they did not agree on a fixed exchange date as between Saturday and Sunday. On December 1, 2016, Josh told Evelyn, as opposed to suggested, that from that point onward, exchanges would be on Sunday. Josh also decided, unilaterally, the time of day when exchanges took place. Initially, Josh told Evelyn that the best time for AB to travel was around noon. That was not Evelyn's experience and she told Josh that AB didn't care as long as she had music playing. Towards the end of 2017, Josh told Evelyn that it was now in AB’s interest to travel early in the morning and that is what they would do; this made the traffic easier for Josh.

[92] On November 30, 2016, Evelyn told Josh that she would like to have AB in her care on Christmas Eve and Christmas Day, and asked if they could make this work. Josh is Jewish. His response was that he would be happy to sort out the Christmas holidays, but only after she confirmed that AB would be returned to his care at the end of the week. Agreeing to this would mean that AB would have been in Evelyn's care for less than three days, after they had already been apart for Evelyn to travel to Ireland to renew her passport/visa. She advised Josh that he was suggesting that AB be with him for 11 days and with her for only 3 days.

[93] There was a further incident whereby extreme weather conditions resulted in an issue with an exchange. It was Evelyn's evidence that, on or about February 12, 2017, Josh told her that the road conditions between Buffalo and Toronto were horrible. Evelyn did not get on the bus to Toronto as she was concerned about getting stuck in Toronto given all the time she had already taken off work to be with AB in Toronto after the ex parte order, and the time she would need to take off to attend mediation in Toronto. She called Josh so they could figure something out together. Josh essentially told Evelyn that this was her problem and she needed to figure some way to pick up AB. Evelyn explained that, if she took the evening bus, the earliest she and AB would arrive in Buffalo would be midnight. This would mean AB would have less than six hours sleep and would be exhausted. As Evelyn had to be at work for 7:00 a.m., spending the night in Toronto was not an option. Josh responded that, if Evelyn did not confirm an arrival time to pick up AB the next day by 9:00 a.m., he would "have no choice but to contact [his lawyer] and ask her to escalate this matter". The following day, following involvement of counsel, Josh agreed to bring AB to St. Catharines for the exchange.

[94] On March 20, 2017, Evelyn advised Josh that the passport office had kept AB's birth certificate to process her passport application. As a result, Evelyn could not travel with AB across the border. As Josh had a copy of AB's birth certificate, he could cross the border with AB. Josh insisted that Evelyn must return AB that evening, after being told it was not possible for her to do this. There was already an issue with Josh not having provided Evelyn with a consent for AB to travel to Ireland with Evelyn. When the exchange issue arose, Josh informed Evelyn that he would not sign the travel consent unless she agreed to make up the missed time and exchange, on his terms. He then instructed Evelyn to have her lawyer draft an email to his lawyer, confirming her agreement to his terms. Despite Evelyn's agreement to his terms, when Josh arrived to pick up AB, he did not provide her with the signed travel consent.

[95] In July 2017, Evelyn advised Josh that her mother and brother were visiting. She asked that he return AB early on the Saturday and advised that she would return her the following Saturday. This meant a loss of parenting time for her but it also meant that AB would not be traveling late at night. It was important to Evelyn that AB be home that weekend so she could spend time with her maternal grandmother and uncle. Josh refused the request. Evelyn asked Josh how he expected them to co-parent if he would not agree to anything that was not 100% to his liking.

[96] On January 20, 2018, there was a government shutdown in the U.S. and Evelyn had been advised not to travel outside of the U.S. She forwarded this to Josh and asked that he come pick up AB and she would 'make up' the pickup. Josh agreed. A few days later, before the shutdown had ended, Josh messaged Evelyn asking her to make up the time that weekend by picking AB up from Toronto rather than him returning her. However, that was the weekend Evelyn was taking AB to see Disney on Ice, an outing planned for some time, and given that Evelyn travelled by bus, she could not make it back in time. Evelyn asked Josh if she could do it another time but he insisted that she do it that weekend. Evelyn spoke to her boyfriend, Michael Adler, and he was able to drive her to Toronto to pick up AB.

4. Supporting the Role of the Other Parent

[97] I have significant concerns regarding Josh’s support of Evelyn’s role as AB’s parent.

[98] It is clear that Evelyn loves AB and is a caring and attentive mother. However, Josh was asked in cross-examination if he agreed that Evelyn was a caring mother, a question also put to him during his questioning on March 6, 2018. He admitted that, on questioning, his response to being asked if he agreed Evelyn was a caring mother was to ask for "clarification" as to what a caring mother was. At trial, Josh testified that Evelyn was a caring mother but not a “responsible” one. He testified that his main concern was that Evelyn did not deal with AB's illnesses quickly enough and took her to daycare when she was "quite sick". He talked about this being something he felt they could "work through" and that he hoped would change over time. Later in the cross examination, Josh changed his evidence and said that Evelyn was a good mother and a caring mother. There was no evidence whatsoever that Evelyn has ever taken AB to daycare when she was 'quite sick' or that she had ever delayed obtaining medical treatment for her when it was warranted. Neither of AB's two pediatricians expressed any concern in this regard, nor did the JCC daycare witnesses. Josh acknowledged in cross-examination that no third party had ever shared his concern. I conclude that Josh’s inability to freely acknowledge that Evelyn is a caring mother, combined with his exclusionary actions, means that he is not as supportive as he should be of the key relationship in AB’s life, and he will not foster that relationship as he should.

[99] Josh has consistently made decisions for AB without any prior discussion or consultation with Evelyn, and even without informing her. Josh hired the day and night nannies, Chita and Mary Lou, in February 2016 without consulting Evelyn or seeking her input. When Chita resigned as a nanny in December 2017, Josh hired a nanny, Shirley, again without consultation. Evelyn talked on the phone to Shirley just before she was hired and after Josh announced he had completed his interviews and narrowed his search to a sole candidate. Josh did not involve Evelyn in the selection process, although he provided her with the nanny screening agency’s phone number and copies of resumes. Josh interviewed three prospective nannies at this time with his parents.

[100] As described above, Josh’s failure to consult or even notify Evelyn included decisions regarding AB’s routines, activities, enrolment in programs affiliated to a religious institution, school, and health. In so doing, he has ignored multiple requests by Evelyn that he discuss these decisions with her in advance, and he has not altered his course of action out of respect for Evelyn's views.

[101] In stark contrast to Josh, Evelyn has consulted with Josh about decisions regarding AB, including the child's routines, activities, health and child care. She has not implemented any significant change affecting AB without first discussing it with Josh, except the daycare change necessitated by her financial emergency.

5. Evidence re Josh as a Parent

[102] Ms. Zecharia is the pre-school director of the Temple Sinai nursery school. She observed that, since AB commenced her first Temple Sinai program in January, 2017, AB had been picked up and dropped off by her father or her grandfather. She said that AB is a well-adjusted, happy child who loves school, and is happy when her father brings her. She testified that when AB was first registered by Josh in January, 2017, Josh did not put Evelyn’s name or contact information on the form and left the spot for the second parent blank. He did not add Evelyn’s name or provide her contact information in the April, 2017 registration for pre-school, or the registration for the summer camp in 2017. He did not provide her name or information for the school’s e-mail letter. The first time he requested that Evelyn be added was in August, 2017. He asked again in December, 2017, after which time Evelyn began receiving Temple Sinai information.

[103] Hannah Orriell is a registered Early Childhood Educator at Temple Sinai, who had AB in her class both in the spring and fall of 2017. Her evidence was that in the spring, 2017 program, which required that a caregiver accompany the child, AB usually attended with her grandfather and sometimes a nanny. Josh came a “couple of time” and was an attentive father. In the fall of 2017 Josh or his father dropped AB off; most months David (the grandfather) attended the monthly caregiver morning, although on one occasion Josh attended. She testified that Josh was an attentive father who enjoyed interacting with AB and others. She also testified that David was an attentive grandfather, and Chita an attentive nanny. She testified that AB was a well-adjusted girl who enjoys coming to school.

[104] AB’s Toronto pediatrician, Dr. Beverly Kupfert, gave evidence that Josh is a caring and engaged father who is able to comfort AB, and they have a lovely relationship.

[105] Josh’s girlfriend, Lana Liss, also testified. She and Josh had been dating for 14 months at the time of trial. She normally visits the Goldstein Family residence one night a week and on weekends. She observed Josh to be a hands-on father who wants to be with AB and plans around AB’s life. Ms. Liss described Josh as supportive, and interested in her life, family, and friends. Her evidence was consistent with Josh’s regarding the activities that he does with AB, including about their nighttime routine, eating meals together, attending Gymboree, going to the park, and playing together. She regards herself as AB’s friend. She confirmed that she and Josh have no present plans to live together.

[106] Marilyn Goldstein gave evidence in which she reflected on her son's growth into his role as a father. She testified that her son started out rough and hard, a man who had never been around babies. Now he is a nurturing person, whom AB is bonded to, and who puts his daughter first. Mrs. Goldstein testified that her son is AB’s safe place. Marilyn Goldstein candidly acknowledged that she never thought she would see her son this grown-up.

[107] It is clear to me that Josh’s parents, David and Marilyn Goldstein, love AB. David Goldstein, in particular, drives AB to daycare and picks her up almost every day. They have created a welcoming space for AB in their home. Marilyn acknowledged that AB has a loving parent in both homes.

[108] There are two caregivers who provided significant assistance to Josh in Toronto. Chita, was a daytime nanny who worked for Josh from February 2016 to December 2017. The present nanny, Shirley, works for Josh 50 hours a week when AB is resident in Toronto, including the Saturday, and 30 hours a week for his mother when AB is resident in Buffalo. Neither Chita nor Shirley were called to testify. Josh agreed that he knew where Chita resided and there was no issue with contacting her to testify; as Shirley is present employee in Toronto, she would be available. Shirley is in the Goldstein home daily when AB is there. She is the only “neutral” party and would be able to provide the court with helpful evidence including how often Josh is in the home; how much of the parenting is done by him; his interactions with AB; and observations of the home environment.

[109] Evelyn’s counsel asked me to draw an adverse inference, since Shirley is a material witness over whom Josh has exclusive control and has not explained the failure to call Shirley. An adverse inference may lead a court to find an implied admission that the evidence of the absent witness would be contrary to the party’s case, or at least would not support it. The explanation offered by counsel during read ins was that there is no need to call Shirley as Evelyn had conceded that Shirley seemed to be doing quite a good job and very nice and Evelyn had spoken with her. However, the issue upon which the inference is drawn is the failure of Josh to provide care without support, or the lack of information about Josh’s actual engagement with AB, not Shirley’s abilities as a nanny. I draw the adverse inference sought by Evelyn, as the only evidence is from interested parties, his parents as to Josh’s actual engagement in caregiving in the home environment and his girlfriend.

6. Evidence re Evelyn as a Parent

[110] Barbara Stone Reden is the Director of Early Childhood Services at the Jewish Community Centre of Greater Buffalo. She gave evidence relevant to AB’s childcare since December 4, 2017. She testified that AB and Evelyn have a lovely relationship.

[111] AB’s pediatrician, Dr. Fretz, testified that AB responded beautifully to her mother, they were very very connected, and she had no concerns that Evelyn was not seeking treatment appropriately. She found that AB had met her developmental milestones, verbal and social and was thriving.

[112] Jessica Petracca is a nanny and part-time babysitter with a Bachelor of Social Work degree who was hired by Evelyn starting in October, 2016 as an as-needed caregiver, generally for weekends and overnights. She served as AB’s full time nanny in September, 2017 for three weeks. She testified that Evelyn was very nurturing, caring and compassionate, and AB and Evelyn have a good family dynamic bond.

[113] Dr. Kevin Schmidt testified on Evelyn’s behalf. He is also a third-year neurology resident in Buffalo with Evelyn. He testified as to their close friendship, and the close support that Evelyn receives from her group of friends in Buffalo. He sees Evelyn and AB every month or two and AB often comes to events with groups of friends including AB’s birthday second birthday party. He spoke of the deep connection, the warmth and caring caregiving ability of Evelyn. He was aware of the efforts made by Evelyn to obtain caregiving in Buffalo in the spring and summer 2016.

[114] Dr. Yi Chang also testified as a friend and colleague of Evelyn since 2014, also a neurology resident. He also spoke of Evelyn’s attempts to find childcare in Buffalo, and Evelyn did tell him that of Josh’s racial bar, which he testified significantly narrowed the choice in Buffalo. Dr. Chang has a child as well, and he has seen both Evelyn and his child interact three or four times a year. He has observed that Evelyn is attentive to AB’s needs, AB reaches for her mother, Evelyn has good communication and provides physical comfort to AB.

[115] Dr. Niamh Kiernan McConnell, a friend of Evelyn’s since they were medical school roommates in 2011, testified by Skype from Ireland. She testified to a positive, happy relationship between Evelyn and AB.

[116] Michael Adler is Evelyn’s new partner. He is 32 years old and a US citizen. They began dating in December 2016, and he first met AB in March or April 2017. He has been seeing AB four or five times a week. On occasion he would sleep over particularly when Evelyn was on a citywide call with the possibility of a night call. Lately he has been putting AB to bed. He has done some drop-offs and a few pickups at the JCC. In the summer of 2018, following the trial, Evelyn and Michael were planning to move in together, and leased a new apartment for July 1, 2018.

[117] Michael stated that it was amazing how resilient AB is considering how much she goes back and forth. She’s a very happy baby who loves her music and playing. Michael and AB sing songs together and play with her toys. Michael describes his relationship with AB as becoming “fast friends.” Michael stated that because AB has lot of change going on in her life, he tries to be a constant friend for her. AB is very attached to Evelyn.

[118] Michael said that he noticed a shift in AB’s demeanor as the week goes on. Early in the week, she is clingy with Evelyn and gets worked up, but by the end of the week she’s more comfortable.

[119] AB has met Michael’s parents and sees them relatively often. Michael’s mom will call Evelyn and will do activities with Evelyn and AB. On average, Michael and Evelyn attend at Michael’s parent’s home for dinner about once a month. They see Michael’s mother approximately three or four times per month. Both of Michael’s parents have met Evelyn’s parents.

[120] Evelyn’s father, Paschal Walsh, described his very affectionate relationship with AB, and indicated she was lovely to the credit of both parents. He agreed that she goes to her dad seamlessly and does not struggle with transitions. Paschal described AB as lovely and very affectionate, as any two year old is. He stated that he loved her very much. He and his wife have come to Buffalo frequently to spend time with AB and Evelyn.

PART II: Legal Framework

A. Custody and Parenting/Access

[121] Evelyn seeks an order for sole custody, with the obligation to consult Josh on major medical and educational decisions and to give serious consideration to his views, but with the ability to make final decisions. Evelyn seeks primary residency for AB in Buffalo, with a requirement for a further order in Ontario should she propose to move outside the Buffalo area with AB. She proposes a generous parenting schedule for Josh, as she recognizes the importance of Josh in AB’s life.

[122] Josh proposes joint custody, and that AB continue on the week-about schedule until August 31, 2019. Josh makes three proposals which are all dependent on Evelyn’s immigration status, and all of which are dependent on him remaining in Toronto.

• Proposal #1: The week-about schedule is to continue until August, 2019. If Evelyn does not secure a visa extension to remain in Buffalo after August, 2019, he proposes that there will be a review of the parenting schedule premised on the maximum contact principle.

• Proposal #2: The week-about schedule continues through June 30, 2020; after that time, AB would reside primarily in Toronto with Josh, with alternate weekends and the majority of holidays with Evelyn in Buffalo.

• Proposal #3: A two year schedule, where in September 2019 to June 2020 AB would reside primarily with Evelyn in Buffalo with Josh having the majority of holidays, and September to June, 2020, AB would reside primarily with Josh in Toronto.

[123] In order to avoid confusion, I use “custody” to refer to decision-making on major issues, and “access”, “residence”, or “parenting schedule” to refer to how, when and where the child’s time with her parents is shared: Hatcher v. Golding, 2017 ONSC 785 at para. 146. Given that AB is required to cross an international border every time she sees the other parent, I will issue a custody order rather than a parenting order. For the reasons set out in this decision, and based on the facts as I have found them, I find that it is in AB’s best interests that she lives primarily with Evelyn, with generous access to Josh, and that Evelyn has sole custody of AB.

1. CLRA Best Interests of the Child

[124] Since the parties never married, custody and access are governed by Children's Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”). Under s. 20 of the CLRA, both parents are equally entitled to custody of a child; if a decision is made that one parent should have sole custody, then I must explain why: Rodriguez v. Guignard, 2013 ONSC 146.

[125] In determining what is in AB’s best interests, I must consider all of her needs and circumstances, including those factors set out in section 24(2) of the CLRA:

(a) the love, affection and emotional ties between the child and, (i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child, (ii) other members of the child’s family who reside with the child, and (iii) persons involved in the child’s care and upbringing;

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

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

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

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

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

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

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

[126] Although this is not a mobility case, since neither parent is the existing custodial parent, a relevant factor in considering the best interests of the child is that Evelyn resides in Buffalo, and Josh in Toronto. I must consider the proposed place of residence: Terris v. Terris, 2013 CarswellOnt 154 at para. 12. Where the commute is between two countries with enough geographical distance that a regular rotating access schedule is not possible, I may address the issue by increasing access given school year constraints: Lemon v. Lemon, 2018 ONCA 684, para. 48.

[127] Finally, I am to consider the past conduct of the parties only if I am “satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent:” CLRA. Section 24(3). Although there was a great deal of evidence of Josh’s historical prescription drug use and mental health state prior to AB’s birth, I do not find that it is relevant to his ability to parent. I do find, however, that his actions in misleading the court on the ex parte motion as to Evelyn’s role in AB’s life, are relevant to his parenting ability, in particular, his ability to support the role of Evelyn in AB’s life, and to put AB’s best interests first.

2. Maximum Contact Through Best Interests Analysis

[128] This is a case to be determined under the CLRA; the maximum contact principle is expressed through best interest analysis. The maximum contact principle as set out in the Divorce Act requires the court making a custody or access order to “give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.”: Divorce Act, s. 16(10).

[129] The Court of Appeal held in Lemon v. Lemon, 2018 ONCA 684 para. 35:

The CLRA’s best interests analysis already contemplates the importance of the parental bond and maximum contact through the best interests lens. That is, section 24(2) of the CLRA explicitly requires the court to consider familial relationships – s. 24(2)(h) – as well as love, affection and emotional ties – s. 24(2)(a) - in making custody and access orders that are in the children’s best interests.

[130] The courts accept that generally, the best interests of the child are fostered by ensuring the child has a loving relationship with both parents – this is the essence of the maximum contact principle. Both Josh and Evelyn are loving and capable parents. Thus, I consider each parent’s willingness to facilitate contact with the other parent under the best interests analysis.

[131] I agree with Chappell. J. in Jackson v. Jackson, 2017 ONSC 1566, at para. 59:

Quite apart from the terms of section 16(10) of the Divorce Act, it is a well-established principle that the best interests of the child are generally fostered by ensuring that children have a loving relationship with both parents, and that such a relationship should only be interfered with in demonstrated circumstances of danger to the child's physical, emotional or mental well-being…. If one parent does not facilitate a child's relationship with the other parent, or improperly undermines that relationship, this will be an important consideration in determining their ability to meet the child’s needs…. (emphasis added; internal citations omitted)

[132] The actions of Josh demonstrate that when he has control, he cannot be counted to exercise that control in accordance with AB’s best interests as it extends to involving Evelyn in decisions about AB’s life. He has taken many steps, described above, to improperly undermine AB’s relationships with Evelyn, and has failed to facilitate that relationship.

3. Joint Custody

[133] Justice Chappell in Jackson v. Jackson 2017 ONSC 1566 at para. 65 has set out the following principles governing joint custody (some internal citations omitted):

These can be summarized as follows:

1. There is no default position in favour of joint custody. Each case is fact-based and discretion-driven.

2. Joint custody should only be considered as an option if both parents are fit parents and able to meet the general needs of the children. This is a threshold issue before the court considers the question of whether the parties are able to effectively communicate on issues relating to the children.

3. The quality of past parenting and decision-making, both during the parties’ relationship and post-separation, is a critical factor in determining whether joint custody is appropriate.

4. However, the mere fact that both parents acknowledge that the other is a “fit” parent does not mean that it is in the best interests of the child for a joint custody order to issue. The decision regarding the appropriate decision-making arrangement must take into consideration all factors relevant to the child’s best interests.

5. Although some measure of communication and cooperation between the parties is necessary to support a joint custody order, the court is not required to apply a standard of perfection in assessing the parents’ ability to work together. As Quinn, J. remarked in Brook v. Brook, 2006 CanLII 12294 (ON SC), [2006] O.J. No. 1514 (Ont. S.C.J.), “the cooperation needed is workable, not blissful; adequate, not perfect.”

6. The fact that one party insists that the parties are unable to communicate with each other is not in and of itself sufficient to rule out the possibility of a joint custody order. The court must carefully consider the parties’ past and current parenting relationship and reach its own conclusions respecting the parties’ ability to communicate, rather than simply relying on allegations of conflict by one or both of the parties …The existence of conflict and strife between the parties from time to time, and at the time of trial, will not necessarily preclude the court from making an order for joint custody. The question to be determined is whether the nature, extent and frequency of the conflict between the parties is such that it is impacting or likely to impact on the well-being of the children. If the evidence indicates that the parties, despite their conflict with each other, have been able to shelter the child from the conflict reasonably well and put the child’s interests ahead of their own when necessary, an order for joint custody may be appropriate… The question for the court to determine is “whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis”

7. Where an objective review of the historical and more recent evidence clearly indicates that there has never been an ability to cooperate or communicate effectively, or that one or both of the parties is/are unable to put the needs of the child before their own, joint custody is not an appropriate order … In these circumstances, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for making an order of joint custody…There must be a clear evidentiary basis for believing that joint custody would be feasible….

8. In cases involving very young children, the court must take into consideration the fact that the child is unable to easily communicate their physical, emotional, developmental and other needs. Accordingly, the need for effective communication between the parties in a joint custodial arrangement will be particularly pressing in such circumstances…

9. The wishes of the child will also be relevant to the decision respecting the appropriate custodial disposition in cases involving older children. Although a child’s wishes in such circumstances do not necessarily synchronize perfectly with the child’s best interests, “the older the child, the more an order as to custody requires the co-operation of the child and consideration of the child’s wishes” …

10. Evidence as to how an interim custody and access order has worked, and in particular, whether the parties have been able to set aside their personal differences and work together in the best interests of the child, will be highly relevant to the ultimate decision regarding the appropriate custodial regime.

11. In analyzing the ability of the parties to communicate, the court must delve below the surface and consider the source of the conflict. The Ontario Court of Appeal has clearly stated that one parent cannot create conflict and problems with the other parent by engaging in unreasonable conduct, impeding access, marginalizing the other parent, or by any other means and then justify a claim for sole custody in their favour on the basis of lack of cooperation and communication …Where the parties are both competent and loving parents, but one of them is the major source of the conflict, this factor may support an order for sole custody in favour of the other party…

12. There has been an increasing willingness in recent years to order joint custody rather than sole custody where such an order is considered necessary to preserve the balance of power between the parties, particularly in cases where both parties are caring and competent parents but one party has been primarily responsible for the conflict between the parties.

[134] The extent to which evidence shows that a parent has failed to communicate with and inform the other parent and tried their best to reach mutual decisions on significant guardianship questions, becomes an important consideration when deciding what custody or guardianship arrangement most closely corresponds with the best interests of a child. If a parent has made access to the child difficult for the other parent, that is also a factor: S.(D.L.) v. S.(R.), 2012 BCSC 977, para 171.

[135] Josh submits that the parties have made numerous decisions for AB together including but not limited to: AB’s caregivers; AB’s exposure to their respective religions; AB’s schools; AB’s healthcare providers; AB’s medications for her ongoing health issues; and AB’s current parenting schedule. The evidence I have summarized above does not support that conclusion. An objective review of the evidence clearly indicates that there has never been an ability to cooperate or communicate effectively, and that Josh is unable to put AB’s needs first. Josh is unable to respect decisions made by Evelyn, or Evelyn’s role in AB’s life. Because of his dominance, joint custody is not an appropriate order. Evelyn testified that the reason she is seeking sole custody is their inability to make joint decisions, and Josh’s tendency to override her decisions, doing what he prefers to do. On the record, before me, that is exactly what has happened between the parties. In contrast, Evelyn’s very strong preference is that AB has both her mom and her dad in her life to as great an extent as possible, and she has sought to consult Josh and obtain his opinion before making decisions that affect AB.

[136] The best interests of AB will not be advanced if the parties are unable to make joint decisions together. Josh’s unwillingness to accept the recommendations of physicians, or to listen to Evelyn’s contributions, his failure to consult on issues from caregivers to extracurriculars to religion, and the strained communications about major and minor decisions including his frequent resort to legal counsel to solve simple disputes, lead me to find that it is in the best interests of AB that Evelyn be granted sole custody. On the evidence before me, joint decision-making will lead to continued conflict, and inappropriate attempts to exert control which are a significant concern. The order granted requires Evelyn to solicit and consider Josh’s input and opinions with respect to major medical and educational decisions. The principles set out in the order will also guide the parents in an effort to reduce conflict, bullying, and control, and truly put AB at the center of all decision-making.

B. Application of Section 24 of the CLRA

1. Love, Affection and Emotional Ties

[137] Everybody loves AB. In both Toronto and Buffalo, she is surrounded by loving friends and family.

[138] In Toronto, at the present time, AB has the love and support of her grandparents. Evelyn agreed that AB is attached to her paternal grandparents, AB’s relationship with them is important to her, and to AB’s growth and stability. Josh’s girlfriend described herself as AB’s friend.

[139] In Buffalo, Evelyn and her partner, Mr. Adler were planning to move in together and were beginning the process of integrating AB into a new household. AB sees Michael’s family often. Several of Evelyn’s friends testified as to their support for Evelyn and ties to AB. AB has loving Irish grandparents who visit Buffalo frequently, and whom she visits.

[140] AB has two “villages” supporting her and surrounding her with love. The parenting arrangements should ensure that AB will continue to benefit from these diverse sources of love, affection and guidance.

2. Views and Preference

[141] AB is 3 years old, and her views and preferences cannot be reasonably ascertained. Because she is so young, AB “is unable to easily communicate [her] physical, emotional, developmental and other needs”: Jackson, supra, para. 65.

3. Permanence and Stability/Plan of Care

[142] The permanence and stability of the family unit with which it is proposed that the child will live, as well as the plan of care for the child’s upbringing are factors set out in s. 24 of the CLRA.

[143] Since October 2016 – age 11 months - AB has spent 50% of her time with Josh and his parents in his parents’ home in Toronto, and 50% of her time with Evelyn in an apartment in Buffalo. In the summer of 2018, Evelyn and her partner, Mr. Adler are moving in together in Buffalo, and transitioning AB to the new living arrangement. I do not accept Josh’s counsel’s submission that AB’s “home” since November 2015 is the home of his parents which Evelyn is “seeking to radically alter.” Rather, for the last two years, AB has had two stable home environments. AB is obviously resilient, and all parties agree she has adapted marvelously to the week-about, two-country schedule. However, as AB grows older, it is in her best interest to have stability and a single school/daycare, and to reduce the frequent long commuting. As she gets older, the two-country, two school week-about schedule is not in AB’s best interests.

(a) Permanence/Stability Issues Re Josh and Toronto

[144] I do not accept the submissions of Josh’s counsel that Josh’s plan is one of “permanence and stability.” Josh lives with his parents in his parents’ house. He does not pay his parents money for rent, or pay for his father’s car, which he drives. His parents help him care for AB, as well as a nanny, who works 50 hours a week for him the week that AB is resident in Toronto, including the Saturday AB is there. It is unclear where Josh would live with AB in the future. When asked on cross-examination whether living with his parents was the plan for the foreseeable future, he testified “It’s a plan for right now. I don’t know how long that is going to last for.”

[145] He had been in a relationship with Ms. Liss for 14 months at the time of trial; she spends most weekends at his parents’ home and comes once a week for dinner. However, Josh testified that he has no definitive plans to live with Ms. Liss.

[146] I do not accept Josh’s submission that his parenting plan offers “certainty”, and that “any move will involve him continuing to reside in Toronto.” Josh expects to complete his residency in August 2020. He expressed interest in a one-year fellowship in spinal cord injury, but there is nothing in place. Josh testified that after the completion of the residency or fellowship, he will practice physiatry in Richmond Hill. I find that this is not a plan; on the evidence before me, it can be no more than speculation or preference.

[147] Josh has signed an International Medical Graduate - Return of Service Agreement with the Crown in Right of Ontario, represented by the Ministry of Health and Long-Term Care (“Ministry”). The International Medical Graduate (“IMG”) Training Program is the Ministry’s Return of Service Program for graduates of international medical schools which is composed of Post-Graduate Medical Training (Josh’s residency, which would also include a fellowship if he secures one) followed by a five-year period of full-time work for return of service.

[148] Pursuant to the Agreement that Josh signed, he must do his five-year return of service in an “Eligible Community approved in advance by the Ministry, and in a Facility approved in advance by the Ministry.” Eligible Community is defined to exclude the City of Toronto, Mississauga, Brampton, Vaughan, Markham, Pickering and Ottawa; it encompasses underserviced areas. Richmond Hill is an Eligible Community. However, on the evidence before me, given the Agreement, Josh does not control the ability to work in Richmond Hill. Section 8 of the Agreement provides that Josh must submit a Practice Location Agreement signed by a specified officer of a health facility in an Eligible Community, or an approved representative of an Eligible Community. The Ministry has a broad discretion to approve or deny the return-of-service set out in the Practice Location Agreement, and “may make that decision having regard to any factor that the Ministry considers relevant, and the Ministry’s decision is final.” Failure to comply with the Agreement results in very significant financial consequences, including repayment of all salary during post-graduate medical training.

[149] Josh stated he may open a practice in Richmond Hill. However, there is no evidence that he would obtain approval from the Ministry for such a proposed Practice Location Agreement; the Ministry has the sole discretion to approve the return-of service location and plan. Thus, I find on the evidence before me that Josh’s location from August 2020 to 2025 is unknown, and his plan of care for AB is unknown. His plan is to reside with his parents “for now”.

[150] Josh testified that he has not considered moving to St. Catharines, or other cities significantly closer to Buffalo.

[151] I reject Josh’s proposal #1, which calls for a continuation of the week about schedule with a review in June, 2019. It does not offer permanence and stability and is not in AB’s best interests. The Ontario Court of Appeal has held that family law matters, particularly those that involve the rights of children, proceedings should be brought to a conclusion with reasonable dispatch: Appiah v. Appiah, 1999 CarswellOnt 481, para 17.

[152] Another reason to reject proposal #1 is the financial consequences. The constant litigation that a review invites will cause more conflict, stress and uncertainty for AB.

[153] The concern is exacerbated by significant disparities relating to the ability to fund litigation. Family law disputes and their resolution should not hinge on or encourage procedures that reward the deeper pocket litigant. All parties agreed that this case has been a financial catastrophe, with Josh conceding it has been even more difficult for Evelyn. The financial statements show Josh’s net worth at $354,000, and Evelyn’s at negative $569,000. The evidence shows that Evelyn’s litigation was financed by her father retiring the week after the ex parte Order issued and taking his lump sum pension severance to fund the litigation. By contrast, David Goldstein was aware that Josh was applying to court for the ex parte order and paid Josh's legal fees. David testified that he had set up an investment account for Josh many years ago; he states that Josh was not aware of the account, although Josh had always signed the signature page for tax purposes. David testified he would collapse Josh's investment account to cover the legal fees.

[154] Evelyn lives on her income; while their incomes are similar, Josh lives rent free with his parents, who on the testimony have a high standard of living. Any order that is predicated on continual returns to court is a strategic advantage to Josh given the disparity of individual and family resources.

(b) Permanence/Stability Issues re Evelyn and Buffalo

[155] Since October 2016 AB has spent 50% of her time living with her mother in Buffalo. She and AB have spent time with Mr. Adler, and his parents live in the Buffalo area; Mr. Adler’s mother spends time weekly with AB. In the summer of 2018, Evelyn planned to move in with her partner, Mr. Adler, and they were going to begin transitioning AB to their new family. She advised Josh in advance of this plan. The apartment is close to the JCC, AB’s existing daycare, and AB will have her own bedroom and bathroom.

[156] There are uncertainties about how long Evelyn will be able to continue living in Buffalo. She is in the third year of a four-year residency program. I accept her testimony that in August 2019, she will be starting a two-year child neurology fellowship through the University of Buffalo; this fellowship was only secured in the two-week period leading up to the trial. Her present visa is a seven-year J1 Visa (expiring in August 2022) under which she is entitled to spend up to 7 years in the U.S. in an accredited medical program, and after which she must leave the U.S. for two years. Evelyn’s future is also unknown. Evelyn testified that she plans to apply for a J1 visa waiver, which may be granted for work in an underserviced area, which includes downtown Buffalo. This would mean that she does not have to leave the U.S. for two years abroad. She also testified that another option would be to apply for a J1 visa waiver on the basis of hardship to AB, since AB is an American citizen. However, Evelyn’s location after August 2021 is also unknown.

[157] Josh asks this Court to draw an adverse inference against Evelyn for her failure to provide any independent evidence with respect to her immigration status, her refusal to call her immigration lawyer Julie Kruger as a witness at trial, and her refusal to produce the immigration lawyer’s file. Josh asks this Court to infer that she did not provide this evidence because the evidence Ms. Kruger would provide would be contrary to Evelyn’s case, or would not support Evelyn’s evidence. I do not draw that inference. Ms. Kruger’s file was refused on questioning on the grounds of solicitor-client privilege. She was listed as a potential witness only as a “to be determined.” The lawyers decided not to call her as a witness. The explanation given was that having refused production of her file on the grounds of solicitor-client privilege, she could not be called as a witness. There cannot and should not be a presumption that litigants must call counsel and produce privileged documents, or else risk an adverse inference. Solicitor-client privilege is a substantive right with quasi-constitutional protection. The adverse inference sought would undermine the protection of solicitor-client privilege. Evelyn gave her evidence at trial based on her understanding of the visa waiver process, as well as the anecdotal evidence of Dr. Felix Cheng, a Canadian citizen and fellow neurology resident, who gave evidence that he understood there were 30 J1 visa waivers available in the state of New York.

[158] Evelyn’s plan of care is for AB to reside with her and Mr. Adler in Buffalo; to continue to attend JCC for pre-school and kindergarten; and then to attend a private school. I find Evelyn’s plan offers greater stability.

4. Guidance, Education, Necessaries of Life, Ability to Act as a Parent

[159] The ability of the parties to provide guidance, education and the necessaries of life, and to act as a parent, are factors set out in s. 24 of the CLRA. I find that both parties can provide guidance, education and the necessaries of life.

[160] Evelyn has proven her ability to act independently as a parent, since she has assumed full responsibility for AB’s development, assisted by hired caregivers, who testified, and the JCC. The hired caregivers and the JCC witnesses spoke of Evelyn’s parenting ability, as did her friends, her partner, and her father.

[161] There is less evidence of Josh’s ability to act independently as a parent, since he lives with his parents, who do a great deal of AB’s care in Toronto, and there is no certainty as to how long he will remain with his parents. His parents and his girlfriend praised Josh’s growth into the role, but they are not unbiased. The Temple Sinai caregivers spoke of Josh as an attentive father, but also of David as an attentive grandfather. None of the three nannies hired by Josh to provide care were called upon to testify as to his ability to parent, which I find deprives the court of valuable evidence of unbiased commentators. I have very little evidence of how Josh functions independently as a parent, but I find that he is a loving and caring parent.

C. Conclusion

[162] I conclude that it is in AB’s best interests, applying the CLRA factors, that Evelyn have sole custody and ultimate decision-making for major medical and educational decisions. The evidence is that only Evelyn can be relied on to consult in a child-focused manner and make decisions in AB’s best interests, recognizing the important role of the other parent in her decision-making. I have set out many examples in these reasons, including significant conflict over the medical decision making, Josh making decisions for AB without prior consultation, discussion, or even informing Evelyn, and inflexibility in reasonable requests for accommodation and joint discussion on key issues. This is not in AB’s best interests. The actions of Josh demonstrate that when he has control, he cannot be counted to exercise that control in accordance with AB’s best interests particularly as it extends to involving Evelyn in decisions about AB’s life, and recognizing the role of AB’s Irish family as part of AB’s life.

[163] Josh will have significant and meaningful parenting time, consistent with AB’s best interests, and she will have a home base in Buffalo with her mother. In making the order I have considered the factors set out in s. 24 of the CLRA, and AB’s best interests. It is important that AB maintain a close connection with her father and paternal grandparents, which is reflected in the access schedule set out, while benefitting from the stability of a primary residence with her mother. Josh’s counsel suggested AB travel for 3 of 4 weekends for access in Toronto. This is simply too much travel as AB gets older, and the turn-around time is a weekend; she will have a strong connection with her father and her grandparents. It is important that the parties share holidays, recognizing the importance of religious holidays and religious identification. Stability in AB’s life and school is also of importance, as well as the frequency and duration of travel.

[164] There was an issue at trial concerning Skype access, and Evelyn’s concerns that when AB is Skyping with her, there should be no distractions and the grandparents should not participate in those calls. That is a reasonable perspective in my view and this order makes provision for setting up separate Skype calls with grandparents. Josh may choose to include his parents in his calls with AB.

[165] The order requires that Evelyn reside in the Buffalo-Niagara Falls Metropolitan Area with AB, and she must obtain a further order of this Court if she proposes to move outside of that area with AB. This would apply if she is unable to secure a J1visa waiver; either party could then bring a motion to change the order on the basis of a material change. The distance which AB must travel, and how frequently, is critical. Josh’s future location is uncertain. If he moves further away from Buffalo, thereby causing longer travel times for AB, this may require adjustments to the access and residential schedules.

PART III: CHILD SUPPORT

[166] The final issues relate to child support, and are:

(1) What are the incomes of the parties for child support purposes, including section 7 expenses?

(2) Should Josh pay Evelyn table child support and if so, how much?

(3) What are the eligible section 7 expenses?

[167] There is no dispute on income. Josh's 2016 reported income is $76,134.12 and Evelyn's 2017 reported income is $66,726.11. Evelyn seeks table child support, while Josh seeks set-off child support. Because the final order does not entirely reflect the proposals of either party, neither party has calculated the amount of time AB will be residing with Evelyn and Josh. If the shared custody threshold under section 9 of the Federal Child Support Guidelines has not been reached, then Evelyn is entitled to table child support. The parties are encouraged to agree on this issue but may come back to me for a further order if it is required.

[168] The parties agree to pay s. 7 expenses proportional to income.

[169] Evelyn’s counsel submits that the existing section 7 expenses in Buffalo are:

a) Pre-school tuition payments at the Jewish Community Centre in Buffalo, New York;

b) AB's swimming lessons in Buffalo, New York;

c) AB's toddler Yoga in Buffalo, New York; and

d) Medical and dental expenses not covered by insurance.

[170] Section 7 of the Child Support Guidelines provides:

Special or extraordinary expenses

7. (1) In an order for the support of a child, the court may, on the request of either parent or spouse or of an applicant under section 33 of the Act, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation:

(a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;

(b) that portion of the medical and dental insurance premiums attributable to the child;

(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy, prescription drugs, hearing aids, glasses and contact lenses;

(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;

(e) expenses for post-secondary education; and

(f) extraordinary expenses for extracurricular activities.

Definition, “extraordinary expenses”

(1.1) For the purposes of clauses (1) (d) and (f),

“extraordinary expenses” means

(a) expenses that exceed those that the parent or spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that parent’s or spouse’s income and the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, or

(b) where clause (a) is not applicable, expenses that the court considers are extraordinary taking into account,

(i) the amount of the expense in relation to the income of the parent or spouse requesting the amount, including the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,

(ii) the nature and number of the educational programs and extracurricular activities,

(iii) any special needs and talents of the child,

(iv) the overall cost of the programs and activities, and

(v) any other similar factors that the court considers relevant.

Sharing of expense

(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the parents or spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.

[171] Neither swimming lessons nor toddler yoga are extraordinary expenses within the meaning of the Guidelines. The daycare and medical expenses are special expenses within the meaning of the Guidelines.

PART IV: Costs

[172] The parties are encouraged to settle costs. If they are unable to do so, they are to contact me with a proposed schedule for submissions.

PART V: ORDER

[173] The order in this matter, anonymized for publication, shall be as follows:

Parenting Guidelines and Principles

1. In relation to any dispute, conflict or concern pertaining to AB, her needs and best interest shall be paramount.

2. The parties shall recognize AB’s need for good and ongoing relationships with both parents. The parties shall make every effort to actively foster and facilitate AB's positive relationships with the other parent and with members of the other parent’s extended family.

3. The parties shall exert their best efforts to work cooperatively and to make parenting arrangements with AB's best interests at heart.

4. The parties shall support the terms of this Order and ensure that AB spends the required time with the other parent.

5. The parties shall refrain from any subtle or open disparagement of the other parent and/or members of the extended family in any communication with AB or in her presence. The parties shall not speak to or in front of AB in a critical or disparaging way about the other parent. Further, the parties shall make every effort to protect AB from the parent's anger and/or frustration regarding the other parent, with the understanding that AB may find this stressful, and that parental conflict may compromise her adjustment and self-esteem. The parties shall actively and on a timely basis advise others to maintain the same standard and to refrain from criticizing the other parent in front of AB.

6. The parties shall refrain from any manner of conflict, subtle or open, in AB's presence and, accordingly, shall relate to one another in a reasonable and cordial manner in all instances in which AB is present or nearby, even when the parties think she is asleep or not listening.

7. The parent shall not ask AB to relay information from parent to parent and she shall not be a letter carrier for the parents.

8. The parties shall respect each other's privacy, and as such refrain from engaging AB in any discussion or questioning about the other parent's personal life or activities. The parties shall refrain from any form of interference, direct or indirect, open or subtle, into the life, activities, or routines of the other parent.

9. AB has ownership of her belongings, and they may be transferred between homes as per the child's wishes, within reason.

10. The parties shall make all practical efforts to ensure the child's attendance at any or all structured activities or special occasions involving peers, and/or extended family. While it is understood that this may not always be feasible, when possible the parent will schedule these events when they know AB will be with them.

Decision Making

I. Major Decision Making

11. Evelyn shall have sole custody of AB on the following terms:

a) Residence

i. Evelyn shall reside in the Buffalo-Niagara Falls metropolitan area, New York State, with AB and shall require a further order of this court should she propose to move outside of that area with AB.

ii. Josh shall reside in Toronto, Ontario, and shall require a further order of this court should he propose to exercise access which requires AB to travel to another location.

b) Medical and Healthcare

i. The parties shall provide each other with the names, addresses and phone numbers of any professionals providing services or treatment to AB such as physicians and health care professionals.

ii. If required by the professional, the parties shall provide written permission to AB’s health care professionals to release information to the other party.

iii. Each party shall provide the other party with copies of any medical and/or professional reports and records, he or she may have pertaining to AB.

iv. Each party may obtain reports from any professional providing services or treatment to AB directly.

v. The parties shall notify each other immediately in the event of a medical emergency involving AB.

vi. Major medical decisions include long term medication/treatments, intrusive medical treatments, surgery, orthodontia work, therapy/counseling by a mental health professional, and changes of health care professionals. The parties shall notify each other of any potential major medical decisions. Evelyn shall consult with Josh regarding any major medical decisions and shall give serious consideration to his views. In the event the parties cannot agree, Evelyn shall have the authority to make the final decision.

c) Religion

i. The parties shall each be entitled to celebrate all aspects of their religious faiths with AB, which is Judaism for Josh and Catholicism for Evelyn. Without limiting the foregoing, this includes the entitlement of Josh to take AB to synagogue and to arrange for AB to celebrate her Bat Mitzvah, and the entitlement of Evelyn to take AB to church and arranging to have AB celebrate her First Communion and Confirmation.

ii. Both parents shall be entitled to participate in all AB’s significant religious events.

iii. Each parent shall make his and her own day-to-day decisions regarding matters relating to religion.

iv. Neither parent shall demean or disparage the other party, or their choices with respect to the celebration of their religious traditions or holidays, to AB or in a manner that is likely to come to AB’s attention.

d) Education/Childcare (school/daycare choice, psycho-educational testing, remedial assistance, tutoring)

i. AB will continue to attend the Jewish Community Centre in Buffalo, New York.

ii. Evelyn shall make any decisions about a change to the daycare or about which school AB attends, after consulting with Josh and giving his views serious consideration.

iii. The parties shall notify each other of any potential major educational decisions (eg. program, school class placement, psycho-educational testing, remedial assistance, enrichment, speech therapy, etc), as well as provide the other parent with the names and numbers of the involved professionals. Evelyn shall consult with Josh regarding any major educational decisions and shall give serious consideration to his views. In the event the parties cannot agree, Evelyn shall have the authority to make the final decision.

e) Daily and Routine Health and Medical

i. The parties shall provide each other with the names, addresses and telephone numbers of all physicians and health care professionals that provide services or treatment to AB. If required by the health care professionals, the parties shall provide written permission to these professionals to release information to the other party.

ii. AB’s primary physician is Dr. Stephanie H. Fretz, pediatrician.

iii. The parties shall provide each other with copies of all medical and/or professional records and reports the parties have pertaining to AB within 24 hours of the appointment if a record is available or within 24 hours of receiving a report. The parties shall also be entitled to request any relevant records/information/reports from AB’s health care professionals directly.

iv. Evelyn shall be responsible for arranging and taking AB to routine medical and dental appointments. Evelyn shall advise Josh in advance as to when these appointments are and he shall be entitled to attend. The resident parent may also take AB to a medical walk-in clinic during off hours and/or when the usual physician is not available.

v. Timely updates, within 24 hours, shall be provided to the other parent regarding the outcome of all medical and dental appointments. The parties shall also be entitled to obtain additional information directly from the health care professionals.

f) Day to Day Educational Decisions

i. The parties shall attend parent-teacher meetings together or separately.

ii. Both parties shall be entitled to attend any meetings in relation to AB involving the school board or school personnel and will attend such meetings together at the date and time set by the school board or school personnel.

iii. The parties shall each provide AB’s school with contact information. Evelyn shall be designated as the contact person in case of an emergency. Evelyn shall notify Josh in the event of any such emergency as soon as it is practically possible. Both parties shall be entitled to attend on the school premises to drop off and pick up AB and to attend any school related functions.

iv. Both parties shall be entitled to make inquiries and to be given information from the school about any issues arising with respect to AB’s education. Each party shall request from the school that he or she be provided with all the notices, newsletters, report cards, and other information going to parents. If the school does not accommodate this request, Evelyn shall provide the information to Josh when she receives it.

v. The parties, and their family and friends, may attend school functions including open houses, plays, concerts and assemblies, field trips, and fundraisers, regardless of the residential schedule. The parties shall not discuss child-related arrangements at such events and the parties shall ensure the parties’ families maintain the same standard of behaviour.

vi. The parties shall ensure that AB stays current with homework and shall communicate about homework and ongoing projects.

g) Name Change

i. The child’s name shall not be changed without the express, written consent of both parties.

Regular Access Schedule

12. AB shall reside with Evelyn subject to access by Josh, as follows:

a) Alternating weekends, when Josh shall pick AB up from her daycare/school (a) on Thursday afternoon at the end of the day, until Sunday at 4:30 p.m. if being picked up by Evelyn in Toronto and 7:00 p.m. if Josh returns her to her Buffalo residence until she commences kindergarten, and (b) once she commences kindergarten, on Friday afternoon at the end of the school day, until Sunday at 4:30 p.m. if being picked up by Evelyn in Toronto and 7:00 p.m. if Josh returns her to her Buffalo residence.

b) Up to three hours, twice weekly, on weekdays Josh is able to come to Buffalo, except that in the weeks he is picking up AB on Thursday, one midweek visit for up to three hours. These visits shall take place in Buffalo.

c) Such other times as the parties may agree, in writing.

13. The non-resident parent shall be entitled to speak with AB once daily by way of telephone call or Skype, or its equivalent. The resident parent shall facilitate this communication. The non-resident parent may have their partner or family member participate in their telephone or Skype call with AB. The resident parent shall ensure that nobody other than the parties and AB shall participate in the calls with the non-resident parent without the prior written consent of the non-resident parent.

14. The parties’ extended families and partners may participate in a Skype, or its equivalent, call with AB once weekly, as arranged with the resident parent. These calls may increase in frequency, if agreed in writing by the parties.

Holiday Access Schedule

15. The holiday schedule overrides the regular access schedule in the event of a conflict. Weekends commence at the end of the school/daycare day.

Labour Day Weekend

a) AB shall be in Evelyn’s care on Labour Day weekend until Monday evening.

Rosh Hashanah

b) AB shall be in Josh’s care on Rosh Hashanah.

Passover and Easter

c) AB shall be in Josh’s care for the first two nights of Passover and shall be in Evelyn’s care for Easter weekend unless the first two nights of Passover fall on Easter weekend.

Canadian Thanksgiving

d) AB shall be in Josh’s care during Canadian Thanksgiving weekend.

American Thanksgiving

e) AB shall be in Evelyn’s care during the American Thanksgiving weekend from Wednesday after school to Sunday evening.

Christmas Break and Christmas Day

f) AB shall be in the care of Evelyn on December 24th through to December 26th every year.

Family Day/President’s Day

g) AB shall be in Josh’s care during Family Day/President’s Day Weekend from Thursday after school or any time after 10 a.m., if AB is not yet attending school, at which time Josh shall pick her up from school/daycare, until Monday at 7:00 p.m. at which time Josh shall return her to Evelyn’s residence.

March/Winter Break

h) AB will reside with Josh during the school March/Winter Break from her leaving school as the March/Winter Break starts until 4 pm on the Sunday before her return to school following the break.

Mother's Day

i) AB shall be in Evelyn’s care for the entire Mother's Day weekend.

Victoria Day

j) AB shall be in Josh’s care for the entire Victoria Day weekend.

Father's Day

k) AB shall be in Josh’s care for the entire Father’s Day weekend.

Summer Vacation

l) Subject to (m), during AB's school summer vacations, AB shall be in the care of Josh except for alternate weekends from Thursday evening until Sunday evening when she shall be in the care of Evelyn.

m) Each party will have up to two weeks of vacation with AB during her summer vacation, which may be consecutive or non-consecutive. Josh will advise Evelyn by April 1 of his chosen weeks. Evelyn will advise Josh of her chosen weeks by April 15th. If either party must book their summer vacation earlier than the allocated dates they are to advise the other party, and the dates for choosing vacation weeks will be adjusted accordingly.

Parental Communication

16. All communications between the parties about issues related to AB shall be through Our Family Wizard ("OFW") with the exception of time sensitive or urgent issues.

17. The parties shall minimize the extent of their written communications through OFW, which is used for the purpose of identifying child-related issues and trying to decide on a solution. All OFW communications shall pertain only to child related matters and neither parent shall disparage the other parent in any communication. The parent shall refrain from including information that reflects their personal and negative feelings, frustration and opinions about the other parent, their motives, personality, and behaviour. They shall refrain from blaming the other parent or including sarcasm, name calling, scolding, insults and disparaging and/or condescending comments.

18. Email communications on OFW shall be organized under the following headings: Schedule, Extra-Curricular Activities, Academics and Homework, Social and Health.

19. OFW emails shall be responded to within 48 hours. If a reply to a request cannot be provided within this timeframe, an OFW email shall be sent advising that the requested information cannot reasonably be ascertained by then, and advising as to when a response will be provided.

20. In the event a matter is time sensitive and requires an immediate response, the parties shall use regular email with a header marked "Urgent" or "Time Sensitive" and the email shall detail when a response is required. The party sending the email shall also text the other parent to alert them that an email was sent.

21. Each party shall use the OFW calendar to input any special events about which they want the other party to be aware as well as vacation schedules.

Changes to the Residency Schedule for Special Occasions

22. In the event either parent would like a temporary change to the access schedule so AB can attend a special occasion and when the scheduling of these special occasions is out of the control of the parent requesting the change, examples being family weddings, family birthdays, special anniversaries, etc., the party requesting the temporary schedule change or modification shall request it through OFW and provide as much notice as possible. A response shall be provided by the other party within 48 hours of receiving the e-mail. Agreed-to changes shall be confirmed by OFW email. Consent to a request shall not be unreasonably withheld.

23. The parties shall canvass proposed and/or potential changes to the schedule first with the other parent and prior to speaking to AB about a change and/or a special activity to the extent possible.

Travel

24. The parties shall each be entitled to travel with AB during periods AB is in their care. Should either party wish to travel outside of the State of New York or the Province of Ontario for vacation purposes, they shall advise the other parent in writing of dates of travel, location, flight details (if applicable), address and phone numbers where AB can be reached.

25. The parties shall provide any required authorizations to allow the other party to travel outside the country with AB. The letter or, if required, the written notarized consent required by customs/immigration and the necessary documentation required for travel (i.e., birth certificate, passport) shall be provided to the other parent no less than 10 days after the written notice of the intention to travel and a travel itinerary has been provided. The letter of consent shall not be unreasonably withheld. The party requesting the notarized letter will bear any costs associated with notarization.

26. Should a passport or travel card (e.g. Nexus) need to be updated for AB, the parties shall cooperate with each other in providing the necessary information to make the application. Evelyn shall keep AB's American passport and birth certificate at her residence and they will be made available to Josh, as required for his travel, and he shall return these documents to Evelyn at the conclusion of travel. Josh shall hold AB’s Nexus card and Canadian passport and make them available to Evelyn as may be required for her travel and she shall return these documents to Josh at the conclusion of travel.

Jurisdiction

27. The Ontario Superior Court of Justice shall maintain jurisdiction over all custody and access issues pertaining to AB for a period of five years from the date of this order.

Child Support

28. The parties shall share AB’s agreed upon special and extraordinary expenses in proportion to their respective incomes, based on Josh’s 2017 reported income of $76,134.12 and Evelyn’s 2017 reported income of $66,726.11, provided that consent shall not be unreasonably withheld.

Current section 7 expenses are:

a) Pre-school tuition payments at the Jewish Community Centre in Buffalo, New York; and

b) Medical and dental expenses not covered by insurance.

29. The parties shall annually exchange the information necessary for a determination to be made as to their income for support purposes, including their personal income tax returns with the related schedules, notices of assessment, and any other documents required by s. 21 of the Child Support Guidelines, by June 30th. Child support and the proportionate sharing shall be adjusted annually, in accordance with changes to the parties’ respective incomes.

OTHER

30. The parties shall make submissions on costs and table child support, on a schedule to be arranged.

Kristjanson J.

Released: December 7, 2018

COURT FILE NO.: FS-16-20931

DATE: 201812xx

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JOSHUA LOUIS GOLDSTEIN Applicant

– and –

EVELYN WALSH Respondent

REASONS FOR JUDGMENT

Kristjanson J.

Released: December 7, 2018