COURT FILE NO.: F1495/16

DATE: June 7, 2018

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Saffa Abdelkarim Ibrahim

Applicant

• and -

Hydery Shaka

Respondent

HEARD: May 15, 16, 17, 18, 22, 23, 2018

MITROW J.

INTRODUCTION

[1] This trial involved the applicant, Saffa Abdelkarim Ibrahim, and the respondent, Hydery Shaka, who are, respectively, the mother and father of the child, Malik, born November 19, 2015 (“the child”). For convenience, the applicant sometimes will be referred to as “the mother” and the respondent sometimes will be referred to as “the father.”

[2] The issues are custody, access and child support. The mother commenced her application on December 2, 2016. In relation to custody and access issues, the mother seeks sole custody of the child and she proposes access to the father on alternate weekends and during the week, but at this time only the weekend access would be on an overnight basis.

[3] The father in his answer seeks “shared or joint custody.” He too submits that he should have access on alternate weekends but, during weekdays, the father’s position is that he should have overnight visits.

[4] The mother also raises an issue as to whether she should be permitted to renew the child’s passport without having to obtain the father’s consent.

[5] For reasons that follow, a final order is made awarding custody of the child to the mother, access to the father as set out in the order below, permitting the mother to renew the child’s passport without the father’s consent and also child support payable by the father as set out in the order below.

THE TRIAL RECORD

[6] The parties filed one trial record that contained the applicant’s and the respondent’s material.

[7] The trial record filed by each party was incomplete and portions of each party’s trial record did not comply with r. 23(1) that sets out the contents of a trial record.

[8] The applicant failed to include the application. Accordingly, I did review the application as filed in the continuing record.

[9] The applicant included a police report and a request to admit in the trial record. Neither of those documents is properly included in a trial record and I did not review those documents.

[10] The respondent’s portion of the trial record contained a number of documents that are not properly part of a trial record, including a form 14A affidavit, a proposal for custody and access, a DVD video recording, other evidence consisting of texts and other electronic messages, a request to admit, a response to a request to admit and police reports.

[11] An interim order dated April 5, 2017 required the respondent to serve and file his answer by April 19, 2017. Although the respondent included his answer in the trial record, it does not appear that the respondent filed the answer in the continuing record. However, the applicant did have a copy of the trial record and the applicant raised no issue about the inclusion of the answer in the trial record, nor did the applicant raise any issue about the respondent’s right to participate in the trial. Accordingly, I do consider the answer filed by the respondent. It is also apparent from the various orders and endorsements made subsequent to April 5, 2017 that the respondent did continue to participate in this court case, including attending at the case conference, settlement conference and trial management conference.

[12] In the circumstances and considering that the respondent participated in the conferences, it would have been unjust to subject the respondent to the consequences of having failed to file an answer: see r. 10(5) and r. 1(8.4), paragraphs 1-4. Accordingly, I elected to allow the respondent to participate fully in the trial.

[13] The respondent failed to include his required form 35.1 in the trial record but he did file that document in the continuing record and I did consider that document.

[14] I did not review any of the documents or other evidence improperly included in the trial record; however, some of those documents and/or evidence were tendered, properly, at trial and marked as exhibits, and those exhibits were considered as part of the evidentiary record at trial.

A BRIEF SUMMARY OF THE RELATIONSHIP HISTORY

[15] The parties are not married to each other. There is no dispute that they lived together only briefly, for a period of approximately one month, from around mid-April 2015 to mid-May 2015.

[16] The mother was born in Sudan. The father was born in Congo. The father is employed on a fulltime basis as a technical analyst.

[17] The mother currently attends Fanshawe College. She is enrolled in a two-year law clerk program that started in 2016 and will end in August 2018.

[18] Both parties reside in London, Ontario. The mother resides with the child and the father resides with his wife.

[19] The child attends daycare during the week and it was the mother’s evidence that her daycare expenses are fully subsidized.

[20] There is no dispute on the evidence that the mother has been the child’s primary caregiver since birth.

[21] Early in this proceeding, a temporary order dated December 16, 2016 was made that the child shall have his primary residence with the mother. This order has continued and was in force at the time of the trial.

[22] There was evidence from both parties that, prior to court proceedings, the father did have access on a regular basis on alternate weekends (although not on an overnight basis) and that the father also had some access during the week. Also, although not frequently, there were times when the father would care for the child in the morning or in the evening while the mother had to attend classes.

[23] On May 17, 2017, a temporary order was made that set out the father’s regular access schedule as follows: (a) Mondays from noon until 7 p.m.; and (b) alternate weekends from Friday noon to 7 p.m., Saturday 10 a.m. to 7 p.m., and Sunday 10 a.m. to 7 p.m. These interim access provisions were the same as contained in an earlier order made on April 5, 2017 pending a case conference.

[24] The parties agreed at trial that the weekend access had been expanded to include an overnight on Saturday, although there was no court order to that effect.

DISCUSSION

[25] The parties’ relationship has been plagued by ongoing conflict between them, including occurrences involving the police and calls to the Children's Aid Society of London and Middlesex (“the Society”).

[26] It was the mother’s evidence that the father has been verbally and physically abusive to her. The mother submits that, given their conflictual relationship, including the father’s abusive conduct, that an order of shared or joint custody as sought by the father is not in the child’s best interests.

[27] Much of the evidence at trial was consumed by episodes of conflict between the parties.

[28] The mother described an event that occurred in May 2015, while she was pregnant and which occurred during the parties’ brief one-month period of cohabitation. It was the mother’s evidence that the parties were arguing, that the father was twisting her fingers, that he was hitting her on the head with his hands and that he broke her cellphone.

[29] The father’s testimony about this incident portrayed the mother as the aggressor; that any physical contact by the father was in self-defense to restrain the mother. The father testified that the cellphone was broken because the mother dropped it and not because of anything that he did.

[30] In relation to this occurrence, the parties do agree that the father was charged with assault and mischief in relation to property and that he was acquitted of those charges. The criminal trial was held in or about June 2016 (according to the mother) and not disputed by the father. The mother testified at the criminal trial. No transcripts of evidence from the criminal trial or the trial judge’s reasons were filed.

[31] There is no dispute that pending the criminal trial that the father was bound by a non-association condition in relation to the mother. Consequently, according to the mother, and not disputed in any material way by the father, the father’s access to the child was minimal after the child was born in November 2015 and until the father’s acquittal when the child was approximately seven months old.

[32] There was also some evidence that the father was charged with breach of conditions. It is not entirely clear from the evidence as to how many breach of condition charges the father faced but it does appear that he was not convicted of any of those charges.

[33] In December 2016, the mother was planning to travel with the child to Dubai and needed to obtain a passport for the child. Although the parties agree that the father signed the passport application, and provided a letter consenting to the child’s travel, a dispute developed thereafter.

[34] The father claimed that he received a call from the passport office advising that it was necessary for there to be an order in relation to the child’s primary care before a passport could be issued. The mother’s evidence was that the father ultimately refused to provide his consent for the passport because he thought that the mother would not return with the child.

[35] Neither party called any witness from the passport office. Given the agreement of the parties that the father did sign the passport application, it is not clear as to why, apparently, the passport office initially refused to issue the passport.

[36] What is clear is that the mother brought a motion on December 16, 2016 and she obtained an order that the child shall have his primary residence with her and, further, the order permitted the mother to travel with the child to Dubai, returning to London, Ontario by December 30, 2016, which the mother did do.

[37] However, what is most salient about the passport issue and the trip to Dubai is the exchange of text messages between the parties regarding this issue. These messages were filed as an exhibit by the mother.

[38] The father’s text messages, I find, are abusive. He refers to the mother as being not only “ignorant” but also an “idiot.” The father tells the mother that she is “completely dumb.” Later, he reiterates that she is “ignorant, dumb.” The father then makes a rather baseless threat about the possibility of the mother being “charged for kidnapping and forcely (sic) obtaining documents through false statements.”

[39] The mother also travelled with the child to Sudan to visit her mother and other family members. Exhibit #4 includes text messages between the parties regarding this trip; these messages confirm that the mother advised the father a month in advance about this trip and asked if the father had any concerns. The father replied that he had no concerns as the child was visiting family and asked the mother to provide the dates of travel. On July 25, 2017, the mother confirmed that they were leaving the next month, on August 16, and returning the following month on September 16.

[40] However, while the mother and child were in Sudan, the father contacted the London Police. He testified that he did so because for the first several weeks after the mother was scheduled to be in Sudan, that he was trying to reach her, including leaving messages on Facebook, but with no response from the mother. The father testified that when he contacted the police, that they were treating this as an abduction. The father’s testimony included that he was eventually able to reach the mother’s brother, who confirmed that the mother and child were there. In cross-examination, the father agreed that he had suggested to the mother on Facebook that she might be charged with abduction because he had been unable to reach her.

[41] However, while the mother and child were still in Sudan, the father acknowledged in his testimony that he and the mother were able eventually to communicate electronically. The father acknowledged receiving a message from the mother (part of Ex. #4). This message indicated that the mother had tried to send him a message on Facebook but that her name had been blocked, that she had been unable to open her email, that the child was doing fine and that the mother would be returning with the child within the timeframe previously stated.

[42] The mother obtained a copy of the police record regarding this incident that was filed as an exhibit; this record is heavily redacted but the unredacted portions of the record do corroborate the mother’s evidence at trial, that she had contacted the police on her return from Sudan. The father acknowledged that the mother did return home with the child within the timeframe as initially given by the mother.

[43] In one of the text messages in Ex. #4, the father states to the mother “You are so stupid litterly (sic).”

[44] I find that the father’s conduct in involving the police was, at the least, unnecessary and, at worst, unreasonable. There was a dearth of any credible evidence suggesting an abduction; rather, quite the contrary, as the father knew the mother’s travel dates and had no opposition to the trip. Also, the father again appeared unable to communicate respectfully with the mother.

[45] There was substantial evidence regarding an access exchange in the lobby of the mother’s apartment on May 7, 2017. The father had video recorded that exchange; the video recording was approximately two to three minutes. A voir dire was held as to whether the video recording should be admitted into evidence. The video recording was played in court during the voir dire and each party testified. After the voir dire, I indicated that I would admit the video recording as evidence and that written reasons would follow[^1]. It was also ordered that evidence on the voir dire shall be part of the evidence at trial.

[46] Some aspects of this occurrence are not in dispute. This exchange occurred on a Sunday. Pursuant to the existing order made the previous month (and referred to earlier), the father’s Sunday access was from 10 a.m. to 7 p.m. Also, the father had access on the following day, Monday, from noon to 7 p.m.

[47] The father had arrived mid-afternoon Sunday to pick up the child – he was late as he was apparently visiting his cousin who was in hospital. There is no dispute that the father attempted without success to return the child at 7 p.m. The mother did not respond to the father’s text message that he had arrived to return the child, nor did the mother answer the father’s three telephone calls made between 7:13 and 7:18 p.m.; also, the mother did not respond to the father knocking on her door.

[48] The father then took the child home, stopping on the way to get some supplies for the child. The father did notify the Society that evening as to what had happened, although apparently no action was taken by the Society.

[49] The mother testified that she had fallen asleep while at home and that she woke up at 9 p.m. The parties agreed that the mother’s first contact with the father was at 6:25 a.m. on Monday. At that time, she telephoned and asked for the child to be returned but the father refused. The mother called police, who then attended at the father’s residence. No action was taken by police to return the child; there was no police assistance order.

[50] Regarding Monday, May 8, 2017, there is no dispute that the mother attended at the courthouse to file documents for an emergency motion for the return of the child. The father also was at the courthouse at the same time with the child. It was his intention to bring his own motion but the lawyer at the courthouse who had assisted the mother could not assist the father that day because of a conflict. While at the courthouse, the father permitted the mother to breastfeed the child but would not relinquish the child to the mother’s care.

[51] On that Monday, the court refused to deal with the motion ex parte, adjourned the motion to the following day and ordered the father to be served and both parties to appear, which they did. The motion then was further adjourned (with some access to the father in the meantime and the child remaining with the mother) to May 17, 2017, at which time the existing interim access order was made.

[52] There is no dispute that the father did return the child to the mother at 7 p.m. on Monday, May 8, 2017 at the conclusion of his access.

[53] The evidence that is in dispute concerning this incident relates to what happened prior to the access exchange that day. The mother testified that, prior to picking up the child that day, that the father had been verbally abusive to her on the phone. She testified that he called her names such as “stupid,” “bitch” and “dumb” and that he called her a whore.

[54] The mother testified that she was upset as a result of this conversation and that she had been crying.

[55] The father denied the mother’s allegations about the phone calls prior to access. It was his evidence that, prior to picking up the child, that the mother had forwarded some text messages to the effect that she was considering to give the child to the father, that she does not want to keep fighting for a child not born within a legal marriage. None of these text messages were tendered as exhibits at trial.

[56] It was also the father’s evidence that he was told by the mother that the individual she was planning to marry told her to give the child to the father. For her part, the mother’s evidence was that the father had spoken to the mother in the past in a derogatory way about the person she was planning to marry – the father referring to this person as a “dick,” according to the mother.

[57] The mother testified that at the access exchange she had seen the cellphone in the father’s pocket and thought that he might be recording the access exchange; the father did not tell her that he was recording. In the video recording, the mother does say, in a somewhat angry tone, that she is going to leave the child with the father forever. When the father asks if she wants him to bring the child back on that day, the mother can be heard responding that it was up to him.

[58] No transcript was provided as to the audio portion of the recording. At times, both of the parties were arguing and talking over each other at the same time, making it difficult to discern everything that was said and in particular as to everything the mother said as she was further from the microphone. The father’s evidence is that the mother blamed the child for her marriage not going ahead, allegedly referring to the child as the “thing.” I decline to make that finding given the issue with the audio portion of the recording as discussed earlier.

[59] I accept the mother’s evidence that she was subjected to verbal abuse by the father from time to time. This conduct is to some extent corroborated by the father’s toxic denigration of the mother as evidenced in his text messages discussed earlier.

[60] Specifically, in relation to the May 7, 2017 incident, I accept the mother’s evidence that she was upset at being provoked by the father earlier that day by his verbally abusive comments to the mother; some of the verbal denigrating name-calling language, as reported by the mother, was similar to the language used in the text messages.

[61] Put simply, I do not believe the father’s evidence as to denials of his verbal abuse of the mother either on May 7, 2017 or other occasions. The video recording, to some extent, needs to be placed in context as it was made soon after the mother was provoked by the father’s verbally abusive language.

[62] While the mother made the inappropriate statement that she was leaving the child with the father “forever,” and while the mother’s failure to respond to the father’s attempts to return the child that evening was conduct that was not in the child’s best interest, I decline to make any finding that the mother genuinely wanted to abandon the child to the father.

[63] I am satisfied on the evidentiary record as a whole that the mother had a loving and caring relationship with the child since birth and that her desire, a strong one, is to continue to remain as the child’s primary caregiver.

[64] During his testimony, the father failed to address his abusive language used in the text messages. However, during his closing submissions, in relation to Ex. #2, the father apologized for the language he had used. Notwithstanding this isolated apology, the father continues to deny that he has engaged in verbal abuse of the mother.

[65] In relation to physical aggression, I accept and prefer the mother’s evidence that the father threw the child’s shoes at her while she was holding the child when an argument developed. The mother had refused to allow the child to attend for an access visit because the father had come in a vehicle without a proper car seat. The mother testified that she had inadvertently left her car seat for the child with relatives, and that she was not prepared to allow the father to take the child without a proper car seat. The mother’s actions in the circumstances were appropriate.

[66] In addition to the incident described earlier (where the father’s criminal charges included mischief to property for damaging the mother’s cellphone), the mother testified as to two additional incidents occurring prior to the child’s birth: in one incident, it was her evidence that the father broke her cellphone by stepping on it and in relation to another incident the mother testified that the father spat in her face.

[67] The mother tendered Ex. #7, which consisted of some Facebook communications between the parties that appear to relate to the latter two incidents. The mother’s portions of the Facebook communication refers to the father breaking her cellphone for no reason.

[68] The father’s response in Ex. #7, I find, was threatening; it included the following:

Do you really think you deserve to be spitted on, i don’t think so, do you think your stuff needs to be broken fo[r] you to admit your mistakes, No, but if you insist on continuing, worse will come

So either grow up and stop acting stupidity (sic), or choose to continue loosing (sic) even the little you had.

[69] There was little, if any, evidence from the father at trial in relation to these two incidents, nor did the father make any attempt to explain what he meant by the above Facebook comments.

[70] I accept the mother’s evidence regarding the two incidents; I find that the father broke her cellphone and that he spat in her face.

[71] Regarding the May 2015 incident leading to the criminal charges, there was detailed and conflicting evidence regarding this occurrence. In the circumstances, although I remain suspicious that the father had been physically abusive towards the mother on that occasion, including breaking her cellphone, I am unable to come to that conclusion on a balance of probabilities[^2]

DECISION

A. Custody / Access

[72] The Children's Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”) is the governing statute. In considering the best interests of the child, s. 24(2) provides:

Best interests of child

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

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

(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

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

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

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

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

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

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

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

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

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

[73] In relation to paragraphs (a) and (h), the evidence amply supports a conclusion that both parents love the child and have a loving relationship with the child. The parents never lived together co-parenting the child, as at the time of the child’s birth the father was subjected to a non-association order pending his criminal trial. The evidence establishes that the child has a relationship with some of each parent’s extended family members.

[74] In relation to paragraph (c), the child, since birth, has resided with the mother in a stable, child-focused, primary care relationship. The mother has met all of the child’s needs, including a period of time subsequent to the child’s birth until the father’s criminal trial during which the father had minimal contact with the child.

[75] In relation to paragraphs (d) to (g) inclusive, the mother seeks sole custody; the evidence establishes that she has the ability to meet all the child’s needs. The father’s claim does not include sole custody but rather “shared or joint custody.”

[76] I find that the father’s plan is not in the child’s best interests. The relationship between the parents historically has been laden with conflict. The evidence does not support a finding that the parents can cooperate and communicate effectively. The father’s mistreatment of the mother includes verbal abuse, abusive electronic communications including baseless threats, and physical violence.

[77] In Roy v. Roy, 2006 CanLII 15619 (ON CA), 2006 CarswellOnt 2898 (Ont. C.A.), the Court of Appeal for Ontario stated at para. 4:

4 The Supreme Court of Canada and this court have consistently held that joint or parallel custody should only be ordered where the parents can co-operate and communicate effectively: see, for example, Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3 (S.C.C.) at para. 44; Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), [2005] O.J. No. 275 (Ont. C.A.) at 4.

[78] The father’s ability to act as a parent is negatively affected by his violence and abuse directed at the mother: see CLRA, s. 24(4)[^3]. The father’s conduct also is demonstrative of an attitude displaying contempt and a lack of respect towards the mother.

[79] I do find, considering specifically subparagraph (g) in relation to access, that the father is a very important person in the child’s life and that it is in the child’s best interests to maximize the time that the child spends with the father.

[80] It is in the child’s best interests for the mother to have custody of the child, with access to the father as set out in the order below. The mother’s evidence as to when mid-week overnight access visits should commence was too restrictive; the order below includes some overnight mid-week access visits.

[81] It is noted that both parents were consistent that the father’s alternate weekend access should include overnights for the entire weekend, including also an overnight from Sunday to Monday morning.

[82] On the issue of mobility, the mother’s evidence, which I accept, was that she plans to continue further education in London and that she has no plans to move. The mother gave this evidence in response to the father’s evidence referring to some written communication from the mother suggesting that she may move out of London to pursue further studies. The order below addresses the issue of mobility.

[83] The parties were agreeable to sharing the religious holidays equally and that is reflected in the order below.

B. Child Support

[84] The father testified that, though he did not pay child support for the brief portion during 2015 after the child was born to the end of that year, he did provide the mother with supplies for the child, which would constitute a credit towards any table amount of child support. Accordingly, I find that it is not necessary to deal with child support for the approximate six weeks after the child was born in November 2015 to the end of the year.

[85] However, starting in 2016, there is no reason for the father to avoid paying his full child support obligation. The father was employed in 2016 and elected only to make some voluntary child support payments for a portion of 2016 at a time when he knew or should have known that he had an obligation to pay child support. If any justification is needed to award child support retroactive to January 1, 2016, then it would rest with the blameworthy conduct of the father.

[86] The only court order for child support was an interim order made July 14, 2017, requiring the father to pay child support in the amount of $371 per month based on an annual income of $41,181 payable on the first day of each month thereafter. Accordingly, the first payment of interim child support pursuant to the order would have been due August 1, 2017.

[87] The statement of arrears from the Director’s office was filed as an exhibit. Accruals pursuant to this statement commenced August 1, 2017 and the statement showed all transactions up to and including April 5, 2018.

[88] The best way to deal with child support is to calculate all the payments that should have been made for the period starting January 1, 2016, and then to deduct from the payments due all credits consisting of voluntary payments made by the father and payments made by the father as reflected in the Director’s statement of arrears.

[89] That calculation would reflect correctly what the arrears should be as of April 5, 2018. There were child support payments made subsequent to April 5, 2018 that would not have been reflected in the Director’s statement; the Director then can adjust the arrears by taking into account all accruals and payments subsequent to April 5, 2018 up to and including the date of the order.

[90] For 2016, the father’s line 150 income was $43,421. The table amount of child support is $392 and the amount due for 2016 is $4,704 (12 x $392).

[91] For 2017, the father’s line 150 income was $41,774. The corresponding table amount of child support is $4,526 (comprised of 11 months x $377 and 1 month x $379); the one month representing the December 2017 child support is a result of the new Guidelines that came into effect in the latter part of November 2017.

[92] It was the father’s evidence, which I accept, that he had been employed with Cineplex and his contract was not renewed. Accordingly, he was in receipt of Employment Insurance from January 15, 2018 to March 15, 2018, at which time he obtained new employment with Xerox at an income that was slightly less than he was earning previously.

[93] At trial, the father had produced only one pay statement from Xerox. However, it does confirm his hourly rate, which is $18.50. I accept the father’s evidence that he works 37.5 hours per week and that he receives a 4% vacation pay on top of his wages. Taking into the account the 4%, this translates to an annual income of $37,518 ($18.50/hour x 37.5 hours per week x 52 weeks x 1.04 for vacation pay = $37,518), which I round to $37,500. This would be the father’s income on an annualized basis effective March 15, 2018.

[94] For the three month period January 1, 2018 to March 31, 2018, the father received Employment Insurance income for two months (January 15 to March 15). The evidence filed at trial indicated that the father received $534 per week gross from Employment Insurance. This translates to $2,312 per month ($534 per week x 4.33 = $2,312 per month).

[95] In addition, during this three month period, the father worked half of one month (March 15 to March 31) at his fulltime employment. An annual income of $37,500 translates to a monthly income of $3,125 and an income of $1,563 (rounded) for half a month. Accordingly, for the three month period January 1 to March 31, 2018, the father’s total income was $6,187 ($4,624 from Employment Insurance + $1,563 employment income). For this three month period, this translates into an annualized income of $24,748 (4 x $6,187) and the table amount of child support is $197 per month. Accordingly, the father’s child support obligation in 2018 for the three months of January to March inclusive is $591 ($197 x 3 months).

[96] The result of the foregoing is that the father’s child support obligation for the period January 1, 2016 up to April 5, 2018 (being the date of the Director’s statement of arrears) is as follows:

a) 2016 $4,704

b) 2017 $4,526

c) 2018 (January to March) $591

d) April 1, 2018 $331

$10,152

[97] The amount payable April 1, 2018 is based on the gross annual income of $37,500, with an equivalent table amount of child support of $331 per month.

[98] In relation to the total credits, for 2016, it was the father’s evidence that he paid child support voluntarily via e-transfers to the mother. The summary of e-transfers is contained in the father’s financial statement filed at tab 2 of the trial record. The list of e-transfers includes three e-transfers that were cancelled. The father agrees that those should be deducted and there was also a $20 e-transfer that needs to be deducted as it apparently was unrelated to child support. The father also included a note on the e-transfer history that he paid $250 in cash but I have not included that payment as it is not corroborated.

[99] For 2016, the e-transfers total $3,475, less $700 in cancelled e-transfers, for a net total of $2,775.

[100] In relation to the e-transfers, however, I accept the mother’s evidence that some of the e-transfers were not child support but represented repayment of money borrowed by the father from the mother. The mother filed exhibits confirming loans of $1,000 and $294. Accordingly, the sum of $1,294 should be deducted from the e-transfers, to arrive at a net credit from e-transfers totaling $1,481 ($2,775 - $1,294).

[101] For 2017, the father voluntarily had paid child support of $250 per month for the first six months. This was not disputed by the mother. This results in a credit of $1,500. Further, the e-transfer history referred to earlier shows an e-transfer of $350 in January 2017. For 2017, the father’s voluntary payments result in a credit of $1,850.

[102] For 2018, the only payments made by the father were through the Family Responsibility Office and the Director’s statement of arrears shows the first credit occurring on February 22, 2018 and the last credit occurring on April 5, 2018. The credits shown on the Director’s statement of arrears total $1,723.

[103] The foregoing results in a total credit towards child support payments in the amount of $5,054 ($1,481 + $1,850 + $1,723).

[104] I find that, as at April 5, 2018, the total arrears owing are $5,098 ($10,152 in payments due - $5,054 in payments made). The ongoing table amount of child support payable effective May 1, 2018 is $331 per month.

ORDER

[105] For the foregoing reasons, I make the following final order:

1. The mother shall have sole custody of the child.

2. The father’s regular access schedule to the child shall be as follows:

a) alternate weekends from Friday at 5 p.m. to Monday morning at 8 a.m.;

b) for the alternate weekends, and while the child is in daycare, if the father is not at work and can be with the child, then the Friday pickup from daycare can be as early as 1 p.m. and, on the Monday, the father can return the child to daycare as late as 11 a.m.; the father shall advise the mother in advance as to an early pickup on Friday or late drop off on Monday;

c) for the alternate weekends when the child starts school, if the father is not at work and can be with the child:

i. then on the Fridays, the pickup can be after school (or 3 p.m. if school is closed);

ii. on the Mondays, the child can be returned as late as 11 a.m. but only when school is closed; otherwise the child shall be dropped off at school on Monday morning;

iii. the father shall advise the mother in advance as to an early pickup on Friday or late drop off on Monday;

d) the father shall have mid-week access from 3 p.m. to 7 p.m. on the Thursday immediately following the father’s access weekend, and from 3 p.m. to 7 p.m. on the Monday and Wednesday immediately following the mother’s access weekend; if the father is unable to be off work by 3 p.m., then the father shall advise the mother in advance as to the pickup time; if the child has started school, then the pickup time shall be when school ends unless the father is not available and advises the mother in advance as to the pickup time; and

e) if the Monday of the father’s weekend is a statutory holiday, then the father’s access is extended to Tuesday morning.

3. Effective May 1, 2019, the father’s mid-week access from 3 p.m. to 7 p.m. on the Monday immediately following the mother’s weekend is replaced by an overnight access visit from 3 p.m. Monday (or when school finishes if the child is attending school) until 7 p.m. Tuesday and the father shall be responsible to drop off and pick up the child on Tuesday at daycare (or school); the provisions of paragraph 2(d) apply if the father is unable to be off work at 3 p.m. Monday (or when school finishes if the child is attending school).

4. All access exchanges, where possible, shall occur at the child’s daycare, or school, failing which all access exchanges shall be at the mother’s residence.

5. The child shall alternate spending religious holidays with each parent as arranged by the parents and, unless the parents agree otherwise, the child shall be with a parent for 24 hours during a religious holiday.

6. On the Mother’s Day weekend, the child shall always be with the mother from 7 p.m. Saturday to 7 p.m. Sunday and, on the Father’s Day weekend, the child shall always be with the father from 7 p.m. Saturday to 7 p.m. Sunday.

7. On a presentation of a copy of this order, the father and the mother each are entitled to receive any information regarding the child, including copies of the child’s school, medical or hospital records from the child’s teacher, school principal, dentist, doctor, counsellor/therapist or any other health professional who has treated the child.

8. The mother shall ensure that the father is listed as the next emergency contact, after the mother, at the child’s school or daycare.

9. The mother may apply for a renewal of the child’s passport and the father’s consent to the renewal of the child’s passport is dispensed with.

10. Either party may travel outside of Canada with the child for a reasonable vacation, including visiting extended family subject to the following:

a) the travelling party shall provide full details of the itinerary to the other party a reasonable time prior to the trip;

b) the travelling party must obtain the written consent of the other party to the proposed trip, such consent not to be unreasonably withheld;

c) if the father is the travelling party, then the mother shall provide the father with all necessary original documents for the child, including the child’s passport and/or birth certificate, as required, and the father shall return those documents immediately at the conclusion of the trip; and

d) if the non-travelling party refuses to provide his or her written consent to the trip, then the travelling party may commence a court proceeding to obtain an order permitting the travel.

11. The father shall have vacation time with the child during the summer months as follows:

a) in 2018, for one week;

b) in 2019, for two weeks, not to be taken consecutively;

c) in 2020, for two weeks, which may be taken consecutively;

d) starting in 2021, three weeks, only two of which may be taken consecutively unless the father requires all the weeks to be consecutive to facilitate travel outside of Canada;

e) each year the mother shall have the same amount of vacation time with the child, as the father, uninterrupted by access visits; and

f) each party shall advise the other of his or her vacation plans for the summer by May 1 of each year and, if there is any conflict which the parties cannot resolve, then the father’s schedule shall take precedence in even-numbered years and the mother’s schedule shall take precedence in odd-numbered years.

12. The child’s principal place of residence shall not be changed from London, Ontario unless both parties agree in writing or on order of the court.

13. The parties shall ensure that all their communication, whether oral or written, is respectful, polite and child-focused.

14. The father shall have such additional access to the child as may be agreed to by the parties.

15. The parties shall act reasonably and shall be flexible in making any changes to the access schedule consistent with the child’s best interests and to reflect changes in the child’s age and level of maturity.

16. The father shall pay child support to the mother for the child in the amount of $331 per month commencing May 1, 2018 based on an income of $37,500 pursuant to s. 3(1)(a) of the Ontario Child Support Guidelines, O. Reg. 391/97.

17. Child support arrears shall be fixed at $5,098 as at April 5, 2018. The Director then shall calculate the child support arrears existing as at the date of this order by adjusting the aforesaid fixed arrears to take into account all accruals, and all payments, made subsequent to April 5, 2018 up to and including the date of this order.

18. The outstanding child support arrears as at the date of this order shall be paid by the father at the rate of $175 per month commencing August 1, 2018 until paid in full.

19. The father shall keep the child covered, as long as the child is eligible, under any health, drug and dental plans available through the father’s employer. If there are any such plans, the father immediately shall advise the mother, in writing, and shall provide to the mother documentation from his employer providing full details of those plans.

20. This final order is made pursuant to the Children's Law Reform Act, R.S.O. 1990, c. C.12 and the Family Law Act, R.S.O. 1990, c. F.3.

21. If the parties are unable to agree on costs, then each party may serve and file written costs submissions, with proof of service on the other party, within three weeks of the date of this order; the costs submissions are limited to two typed pages, double-spaced, plus copies of any offers to settle. If no costs submissions are served and filed, with proof of service, within the time limits as ordered, then each party shall bear his or her own costs of this proceeding.

“Justice Victor Mitrow”

Justice Victor Mitrow

Released: June 7, 2018

[^1]: Written reasons are reported at Ibrahim v. Shaka, 2018 ONSC 3448 (Ont. S.C.J.). [^2]: The only civil standard of proof in Canada at common-law is proof on a balance of probabilities: C.(R.) v. McDougall, 2008 SCC 53, at para. 40. [^3]: Section 24(4) of the Children's Law Reform Act states: In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against, (a) his or her spouse; (b) a parent of the child to whom the application relates; (c) a member of the person’s household; or (d) any child.