M.D. v. N.J., 2018 ONSC 3706

COURT FILE NO.: 451/15

DATE: 2018-06-11

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

M.D.

Applicant

– and –

N.J.

Respondent

Kirsten Hughes and Lauren C. Bale, Counsel for the Applicant

Judith M. Nicoll and Virginia Workman, Counsel for the Respondent

HEARD: February 27 and 28, April 10, 11, 12, 13, 18, 19, 20 and 21, May 8, 9, 10, 11 and 12, June 12, 13, 14, 20, 21, 22 and 23, August 28, 29, 30 and 31, September 1, 6, 7, 8, 11, 12, 13 and 15, October 10, 12, 13 and 26, December 7 and 8, 2017, March 19, 22, 23 and 26, 2018

The Honourable Mr. Justice D.J. Gordon

Reasons for Decision

Corrected decision: The corrections were made on June 13, 2018.

The reference to “2018, ONSC 3548” in the Citation on page 1 and

the back page have now been corrected to read “2018 ONSC 3706”.

[1] While the parties resolved a number of disputed matters, a 44 day trial was required to address issues pertaining to father’s parenting time, as well as decision-making in several areas. The child is presently 5 years of age. He was only 5 months when this litigation was commenced.

Background

[2] The applicant father, M.D., is 36 years of age. He is an oral medicine specialist, graduating from dental school in 2008, followed by a four year Master’s program and thereafter completing Board examination and acceptance into the profession. M.D. resides in Niagara-on-the Lake and recently married in June 2017. His primary practice is located in St. Catharines and he also works out of a dental office in Etobicoke that he purchased in May 2017.

[3] The respondent mother, N.J. is 40 years of age. She is a lawyer, having graduated from law school in 2002 and called to the Bar in 2003. N.J. was a litigation counsel with a Toronto law firm until 2010, followed by a one year contract as in investigation counsel with the Law Society of Upper Canada. Since 2011, she has been employed by the Ontario College of Teachers as a complaint resolution officer. N.J. resides in St. Catharines with her retired parents and other family members, commuting to Toronto as required for her employment.

[4] The parties met in 2010 when they were participating as election observers in the Ukraine. A relationship developed. N.J. was working. M.D. was still a student. They maintained separate residences. Conflict developed and the relationship came to an end in June 2012. Shortly thereafter, N.J. discovered she was pregnant. Discussions as to reconciliation followed. The wedding was arranged and cancelled. Yet they were now sharing a residence to some extent and preparing for a child.

[5] C.D.J. was born in […], 2013. N.J. provided most of the child care. M.D. assisted when not at school, work or studying. The conflict escalated. N.J. and C.D.J. left on April 3, 2013, moving to St. Catharines to reside with N.J.’s parents. N.J. would travel to Toronto with C.D.J. to allow M.D. to see his son.

[6] M.D. consulted a lawyer. This action was commenced on July 15, 2013.

Introduction

[7] This is described by all involved as a high conflict case. The evidence regarding the parties’ arguments and various events is alarming, particularly given their intellectual ability and level of education. Common sense seems absent.

[8] Dr. Jaffe is a well-known clinical psychologist with the London Family Court Clinic. He was retained as a court appointed assessor pursuant to section 30, Children’s Law Reform Act. He is of the view that litigation is not the best method of resolving high conflict cases. I agree. Dr. Jaffe, as a psychologist, would like to see the parental conflict resolved. Such a goal, however, cannot be achieved in the litigation process as it is beyond the court’s jurisdiction. Rather, the focus is in addressing the best interests of the child within the parental conflict.

[9] This was a resolvable case. By virtue of the litigation process, particularly delay, resolution was never fully addressed, despite the best efforts of counsel. Neither party was prepared to move from positions taken at the outset, in 2013, until the trial, in 2017, despite the obvious need to do so. In result, normalizing a parental/child relationship has also been delayed, hardly in the best interests of C.D.J.

[10] It is of particular concern in this case as there is no legitimate complaint about the parenting ability of either party. This case is not about C.D.J. It is about the inability of the parties to get beyond their conflict and parent their child in a meaningful and productive manner. The court can only address the legal issues raised in this case. But I am most concerned for this child’s emotional and psychological well-being. C.D.J. is described as a healthy, vibrant child. At some point, soon I expect, he will become troubled by the relationship between his parents. Hopefully, the parties will discover the path taken these past five years was not helpful for their son.

[11] In this trial, 40 days was devoted to evidence. As expected, there is a large body of evidence. However, I do not propose to address each topic or in detail as many involve the same theme, conflict in different forms but still the same. Further, most of the concerns raised have been addressed, hopefully resolved, in the parties’ consent, as hereafter discussed.

The Early Relationship

[12] Both parties are of Ukrainian background. Their families are involved in the Ukrainian community. It was this common interest that resulted in the initial contact in January 2010. Each was serving as an election observer in the Ukraine. The initial attraction also involved similar educational opportunities, professional aspirations and cultural activities.

[13] The relationship progressed on their return to Canada, becoming romantic within a few months. Both resided in Toronto. N.J. was working as an associate lawyer with a litigation firm. M.D. was studying, and working, as part of his Master’s program. Each was spending long hours in their respective endeavours. Yet they dated, travelled and met the other’s friends and some family members. They were discussing the future, possible cohabitation, marriage and children.

[14] The relationship was progressing in the first year. Yet, in their testimony, each was finding fault with the other with many critical comments. No doubt, there were arguments, perhaps due to their different personalities.

[15] The first major disruption to the relationship occurred in February 2011. The argument became physical. M.D. pushed N.J. out of his condominium and threw her cell phone down the hall. He would later apologize. They reconciled a few weeks later.

[16] Each party then owned a condominium. In 2012, they were looking at houses together. But the arguments continued. Each referred to the other issuing an ultimatum regarding the future of the relationship. By May 2012, the relationship was coming to an end.

Pregnancy – Plans to Marry

[17] In early June 2012, N.J. discovered she was pregnant. It was not planned. She informed M.D. He did not take the news well. M.D. raised the option of an abortion. N.J. was opposed. They decided to marry.

[18] The wedding was arranged for August 25, 2012 at the Ukrainian Catholic Church in St. Catharines. This was the church N.J. and her family attended. The priest was willing to accommodate M.D., who was Ukrainian Orthodox. The parties signed a Petition, seeking dispensation from the Catholic Church “… from impediment of mixed religion …”. In this document, M.D. promises “ … not to interfere with the religious obligations undertaken by my spouse to practice the Catholic religion and to raise the children as Catholics”.

[19] Planning for the wedding and reception were pursued. N.J.’s parents gave her $30,000 towards the expenses. Some had been used. M.D. wanted to use the remaining funds to temporarily pay down his line of credit. N.J. was opposed as there were further expenses yet to be paid. This lead to another argument on August 14, 2012.

[20] Later that day, emails were exchanged. At 5:33 p.m., N.J. wrote:

I don’t know what to say. I am really concerned, not by the fact that we have disagreed on many things, but by your reaction to the disagreements.

This last discussion was about 3% interest on approximately $15,000-20,000 (what is left from the cheque) over a 12 day period, which amounts to less than $20. I understand your point that you would prefer not to pay that interest if you don’t have to, but for the many reasons we have discussed, I would prefer to keep our finances separate until we get married. I am using my parents [sic] cheque to pay for wedding expenses only and if there is anything left over, of course I will share it with you.

When I told you that we should keep the wedding expenses and revenues separate, you became extremely agitated and volatile, and ended by calling me names, swearing at me, telling me that the wedding was off and that I should have an abortion. This is not acceptable and yet, it continues to happen over and over again. I know you will say that I continue to be unreasonable, but the fact is that I am entitled to my own opinion. You don’t have to agree with it, but you do have to respect and be considerate of it, otherwise this relationship is never going to work.

I am really worried that you will continue to get angry and abusive everytime [sic] you are in a situation where you think I am being unreasonable or cannot justify myself to your liking.

This e-mail is not meant to attack you or to further inflame the situation, I simply want to hear your thoughts on whether and how you think your response will change in the future, and whether you think this relationship will work and want it to work. To be clear, I am not forcing you, nor have I ever tried to force you to get married. I have always said that if you are not sure or feel like you are doing this out of obligation, I don’t want to get married. There are, of course, other facts to consider, but this is a crucial one for me.

[21] At 7:30 p.m., M.D. responds:

Your email is an utter distortion, and I do not have the time or will to refute your unfounded and self-centred allegations.

I have tolerated enough of your abuse and coercion. I too have a sense of self-respect, which is the reason I ended our relationship in the first instance. You have demonstrated, again and again, your blindness to your own transgressions. You continue to be a selfish and petty individual, with no capacity for introspection, and you never fail to absolve yourself of all responsibility. Your bastardization of facts borders on delusion and mental illness. No one would dare confront you with reality for fear of your reaction and accusations. Instead of taking offense, it might help if you took these criticisms to heart and actually took steps to correct your behaviour. You are the one who is impatient, unreasonable, volatile and abusive; you then seem surprised and injured when someone confronts you.

This has nothing to do with money, but only your character. You have brought nothing to this relationship, and have only taken in this respect. I have no need for your money, and have not insisted that matters be resolved one way or another.

If you wanted a written record to justify your actions – you can have it, but no one else will ever appreciate your destructive role. I’m sure you will be able to contort events to convince your friends and family of your righteousness; however, I have nothing left to give, and you will have to live with your decision. As matters stand, I want nothing to do with you – you are dishonest, manipulative, and selfish, and lack all integrity. You deliberately created, then exploited this situation, and continue to blackmail me by threatening to raise our child independently. I have given my all to make things work, and it is never good enough for you despite my efforts. I desperately want to make things works [sic].

Please do not contact me again, until you have thought about and taken personal responsibility for your own actions/attitude, and feel you can bring something constructive to this relationship.

I do apologize for allowing myself to resort to 2 instances of inappropriate language in frustration, which is unacceptable at any time – I know it should never come to that; however, I feel that I have exhausted any attempt to reason with you. The names to which you refer were directed at your actions/behaviour and not you personally; however, in some instances you have become epitomized by your actions. At some point, it would seem I have to choose between accepting your character as it is and tolerating your repeated abuse, or walking away, which for me, in itself, is not an option, as you well know.

It appears by all indications that you are not prepared to change your ways, which would leave me with no choices at all; you can do whatever you want with me, and I am at your mercy.

[22] A family meeting was called to address this new crisis. N.J.’s parents and M.D.’s cousin met with the parties. The wedding was cancelled. Yet the relationship continued.

Childbirth to Separation

[23] A house was rented but it was unsatisfactory due to an infestation of fleas. M.D. acquired another condominium in N.J.’s building. Some of his furniture and personal items were moved to her condominium. M.D. was busy with the final year of his specialty program and preparation for exams. He spent some time in N.J.’s condominium, the rest in his own.

[24] N.J. was still working. She also was attending the usual medical appointments and was preparing for a child. N.J. acquired furniture, clothing and supplies for the baby. M.D. provided some funds for these items. Both attended pre-natal classes. There were more arguments.

[25] N.J.’s mother came to stay with her before the child was born. M.D. was studying in his condominium when N.J. went into labour. C.D.J. was born on […], 2013. M.D. was present for his son’s birth. The parties had previously agreed on their son’s first name and that both of their surnames would be used.

[26] Following discharge from the hospital, N.J. and C.D.J. went to her condominium. M.D. provided some childcare when not studying.

[27] Another major incident occurred on April 3, 2013. The sister of N.J. had been visiting. An argument developed when she left. The dispute escalated. C.D.J. was in the middle. N.J.’s sister returned to the condominium. She took N.J. and C.D.J. to St. Catharines. M.D. called the police.

[28] N.J. and C.D.J. would remain in St. Catharines, living with her parents. N.J. took C.D.J. to Toronto regularly to see M.D. There were discussions regarding the relationship and counselling. The relationship, once again, appeared to be at an end by late May 2013.

[29] On May 30, 2013, N.J. and C.D.J. went to Toronto to see M.D. The plan was to exchange keys and return items to their respective condominiums. Another argument developed. It escalated. M.D. left. Both parties called the police. N.J. and C.D.J. returned to St. Catharines.

[30] In June and July 2013, N.J. continued to bring C.D.J. to Toronto to see M.D. M.D. wrote his exams in June, but was not successful. He arranged a re-write for 2014. The last visit with C.D.J. occurred on July 10, 2013, pursuant to this arrangement.

[31] M.D. sought legal advice. On July 12, 2013 he signed the within application. It was issued on July 15, 2013. N.J. retained counsel, as the first court appearance was scheduled for August 28, 2013 in Toronto.

Parenting Time During Litigation

[32] C.D.J. has been in the primary care of N.J. since April 2013. He visited with M.D. on an informal arrangement until this litigation commenced in July 2013. As a result of the court process, father’s parenting time became formalized. But there was little progress in addressing the dispute.

[33] From the outset of this case, the parties have been far apart on their positions regarding M.D.’s parenting time. M.D. wanted extended time, including overnight so that his family could visit. N.J. was content with regular visits in the daytime. She was breastfeeding C.D.J. She lived in St. Catharines. He lived in Toronto.

[34] The first court appearance was on August 28, 2013, before Katarynych J. in the Ontario Court of Justice in Toronto. This case conference resulted in a temporary agreement and consent order for M.D.’s parenting time as follows:

(a) every Tuesday from 3:00 p.m. to 5:00 p.m., alternating weekly between Toronto and St. Catharines;

(b) every Wednesday from 9:00 a.m. to 11:00 a.m., alternating weekly between Toronto and St. Catharines; and

(c) every Friday from 10:00 a.m. to 12:00 p.m. and from 5:30 p.m. to 7:30 p.m. and Saturday from 9:00 a.m. to 11:00 a.m. in St. Catharines.

[35] The parties also agreed to mediation and to using Our Family Wizard to communicate and exchange information regarding C.D.J. Mediation would not be successful.

[36] In late October 2013, M.D. moved temporarily to St. Catharines. The move would become permanent in February 2015 when M.D. purchased a residence in Niagara-on-the-Lake.

[37] Negotiations by the lawyers resulted in an expansion of M.D.’s parenting time. An agreement was reached in December 2013, the terms incorporated into an order granted by Katarynych J. on a second case conference on March 10, 2014. M.D.’s parenting time was expanded in three stages, ultimately resulting in six hour periods on each of Tuesday, Friday and Saturday. It has not changed since, save to replace Friday with Thursday.

[38] The agreement and court order also addressed the Ukrainian Christmas in January 2014, medical and dental appointments, parenting exchanges and other matters. In addition, the parties were to proceed with a Custody and Access Assessment with one of three named psychologists, and to jointly retain Linda Chodos, as a clinician to assist them with their communication and their ability to co-parent C.D.J. By agreement and consent order granted June 30, 2014 by Katarynych J., the parties were to immediately retain Dr. Jaffe for the section 30 assessment.

[39] The court file was subsequently transferred to St. Catharines.

Third Party Providers

[40] In addition to Dr. Jaffe and Ms. Chodos, whose involvement was directed by agreement and consent order, the parties and C.D.J. have been involved with other third party care providers, including daycare, doctors and dentists.

[41] A detailed review of the evidence here is not warranted. Suffice it to say there were many problems involving M.D.’s approach with these care providers. Communication counselling with Ms. Chodos was unsuccessful. M.D. was critical of her services. Issues also arose regarding medical consultations at the hospital emergency department and with the paediatrician. M.D. challenged their opinion and advice. There were confrontations with daycare staff and with passport officials causing unnecessary problems. These events merely demonstrate the extent that the conflict between the parties expanded to involve others. Similarly, the arguments and inappropriate comments on parenting exchanges, also involving other family members, shows a similar trend.

Further Motions

[42] As later discussed, Dr. Jaffe commenced the assessment process in November 2014 and delivered his final report on May 28, 2015. For reasons unknown, the case was not moving forward.

[43] In May 2015, M.D. sought a motion hearing for expanded access. He chose not to pursue the request once Dr. Jaffe’s report was received.

[44] Another motion was served regarding 2015 Christmas access, returnable December 2, 2015. It was resolved, on consent, when N.J. offered M.D. additional time with C.D.J.

[45] The case was ultimately set for trial at the November 2016 sittings. M.D.’s motion to increase his parenting time and to adjourn the trial was heard on September 20 and 21, 2016. Henderson J. removed the case from the November 2016 sittings and placed it on the next assignment court to set a new trial date. He declined to change the existing order regarding father’s parenting time. Henderson J. also denied N.J.’s request to direct Dr. Jaffe to update his report.

[46] At assignment court on November 12, 2016, the trial date was set to commence on February 27, 2017 for two days for the evidence of Dr. Jaffe and then to continue at the April 2017 sittings.

[47] M.D. then brought a motion for increased parenting time for Christmas 2016, namely overnight from 5:00 p.m. on December 24 to 5:00 p.m. on December 25. N.J. opposed this request, offering M.D. 10 hours on either December 24 or 25, from 10:00 a.m. to 8:00 p.m. Edwards J. declined to grant overnight access prior to the trial, instead approving N.J.’s proposal. M.D. responded to the oral decision of Edwards J., saying:

This is disgraceful, Your Honour. This is disgraceful that my son cannot spend his first Christmas morning with me.

Anger Management and Counselling

[48] At the suggestion of his then lawyer, M.D. consulted the Anger Management Centre of Toronto Inc. in the Fall of 2013. He registered for anger management counselling to deal with the frustration in dealing with negotiating parenting time and the conflict on exchanges. He completed the required ten individual psychological counselling sessions with Dr. Latchman Narain by November 2013. The goals of this program included taking ownership for his behaviour, learning strategies for dealing with anger, avoiding escalation in confrontational situations and developing techniques of non-violent communication in relationships.

[49] M.D. also consulted Howard Hurwitz for therapeutic counselling, also as suggested by M.D.’s then lawyer. Mr. Hurwitz is a member of the Ontario College of Social Workers. He frequently is involved in assisting clients to resolve high conflict situations. Counselling sessions commenced in May 2016. By March 2017, M.D. had attended for 14 sessions. The sessions were said to be continuing at that time, although not yet scheduled.

[50] The role of Mr. Hurwitz was as counsellor, not an assessor. His involvement was somewhat comparable to that of Dr. Narain, namely assisting M.D. to develop strategies in dealing with the issues and frustration involved in the litigation process concerning his parenting time. Particular events were reviewed, such as the aforementioned response by M.D. to Edwards J., so as to avoid repetition and finding alternate methods in responding to situations, particularly regarding the delay and frustration pertaining to the limited parenting time.

The Assessment

[51] Pursuant to the order of Katarynych J., granted on consent on June 30, 2014, the parties were directed to retain Dr. Jaffe for a section 30 custody and access assessment. The assessment process commenced in November 2014. Dr. Jaffe was assisted by Maureen Reid, a senior social worker. An interim report was delivered to counsel on March 3, 2015. The final report followed on May 28, 2015.

[52] During the course of the assessment, Dr. Jaffe and/or Ms. Reid reviewed the intake forms and statements from the parties, interviewed the parties, attended home visits, reviewed the pleadings, obtained some third party information and spoke to several individuals. They did not receive information from some of the requested third parties nor did they speak to all suggested collateral sources.

[53] In their interim report, Dr. Jaffe and Ms. Reid sought a six month extension for the assessment, in part to observe the parties’ ability to communicate and plan together. Of some interest, they introduced this request with the comment “without blaming either parent, the current situation lends itself to an ongoing power struggle and positioning for litigation”. The report goes on to propose a minor scheduling change to M.D.’s parenting time, makes recommendations to resolve the contentious issues of daycare and baptism, and seeks approval for them to arbitrate minor scheduling disputes.

[54] N.J. is said to have been in support of the extension. M.D. was not, being concerned with further delay and with the recommendation of only a modest increase of one hour weekly to his parenting time. In result, Dr. Jaffe and Ms. Reid prepared their final report.

[55] The final report sets out their major findings:

(i) these two parents agree on next to nothing and have polar opposite personalities;

(ii) both of these parents love and are attached to their son, as he is to them;

(iii) there is an extremely high degree of conflict over the parenting of C.D.J. beyond what one would expect even for a high-conflict custody case;

(iv) these parents cannot manage a joint custody or co-parenting plan; and

(v) there needs to be immediate decisions made to address C.D.J.’s development and care.

[56] Dr. Jaffe and Ms. Reid presented the following recommendations:

(a) sole custody to N.J., with a review in May 2016 to see if joint custody or co-parenting is possible, with N.J. making all decisions about C.D.J., and M.D. to have access to all information;

(b) supervised exchanges of child;

(c) M.D.’s parenting time to be increased every visit from 6 to 7 hours in June 2015, with weekend access to alternate between Saturdays and Sundays to allow each parent to take C.D.J. to church and have more flexible weekend activities;

(d) based on a review of the parents and C.D.J.’s progress by the end of July 2015, the weekend access should increase from 7 to 9 hours starting in August;

(e) based on a further review of the parents and C.D.J.’s progress, effective October 10, 2015, weekend access should be overnight on alternate weekends;

(f) C.D.J. to attend Brock University’s preschool program;

(g) C.D.J. should be baptized in N.J.’s church;

(h) a seasoned arbitrator should be appointed immediately to make binding decisions about future rescheduling and other issues that may emerge;

(i) each parent should be able to reschedule one visit a month in exchange for a comparable period;

(j) the sole custody arrangement should be reviewed in May 2016;

(k) neither parent to relocate outside of the Greater Niagara area;

(l) N.J. should be permitted to take two one week trips with C.D.J. between now and May 2016 with M.D. providing appropriate travel documents with similar holidays with M.D. to be considered in the future, based on the parents and C.D.J.’s progress; and

(m) MD. needs to seek counselling to deal with his dysfunctional level of animosity towards N.J.

[57] Psychological testing conducted in the assessment process indicated neither party had a major mental health disorder. They were described as “high functioning individuals”. Dr. Jaffe was of the view both were “positioning” throughout the assessment process, trying to negotiate when various topics were raised. He described M.D. as being adamant in his position, believing he was always right and unable to acknowledge there may be another point of view. N.J. was said to be more rational, thoughtful but demanding and rigid. Dr. Jaffe reported this personality clash made problem solving difficult.

[58] Ms. Reid attended the home visits to observe the interaction between C.D.J. and each of his parents. No major issues were identified. The child was happy and enjoyed time with each parent. He was attached to both. Ms. Reid was concerned about the conflict between the parents pertaining to the access exchanges.

[59] The conflict between the parties was troubling for Dr. Jaffe, described as “profound and endless” and being one of the highest conflict cases seen in his lengthy career. His concern is the impact of such conflict on the child and the potential of causing emotional harm to the child, who is caught in the middle. Until this conflict is resolved, Dr. Jaffe is of the view one parent only should be in charge. Joint custody or co-parenting, he says, cannot work in these circumstances.

[60] Review before expansion of father’s parenting time is seen as necessary by Dr. Jaffe. The goal, he says, is to move forward to normalized access if there is less conflict. Counselling, he expects, should assist M.D. Increasing father’s parenting time would be dependent on a reduction in conflict. Dr. Jaffe indicated Mr. Hurwitz was an ideal counsellor for M.D., given his years involved with high conflict families. In reviewing the evidence of Mr. Hurwitz, Dr. Jaffe commented that counselling was going in the right direction but he was not satisfied such had progressed as expected, although he went on to say that counselling was continuing.

[61] Dr. Jaffe acknowledged the assessment report was two years out of date at the time he testified, now three at the end of trial. The child’s development in that period is unknown to him. Dr. Jaffe is of the view the recommendations remain appropriate if the circumstances at the time of the report have not changed.

Consent

[62] As expected of experienced counsel, discussions and negotiations continued during the trial. In result, the parties were able to resolve a number of issues. For ease of reference, the consent is attached as Schedule “A”. The terms of the consent are approved, save where there is conflict with this decision. Counsel will incorporate the remaining terms into the draft final order.

[63] At the commencement of the trial, child support was identified as a significant issue. The complexity involved father’s efforts to establish a professional practice compounded by his relocation to the Niagara area so as to be closer to his son. The resolution of this claim is certainly reasonable. It is to be recognized, however, that extraordinary expenses in future years will be dependent on the child’s interests. His activities may also impact on parenting time. The parties must be reasonable and flexible in this regard as priority must always be given to the child in a reasonable fashion.

[64] The other terms of the consent are also appropriate. The parties recognize the conflict issue but have not been successful in finding a resolution. Perhaps with the end of the litigation, meaningful efforts will be put forth in this regard. In my view, it is imperative as their son’s future emotional well-being is at stake. In the meantime, the various terms pertaining to the rules of engagement, communication and parenting exchanges should ensure that C.D.J. is not exposed to their adult issues. Similarly, consistency with use of the child’s name is important for the same reasons.

[65] The parties are reminded that compliance with what are now terms of a court order is not optional. Nor are the terms open to interpretation. Problems have occurred with prior temporary orders in the past. Such will not be tolerated in the future.

[66] Lastly, it is expected the terms of this consent will require modification in the future, hopefully for positive reasons and accomplished by agreement.

[67] Further, I understand from counsel’s final submissions that the claim for life insurance coverage and beneficiary designation was resolved. The parties also resolved the issue of parenting time at Christmas and Ukrainian Christmas. These provisions can be incorporated into the final order.

Issues

[68] The issues requiring determination, as identified in the pleadings, evidence and submissions of counsel pertain to:

(a) father’s parenting time;

(b) decision-making for C.D.J. with respect to:

(i) education;

(ii) medical and dental care;

(iii) baptism; and

(iv) Ukrainian School.

Best Interests of the Child

[69] The relevant legislation provisions are set out in sections 20, 21, 24 and 28, Children’s Law Reform Act, as follows:

CUSTODY AND ACCESS

Entitlement to custody

20 (1) Except as otherwise provided in this Part, a child’s parents are equally entitled to custody of the child.

Rights and responsibilities

(2) A person entitled to custody of a child has the rights and responsibilities of a parent in respect of the person of the child and must exercise those rights and responsibilities in the best interests of the child.

Authority to act

(3) Where more than one person is entitled to custody of a child, any one of them may exercise the rights and accept the responsibilities of a parent on behalf of them in respect of the child.

Where parents separate

(4) Where the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other of them, the right of the other to exercise the entitlement of custody and incidents of custody, but not the entitlement to access, is suspended until a separation agreement or order otherwise provides

Access

(5) The entitlement to access to a child includes the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child.

Application for custody and access

21 (1) A parent of a child or any other person, including a grandparent, may apply to a court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child.

Merits of application for custody or access

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

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 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 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.

Past conduct

(3) A person’s past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.

Violence and abuse

(4) 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.

CUSTODY AND ACCESS - ORDERS

Powers of court

28 (1) The court to which an application is made under section 21,

(a) by order may grant the custody of or access to the child to one or more persons;

(b) by order may determine any aspect of the incidents of the right to custody or access; and

(c) may make such additional order as the court considers necessary and proper in the circumstances, including an order,

(i) limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child,

(ii) prohibiting a party or other person from engaging in specified conduct in the presence of the child or at any time when the person is responsible for the care of the child,

(iii) prohibiting a party from changing the child’s residence, school or day care facility without the consent of another party or an order of the court,

(iv) prohibiting a party from removing the child from Ontario without the consent of another party or an order of the court,

(v) requiring the delivery, to the court or to a person or body specified by the court, of the child’s passport, the child’s health card within the meaning of the Health Insurance Act or any other document relating to the child that the court may specify,

(vi) requiring a party to give information or to consent to the release of information respecting the health, education and welfare of the child to another party or other person specified by the court, or

(vii) requiring a party to facilitate communication by the child with another party or other person specified by the court in a manner that is appropriate for the child.

[70] The “best interests of the child” test is the only test. Parental preferences and “rights” play no role. See: Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at para. 202; and Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 at para. 28.

[71] Counsel were most helpful in providing caselaw relating to particular matters in dispute. While other decisions can be considered as a guide, the issues in this case must ultimately be determined solely by the best interests of the child test.

Discussion

[72] The issues in this case were resolvable. Common sense, perhaps assisted by mediation, should have led to a settlement. The case took far too long for trial. Five years is unreasonable. Delay has only compounded the problems, resultant from the conflict. Trial time was excessive.

[73] Resolution was not possible when the parties each had a misguided sense of the best interests of their son, equating same with their own interests or rights. There was little change in positions since 2013. Negotiations did not focus on the child and his relationship with each parent. Instead, the dispute was about parental conflict and control.

[74] It was not until mid-way through trial that overnight visits occurred. Even then, there were complaints with events on pick-up. But the child returned happy and content, enjoying time with his father. Dr. Jaffe’s finding the child is attached to both of his parents is instructive. These are loving parents but they have delayed the child’s development within the family.

[75] Dr. Jaffe also made reference to the assessment process lending itself to an ongoing power struggle and positioning for litigation. That was also clearly evident at trial. Both parties are very demanding, controlling and aggressive in their approach to this case and in their dealings with each other. The litigation strategy clearly revealed trial preparation commencing early, documenting events beyond any reasonable expectation, positioning in their communication. Evidence-in-chief was well rehearsed and followed a script. But it fell apart in cross-examination. Neither party could respond to questions without unnecessary and lengthy explanation. They would not admit the obvious when challenged. Questions were frequently ignored with answers given to the question each of the parties wanted to be asked.

[76] The assessment report is of some assistance but is out of date. C.D.J. was 2 years old at the time the assessment was conducted. He is now 5. Much has happened in the past three years of his life. C.D.J. is described as a bright, healthy child. He has attended daycare or nursery school and Junior Kindergarten. He is thriving. There are no complaints with respect to his development nor that he is suffering from any trauma due to the conduct of either of his parents.

[77] M.D. is critical of the assessment process and the report. Dr. Jaffe declined to contact collateral sources identified by M.D., saying he already had enough information. In my view, the investigative process should have continued further than it did in fairness to both parties. Collateral information likely would have been supportive of M.D.’s character and parenting ability. It may also have assisted in understanding the basis or source of the conflict. Further, limited information was obtained regarding medical history of the parties. This should be a starting point to ascertain if there are medical reasons regarding behaviour.

[78] Section 30 directs the assessor to report to the court. While I appreciate Dr. Jaffe’s interest in trying to resolve the conflict, I am concerned he would present an interim report, one that included arbitration authority to resolve scheduling disputes. That is not the assessor’s role. I also am troubled by the delivery of a draft final report as it resulted in N.J. contacting Dr. Jaffe, requesting him to make changes that supported her position.

[79] Dr. Jaffe was critical of M.D. in many respects, particularly his insistence on always being right. That characteristic was also observed at trial. Dr. Jaffe made reference to N.J. as being rigid, but otherwise presented in a positive manner. I saw more.

[80] The parties spent much more time testifying at trial than with Dr. Jaffe and Ms. Reid. Cross-examination, in particular, is in a different environment than an assessment interview.

[81] I observed N.J. to display the similar trait as M.D. of always being right. The difference between the two is in the manner of presentation. M.D. has difficulty controlling his emotions and often speaks before thinking. N.J. is reserved and in control of her emotions. But both are equally controlling and aggressive and display narcissistic characteristics.

[82] Dr. Jaffe wanted to address the conflict. Perhaps as a psychologist, he felt it could be resolved. I do not share any such optimism at this point in time. Perhaps it will abate over time. In any event, the court lacks the jurisdiction to resolve the conflict. Rather, the focus is restricted to the best interests of the child, protecting C.D.J. within a meaningful parenting regime. In large measure, the consent of the parties addresses this issue.

[83] The assessment report was of some assistance but the circumstances of this case requires a change in the parenting regime.

[84] I am satisfied M.D. received benefit from the anger management course and the counselling services provided by Mr. Hurwitz. More is required, particularly given M.D.’s outburst in motions court in December 2016. Controlling emotions and learning to communicate remain important matters for M.D. to address. I am also of the view N.J. would benefit from counselling. The parties have completed five years in a difficult relationship that, no doubt, has been negatively impacted by this litigation. Their relationship will continue for years to come. C.D.J.’s success in life is dependent on how his parents will perform.

Analysis

(i) Best Interests of the Child

[85] There were two matters raised in the evidence that require initial comment. First, M.D. married in June 2017. His spouse did not testify. It would have been helpful to hear from her as she will be involved with C.D.J. in the future. However, N.J. makes no objection regarding M.D.’s spouse in this regard. Second, M.D. is estranged from his father and it appears there is a history of conflict. C.D.J. has only met this grandfather once. He is not involved in the child’s life and, hence, I conclude past family problems are not relevant in this case. M.D. is close to an aunt and cousins, all of whom are known to N.J. without complaint.

[86] Section 24, Children’s Law Reform Act, identified certain factors regarding the child’s needs and circumstances. The parties essentially agree on the application of the best interests of the child test in their consent and acknowledgement M.D.’s parenting time should increase. The test was also addressed by Dr. Jaffe, his primary finding being that both of these parents love and are attached to their son, as he is to them.

[87] C.D.J. is too young to present his views and preferences. The evidence indicates he enjoys time with each of his parents and, also, with his maternal grandparents. These grandparents are a significant part of C.D.J.’s life at the present time, given the living arrangements. While it can be said N.J. has provided a stable home environment in this regard, the parenting regime must change so that the overall home environment, including with M.D., is stable.

[88] Each party is well able to provide the child with guidance and education, the necessaries of life and any special needs of the child. This case is not about parenting ability.

[89] The plans of each party for the child will be addressed in subsequent sections.

[90] Each family unit is stable and permanent.

[91] The facts of this case have a comparison to those in M. v. F., 2015 ONCA 277. The child was 6 years old at the time of appeal. The parents had been arguing about parenting arrangements his entire life. The child was in mother’s care and had access with father, but not overnight. The parents’ relationship was described as toxic, with many allegations of inappropriate conduct, including physical abuse. Dr. Butkowsky conducted a section 30 assessment, recommending overnight access, opining such would assist in developing the relationship between father and child and “would be safe”. Dr. Jaffe was retained by the mother to critique the assessment report. He was of the view there ought to be no overnight access until father “takes responsibility, expresses genuine remorse and completes treatment” in connection with the domestic violence. The trial judge accepted the recommendations of Dr. Butkowsky, concluding the allegations with respect to father’s behaviour had no bearing on his ability to parent the child during the night, and it was in the child’s best interests for such to occur. The decision was upheld on appeal.

[92] Safe means more than in the physical sense, including, for example, emotional well-being. I am not persuaded there is any reason to further delay the development of C.D.J.’s relationship with his father. I read M. v. F. as saying there may be circumstances that are troubling as between the parents, but such cannot be used to limit a parent’s involvement. It all comes back to the best interests of the child.

(ii) Parenting Schedule

[93] In terms of the parenting regime, the parties agree custody should be awarded to N.J. C.D.J. has always primarily resided with his mother. The issue pertains to the father’s parenting time. The parties now agree such should include overnight visits and increase on a staged basis so that the child can adjust. They disagree on how this will be accomplished, the number of stages and whether there ought be progress reviews by Dr. Jaffe.

[94] There have been serveral overnight visits with M.D. during the trial. Otherwise, the parenting regime for the past several years has limited father’s time with C.D.J. to three visits weekly, each of six hours.

[95] M.D. proposes two stages, N.J. suggests three, with modest differences in time involved. There has been far too much discussion about the number of hours the visits should be. The conversation should be about quality, not quantity. I conclude the transition and adjustment can be accomplished in two phases, the first slightly longer than either party suggests as it will be implemented in the summer and carry on into the school year. M.D.’s work commitments are said to be flexible so that such can be adjusted to accommodate his son’s time with him.

[96] The terms of the final order shall include:

(i) the mother shall have sole custody of C.D.J., born […], 2013;

(ii) C.D.J. shall have his principal residence with his mother and his secondary residence with his father; and

(iii) father’s parenting time will be as follows:

(a) Phase 1

Commencing July 1, 2018:

(i) every Tuesday from 9:00 a.m. to 7:30 p.m. unless the child is in school and in that event shall commence at 3:20 p.m.;

(ii) every Thursday from 9:00 a.m. to 7:30 p.m. unless the child is in school and in that event shall commence at 3:20 p.m.; and

(iii) alternate weekends from Saturday at 10:00 a.m. to Sunday at 2:00 p.m.

(b) Phase 2

Commencing November 1, 2018:

Week One

(i) Tuesday from 9:00 a.m. to 7:30 p.m. unless the child is in school and in that event shall commence at 3:20 p.m.; and

(ii) Friday from 9:00 a.m., 3:20 p.m. if the child is in school, until Monday at 9:00 a.m. (return to school or to mother), and in the event Friday or Monday is a professional activity day or statutory holiday, to commence on Thursday or conclude on Tuesday as the case may be at the same hour as aforesaid.

Week Two

(i) Tuesday from 9:00 a.m. to Wednesday at 9:00 a.m. unless the child is in school and in that event shall commence at 3:20 p.m.;

(ii) Thursday from 9:00 a.m. to Friday at 9:00 a.m. unless the child is in school and in that event shall commence at 3:20 p.m.

(iv) during the school year, father’s mid-week parenting time will be spent in the Niagara Region;

(v) neither parent shall change the child’s primary residence or secondary residence outside of a 25 km. radius of the City of St. Catharines or Niagara-on-the-Lake;

(vi) there shall be no rescheduling of parenting time by either parent, other than in exceptional circumstances and with the prior written consent of the other parent;

(vii) parenting exchanges shall be in accordance with the consent of the parties (Exhibit #65)

[97] The holiday schedule shall override the regular parenting schedule. The parties have resolved Christmas and Ukrainian Christmas and those terms shall be incorporated into the final order. They also appear to be in agreement with respect to Ukrainian Easter, Thanksgiving, Father’s Day and Mother’s Day (some possible fine tuning that counsel ought be able to resolve), leaving only March Break and Summer holidays in dispute. Both of these time periods ought commence in 2019, save for modest extensions of overnight time in the Summer of 2018 given that this is in Phase One. I direct the following:

(i) March Break

Commencing in 2019, the child shall be with each of his parents for one half of the March Break. The child shall be with the parent whose weekend falls on the first weekend of the March Break from Friday after school (3:20 p.m.) until Wednesday at 12:00 p.m. and with the other parent whose weekend falls on the second weekend of the March Break from Wednesday at 12:00 p.m. until his return to school Monday morning.

(ii) Summer

(a) In 2018, the following schedule shall apply:

(i) one of father’s weekends in July and one in August shall be from Saturday at 10:00 a.m. until Tuesday at 7:30 p.m.;

(ii) mother shall be entitled to two non-consecutive weeks of summer vacation time with the child;

(iii) father shall give notice of his chosen weekends above by July 1, 2018 and mother shall give notice of her chosen weeks by July 6, 2018.

(b) Commencing in 2019, each parent shall be entitled to two non-consecutive weeks of summer vacation time with the child, subject to the following:

(i) each vacation week will commence on Friday at 9:00 a.m. of each party’s regularly scheduled weekend and end at 9:00 a.m. on the following Friday;

(ii) father shall have first choice as to vacation weeks in odd numbered years and mother shall have first choice as to vacation weeks in even numbered years;

(iii) the party with first choice shall advise as to his or her chosen weeks by April 1 and the party with second choice will advise as to his or her chosen weeks by May 1;

(iv) for any period that is longer than three days, the parent with whom the child is then residing shall facilitate a telephone call or Skype call between the child and the other parent once every three days. The child shall be permitted to call or Skype either parent whenever he pleases; and

(v) the parents may travel with the child outside of Canada during the vacation periods. The travelling parent shall provide an itinerary to the other parent at least two weeks prior to departure. If a travel consent is required, consent shall not be unreasonably withheld.

[98] I decline to require a progress review before moving on to Phase 2 for a number of reasons. The relationship between M.D. and Dr. Jaffe had broken down long before trial. Both testified at trial. Given their testimony, the relationship is beyond repair. Involving a different professional at this stage would not be helpful.

[99] The progress review, as drafted, presents as a monitoring provision but still raises the concern of impermissible delegation. Had the assessment proceed been handled differently, I might have considered some kind of monitoring. However, the concern is the invitation for further litigation.

[100] It is time for the family to move on. Conflict can be minimized, hopefully eliminated, by avoiding parental contact as the parties have addressed in their consent. The additional terms of the order, as granted herein, were drafted with that same purpose in mind. I conclude C.D.J. will be safe if the parties comply with all of the terms of the order herein granted.

(iii) Decision-Making

[101] N.J. proposes that she be awarded sole decision-making authority on all matters pertaining to C.D.J., with an obligation to consult M.D. in advance. M.D. requests a parallel parenting regime in terms of decision-making, to divide this responsibility between the parties.

[102] The traditional approach is for decision-making to be made by the custodial parent. Parallel parenting has been directed in cases of joint or shared custody.

[103] In V.K. v. T.S., 2011 ONSC 4305, Chappel J. provided a comprehensive review of the caselaw, concluding there was appellate authority for a “divided parallel of parenting” arrangement in high conflict cases. Chappel J., at para. 79, offered this helpful comment:

79 Parallel parenting arrangements have been resorted to in practice and by trial courts to resolve situations where both parents have been involved with the child and wish to retain decision-making rights, but the conflict between them is such that a joint custody order is not feasible or in the child’s best interests. There are many merits to a parallel parenting regime, in appropriate cases. It gives both the child and the parents the benefit of maintaining each parent as a meaningful player in the child’s life, over and above time sharing with the child. The importance of this factor from an emotional standpoint cannot be underestimated where a family is in turmoil because of a breakdown in the parents’ relationship. In addition, by delineating clear areas of decision-making between the parties, parallel parenting has the potential in appropriate cases to disengage the parties and reduce parental conflict.

[104] A divided parallel parenting regime is what M.D. proposes. In general terms, there is merit in this request. Both parties are involved in parenting C.D.J., M.D.’s role being limited by the restricted access regime. Each has much to offer their son. They are highly intelligent and well educated. The only obstacle is the conflict problem. But, with the terms set out in the consent, conflict can be avoided in decision-making. M.D., unfortunately, seeks to have, in essence, decision-making in all major aspects of the child is life. Such is neither reasonable nor appropriate. His position is as controlling as hers.

[105] I conclude there will be division of decision-making authority. It is in C.D.J.’s best interests to not only have contact with each parent but to have each parent making decision on his behalf. This, in my view, will be a positive experience for C.D.J. and help overcome the negative influence of parental conflict in his life.

(a) Education

[106] During the 2017-2018 school year, C.D.J. was enrolled in Junior Kindergarten at O[…] Public School in St. Catharines, a school in N.J.’s catchment area. He attended school during N.J.’s parenting time but not in M.D.’s, as alternate access time could not be arranged. N.J. proposes to have C.D.J. continue attending this school on a full-time basis as the next school year will be in Senior Kindergarten.

[107] N.J. and C.D.J. currently reside with N.J.’s parents. This arrangement is not likely to continue forever. There is the possibility N.J. will obtain a separate residence, perhaps in St. Catharines, that might necessitate a change in C.D.J.’s school.

[108] M.D. wants his son to attend Ridley College, a private school in St. Catharines, at his expense. Alternatively, he suggests Crossroads Public School in Virgil, a community approximately mid-point between the residences of the parties. As a further alternative, M.D. requests his son attend Jeanne Sauve French Immersion School in St. Catharines.

[109] The Ridley College proposal can be rejected simply on the basis that M.D. does not have the financial resources to presently pay private tuition fees. I am not prepared to accept his suggestion that his aunt will provide the funds. As a result of this litigation, M.D.’s assets are now fully encumbered. There is no evidence from the aunt that she would pay.

[110] The only logical school for C.D.J. is O[…]. He has attended this school already. The school is within walking distance of his mother’s home where, most importantly, he principally resides. C.D.J.’s friends in the community also attend O[…]. It would be far too disruptive, and cause further problems, for C.D.J. if he was required to now attend a different school. Travel time compounds the situation. While children can adjust, it must be remembered that this child has already been exposed to far too many difficult situations. He needs stability. O[…] will meet his requirements and more.

[111] The following terms shall include:

(i) the mother shall have decision-making authority with respect to the education of C.D.J. Decision-making includes what class, program and school the child will attend, testing as provided by the school, supplementary education including tutoring, and the signing of any consents as required by the school to participate in activities, trips, testing and assessments;

(ii) commencing September 2018, C.D.J. shall continue to attend O[…] Public School in St. Catharines on a full-time basis regardless of the parenting schedule;

(iii) both parents and their families shall be permitted to attend school events, including open houses, concerts, plays, competitions, sporting events and assemblies. Each parent shall have the responsibility for keeping themselves informed of such events;

(iv) father shall be shown on the school registration form as the secondary contact in the event of an emergency;

(v) father shall have access to all information from the school and C.D.J.’s teachers and others involved in the child’s education; and

(vi) the parents shall each arrange for their own separate parent-teacher interviews.

(b) Medical and Dental Care

[112] Since the consent order of Katarynch J., granted March 10, 2014, M.D. has been responsible for taking C.D.J. to dental appointments, N.J. for medical appointments. The other parent does not attend.

[113] M.D. proposes that regime continue, save for emergencies, that the parties consult each other as to any proposed treatment plans and, failing agreement, he would have final decision-making authority for medical and dental matters. N.J. seeks authority to arrange all appointments, M.D. not to attend without her consent, and decision-making, save emergencies.

[114] The parties have followed the terms of the order regarding regular medical and dental appointments. Despite their complaints, routinely documented in multiple emails, this system has worked well. A routine has established and C.D.J. would understand what parent would be attending these appointments with him.

[115] There have been problems regarding perceived emergencies and with consultations involving specialists regarding medical issues. Conflict with such treatment providers is not helpful. However, I see the problem as an extension of the conflict between the parties and this ongoing fight for control. Further, there have not been such problems for some time and C.D.J. appears to be a healthy child.

[116] It is to be expected that both parents want to be involved in health care decisions for their child. Ideally, they would decide together. Their conflict prevents joint decision-making and, hence, only one can be in charge. Both parents are well able to handle the authority and I am satisfied such would be done in C.D.J.’s best interests.

[117] M.D. is an oral medicine specialist. His medical and dental knowledge greatly exceeds that of N.J. for obvious reasons. To exclude him from a decision-making role is not appropriate and would send the wrong message to C.D.J. I conclude that M.D. should have ultimate decision-making following consultation. The terms of the order shall include:

(i) mother shall schedule C.D.J.’s routine medical appointments during her parenting time and shall attend same. Father shall not attend;

(ii) father shall schedule C.D.J.’s routine dental appointments during his parenting time and shall attend same. Mother shall not attend;

(iii) C.D.J.’s primary health care providers shall be in Niagara Region;

(iv) the parents shall advise each other regarding the appointments, at least 48 hours in advance, by email, and shall update each other with respect to the results of such attendances within 24 hours of each appointment, by email;

(v) both parents may attend any non-routine medical or dental appointments or procedures and medical or dental specialist consultations for C.D.J.;

(vi) both parents shall be entitled to obtain copies of all medical, dental and any other healthcare documents relating to C.D.J. and to consult with C.D.J.’s doctors, dentists and any other health care provider about C.D.J.’s well-being, care, diagnosis and treatment;

(vii) the parents shall consult with each other and seek the advice of C.D.J.’s doctors, dentists and any other health care providers on all significant medical and dental decisions, including surgery, long term medication or treatment, immunizations, major diagnostics, counselling or therapy and choice of service provider. In the event the parties are unable to agree on any such decisions, M.D. shall have final decision-making authority after consideration of all professional opinions of the care providers and input of N.J.

(viii) in the event of an emergency regarding medical or dental care, the parent having care of C.D.J. shall notify the other parent and, if necessary and on the advice of the attending care providers, may make a decision regarding emergency care.

(ix) in the event of serious illness or injury requiring C.D.J. to be admitted to the hospital, both parents shall be permitted extended contact with him.

(c) Baptism

[118] M.D. is Ukrainian Orthodox, N.J. Ukrainian Catholic. Despite their different religious affiliation, the parties agree each may take C.D.J. to their respective churches during their parenting time. They are unable to agree on baptism.

[119] There can be no wrong decision given the sincerity of the parties on this religious issue. Unfortunately, separate baptism is not permitted.

[120] I am not persuaded the Petition signed by the parties as requested by the Catholic priest is binding. This document is always required when only one of the proposed spouses is Catholic and is well known to be ignored thereafter.

[121] The compelling fact on this issue is that C.D.J. has regularly attended the Catholic Church with his mother. There has been little exposure to the Orthodox religion, given the parenting schedule to date. Further, N.J. has and will continue to provide the primary residence for C.D.J. In result, I conclude baptism shall be in the Catholic faith.

[122] The following terms shall be incorporated into the final order:

(i) neither parent shall interfere with the religious observance of the other with C.D.J. Each parent shall be entitled to take C.D.J. to their respective Churches and involve him in the regular activities, practices and events relating to their respective faiths during their parenting time;

(ii) C.D.J. shall have his Baptism and First Communion in the Ukrainian Catholic Church. Father shall be permitted to choose one set of godparents.

(d) Ukrainian School

[123] Both parties wish to expose C.D.J. to his cultural background by way of attendance at a Ukrainian School. The importance of learning and continuing the unique aspects of family culture is well recognized. It is a fundamental concept in multi-cultural Canadian society.

[124] C.D.J. has been attending the I[…] Ukrainian School in the Niagara Region. Classes are on Friday evenings. N.J.’s mother, a retired teacher, is involved in the school and is one of its founding members. N.J. proposes to continue with this program. In their consent, the parties agree that one of C.D.J.’s current and anticipated extraordinary expenses is with attending this school. N.J. also requests there be a prohibition on C.D.J. being enrolled in any other Ukrainian School by M.D., absent her consent. Under her plan, neither parent would be obliged to take the child to Ukrainian School during their respective parenting time.

[125] M.D. wants C.D.J. to attend T[…] Ukrainian School in Toronto. Classes are on Saturday mornings. This is a school M.D. attended as a child. M.D. agrees to pay the expense of attending this school. He agrees neither parent would be obliged to take the child to Ukrainian School during their respective parenting time.

[126] I recognize the importance of Ukrainian School for these parents and for C.D.J. I am concerned for the child’s well-being and the added work for him bearing in mind the separation of his parents and the importance of spending quality time with each of them. However, it would not be appropriate to rely on my personal views. See: Young at para. 203. Clearly, attending Ukrainian School is in C.D.J.’s best interests, as the parties confirm. It would not be appropriate to direct a parent as to what may be done in his or her parenting time. This is a decision each parent must make, but only for their parenting time.

[127] The following terms shall be incorporated into the final order:

(i) each parent may enrol C.D.J. in extra-curricular activities of their choosing and during their parenting time. Such activities during the week in the school year shall be restricted to the Niagara Region.

(ii) the parents shall not enrol C.D.J. in extra-curricular activities during the other’s parenting time;

(iii) any extra-curricular activities that would occur during the parenting time of both parents shall only occur with the consent, in writing, of both parents;

(iv) C.D.J. may attend I[…] Ukrainian School in the Niagara Region and the T[…] Ukrainian School in Toronto. The cost of the former is an extraordinary expense. Father shall be solely responsible for any costs associated with the latter. C.D.J. may attend either school during the parenting time of the parent enrolling him in such school, but shall not be required to attend in the parenting time of the other parent.

Summary

[128] C.D.J. is a happy, healthy child who is thriving despite the conflict between his parents. M.D. and N.J. are loving parents who are each committed to raising their son. Their conflict must be resolved or, at least, controlled so that C.D.J. is not exposed to same. He is reaching an age when further parental disputes will negatively impact him. The parents’ commitment to their son is dependent on compliance with the order herein granted. I am confident they will succeed.

[129] This was a long and difficult trial. I am most grateful for the assistance of counsel and the respect shown to all participants. The parents were served well by experienced counsel.

[130] A final order is granted on the terms set out in these reasons. I expect counsel will resolve the issue of costs; failing which brief written submissions shall be delivered to my chambers in Kitchener within 45 days. If such submissions are not then received, the issue of costs will be considered settled and the file will be closed.

D.J. Gordon J.

Released: June 11, 2018

SCHEDULE “A”

Draft Consent Terms

Rules of Engagement

The parents confirm that they will abide by the following rules of engagement in their interactions with their son, C.D.J., born on […], 2013, and with each other.

1. The parents agree that it is imperative for C.D.J.’s sake to reduce the level of conflict, and are committed to taking steps to do so.

2. The parents shall refrain absolutely from name-calling, making any denigrating comments about, or engaging in any subtle or open criticism of the other parent and members of the other parent’s family/extended family when speaking to C.D.J. or in his presence.

3. The parents shall be respectful and cordial in all dealings with each other and with members of the other party’s family/extended family.

4. The parents shall refrain absolutely from engaging in any disputes or disagreements with each other in C.D.J.’s presence, and from involving C.D.J. in any manner in conflicts which may arise between the parents.

5. The parents shall not question C.D.J. about the other parent’s personal life or activities or interfere directly or indirectly with the life of the other parent.

6. The parents shall not personally or through others video or audio record, take photographs of or follow the other parent or the other parent’s family/extended family in any way.

7. The parents shall not discuss with C.D.J. or in C.D.J.’s presence, present or past legal proceedings or the issues raised in these proceedings, including the circumstances around C.D.J.’s birth and the parent’s separation, and any conflicts or disagreements between the parties relating to parenting or financial issues.

8. Neither parent shall leave out or accessible to C.D.J., information or documents pertaining to present or past legal proceedings or the issues raised in these proceedings, including the circumstances around C.D.J.’s birth and parents; separation, and any conflicts or disagreements between the parents relating to parenting or financial issues. Neither party will permit C.D.J. to access their personal email or texts where communications regarding these matters are stored.

9. The parents shall not use C.D.J. to relay information or requests to the other parent.

10. Should he wish to do so, C.D.J. shall be permitted to take his personal items, toys or articles of clothing with him between the parents’ homes, within reason.

11. The parents shall refrain from using any physical discipline with C.D.J.

Communication

12. All communication shall occur as per the terms of this Order.

13. All pre- and post-visit communication between the parents shall continue to be made using a journal that travels with C.D.J. and is transferred to the other parent at each parenting exchange. Journal entries shall contain information that is relevant to the access visits, including any pertinent information about C.D.J.’s meals, naps, urination/bowel movements, health issues, medications or treatments prescribed or administered, and any other important information for/from the access visits.

14. The parents shall share any other significant information concerning C.D.J. (including information regarding C.D.J.’s heath, homework, extra-curricular activities, routines, medical/dental appointments, etc.) with each other by email. Each parent may send up to two emails to the other per week, except in exceptional circumstances.

15. The parents will send any urgent messages regarding C.D.J. (e.g. in the event of an emergency, when they are running late for a parenting exchange, etc.) to each other by text.

16. Other than as set out above, there shall be no other written communication between the parents.

17. Any oral communication between the parents shall be limited to brief and cordial greetings. Any pertinent information about C.D.J. shall be shared in writing as outlined in this Part. Phone calls between the parties will only be permitted in emergency situations.

18. All communications between the parties shall be brief, respectful and focussed on C.D.J.

19. C.D.J. shall be permitted to call the parents whenever he wishes.

20. Each of the parents shall ensure that the other parent has their current home address, phone number and email address where they can be reached. If either parent changes their home address(es), phone number or email address, or acquires an additional residence, they shall immediately notify the other parent of their new or additional contact information.

C.D.J.’s Residence

21. C.D.J. shall remain resident in the Niagara Region while in each parent’s care, subject to his right to travel with each parent during their parenting time.

Parenting Exchanges

22. Once C.D.J. starts Junior Kindergarten in September 2017, depending on the court-ordered parenting schedule, any parenting exchanges that occur during the school hours shall take place at C.D.J.’s school.

23. All other parenting exchanges shall take place at the Tim Horton’s at 209 Glenridge Avenue in St. Catharines, unless the parents agree otherwise.

24. The parents may authorize any third parties C.D.J. is familiar with, at their discretion, to pick-up or drop-off C.D.J. at any of the exchange locations.

25. Each parent shall have the right to have a third party present with them, or with the person picking up or dropping off C.D.J. on their behalf.

26. All parenting exchanges shall occur at the start and end times noted in the court-ordered parenting schedule. If either of the parents will be more than 10 minutes late for a parenting exchange, they shall provide the other party with as much notice as possible via text message. Any delays shall not result in any other changes to the parenting schedule.

27. There shall be no physical contact between the parents, and between each parent and the other parent’s family members (or anyone else attending the exchanges) at the exchanges or at any other time.

28. There shall be no discussion between the parents and others attending the parenting exchanges, except for brief and cordial greetings. All pertinent information regarding C.D.J. shall be shared as per the Communication Part of this Order.

Travel

29. C.D.J. may travel with either parent during their parenting time.

30. Should either parent desire to take C.D.J. outside of Ontario, the travelling party shall advise the other parent in writing of the dates of travel, location, flight details (if applicable), and address and phone number where C.D.J. can be reached, at least 3 weeks in advance of the trip, unless otherwise agreed by the parents in writing.

31. Should a notarized Travel Consent letter be required, the non-travelling party shall provide this letter a minimum of 10 days in advance of the trip.

32. Should C.D.J.’s passport have to be renewed, the Mother shall arrange for its renewal and both parties shall provide the necessary information/consent to affect the renewal within one week of the request for this information/consent. The Mother shall keep C.D.J.’s passport in her possession and it will be made available to the Father for travel as specified in this Part. The Father shall return C.D.J.’s passport to the Mother at the first parenting exchange after the conclusion of his travel.

C.D.J.’s Name

33. C.D.J.’s full name shall not be changed to anything other than “C.A.D.J.”, absent written consent of both parents or order of the Court.

34. The parents shall refer to C.D.J. as “C” or “X” (in Ukrainian) with all non-family third parties and ask them to do the same. For registration purposes, C.D.J.’s first name shall be noted as “C” and his last name noted as “D.J.”.

C.D.J.’s Official Documents

35. The Mother shall keep C.D.J.’s official documents, including but not limited to C.D.J.’s passport, birth certificate, social insurance card and health card, in her possession. She shall provide the Father with notarized copies of these documents.

36. If necessary, the Mother shall have the right to obtain, renew and replace all of these documents without the consent of the Father. If the Father’s consent is required, the Father shall provide his consent and both parents shall provide whatever other information is required in a timely manner.

Financial Issues

The outstanding financial issues between the parents will be resolved as follows:

37. Commencing June 1, 2017 and on the first day of each month thereafter, the Father will pay to the Mother as child support for C.D.J:

a. the Table amount of $1,076 per month, premised upon an imputed income to the Father of $125,000 per annum; and

b. 50% of C.D.J.’s special or extraordinary expenses as set out in paragraphs 39 and 40 below.

38. The Father shall continue to pay child support and his contribution to C.D.J.’s special and extraordinary expenses as provided for in this Order unless and until support is adjusted by amending agreement or court order under the sections that follow.

39. C.D.J.’s current and currently anticipated special or extraordinary expenses are:

a. Pre-school costs;

b. Healthcare or dental expenses not covered by either parent’s insurance;

c. Before or after school care;

d. Daycamps or other summer activities used in lieu of childcare;

e. Ukrainian School in the Niagara Region;

f. Music lessons for one musical instrument agreed to by the parents;

g. Swimming lessons (non-private);

h. Soccer lessons; and

i. Such other additional special and extraordinary expenses that are consented to by the parents in advance, in writing.

[NOTE: The parents agree that the extra-curricular activities/programs identified as special or extraordinary expenses are to take place in the Niagara Region. The issue of whether C.D.J. may be enrolled in any further extra-curricular activities/programs, either within or outside of the Niagara Region, remains to be determined by the Court.]

40. Future special or extraordinary expenses may also include tutoring, or any other school related expense and post-secondary education.

[NOTE: The parents have not agreed on where C.D.J. will go to school. The Mother has not agreed to pay expenses associated with Ridley College, or any other private school. The Father proposes that C.D.J. go to Ridley College (i.e. private school). In the event that this Court orders that C.D.J. go to Ridley College, as requested by the Father, the Father has agreed to solely fund the cost of tuition, but not all other expenses associated with Ridley College.]

41. The parents shall only contribute to C.D.J.’s further special or extraordinary expenses if the parents consent to the expenses in advance, in writing. Neither parent will unreasonably withhold consent.

42. On or before May 1^st of each year, commencing in 2018, the parents shall provide the following information to each other (not previously provided):

43. a copy of every personal and corporate income tax return filed by the parent, including any materials that were filed with the returns, for each of the three most recent taxation years;

44. a copy of every personal and corporate notice of assessment and reassessment issued to the parent for each of the three most recent taxation years;

45. where the parent is an employee, the most recent statement of earnings indicating the total earnings paid in the year to date, including overtime or, where such a statement is not provided by the employer, a letter from the parent’s employer setting out that information including the parent’s rate of annual salary or remuneration;

46. where the parent is self-employed, for the three most recent taxation years:

a. the financial statements, general ledgers and ledger supporting documentation for the parent’s business or professional practice, other than a partnership; and

b. a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the parent does not deal at arm’s length;

5. where the parent is a partner in a partnership, confirmation of the parent’s income and draw from, and capital in, the partnership for its three recent taxation years;

6. where the parent controls a corporation, for its three most recent taxation years:

a. the financial statements, general ledgers, and ledger supporting documentation for the corporation and its subsidiaries; and

b. a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the corporation, and every related corporation, does not deal at arm’s length;

7. where the parent is a beneficiary under a trust, a copy of the trust settlement agreement and copies of the trust’s three most recent financial statements;

8. in addition to any income information that must be included under paragraphs 3 – 7, where the parent receives income from employment insurance, social assistance, a pension, workers compensation, disability payments or any other source, the most recent statement of income indicating the total amount of income from the applicable source during the current year, or if such a statement is not provided, a letter from the appropriate authority stating the required information;

9. current information about the children’s special or extraordinary expenses;

10. current information about a parent’s claim of undue hardship, if any, and his or her household’s standard of living;

11. details of Canada Child Benefit or other child benefits in the previous year and anticipated in the coming year; and

12. any other information needed to determine each parent’s income for the purposes of calculating child support.

13. The parents will review the Table amount of child support and special and extraordinary expenses payable by the Father in accordance with the Child Support Guidelines each calendar year, commencing in 2018, and agree on what adjustment, if any, should be made to the child support arrangements. Any adjustment will be based on the greater of the Father’s actual income for the prior calendar year and the Father’s imputed income of $125,000, and will take effect on June 1st of each year, without any retroactive adjustment. If the parties are unable to agree on the adjustment, if any, either party may have the child support arrangements reviewed by the court by motion to change. Pending an agreement or court order adjusting the level of child support and sharing of section 7 expenses, the Father shall continue to pay the amounts due under the most recent agreement or court order.

14. Unless the support order is withdrawn from the Family Responsibility Office (“FRO”), it shall be enforced by the Director and amounts owing by the Father under the support order shall be paid to the Director who shall pay them to the Mother. Any costs award made with respect to this proceeding shall also be enforceable by FRO as support.

COURT FILE NO.: 451/15

DATE: 2018-06-11

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

M.D.

Applicant

– and –

N.J.

Respondent

REASONS FOR DECISION

D.J. Gordon J.

Released: June 11, 2018