Court File and Parties

Court File No.: 395-16 Date: 2018 08 15 Superior Court of Justice – Ontario

Between: Liliana Diaz (MacKenzie) now known as Liliana Diaz, Applicant – and – John MacKenzie, Respondent

Counsel: Howard J. Feldman, for the Applicant Anna L. Towlson, for the Respondent

Heard: May 28, 29, 30, 31, June 01, 04, 05, 06, 07, 08, 2018

Justice Mossip

DECISION

Introduction

[1] The trial of this matter focused on 2 children, namely Mateo MacKenzie, born May 15, 2007 (presently 11 years old) and Clarisse MacKenzie, born May 27, 2010 (presently 8 years old).

[2] The applicant, Lilianna Diaz (referred to as “Ms. Diaz”), brought a Motion to Change the custody, access, and support terms in the Final order made on consent by Justice Campbell, dated February 11, 2015. The final requested changes can be summarized here as requests that both parents have equal time with the children, and that final decision-making affecting the children be divided between the parties.

[3] The respondent, John MacKenzie, (referred to as “Mr. MacKenzie”), resists any change to the Final Order. He asks that Ms. Diaz’s motion be dismissed with costs.

[4] A Custody and Access assessment was ordered by Justice Andre on January 30, 2017. It was completed by the London Family Court Clinic. The report dated March 19, 2018, was filed as an exhibit. The assessor testified at this trial over several days.

Current Order

[5] The exiting court order provides as follows:

(2) The Respondent father, John MacKenzie, and the Applicant mother, Liliana Diaz (MacKenzie), shall share joint custody of the children namely, Mateo John MacKenzie (male) born May 15, 2007, and Clarisse MacKenzie (female) born May 27, 2010 (“the children”).

(3) The children’s principal residence and day-to-day care shall be in the home of the Respondent father, John MacKenzie.

(4) If after meaningful discussion and consultation, the parties are unable to agree on a major issue involving the children, the Respondent father, John MacKenzie, shall have the final decision-making authority on the issue.

(5) Both parties shall have the right to request and receive information from all third party service providers involved with the children.

(6) Commencing Sunday, February 11, 2015, the Applicant, Liliana Diaz, shall have the children in her care as follows:

(a) The first, second and third weekends of every month from Friday at the conclusion of school or 3:00 p.m. (whichever is applicable) through to Sunday evening at 6:00 p.m. In the event that there is a P.D. day at school on the Friday of the Applicant’s weekend, the Applicant shall have the children in her care Thursday at the conclusion of school every other P.D. day and the Respondent shall have the children in his care every other P.D. day that falls on the Applicant’s scheduled weekends;

(b) Every Monday and Tuesday after school to 7:30 p.m.;

(c) For each summer school holiday period commencing in 2015, for three non-consecutive weeks. One week is a seven day period and shall include three of the Applicant’s regularly scheduled weekends. If the Applicant mother, Liliana Diaz (MacKenzie), is not travelling during her designated summer holiday weeks with the children, the Respondent father, John MacKenzie, shall have the children in his care each Wednesday from 4:00 p.m. to 8:00 p.m. Mother is to provide to father written confirmation of her selected weeks for summer holidays with the children by May 1st of each year commencing May 1st, 2015;

(d) Half of the Christmas school holidays. In all even numbered years, the Applicant’s Christmas holidays with the children shall include Christmas Eve from 7:00 p.m. through to Christmas Day at 2:00 p.m. through to Boxing Day at 7:00 p.m. The parties shall confirm the Christmas holiday schedule in writing by November 15th each year;

(e) In all even numbered years, the Applicant’s March Break with the children shall commence on the Friday at the conclusion of school through to the following Friday at 6:00 p.m. In the event that Friday is a P.D. day, the Applicant shall have the children in her care from Thursday at the conclusion of school;

(f) Such further and other times as the parties agree to in writing;

(g) At all other times the children shall in in the care of the Respondent, John MacKenzie.

(7) The Applicant, Liliana Diaz (MacKenzie), shall have the children in her care for the Easter long weekend in all odd numbered years regardless of the regular schedule. The Easter long weekend commences at the conclusion of school on Thursday and ends Easter Monday at 6:00 p.m.

The Respondent, John MacKenzie, shall have the children in his care for the Easter long weekend in all even numbered years.

If the Applicant, Liliana Diaz (MacKenzie), loses a regularly scheduled weekend to accommodate this, she shall be granted a make-up weekend. The same applies for the Respondent father, John MacKenzie.

(8) The Applicant, Liliana Diaz (MacKenzie), shall have the children in her care for the Thanksgiving long weekend in all odd numbered years. The Thanksgiving long weekend commences at the conclusion of school on Friday (or 3:00 p.m.) and concludes Thanksgiving Monday at 6:00 p.m.

The Respondent, John MacKenzie, shall have the children in his care for the Thanksgiving long weekend in all even numbered years.

If the Applicant, Liliana Diaz (MacKenzie), loses a regularly scheduled weekend to accommodate this, she shall be granted a make-up weekend. The same shall apply for the Respondent, John MacKenzie.

(9) Regardless of the regular schedule the children shall be in the care of the Respondent, John MacKenzie, as follows:

(a) Father’s Day weekend from the conclusion of school on Friday through to Sunday evening at 6:00 p.m. when the regular schedule shall resume;

(b) Half of the Christmas school holidays. In all even numbered years, the Respondent’s Christmas holidays with the children shall include Christmas Day at 2:00 p.m. through to Boxing Day at 7:00 p.m. and in all odd numbered years the Respondent’s Christmas holidays with the children shall include Christmas Eve from 7:00 p.m. through to Christmas Day at 2:00 p.m.;

(c) In all odd numbered years, the Respondent’s March Break with the children shall include the first Sunday evening at 7:00 p.m. through the following Sunday evening at 7:00 p.m.;

(d) If the Respondent is travelling with the children, up to two uninterrupted weeks during the summer school holidays. Father to provide mother his selected weeks for summer holidays (if he has plans to travel with the children) by May 15th of each year. In the event that the children are not out of town then the Applicant, Liliana Diaz (MacKenzie), shall have the children in her care on the Wednesday from 4:00 p.m. to 8:00 p.m.

(10) Reasonable requests for the children to attend special family events and functions shall not be unreasonably refused. Requests and confirmations shall be made in writing. Where feasible and within their power, the parties will schedule these events when they know the children are scheduled to be in their care.

(11) The parties will utilize “Our Family Wizard” to communicate the children’s schedules and events and to communicate with each other about the children. The parties will share any fees related to same equally.

(12) Neither party shall expose the children to adult conflict.

(13) Neither party shall make negative comments about the other party in the presence or earshot of the children nor shall either party allow any other person to do so.

(14) Neither party shall remove the children from Canada without the express written consent of the other which consent shall not be unreasonably refused. The parent travelling with the children shall notify the non-travelling parent of the intention to travel and shall provide a complete itinerary for the trip including contact information for the duration of the trip at least 30 days prior to the intended trip. The travelling parent shall be responsible for obtaining and paying for any necessary travel consents.

(15) The Respondent father, John MacKenzie, shall not move the children’s residence beyond the City of Guelph without the express written consent of the Applicant mother, Liliana Diaz, or court order.

(16) The Respondent father, John MacKenzie, shall possess all of the children’s original government issued personal identification and documentation (including: passports, birth certificates – long and short if applicable, SIN cards, etc.). The Applicant, Liliana Diaz (MacKenzie), shall provide these documents to the Respondent, John MacKenzie, within 7 days of the date of this order.

[6] The order was arrived at on consent, after the trial had commenced and some evidence had been heard. The parties, both represented by counsel, reached an agreement based on the circumstances of the parties and the children at that time.

[7] The consent order must be considered by me as correct. I cannot re-assess the evidence heard at the time the parties stopped the trial and reached their own agreement.

The Issues

[8] The parties filed at this trial a Report from the Office of the Children’s Lawyer (OCL) that was before the court in February, 2015. Although there were efforts to give evidence orally before me as to what the investigator “meant” or “thought” about the parties, and what she thought was in the best interests of the children, I have only considered what was in the written report. Attempts to qualify that report by either of the parties, without the drafter of the report present, are not admissible as evidence at this trial.

[9] There can be no doubt, and Mr. MacKenzie does not dispute, that the mental health issues of Ms. Diaz were front and centre in the previous court proceeding, and in the OCL report.

[10] Ms. Diaz relies to a significant extent on her positive changed circumstances with regard to her mental health issues, to support her Motion to Change. Most of her evidence at the trial was directed to this issue. The balance of the evidence lead by Ms. Diaz was directed at how Mr. MacKenzie has not supported in spirit, or in fact, the joint custody order made in February, 2015. Lastly, Ms. Diaz alleges that certain conduct of Mr. MacKenzie has caused psychological harm to the children.

[11] Mr. MacKenzie opposes any change to the existing order. He alleges that he still has concerns about Ms. Diaz’s mental health issues and their possible impact on the children. Further, he has concerns that the children’s’ attendance at school, while in Ms. Diaz’s care, will be adversely affected if she has overnight access during the school week given her past history. Succinctly put, Mr. MacKenzie submits that there has been no material change in circumstances which would warrant a change in the current order. Even if there has been such a change, there is no evidence that supports Ms. Diaz’s position that the best interests of the children would be met by changing the current order as she requests or as recommended in the written assessment.

[12] This decision focuses on the above three evidentiary basis for Ms. Diaz’s motion. I must first determine the threshold issue of whether that evidence is sufficient to meet Ms. Diaz’s onus to demonstrate that the existing court order should be varied. If the threshold test is met, I must then decide what terms in a new order would be in the children’s best interests.

Evidence at Trial

1. Mental Health Issues of Ms. Diaz at the Time of Final Order

[13] Prior to, and at the time of, the trial in February, 2015, Ms. Diaz had been diagnosed with certain mental health issues.

[14] The medical reports of Ms. Diaz were part of the disclosure given to Mr. MacKenzie and to the OCL investigator prior to the last trial. Her mental health problems and diagnosis at that time were set out in the first report of Dr. Joan Nagy, Ms. Diaz’s treating psychiatrist under the Physician Health Program. Ms. Diaz was referred to Dr. Nagy for ongoing monitoring of depression. This monitoring was done as part of the process Ms. Diaz went through to be licensed to practice medicine in Ontario. This monitoring program was not mandatory for Ms. Diaz to take, but it was recommended.

[15] The highlights of the report dated October 19, 2015, with regard to the psychiatric history of Ms. Diaz as are follows:

• At the time of her initial assessment, Ms. Diaz was taking medication including Zoloft, 200 mg, and Wellbutrin XL, 300 mg.
• Ms. Diaz reported several episodes of depression, the first occurring at age 14 (approx. 1990), and the second in 2001. She did not receive treatment on those occasions.
• The third depressive episode was in 2003 when she did see a physician and was treated with Effexor with good result.
• The next bout of depression occurred in 2007 at which time she was diagnosed with post-partum depression. At that time, she was a first year resident. In addition, she had other stresses including that her mother was diagnosed with breast cancer.
• Ms. Diaz has seen Dr. Vanderkooy, for psychiatric follow-up care, and was treated with Sertraline, 200mg. She responded well both to the medication and the psychotherapy.
• Ms. Diaz was also assessed by a psychologist in 2008.

[16] Ms. Diaz’s treating psychiatrist under the OMA monitoring program testified at the trial as to her current mental health issues. I will refer to some of that testimony below.

2. OCL Report (2015)

[17] Prior to the trial in February, 2015, a comprehensive OCL Report was completed by Barbara Dyszuk, a Clinician with the OCL. The report went through the numerous issues raised by the parties with respect to each other and the children. The report dealt extensively with the mental health issues of Ms. Diaz as they were understood at that time. Ms. Dyszuk spoke to at least one of Ms. Diaz’s treating psychiatrists. She also reviewed written medical evidence related to Ms. Diaz.

[18] The OCL clinician considered that the mental health of Ms. Diaz, past, present, and future, was important in making her final recommendation as to what was in the best interests of the children.

[19] In her report, Ms. Dyszuk set out the history with regard to Ms. Diaz’s mental health issues. She wrote, “Ms. Diaz has a long-standing problem of depression” and went into detail with regard to Ms. Diaz’s mental health issues.

[20] Further in the report, Ms. Dyszuk wrote:

“Dr. Diaz’s mental health issues, the psychiatrists’ diagnosis that her condition will require ongoing treatment with medication and cognitive behaviour therapy, the reality that life will always present stressors that could exacerbate her depressive symptoms as well as the Obsessive Compulsive Disorder problems, Dr. Diaz’s permissive parenting style, and Mateo’s absenteeism at school when in Dr. Diaz’s care raise concerns regarding the custody and primary residence for Mateo and Clarisse.”

[21] Therefore, the three enumerated reasons why the OCL clinician recommended that Mr. MacKenzie have sole custody of the children are set out in the report as:

• Ms. Diaz’s mental health issues;
• Ms. Diaz’s permissive parenting style; and
• Mateo’s absenteeism at school when in Ms. Diaz’s care.

[22] The clinician went on to recommend that Mr. MacKenzie have sole custody, with Ms. Diaz to have alternative weekend access, each Tuesday after school until Wednesday morning, and in alternative weeks, Thursday after school until 7:00 p.m. There would be a sharing of the holidays and special days, such as Mother and Father’s Day and birthdays.

[23] As set out above, after some evidence has been presented, the parties stood the trial down and negotiated a different custody and access agreement than recommended by Ms. Dyszuk, which was incorporated into the February 11, 2015 order.

3. Evidence at Trial with regard to Ms. Diaz’s Current Mental Health Issues

[24] I included here in some detail, the testimony of Dr. Nagy as to Ms. Diaz’s current mental health issues. There was significant other evidence presented at the trial, both orally and in writing. I consider the testimony of Dr. Nagy to be critical to my findings and ultimate decision.

[25] The testimony of Dr. Nagy with regard to Ms. Diaz’s current mental health issues may be summarized as follows:

• Dr. Nagy was qualified as a specialist, on consent of the parties. She is a medical doctor trained in psychiatry, in the area of mental health illness and treatment. She has been licensed as a psychiatrist since 1984.
• She was qualified as an expert to give opinion evidence on the diagnosis and treatment of mental illness generally, and Ms. Diaz in particular.
• Anxiety disorders are the most common disorders she has treated.
• When a person has postpartum depression, they can show anxiety, from a little to extreme.
• In her assessment of a person, she considers whether they were misdiagnosed in the past.
• In her experience, when a person who no longer has symptoms that cause the diagnosis, it is considered a success.
• At the time she received the file about Ms. Diaz, she learned that she had been diagnosed with postpartum depression and obsessive compulsive disorder (OCD). She was on two anti-depressants, Zoloft and Wellbutrin.
• Dr. Nagy first met with Ms. Diaz in August, 2015. For a period of two years and a bit after that date, she met monthly with Ms. Diaz.
• Ms. Diaz did not argue with her about her diagnosis nor the medication she was on.
• Anti-depressants have certain side effects.
• Dr. Nagy found Ms. Diaz forthright, candid, direct and unguarded. She was upset but not to any extreme. She was very formal with her. She called her Dr. Nagy throughout the time they were together. She presented well and was poised. Over time she became more relaxed with her.
• She found she was involved in many positive things. She was very self-reflective. She talked about being an immigrant and the English language issue, and the fact that she was not able to deal with subtleties in the language.
• Overall, she was more content with her life than she had been two years ago. Her former husband and her children’s situation was an obvious stress, but Ms. Diaz made it clear to Dr. Nagy that she was coping.
• Dr. Nagy decreased and then terminated the medication Ms. Diaz was on. There was no recurrence of symptoms or relapse as a result of doing that.
• She noticed a significant improvement in Ms. Diaz’s wellbeing from the time she started with her until she finished.
• She did not put much significance on the incidents of distress that Ms. Diaz was in when she was both 14 and later in first year university.
• Her reports were based on her interviews and meetings with Ms. Diaz and her medical file.
• Once a patient has been diagnosed, that diagnoses “travels” with the patient even though there may not be any more symptoms.
• Ms. Diaz did not develop postpartum depression with the second child, which lead Dr. Nagy to believe that it was less a biological problem.
• As of October 2015, she had seen Ms. Diaz three times. Her medication had been decreased and she saw no symptoms of a depressive disorder, nor had she demonstrated symptoms of a personality disorder.
• In her reports dated January 18, 2016 and November 20, 2016, Dr. Nagy indicated there were no on-going mental health issues with Ms. Diaz.
• Dr. Nagy’s diagnosis is that Ms. Diaz’s depressive disorder with anxiety was in remission and that Ms. Diaz did not have a psychiatric diagnosis at that time. Psychiatrists use the word ‘remission’ to simply mean that there are no further symptoms at that time. She did not suffer from depression at this time. It really is a diagnosis “for the future” and that’s why they keep the term ‘depression in remission.’ It means that they had depression in the past but do not have it now. It is a word that is helpful between doctor to doctor as a file is transferred, for example.
• Her prognosis of a likelihood of recurrence of depression in Ms. Diaz is that the prognosis is excellent it will not reoccur.
• She is not convinced that the experiences Ms. Diaz had with depression in the past were as serious as reported. If anything, Ms. Diaz “over reported.” It was really the circumstances she was experiencing. For example, her first winter in Canada as an immigrant in medical training. Ms. Diaz went to professionals for help; perhaps with the language issues, she was “too forthcoming.”
• She is very high functioning. She has a good understanding of her mental and physical wellbeing.
• Ms. Diaz did not seem to misrepresent anything to Dr. Nagy. She was genuine and forthright. She disclosed everything she had to her and did not hold back.
• In her relationship with her husband at the beginning, she was very anxious but reached out to get support. She became more accepting of the way things were, and she did not overreact to her dealings with her husband as she did in the past. She seemed more balanced and rational.
• At one point she was worried how her husband would react to her request to change the custody order. In her view this was a normal concern. She did not discuss other fears about her husband, other than this concern.
• There is, in her opinion, a low probability that Ms. Diaz would not be able to cope with her children or her practice. She is not likely to harm herself.
• In a letter to Ms. Reddick, the assessor, Dr. Nagy wrote, “I am in disagreement with the diagnosis of obsessive compulsive disorder.”
• Compulsive means an unreasonable fear and not based in reality. Obsessive means the reaction to that compulsive behaviour.
• She said most healthy people have some obsessive thoughts.
• Postpartum depression based on fears such as jaundice and sleep apnea, are realistic fears and are not a sign of a disorder. The regular checking of her son while he was asleep was a normal behaviour.
• In her opinion, Ms. Diaz does not meet the criteria for any diagnosis in the DSM-V. She has a high degree of emotional stability. She uses her reason when dealing with emotionally charged issues.
• Dr. Nagy in her letter dated April 28, 2018, said that Ms. Diaz, based on a recent interview, is more assured about her mental health. The depth of her understanding of herself is good, and she is very positive.
• When referring to issues raised in court documents, at least one of which occurred prior to separation, such as a gas smell at her house, and her reaction to it and other incidents, Dr. Nagy saw these as a reaction of Ms. Diaz through the filter of fears she had at that time in her marriage, and her concerns about her children.
• She agrees that Ms. Diaz had postpartum depression but she did not, in her opinion, have stand-alone OCD.
• If a person is told that they no longer have a mental health diagnosis, that is a good thing and would affect the person in a positive way.
• Ms. Diaz’s overall improvement has been significant.
• Ms. Diaz understood that her mental health was an issue from the original trial going forward, and that Dr. Nagy was monitoring her mental health.
• Ms. Diaz was always concerned about getting more time with her children.
• She did express fears about the reaction of her husband when she commenced the court application to get more time with the children.
• Ms. Diaz did not report to her any major concerns or harm caused by Mr. MacKenzie to the children.
• She agrees that what a psychiatrist hears in an appointment is from the patient’s perspective.

4. Custody and Access Assessment

[26] The other major evidence as to Ms. Diaz’s current mental health status was in the written assessment report filed as an exhibit, and the oral testimony of the assessors, Daniel Ashbourne and Emily Reddick, which is summarized as follows:

Dr. Daniel Ashbourne

• He is the Executive Director of the London Custody and Access Clinic (he is a Doctor of Psychology).
• He did not see the parents or the children.
• The assessor works with a team. He attended at least one of the meetings with Ms. Reddick.
• Ms. Reddick has been doing assessments for a number of years.
• When doing an assessment, they try to involve each parent equally in the assessment in terms of time and the number of collaterals of each parent they see.
• It is not unusual for parties to present positively to assessors.
• He reviewed the draft report and signed off on the final report.
• They were some follow-up questions with respect to medical records related to Ms. Diaz and the report from Dr. Nagy, so psychological testing on both parties was completed.
• Dr. Reddick independently checked and confirmed that Ms. Diaz did not have mental health problems.
• The recommendations in the report tried to deal with all of the issues; the children wanted more quality time with their father and they wanted to see their mother more
• The plan proposed would maximize quality time for each parent with the children.
• There would be divided decision-making between the two parents in the best interests of the children.
• Both parents have a close bond with the children.
• There was no concern with either parent caring for the children on a day to day basis. He had no concerns with the assessment recommendations.
• He was not aware of any diminished school progress with the children. The school was not concerned about their school progress other than to say that Mateo could be doing better
• Ms. Diaz talked more about psychological abuse such as issues of control and intimidation by Mr. MacKenzie.
• There was no evidence before him to suggest parental alienation by Mr. MacKenzie.
• Both parents are capable parents.
• In general, the children are doing well.
• The assessors have to consider the voice of the children; these children wanted more quality time with both parents. The children were talking about the attention of their parents when they were with them and that they wanted more of that attention
• There was no evidence that the children were fearful of either parent.
• Ms. Diaz had some concerns about Mr. MacKenzie’s mental health but none were found.
• The mental health issues in the file that had been raised were in respect to Ms. Diaz.
• The assessors concluded that there were no mental health issues affecting Ms. Diaz at the time they did the assessment.
• He agrees that a good portion of conclusions about mental health is as a result of self-disclosure. However, it is also how they present, their mannerisms etc.
• He confirmed that with regard to overnight visits during the week, Mr. MacKenzie suggested that Ms. Diaz have one overnight during the week as an alternative to the assessors’ recommendation to two overnights. Mr. MacKenzie was not concerned about that one weeknight overnight.

Emily Reddick

[27] The following testimony was given by the assessor:

• She is an assessor at the London clinic who completed the assessment in this file. She has been part of 45 family related assessments.
• She considered the Maximum Contact Principle when considering the best interests of the children. She considered the children’s views and preferences and the other relevant factors in determining what is in a child’s best interests.
• In the report, she recommended that Ms. Diaz have final say in medical and educational issues.
• A parallel parenting regime is recommended because at this time it does not seem like the parties could make any decisions together.
• The spirit of the previous order was that the parties would each be involved in the school. She is aware that Mr. MacKenzie would not let Ms. Diaz volunteer in the classroom.
• In her recommendations, if it’s a big issue, and dad objects to how mom is deciding it, the issue could go to arbitration.
• She did not have the same concern about mom excluding dad as she does with dad excluding mom from the children’s issues.
• On a few occasions, Ms. Diaz felt excluded and she had important information to give to a medical practitioner. If they cannot go to an appointment together, they should not be forced to as it is too stressful for everyone.
• In her view, the parties have very different styles. Ms. Diaz prefers to communicate more and Mr. MacKenzie prefers to communicate less.
• Ms. Diaz wanted to have more communication with Mr. MacKenzie as that would benefit the children to see their parents communicating. They could also resolve problems with the children easier by talking. Mr. MacKenzie would prefer to communicate less to avoid conflict. He believes there is less conflict if there is less communication.
• Her recommendations basically followed a parallel parenting approach with respect to responsibilities regarding the children.
• Children generally have poor outcomes if orders are adhered to rigidly.
• There still should be communication between the parents about illnesses and other issues that affect the children. They should not be rigid about medical and educational issues.
• In her report, there were instances when Mr. MacKenzie did not show flexibility and in her view, he was misinterpreting the spirit of the order.
• She recommends counselling for the children and to find someone neutral to help them and the children deal with conflict.
• She thinks that the Columbian and Spanish culture is very important to foster with the children.
• She spent 75 to 90 hours of time on the report and with the family. Her focus was on the best interests of the children and all the factors that go into that, including the views and preferences of the children.
• Mateo was consistent in what he told her, no matter whether Ms. Diaz or Mr. MacKenzie brought him to the assessment. She does not always take what the children say they heard from their parents verbatim. Sometimes it is how the children interpret what is happening. The children do want to talk to their parents on the phone when they are with the other parent.
• It is in the childrens best interest to have their needs and wishes listened to. It could be stressful to them if that did not happen.
• Mateo was clear that he wanted to have overnights with Ms. Diaz more frequently.
• With her recommendations, there would be less transitions that the children would have to go through, and more quality time with each parent; therefore there would be less stress for the children and less opportunity for them to see conflict between the parents. The plan was to give both parents more quality time with the children.
• Intentional or not, Judy (Mr. MacKenzie’s step-mother) was undermining Ms. Diaz’s role with the children; Ms. Diaz had valid concerns about this, which Mr. MacKenzie minimized. She agreed that Mr. MacKenzie was concerned about lates and absences from school. He did agree or suggest as an alternative to her plan that Ms. Diaz have one overnight per week.
• Mr. MacKenzie did not have any mental health concerns about Ms. Diaz that he expressed to her regarding the safety of the children.
• She confirmed that Dr. Turvey and Dr. Nagy did not have any concerns about Ms. Diaz’s mental health. There were no mental health issues that came up for either party after the psychological testing. She consulted with Dr. Ashbourne on this specific issue. She was satisfied that she had addressed the concerns of Mr. MacKenzie about Ms. Diaz’s mental health. They did the psychological testing to rule out any mental health concerns that had been raised by both parties.
• She was satisfied of the parental capacity of each of the parents and that no mental health issues arose for either of them. She was also satisfied that Ms. Diaz could get the children to school on time.
• In her opinion, the children’s wishes and their voice being heard is an important part of this case. Their views fit together with the assessor’s view of this family and what would be best. It was an important aspect of this assessment because the children were articulate. Mateo’s need to see his mother more, and have more quality time with his father, would be met by the new schedule.
• She considered the best interests of the children in relation to the current status quo and maintaining it. She weighed the status quo with the new plan.
• She agreed that the children are doing fairly well but expressed that the children are distressed at transitions and wanted more time with mom and more quality time with dad. In her view, the landscape has changed since the final order.
• Ms. Diaz’s mental health has been stable for a long time.
• The children, given their older age, should have their wishes considered; they want more time with their mother and less transitions.
• In her view, Ms. Diaz’s mental health played a significant role in the last order. In the OCL report the attachment of each parent with the children was good then and it is good now. There were concerns set out in the OCL report with respect to Ms. Diaz’s mental health, with Ms. Diaz’s perceived permissive parenting, and the number of absences of Mateo from school when in Ms. Diaz’s care.
• Ms. Diaz was concerned about being pushed out of decisions affecting the children, including medical.
• Ms. Reddick spoke to Dr. Bennett, the family doctor. Dr. Bennett told her that Ms. Diaz usually brought the children to the appointments and that she had no concerns about when or why Ms. Diaz was bringing the children to her.
• When she was assessing the family, she was looking at the current circumstances of the family. She did not look at the full medical reports like the OCL assessor did back in 2015. She looked at a summary of the medical reports.
• She agrees that Ms. Diaz does some volunteering at the school for some activities, but she is still not volunteering in the children’s classroom. In her opinion, there is no good reason why she should not be allowed to volunteer in the classroom. She was concerned about Mr. MacKenzie not involving Ms. Diaz in volunteering at the school in the classroom.
• Because Mr. MacKenzie had final decision making with respect to the school, he prevented Ms. Diaz from volunteering in the classroom.
• She had concerns about Mr. MacKenzie not including Ms. Diaz in decision making. Because of the problem in the party’s communication, she recommended that there be parallel parenting with respect to decisions. The parties have different styles and they play out when trying to make a decision.
• She agrees that Ms. Diaz is involved in the school. She stated that Mr. MacKenzie has concerns about things that, in her view, he should not be concerned about; for example, whether or not Ms. Diaz saw Mateo on her way to work. It should not matter whether she did or did not go out of her way to see her children before school.
• Ms. Diaz’s mental health was stable in February, 2015, but she was on medication. Not needing to be on medication is important. The person is not affected by medication and they are not affected by a diagnosis of mental illness.
• She considers Mr. MacKenzie a “restrictive gatekeeper.”
• There has been a significant period of stability in Ms. Diaz’s mental health. She is not concerned that Ms. Diaz will not take the children to school on time. Ms. Diaz’s level of distress would have been very high from November, 2013 to February, 2015.
• Both parties expressed concern that the assessment would not end the conflict, as was the assessor.
• She agrees that some of the conflict at the exchanges was because Ms. Diaz wants more time and Mr. MacKenzie does not want to give her more time.
• She agrees that Mr. MacKenzie just wanted to follow the schedule in the order and that Ms. Diaz wanted the order to be changed almost from the start. The children’s needs have changed and Mr. MacKenzie has not been able to accommodate that. In her view, he should have shifted from what the order actually said. The children are in the middle of conflict and they do not want conflict
• She did recommend a parenting coordinator but the parties could not even agree on how to put that into place
• She did not find that the children have been psychologically or emotionally harmed by Mr. MacKenzie. There were concerns about how Mateo was affected by the separation and the custody conflict. As a result, there was some effect on his academic performance, and there was room for improvement
• She viewed the extreme nature of Ms. Diaz’s allegations, in her affidavits, in the context of a high conflict custody dispute
• When she spoke to Ms. Diaz, the concerns she had about Mr. MacKenzie were presented to her reasonably. Her findings in the report did not corroborate the kind of concerns about Mr. MacKenzie that Ms. Diaz set out in her Affidavits. She relied on what was both in writing and what was said to her in assessing what the party’s concerns were. Ms. Diaz has moved forward from the concerns that she expressed in her Affidavit of May, 2016, in particular.

5. Other Evidence at the Trial

[28] The additional evidence at the trial consisted of written documents, affidavits, and oral evidence of witnesses called by both Ms. Diaz and Mr. MacKenzie.

[29] The evidence given orally by witnesses, and which was also partially set out in their affidavits, can be summarized as follows:

Evidence of Dr. Natasha Yepes

• She is an ophthalmologist.
• She met Ms. Diaz through her husband.
• She is aware that Ms. Diaz had postpartum depression at one time and was diagnosed with OCD.
• She has no concerns with Ms. Diaz parenting Dr. Yepes’ children, or her own children.
• She became a close friend of Ms. Diaz in 2008 though she met her earlier than that.
• She knew she had postpartum depression but did not know all of the details.
• Her evidence in 2015 at the trial would have been the same that it is now.

Evidence of Dr. Elkin Dario Castano

• He is a physician from Columbia. He is an anesthesiologist.
• He came to Canada in 2002. He has been a physician since 2007 in Ontario. He works in Kitchener-Waterloo in two different hospitals. He is married to Natasha Yepes.
• He met Ms. Diaz and Mr. MacKenzie at the end of 2006. He knows Mr. MacKenzie but he would not call him a friend. Last time he saw him was after Clarisse was born in 2010.
• He has seen Ms. Diaz and the children many times. They are friends. When they are together they talk a lot about their children and the education of their children.
• He knows that she had postpartum depression and that she sought help for it and moved on.
• He has seen a big change in her within the three years. She is now a happy person. She is in a good place. She has done well in the last three years. She has a good network of friends.

Evidence of Dr. Ian McPhee

• He is a family doctor and also has a PhD in molecular neurobiology.
• Ms. Diaz’s practice fits into his group practice at the Guelph Family Health Organization. It is a group of doctors who work together and provide service to a number of patients. They service the other doctor’s patients when a doctor is away.
• Ms. Diaz is formally considered a “locum” and helps out seeing patients. She is one of three doctors at this location. She has a lot of university students in her practice. She also works at the Student Health Services. Ms. Diaz has a portion of the operating expenses at the location deducted from the income that his corporation pays her. All her services are billed through his medical number, but she is paid for her own roster of clients, less what he deducts for her expenses.
• Ms. Diaz works like most new grads, with a better life/work balance, and focus on physician wellbeing. Under the old system, doctors had many more patients and got burnt out.
• He was a mentor to Ms. Diaz. They met regularly to discuss how things were going, both personally and professionally.
• He has no concerns about her mental health or her functioning as a doctor. If he did, he would not send patients to her.
• Ms. Diaz has a completely different practice from him. She has a focused practice designation in cognitive therapy and psychotherapy. It is more time consuming and pays less money.
• He has seen her grow in the last few years. Her life experiences have affected her in a positive way with her practice. She has evolved.
• He has seen the children on occasion with her. They seemed healthy, happy and he had no concerns for them.
• He saw Mateo in the last six months at the practice. She brought him into the building. On one occasion he took his children to her house to have a “play date.”
• He met her regularly during the period he was mentoring her.
• He remembers the occasion when the vaccinations were not up to date for Clarisse, and she came to the clinic to get her vaccinations. There is no restriction on her being able to bring her children to the clinic.
• Ms. Diaz had to be supervised during the first two years of her practice in order to get her licence. He gave her an evaluation at the completion of his mentoring and it was positive.
• He has seen a huge change in her and a huge growth in the last couple of years.

[30] The applicant, Ms. Diaz, testified at the trial. Her evidence was also set out in several affidavits. She referred to a great deal of written evidence.

Evidence of Ms. Diaz

• She was born in Bogota Columbia. In 2002 she graduated from medical school in Bogota.
• She has her own practice in Guelph. She also works at the student health services.
• She is a general family practitioner. She also provides psychotherapy.
• She works Monday and Tuesday, 9 a.m. to 3:30 p.m., Wednesday she works in the morning and runs a clinic from 1 p.m. to 9 p.m. On Thursday she works 9 a.m. to 4:30 p.m. at the University, and on Friday she works in the clinic. She also works at the long term facility when she is “on call” certain days.
• She can move or accommodate her schedule to any new parenting schedule that the court orders.
• Presently, she does not work overnight anywhere or outside of Guelph. She does not work when she has the children.
• Her mother is involved when she has the children on Mondays, Tuesdays and Sundays usually, and also Saturday they have lunch at their mom’s.
• She and her mother speak Spanish to the children. They also speak English.
• She teaches the children about their Columbian culture. Their ancestors are both aboriginal and black.
• The children attend a Spanish language class on Saturday mornings.
• Since 2015, there has been a big change in their attitude towards their heritage. They have become very proud of their Columbian heritage.
• Prior to 2015 and prior to the separation, her husband mocked her accent, and she became ashamed of both her accent and her heritage.
• Now she is proud of her heritage and has involved the children in several multi-cultural events throughout the year, both at their school and with other Columbian friends.
• She is content to follow the recommendations of the clinic set out in the assessment.
• With respect to the final Order made in February 2015, she believed that her and Mr. MacKenzie would discuss things with respect to the children. She thought that with joint custody they would have equal participation in their children’s lives. She thought that they would have meaningful discussion and consultation before decisions were made.
• This consultation did not happen. As one example, Mr. MacKenzie did not put information on the Our Family Wizard site about the children’s appointments before the appointments.
• There were things that happened with respect to the children that she did not know about. She did not know about the time Mateo had headaches and heat stroke. Mateo was dropped off for a visit with her and she was not told that he was supposed to rest and have fluids. She did not know the children had been at camp when Mateo became sick.
• Since February 11, 2015, she has had approx. five telephone calls with her children and always on speakerphone. In her proposed Parenting Plan, she would have daily telephone calls with the children.
• She believes the children are stressed. She could set up counselling for the children.
• With respect to her being a permissive parent, she has taken three parenting courses to assist with this issue that was raised by the OCL clinician.
• At the time of trial in February, 2015, she was taking two different antidepressants. She had been diagnosed with depression and Obsessive Compulsive Disorder. She is no longer taking those medications.
• At the time of the trial, Dr. Diaz did not know she would be taken off the medications she was on, nor that she would be told that she had been misdiagnosed with OCD. She did not foresee that she would be free of depression or the diagnosis of Obsessive Compulsive Disorder. She stopped taking the medications towards the end of 2015; she was off both of them by 2016.
• She had side effects from one of the medications. It made her sluggish; it also affected her memory.
• Now that she has not been diagnosed with mental health issues, she no long feels ashamed; she has more energy and is more dynamic. She believes that she can meet her children’s needs better.
• At the time of the trial, she was stressed with respect to the separation and her husband. She was also stressed with respect to the Ontario Medical Association issues as she was trying to get licensed in Ontario.
• She manages her stresses now by practicing yoga, meditation and mindfulness.
• She had an eating disorder when she was in her teens. She was not treated or diagnosed with the eating disorder. When she was 14, in 1990, she also suffered a bout of depression
• The Physician’s Health Program told her that she could get her independent licence but she had to follow their recommendations. They recommended that she go into a monitoring program for two years and she did follow their recommendation
• She did not know at the time of trial in 2015 that she would be told that she was misdiagnosed with depression and OCD.
• She has never physically harmed her children. She is not aware that her husband has physically harmed her children. She did see him engage in “friendly slapping” before the separation.
• The OMA assigned Dr. Nagy to be the mental health clinician for the monitoring portion of her application for a license.
• Her mental health issues were discussed at length, both her past and present circumstances. Both parties had psychological testing and she agreed to that.
• At exchanges, the children notice the tension. Presently they take place at the YMCA parking lot. The children are guarded during the exchanges. They look to their father for approval. They know they have to go quickly or they will lose screen time on their electronic devices.
• The strengths of Mr. MacKenzie are that he follows structure, he is funny, he is loving and affectionate, and he is organized.
• Mateo is very smart. He is bright, verbal, and expresses himself directly, like in her culture. He is involved in karate, music, swimming and soccer. He spends time with his friends and he is compassionate with his friends. Clarisse is very smart. She enjoys social interaction with her friends; she’s involved in swimming, she is interested in paleontology and she is a reader.
• With respect to the Spanish language classes on Saturday mornings, Mr. MacKenzie does not take them to the language classes, though he has taken them in the summer.
• She believes she was functioning well at the time of trial in February, 2015. Her position at the time of that trial was that she did not have a mental health illness that would affect her ability to parent. She was on medications that stabilized her symptoms.
• Dr. Nagy found that she had no diagnosis of mental health issues. At the time of the trial in 2015, she had a diagnosis and was managing it with medication.
• She regretted agreeing to the terms in the consent order shortly after it was signed.
• There was no meaningful consultation. The telephone calls were cancelled almost immediately.
• From the beginning, Mr. MacKenzie took a rigid stance with regard to the children and her involvement.
• She believes the children are under emotional stress and that is harmful for them.
• There are decisions that the husband has made that he does not tell her about, such as doctor’s appointments, activities he’s involved them in such as a church group which she did not know anything about. She finds out about the doctor’s appointments after the appointments. She did not know about Mateo getting glasses.
• She agrees that communication problems between the parties are not new.
• The Family Wizard is not used regularly by Mr. MacKenzie to communicate with her.
• She agrees the children are healthy except for Mateo’s asthma.
• With respect to education, the communication about school is still not consistent, but Mr. MacKenzie has modified his previous behaviour.
• Each child has an Agenda and the PD days and holidays are marked. The school trips are not all marked at the beginning of the year. If the notice for a field trip or another activity comes home on a Wednesday or Thursday, she does not know about it.
• She said that things have changed since she started this Motion to Change. For example, in the last two years, Mr. MacKenzie has agreed that she could see Clarisse and Mateo for a few hours on their birthday.
• She enrolled the children in soccer but Mr. MacKenzie would not take them to practice or a game if it interfered with his time. She believes that he has an aversion to team sports because of his religion and also because the team sports might interfere with his time.
• She believes the children have been isolated and have not been permitted to talk to her for significant periods of time. There have been significant periods of time when they have not stayed overnight with her.
• She does not think Mr. MacKenzie is empathetic towards the children. She thinks the children are afraid of him and that he could possibly intimidate them.
• If she had more time with the children, she could balance the influence of Mr. MacKenzie on the children.
• Mateo knows that she has asked for more time but Mr. MacKenzie has said ‘no.’
• Mr. MacKenzie has told her that if she wants telephone calls or more time with the children, she has to “humble herself.” He said this in front of the children.

[31] Ms. Diaz’s mother testified at the trial. Her testimony was set out in an affidavit and was also given orally. In general, she has seen major changes in Ms. Diaz since February, 2015. She gave the following testimony.

Evidence of Ada Valois

• She was born in Bogota, Columbia. She has a financial degree in Finance Administration. She taught math and finance. She then took a law degree and was a lawyer for six years in Columbia before she came to Canada in 1998.
• Her heritage is mixed. Her father was black and her mother was indigenous. Their cultures were very different and she was raised in both of them. She came to Canada so her daughter would have a better life.
• She worked in numerous jobs when she came to Canada and then went to Osgoode Law School.
• At the time of the 2015 trial, she believed that Ms. Diaz suffered from depression, postpartum depression, and OCD. She was on medication for these issues. When Ms. Diaz told her that she had been misdiagnosed with OCD and that she was off medication for depression and OCD, it had a great impact on her. She felt more confident and happier.
• When Ms. Diaz was married to Mr. MacKenzie, there was no Columbian music or Spanish music played in the house; they did not visit Columbia. Ms. Diaz is now more confident about her cultural background, and has both Columbian and Spanish friends. She has seen a change in her grandchildren’s attitude towards their culture since the trial. Before the 2015 trial, Mateo did not want anything to do with Columbia or the Spanish language. Clarisse was not interested in the Columbian culture at the time of trial either.
• Now they are both involved and interested in Columbian language and culture. They celebrate special occasions for the Columbian holidays. They have an interest in Columbian soccer games.
• She and Ms. Diaz speak both Spanish and English in front of the children and to the children. The children seem proud and happy as to who they are.
• She tries to spend some time with the children each week to show them that she loves them. She wants to keep a presence in their life without interfering in their lives. She tries not to interfere with how Ms. Diaz is raising them.
• Based on her observations, Ms. Diaz disciplines the children by talking to them and explaining why she is doing something. She does not send them to their rooms. She treats the children more maturely now and gives them more freedom and independence. Ms. Diaz is more confident with the children and clear in how she addresses them and issues that arise. Ms. Diaz has adapted to the children as they have matured.
• She agreed that in February, 2015, she was going to testify at the trial that Ms. Diaz was an appropriate person to have custody of the children. She was not concerned that Ms. Diaz could not care for the children because of any mental health issues.
• The children are doing okay in school, not “great.”

[32] Mr. MacKenzie testified at this trial both by way of his affidavits filed and orally. He also referred to certain written exhibits. Mr. MacKenzie gave the following testimony.

Evidence of John MacKenzie

• After the final order, his expectation was that they would partner with the children and that things would settle down and they could try to move on. Ms. Diaz was unhappy with the order from the start. Starting in the summer of 2015, there was a request for 50/50 time. At the exchanges or early on, there was a lot of animosity.
• He and Ms. Diaz discussed the children’s issues on Our Family Wizard. As early as February 17, 2015, Mr. MacKenzie sent Ms. Diaz an email expressing that the exchanges were too emotional for the children. The exchanges have gotten better. He is at least not berated in front of the children. They are not talking at the exchanges so they cannot fight. It is calmer for the children because they are not talking and there is less stress.
• The rationale for the schedule that was developed in February, 2015, was to make sure the children could get to school on time and Ms. Diaz could have quality time with the children on the weekends. The order has been followed but has never been accepted by Ms. Diaz.
• The issue with respect to fifth weekends and PD days was a problem from the outset. There were fights about the fifth weekend all the time. Ms. Diaz asked for adjustments because of the fifth weekend problem. They did talk about it although Ms. Diaz was still unhappy when there were five weekends in a month.
• Makeup time remained contentious when special occasions overruled the regular weekend time. Ms. Diaz requested makeup time; it remains an issue of contention.
• With respect to the first summer, 2015, he misinterpreted the Court order. He agreed that his interpretation of the order was wrong; he tried to fix it right away. Since that first summer, they have basically worked it out except when there is a fifth weekend.
• He said that when Ms. Diaz complains, he has said “here’s some extra time,” whether it’s a half day or a day, but he has made the final decision on that. Christmas and other holidays are not as smooth as he would like. They start discussions about Christmas time earlier now.
• They could not agree on a parenting coordinator because they could not agree on the goals for the parenting co-ordinator.
• They alternate who attends on field trips at the school. It does not always work out because the trip doesn’t always need a parent volunteer.
• The principal has been told to duplicate the notice of a field trip. It’s also written in the agenda. Mateo’s teacher has an app on which she posts trips and other activities.
• There was a problem with Ms. Diaz wanting to see Clarisse on her birthday and he said no. Ms. Diaz attended at the school anyway which caused a problem. After this birthday problem, Mr. MacKenzie offered that Ms. Diaz could have Clarisse three to four hours on her birthday. She always had Mateo on his birthday, at least for part of it.
• Mr. MacKenzie has offered Ms. Diaz extra time on a few occasions. A day here and there.
• If the children have a medical or dentist appointment, Mr. MacKenzie does not always post it on Our Family Wizard. If it’s urgent, he doesn’t post it; he posts it after the appointment. They both make medical appointments if it’s urgent or they go to a Walk-In Clinic. If it’s a regular appointment he usually makes it during the week and he takes them. He does not like to attend at medical appointments with her. He feels “bulldozed” and she talks “doctorese;” he misses things. She is very strong in her opinion.
• They both went to the last respirologist appointment for Mateo and it wasn’t too bad. It went better than he thought it would.
• There were a great deal of school absences prior to the February, 2015 order. That has stopped since the order.
• He wants final say in medical because Ms. Diaz has “over reported” on health issues both for herself and the children.
• He has not made any major decisions since the final order, as nothing really major has come up.
• He is concerned about Ms. Diaz’s care of the children because she over report on their medical issues and her behaviour can be extreme at times. She has gone to the police a couple of times and has reported alarming concerns that she has. He does not understand why she says or does certain things. What she has said about him as a parent is so different from reality, it has caused him concern.
• Ms. Diaz sees him solely in an adversarial relationship and cannot talk about the children in any reasonable way with him. She sees him as a terrible human being and the enemy.
• They are not able to discuss anything about the children, extra-curricular activities or anything else. They just deal with the children separately when they are in their care.
• He is not opposed to the children being involved in team sports.
• He does not take the children to Spanish classes on Saturday morning in the ordinary course because he has other activities. He did take them in the summer.
• When Ms. Diaz first asked to have telephone calls with the children on evenings when she did not see the children he said “no” as it was creating stress. He did try over the summer but from his perspective, it did not work very well. The children would leave mid-call and consider it a chore. He has told the children that they can call their mom and to just let him know. He does not know why the children are not calling their mom.
• He did stop Ms. Diaz from volunteering in the school. He stopped the activity because it was creating stress and he did not think it was a good time to do it.
• After Ms. Diaz stopped volunteering in the classroom, he asked his step-mother, Judy MacKenzie, to do that. He described that as a “jerk” move. Unintentionally it was a bit of a “jerk” move, looking at it from Ms. Diaz’s perspective. It was not a good idea. He stopped Judy from going in.
• He took two parenting courses recommended by the OCL.
• His children are doing fine. Their education now is better than before the Court order in February, 2015. There are not so many absences or lates and this has helped them with their school and having friends to play with at the school. He is concerned that the children will not get to school on time. The time is fairly equal now when you consider the weekends and the actual time when they are not in school or sleeping.
• He does not really have concerns about Ms. Diaz’s mental health in terms of hurting the children or anything like that. After the final order, there were flags of concern
• He agreed with the assessor that Ms. Diaz could volunteer in the classroom. He agrees that since 2015 he has not authorized the school to let Ms. Diaz volunteer in the classroom. He will consent to that now.
• He does think that if she had one overnight during the week, it would result in chaos and he does not consent to that. He agrees he told Ms. Reddick that Ms. Diaz could have one overnight. He did this to minimize the risk to the children of her recommendation of two overnights.
• He does not agree to two overnights per week for Ms. Diaz in the summer, even if it does not interfere with his vacation time. He does not agree to this even though there is no school, because they have a consistent schedule now.
• He told the children that they would lose video and TV time if they took too long on the exchanges. That was not as a form of punishment, it was just because there is only so much time when they get back after the exchange.
• In 2018, there are probably a couple of words exchanged at the drop-offs. It used to be ‘thank-you’ and ‘you’re welcome.’ Now it’s only ‘thank you.’ In 2017 there were no words exchanged. In 2016, he was berated and said nothing back.
• He does not agree that the parenting coordinator should make the final decision with respect to medical decisions. The way it is now, the parenting coordinator would help mediate and if they could not agree, he has the final say on health and education.
• When he completed his Intake Form at the London clinic, his major concerns were absences and lates, longstanding mental health issues of Ms. Diaz, and permissive parenting. He quoted from the OCL report when he completed his intake report. He did not have any safety concerns for the children. He and/or his parents take the children to school five days per week. He takes the children to school three mornings a week and his parents take them two mornings a week.
• One of his concerns is that Ms. Diaz believes the children are sick when they are not. He agrees that Dr. Bennett said that Ms. Diaz has not taken the children to see her when they were not sick. His evidence of her not taking the children to school on time and for being late is as a result of the report cards prior to February, 2015. He has no other evidence. He is not satisfied that his concerns have been addressed.
• Other than on exchanges, he has seen her less than 15 times with the children since February, 2015.
• He is not aware that she has harmed the children. He has no knowledge of her parenting other than at those times.
• He still has concerns about Ms. Diaz’s mental health issues even after receiving Dr. Nagy’s report. He agrees that the London Health Clinic found that neither he nor Ms. Diaz had mental health issues.
• He has no evidence that Dr. Nagy is wrong about the fact that Ms. Diaz was misdiagnosed with OCD. He has no evidence to the contrary that she has no mental health issues today.
• In February, 2015, he agreed with the assessment of the OCL with respect to her mental health issues and it affecting her ability to care for the children full time. His belief is that she is not at high risk today. He cannot say that she is at no risk.
• He agrees that Ms. Diaz has no mental health issues that affect her parenting. He is unsure if she has mental health issues generally.
• He has not called the police since February, 2015, to enforce the terms of the order. He is not prepared to delete the police enforcement clause. He agrees Ms. Diaz has not withheld the children. He does not want to change this paragraph because he wants the court order to stand.
• He still feels he would be bulldozed at medical appointments, but he would go together with Ms. Diaz. He agrees that she can understand the children’s health problems better than him.
• Because she was on medication at the time of the trial in February, 2015, she did not have mental health issues that affected her ability to look after the children.
• He agrees that paragraph 2 in the final order, which sets out they are to share joint custody, is different than para 4 which sets out the meaningful discussion and consultation requirement. He does not recall what joint custody meant back them. Today he would say it means make decisions in the children’s lives together.
• He does not accept that he had been rigid with respect to the enforcement of the Court order. He would call it “consistent.” He believes it is in the children’s best interest to stick to the Court order.
• His first interpretation of the Court order was that if a summer had nine weeks, he would have six weeks, Ms. Diaz would have three weeks. Ms. Diaz could have the Wednesday if he was in the city during his six weeks.
• He agrees he might have more quality time if the weekends were shared but he asked for the weeknights to not be overnights to ensure the children got to school on time and that they went to school.
• He agrees that sometimes his language is dismissive on Our Family Wizard. He would leave the conversation to avoid fights. He agrees that sometimes the content of his comments would be frustrating to Ms. Diaz.
• He still thinks that Ms. Diaz is a permissive parent based on what the children say to him.
• He agrees that the assessor said that they have similar parenting approaches. He has no other evidence. He has not seen her with the children.

Evidence of Judy MacKenzie

• She is married to Mr. MacKenzie’s father. They came to Guelph from British Columbia in 2011 to help with the children so Ms. Diaz could go back to medical school. They stayed with Ms. Diaz and Mr. MacKenzie from the summer of 2011 to the spring of 2012. There were tensions in the house and they got progressively worse. They got their own place in November, 2012. At the end of January, or early February, 2015, they moved to Guelph and lived with Mr. MacKenzie and the children in his house. After February, 2015, Mr. MacKenzie was the primary caregiver. They took the children to school in the morning and picked them up after school every day while Mr. MacKenzie was at work.
• This was a good thing to happen as the children got to school regularly and on time.
• A few times when she has taken the children to school, there were confrontations with Ms. Diaz. The majority of the times that they dropped on the children, Ms. Diaz would be there. She also saw Ms. Diaz at the open houses and at some of the Christmas concerts.
• She found Ms. Diaz to be confrontational. She called her “Judy” instead of “Grandma” and she thought that this was disrespectful.
• Sometimes Ms. Diaz would take Clarisse into the school and not tell her she had done that.
• She felt like she was being bullied and she felt like she was treated as if she had no right to be there.
• She does not take them to school much anymore. Mr. MacKenzie’s father, Bailie, takes them to school. She goes once in a while when Clarisse asks her.
• She did not express any concerns about the children. She thinks that they are doing great. They are more relaxed and less anxious.

6. Conclusion re: Evidence at the Trial

[33] For reasons that will become clear, I was not surprised or shocked by any of the evidence at this trial given by the parties or the witnesses they called.

[34] It is unnecessary to discuss or analyze the 300 plus paragraphs in Ms. Diaz’s original Affidavit in support of her Motion to Change, or her lengthy subsequent Affidavits. Nor do I need to analyze the almost 200 paragraph Affidavit of Mr. MacKenzie filed in response.

[35] There was voluminous exhibits filed by the parties; the paperwork, the reports and exhibits were staggering. In this trial, most of these documents were non-controversial, and had little to no impact on the result.

[36] As set out in my decision below, the issues in this trial are not complex. As with most family law litigation, it is the personality of the parents that drives the litigation and the conflict.

The Legal Framework for a Motion to Change: Test

1. Statutory Foundation

[37] Ms. Diaz’s Motion to Change applies to both custody and child support. A variation in the existing custody order, which affects the residence of the children with the parties, would invite a variation in the support order. A change in where the children live, and for how long they live with each parent, would likely be a material change in circumstances, which would warrant a variation in the current child support order.

[38] Section 17 (b) of the Divorce Act provides that a court may make an order varying a custody order. This section sets out several factors for the court to consider when deciding such an application.

[39] Paragraph 17(5) of the Divorce Act provides:

(5) Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change

(9) In making a variation order varying a custody order, the court shall give effect to the principle that a child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child and, for that purpose, where the variation order would grant custody of the child to a person who does not currently have custody, the court shall take into consideration the willingness of that person to facilitate such contact.

[40] The statutory framework provides that the onus is on the moving party to satisfy the court that there has been a material change in the condition, means, needs or other circumstances of the children, since the making of the original order. If that threshold test is met, the court shall consider only the best interests of the children in making the variation order.

2. Jurisprudence

[41] There were numerous decisions filed in the parties’ material dealing with what is a material change in circumstances with regard to an application to vary a custody order.

[42] The Supreme Court of Canada in Gordon v. Goertz, [1996] S.C.J. No. 52, 19 R.F.C. (4th) 177 (S.C.C.) sets out the test as follows at paragraphs 12 and 13:

12. What suffices to establish a material change in the circumstances of the child? Change alone is not enough; the change must have altered the child's needs or the ability of the parents to meet those needs in a fundamental way: Watson v. Watson (1991), 35 R.F.L. (3d) 169 (B.C.S.C.). The question is whether the previous order might have been different had the circumstances now existing prevailed earlier: MacCallum v. MacCallum (1976), 30 R.F.L. 32 (P.E.I.S.C.). Moreover, the change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order. "What the court is seeking to isolate are those factors which were not likely to occur at the time the proceedings took place": J. G. McLeod, Child Custody Law and Practice (1992), at p. 11-5.

13. It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which materially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.

[43] The determination of whether the threshold test has been met, and if it has, what is in the best interests of the children, will of course depend on the facts of each case.

[44] Other decisions are instructive as to how Judges have applied both the threshold test, and determined what is in the children’s best interest. It is the whole of evidence that was before me that of course drives my decision.

Position of the Parties

Ms. Diaz

[45] Ms. Diaz’s counsel submitted that the jurisprudence may be summarized as the applicant having the onus to demonstrate a material change in circumstances that was not known at the time or reasonably foreseeable at the time of the original court order. The evidence at trial, including the assessment, supports Ms. Diaz’s submission that it is the best interests of the children that they spend equal time with each parent, and that final decision making be divided between the parents.

[46] Ms. Diaz’s position is that her mental health has improved in a material way, since the order made on consent in February, 2015, and that this change was not foreseen at the time of the order. Further, Ms. Diaz’s parenting capacity, and in particular her discipline of the children, or whether she would take the children to school on time, on the evidence has improved. There is no medical or other evidence from Mr. MacKenzie to contradict the evidence of Ms. Diaz on these issues. There are also the clearly stated wishes of the children to see their mother more often. Lastly, there was the evidence that Mr. MacKenzie has not supported the existing joint custody order, and in fact has maintained a rigid interpretation, and on several occasions he has acted as if he has sole custody of the children.

[47] Ms. Diaz offered other evidence to support her Motion to Change, however, these are the main grounds, and the ones that this decision focuses on.

[48] Ms. Diaz’s counsel gave several examples in Mr. MacKenzie’s testimony which he submits demonstrate that Mr. MacKenzie is not a reliable witness and that he “makes it up” as he goes along. Counsel submits that Mr. MacKenzie’s testimony was directed to putting himself in the best light possible to the court, causing him to deny obvious suggestions put to him; he was evasive and non-responsive to Ms. Diaz’s counsel in answering numerous questions.

Mr. MacKenzie

[49] Mr. MacKenzie’s position is that Ms. Diaz and her witnesses would have testified at the trial in February, 2015 that Ms. Diaz was a capable parent and stable enough to care for the children. Even the medical evidence of Dr. Upfold, Ms. Diaz’s then psychiatrist, stated that as of February, 2015, he did not have any concerns in regard to Ms. Diaz’s capacity to parent her children.

[50] Mr. MacKenzie’s counsel conceded there were issues in regard to Ms. Diaz’s mental health in February, 2015, but that this did not mean she was not capable of caring for her children.

[51] The position of Mr. MacKenzie is that there were other important reasons set out in the OCL report as to why the clinician recommended that Mr. MacKenzie should have sole custody of the children, such as Ms. Diaz making unilateral decisions at the time of the separation which were not in the children’s best interests.

[52] Mr. MacKenzie’s position is that there has not been a material change in the mental health of Ms. Diaz since the date of the final order which warrants a change in the order.

[53] Mr. MacKenzie submits that there have not been any major decisions with regard to the children since the time of the final order, about which he and Ms. Diaz had to reach an agreement. The parties have agreed to many things affecting the children and have both been involved in their health, dental and school issues.

[54] Mr. MacKenzie submits that the needs of the children are being met and all the evidence at trial indicates the children are doing well. Counsel agreed that sharing of information has sometimes been a problem, but that lack of information sharing has been by both parents.

[55] Mr. MacKenzie submits that one of the problems with the alleged “failure” of the existing order, is that Ms. Diaz never accepted the terms from the outset; she sought to change the time-sharing immediately and set out to sabotage the implementation of the terms of the order.

[56] Mr. MacKenzie’s position is that the concerns of Ms. Diaz as to how well the children are doing, is problematic. The assessment did not support the extreme and alarming concerns of Ms. Diaz about the children in Mr. MacKenzie’s care, as set out in her original Affidavit in support of her Motion to Change.

[57] Mr. MacKenzie submitted that the court should be concerned that Dr. Nagy’s reports, as to Ms. Diaz’s current mental health status, are based entirely on self-reporting by Ms. Diaz to the psychiatrist.

[58] In summary, the position of Mr. MacKenzie is that there has not been any material change in circumstances affecting the needs of the children that was not reasonably foreseeable at the time the final order was entered into in February, 2015. The court should also have no concerns about the children and how they are doing under the current regime.

Findings of Fact

1. Threshold Test

[59] There can be no dispute that the mental health issues of Ms. Diaz have changed since the time of the consent order made in February, 2015. Although Mr. MacKenzie’s counsel tried to negate the impact of the change in Ms. Diaz’s mental health as the basis for a material change in circumstances, I reject that argument.

[60] The evidence at the time of the original order was that there were serious concerns about Ms. Diaz’s past, ongoing, and future bouts of depression. Ms. Diaz was diagnosed with depression and OCD, and was on medication to manage both. The investigator completing the OCL Report stated clearly that she viewed the mental health issues of Ms. Diaz, and possible relapses in the future, to be a major concern and one of the significant reasons to give Mr. MacKenzie sole custody of the children.

[61] The fact that Ms. Diaz and her witnesses in February, 2015, asserted that she was capable of parenting her children despite her mental health issues, does not detract from her having a mental health diagnosis at that time for which she was taking medication.

[62] The uncontroverted evidence at this trial is that Ms. Diaz does not have any ongoing mental health issues; she is not on any medication at this time for mental health issues. Further, there was compelling evidence that Ms. Diaz may have “over reported” her symptoms to her healthcare providers, and as a result may have been misdiagnosed prior to the trial in February, 2015.

[63] The other 2 minor issues that the OCL investigator was concerned about at the time of the original order, namely, Ms. Diaz’s permissive parenting style, and the number of Mateo’s school absences when in Ms. Diaz’s care, have been addressed by Ms. Diaz. She has taken several parenting courses and is, according to the evidence, a better, more effective parent. Although the children are not generally with Ms. Diaz overnight during the school week, on the occasional days when they are, there are no reported excessive absences of the children.

[64] There was no contradictory medical evidence which would cause me to question the expert opinion of Dr. Nagy, in particular, as to Ms. Diaz’s current mental health status. There is also the evidence through the assessors, and from Ms. Diaz’s current family doctor, that there are no mental health issues exhibited by Ms. Diaz. Lastly, the results of the psychological testing done as part of the assessment process, and the assessor’s view herself, all support the conclusion that Ms. Diaz is in a very much improved state with regard to her mental health.

[65] There was no evidence presented that this positive diagnosis will change in the future.

[66] I am satisfied that the evidence discloses there has been a material change in the condition, means, needs or other circumstances of the children as defined in Gordon. Ms. Diaz’s ability to meet the needs of the children has altered in a fundamental way.

[67] I am further satisfied that this significant change in Ms. Diaz’s mental health could not have been foreseen or reasonably contemplated by the parties when they arrived at the terms of the consent order. The evidence in February, 2015, was that Ms. Diaz was on medication for what was believed to be a long-term mental health problem, that would always be present, and which could be exacerbated by “life stressors” in the future.

[68] Lastly, since the time of the court order, the children have expressed both to the parties, and during the assessment process, a wish to spend more time with their mother. The children stated that they want the time-sharing with their parents to be more “fair.” The children are now 8 and 10, as opposed to 5 and 7 at the time of the current order. They have a voice, and, Mateo in particular, made that voice heard through the assessment process.

[69] I am satisfied that the above two circumstances, in particular, satisfy the test for a material change in circumstances that was not foreseeable, or reasonably contemplated, at the time of the earlier trial.

2. Best Interests of the Children

[70] Since the threshold test has been met, I must now consider the issue of what is in the children’s best interest afresh. As set out in paragraph 17 of Gordon:

17. The threshold condition of a material change in circumstance satisfied, the court should consider the matter afresh without defaulting to the existing arrangement: Francis v. Francis (1972), 8 R.F.L. 209 (Sask. C.A.), at p. 217. The earlier conclusion that the custodial parent was the best person to have custody is no longer determinative, since the existence of material change presupposes that the terms of the earlier order might have been different had the change been known at the time. (Willick v. Willick, supra, at p. 688, per Sopinka J.) The judge on the variation application must consider the findings of fact made by the first judge as well as the evidence of changed circumstances (Wesson v. Wesson, supra, at p. 194) to decide what custody arrangement now accords with the best interests of the child. The threshold of material change met, it is error for the judge on a variation application simply to defer to the views of the judge who made the earlier order. The judge on the variation application must consider the matter anew, in the circumstances that presently exist.

[71] I want to start by stating that on the evidence before me, both of these parents are perfectly adequate parents, both of them love their children deeply, and they are loved by their children. As with most parents in our society, these parents each have their strengths and their weaknesses.

[72] The evidence discloses that these parties, like many couples, are complete opposites. They communicate and express themselves in very different ways. Unfortunately, neither of the parties have been able to work with those differences to communicate better for the benefit of their children.

[73] The evidence clearly disclosed that both of the parents have made mistakes both with regard to parenting and how they dealt with each other. There were several examples of Mr. MacKenzie’s rigidly following his interpretation of the existing court order which excluded Ms. Diaz from both appropriate activities and time-sharing with the children. This was a mistake. Ms. Diaz on the other hand asserted herself, and interfered with Mr. MacKenzie’s decision-making and his time with the children, because she wanted to be more involved in the children’s lives. This was also not helpful to either the relationship between the parties as parents, or to the children to be stress-free.

[74] The witnesses at the trial, in their Affidavits, and orally, described the parties pretty much as they did themselves in the material and on the stand. The parties both tried to present themselves to the court in the best light possible. The parties were not always as forthright and candid as they could have been. There is nothing unusual or manipulative about that, when the stakes are this high, people’s children. Such positive posturing is understandable and put in context by the court.

[75] There was no evidence, either through the parties or their witnesses, that caused me to reject either parties’ testimony outright. Nor was there any evidence that caused me to be concerned for the welfare of the children while in the care of either parent.

[76] There was some evidence that the step-mother, Judy, has been over-involved in the care of these children. There have been some difficulties between Judy and Mateo in particular. There is nothing unusual or alarming about this evidence. Judy appears to have retreated a bit from being “over-involved” with parenting the children and this is a good thing.

[77] Ms. Diaz’s original Affidavit contained numerous alarming allegations about Mr. MacKenzie and about the harm his behaviour was causing the children. Ms. Diaz did not pursue most of these issues with the assessors nor at trial. I have considered her allegations in context. Litigants often exaggerate at the front-end of custody litigation in particular. The assessor dealt with this issue specifically and was not concerned. Neither am I.

[78] This custody trial, as with many others, showed the court two loving parents, each with flaws, but perfectly capable of caring for two children who both love them equally.

[79] A comprehensive custody and access assessment, the results of which have been set out above, found that the children would benefit from being with each of the parents 50% of the time. The basis for that recommendation is also set out above in the summary of the assessor’s testimony.

[80] The court cannot delegate its decision as to what is in the children’s best interests to a third party and simply implement an assessor’s recommendation; that would be a legal error.

[81] I can rely on the recommendations of the assessor, and the basis for them, along with the rest of the evidence at this trial, in arriving at my own determination of what is in the best interests of the children.

[82] I am satisfied, having considered all of the evidence, that the best interests of the children would be served by spending an equal amount of time with each parent. There is simply no good reason why the recommendations of the assessor as to the time-sharing, along with the expressed wishes of the children, should not be accepted as being in the children’s best interests.

[83] I am not concerned about Ms. Diaz’s mental health issues adversely affecting the children by this order. Realistically, the time-sharing change in this order is not that dramatic. Mr. MacKenzie himself advised the assessor he was prepared to give Ms. Diaz one overnight visit with the children during the week, instead of the 2 overnight’s the assessor recommended. I am simply giving one additional overnight during the week to that proposed by Mr. MacKenzie. The residence change in this order also allows Mr. MacKenzie to have more quality time with the children by giving him more weekends. The time after school on Monday and Tuesday is changed by this decision to being overnights instead of just for the evening. The parties will now share alternating weekends and holidays. The summer will be shared on a week about basis.

[84] I accept that some of the decision-making will have to be divided between the parties because of their current inability to effectively communicate with each other.

[85] The suggested draft order of Ms. Diaz, with the extensive parenting terms included, may be appropriate terms for parties to negotiate and put into a parenting agreement. It is not appropriate to “force” co-operation on non-communicating parents, by making an order incorporating such terms. I have not included in my decision, provisions which accentuate the communication difficulties and impose co-operation where there is presently little to none.

[86] I am not setting out every possible issue that will arise and provide a solution. These parties will simply have to talk and work out some of their children’s issues themselves. I have made an order that has less exchanges and involves less possibility of friction. I can do no better than quote Hood, J. in Anderson v. Monan, 2017 ONSC 2112, when he wrote at paragraph 94:

[94] At some point the parties have to take some responsibility rather than relying upon the court to do what they should be able to do themselves. This also applies to the question of Face Time and telephone calls between the children, M.A. and N.M. and between the children themselves on holidays, birthdays and Mother’s Day. I will not order these to take place. The court can only go so far in giving direction. It is an impossible task for the court to delve into the minutiae of day-to-day living and to tell parties how to behave and in effect make orders compelling grown-ups to act as such. At some point the court has to become less of a crutch for the parties. There is also the risk that the more the court is asked to make detailed orders the more the parties will find a way to have something else to fight over and to cast blame on the other.

[87] I have not put a provision that the parties must use Family Wizard to communicate, though they can agree to do so.

[88] I might have been prepared to discontinue the existing joint custody order because of the jurisprudence which sets out that, where the parties cannot communicate, a joint custody order ought not to be made in the “hope” that they will learn to communicate. However, there are two facts here which are relevant:

1. Ms. Diaz’s motion to Change requests that the joint custody order continue with different residential time-sharing and decision-making between the parties; and
2. Mr. MacKenzie’s Response requests that the existing joint custody order continue with the residential terms and final decision-making remaining the same as in the court order.

[89] No one sought an order for sole custody, and therefore I decline to change that aspect of the existing order.

Child Support

[90] The financial evidence at the trial as to the parties’ incomes, particularly Ms. Diaz’s, was not satisfactory. The time left to deal with the financial matters was also very limited, given the total time allotted for this trial that went to the end of the trial sittings. The lack of financial disclosure was primarily because of incomplete and late disclosure by Ms. Diaz as to, among other issues, her total income from several different sources. Mr. MacKenzie at trial did not really deal with his own financial issues fulsomely. He simply agreed to an imputed income for himself, upon which child could should be based.

[91] My decision provides for shared parenting; s. 9 of the Child Support Guidelines is applicable. The court should not default to a straight “set-off” formula (s. 9(a)) to determine what support should be paid by the higher income-earner, although parties regularly agree to this formula. On the other hand, Ms. Diaz completed a children’s budget, but it was not dealt with at trial. Mr. MacKenzie set out some s. 7 expenses in his financial statement.

[92] The evidence for the court to do any sort of s. 9 (b) or 9 (c) analysis was simply not put before the court, nor argued at the time of trial.

[93] There is no reason why the parties cannot reach an agreement with regard to what child support should be payable now that the time-sharing is decided. The parties have already spent a great deal on legal fees and I am confident the parties will reach an agreement on the child support issue with some effort and compromise on their part. This agreed amount can be inserted into the order and sent to me for signing. If the parties cannot agree on a child support order, I have set out that a one day hearing can be arranged to present evidence and argument on this issue.

Decision

1. Rationale

[94] When the trial was completed, I addressed the parties with regard to what I saw as the major problem facing their children, which was the two of them. I did not make these comments to diminish either of the parents personally, but to try to bring home to the parents how immediate and urgent the problem is that they cannot communicate, nor problem-solve effectively in the best interests of their children.

[95] I have made a change in the amount of time the children spend with each parent, so it is now equal. But as I said at the end of the trial, it is not the time-sharing that will fundamentally shape how these children will make their way in the world, it is the actions of each of them, and how they treat each other that will impact on their children as they grow to be adults.

[96] The children are now 8 and 10. They have been experiencing conflict following their parents’ separation, for almost 5 years. That is too long. The parents are the only people who can stop the children feeling stress. Each of them has to figure out their role in the “dance” they have been engaged in both before and after separation, and which has been contrary to the best interests of their children. It is the constant stress of non-communication and/or poor communication between these parties that will have the most negative impact on their children. The evidence was that there are virtually no words exchanged between the parties in front of their children. That is not healthy role-modelling for the children they love and who love them.

[97] This is likely the last opportunity, before the children enter their even more challenging pre-teen years, for the parents to improve their communication with each other. Good parents do their own personal work, and stop focusing on the “other” in order to make positive changes in their children’s lives.

[98] This order recognizes there are at present some communication differences. It does not accept those differences cannot be rectified by the parents in the future.

[99] I have therefore not involved third parties as much as the assessor has recommended, nor as set out in Ms. Diaz’s Parenting Plan. Many of the terms set out in the proposed Parenting Plan and the draft order stipulate visits and phone calls with the children while with the other party; I have left out such terms intentionally. The parties can always chose to agree to something different and allow for contact that I have not specified. It is up to them.

[100] Further, I have deliberately not divided up all the long week-ends in a year. I did so to avoid more exchanges and more arguments. As in other court orders, it is understood that these long week-ends generally “even out” over a number of years, and each of the parents gets a fair share of the long weekend’s over time.

[101] I have provided for a week-about during the summer to avoid discussion, disagreement, and exchanges, about holidays, camps, activities. The parties can arrange all these activities for the week they have the children.

[102] Lastly, I have not set out the holidays related to the Spanish heritage, programs, holidays and activities. Unless Mr. MacKenzie agrees otherwise, the children will participate in such activities when they are with Ms. Diaz.

[103] I have not included many of the proposed terms from either the draft Parenting Plan or the assessment. These parties will simply have to determine some of these issues as they arise. If I have not provided for something that was in the draft Parenting Plan, I have left a term out intentionally. I have considered all the proposed terms in arriving at this order.

[104] The new residential terms shall commence the Tuesday following the Labour Day weekend, being the first day of school. The parties, unless they agree otherwise, shall continue with the current schedule until that date. The week about for the summer shall commence in the summer vacation of 2019.

2. Terms

1. The parties shall have joint custody of the children of the marriage; namely Mateo MacKenzie, born May 15, 2007, and Clarisse MacKenzie, born May 27, 2010.
2. The children shall reside with the parents as follows: i. With Ms. Diaz, from 9:00 a.m. each Monday until Wednesday at 3:00 p.m. or after school. Pick-up’s and drop-off’s to be at the school; ii. With the Mr. MacKenzie, each Wednesday at 3:00 p.m. or after school until Friday at 3:00 p.m. or after school. Pick-up’s and drop-off’s to be at the school; iii. Alternative weekends from Friday at 3:00 p.m. or after school to Monday at 9:00 a.m. Drop-off’s and pick-up’s to be at the school; iv. This schedule shall commence Tuesday, September 4, 2018, unless the parties agree otherwise. The current schedule shall continue until that date.

[105] Unless the parties agree otherwise, when there is no school for pick-up or drop-off, the transfers shall be at the YMCA at 130 Woodlawn Glenn Drive in Guelph.

[106] The parties shall have holidays as follows:

(a) The long weekends (holidays or P.D. days) throughout the year, including Easter, Thanksgiving, Victoria Day, Family Day and the summer months, shall be spent with the parent who has the child that weekend, with no make-up times to the other parent for the extra day;

(b) March break with each parent in alternate each years, commencing with Mr. MacKenzie in 2019 and each odd numbered year thereafter, and with Ms. Diaz in 2020 and each even numbered year thereafter;

The time shall start with pick-up after school on the Friday before March Break, and finish on the Monday before school after March break. Pick-up’s and drop-off’s to be at the school;

The alternating weekends shall start after the March Break commencing with the party who did not have March Break;

(c) The summer break shall be from the last day of school classes to the 1st day classes resume. The parties shall have the children on a week about basis throughout the summer break. The party who has the 1st weekend after the last school class pursuant to the regular schedule shall have the 1st week of the school break from the last day of school up to the following Friday. This first period may be longer than 7 days. This 1st period of summer holidays will alternate each year. The weekly schedule will be from a Friday at 3:30 to a Friday at 3:30, with pick-up and drop-off to be at the YMCA as above. This schedule shall commence in the 2019 summer break;

(d) The parties may schedule camps, (including overnight camps) or other activities, only during the times the children are with them, unless the other party agrees otherwise. The consent of the other party is not necessary if the camp/activity is scheduled solely during the time the children are with them. The parent enrolling the child shall be solely responsible for the cost of the camp/activity;

(e) If either party plans a vacation with the children outside of Ontario or Canada, they shall provide the other party with a short itinerary and contact numbers for any emergencies. If a period longer than 1 week is required for a trip, the schedule shall be adjusted to accommodate the trip and make-up time for the parent who lost time shall be provided;

(f) The parties shall share the Christmas break equally as follows:

The children will reside with Mr. MacKenzie for the first half of the Christmas Break in odd-numbered years and the last half of the Christmas Break in even-numbered years, and with the Ms. Diaz for the first half of the Christmas Break in even-numbered years and the last half of the Christmas Break in odd-numbered years. The first half will start after school on the children’s last day of school in December and end at noon on the date that is the half way point of the Christmas Break. The second half will start at noon on the date that is the half way point of the Christmas Break and end on the Friday prior to the first day of school at 3:00 p.m. in January, then the regular schedule will resume.

(g) Regardless of the Christmas Break Schedule set out above, the children will reside with Mr. MacKenzie on Christmas Eve/Morning at 9:00 p.m. until Christmas day at 2:00 p.m. and with Ms. Diaz from 2:00 p.m. on Christmas day until 8:00 p.m. on Boxing Day in odd-numbered years, and with Ms. Diaz on Christmas Eve/Morning at 9:00 a.m. until Christmas Day at 2:00 p.m., and with Mr. MacKenzie from 2:00 p.m. on Christmas Day until 8:00 p.m. on Boxing Day in even-numbered years.

(h) The children will be with Mr. MacKenzie for Halloween in odd-numbered years and with Ms. Diaz in even-numbered years, from their leaving school or 3:00 p.m. until 9:00 p.m., unless Halloween falls with the parent who has the children that night in which case, that parent shall have the children overnight.

(i) Arrangements for other significant days. There will be no make-up time for any extra time this paragraph provides:

i. Mother’s Day and mother’s birthday:

If the children are not otherwise with Ms. Diaz on this weekend, the children will reside with Ms. Diaz on Mother’s Day weekend, from Saturday at 6:00 p.m. until their return to school on Monday. If not with Ms. Diaz, the children will spend with Ms. Diaz her birthday (October 3rd) from 3:00 p.m. or after school until 7:30 p.m.

ii. Father’s Day and father’s birthday:

If the children are not otherwise with Mr. MacKenzie on this weekend, the children will reside with Mr. MacKenzie on Father’s Day weekend, from Saturday at 6:00 p.m. until their return to school on Monday. If not with Mr. MacKenzie, the children will spend with Mr. MacKenzie his birthday (January 7th) from 3:00 p.m. or after school until 7:30 p.m.

(j) Both parents may attend all of the children’s special events outside the school, except school trips which are dealt with separately, whether at the school or anyplace else. Both parents may participate in the parent volunteer programs at the children’s school (i.e. in-class parent volunteer). Regardless of the schedule:

i. Both parties may attend all school functions;

ii. The parties may attend parent-teacher meetings individually or together, if both parties consent;

iii. Each party will obtain his or her own school calendar and school notices; and

iv. With respect to school field trips or classroom events, the parties will alternate attendance. If one party is unable to attend, that party will immediately notify the other party, who may attend instead.

(k) The parties may each attend extracurricular activities regardless of the schedule;

(l) Neither party will arrange activities for the children during the other party’s parenting time without the other party’s consent;

(m) The parties shall advise the other if the children are in the care of a third party for more than one overnight and advise who the third party is. If a party cannot care for the children pursuant to the schedule for more than 2 overnights, they shall advise the other party and give them the opportunity to care for the children. If the other party cannot care for the children, it is the responsibility of the scheduled parent to do so and be financially responsible to do so. There shall be no make-up time for any requested schedule change.

(n) Mr. MacKenzie shall be responsible for the dental care of the children. He shall make each regular dental appointment during his scheduled time with the children. Mr. MacKenzie shall advise Ms. Diaz after the appointment that it took place. He shall also advise if there are any problems with the children’s teeth. The parties shall make any major decisions about the dental care of the children jointly after consultation and guidance by dental professionals. If the parties are unable to agree, Mr. MacKenzie shall have final decision-making with regard to this issue;

(o) Ms. Diaz shall be responsible for the regular, medical health care of the children. She shall arrange these appointments during her scheduled time with the children. Ms. Diaz shall advise Mr. MacKenzie after the appointment that it took place. She shall also advise if there are any medical problems with the children as a result of the appointment. Ms. Diaz shall have possession of the children’s health cards. She shall deliver the health cards to Mr. MacKenzie when he takes the children on a trip outside the City of Guelph greater than for 48 hours. He shall deliver the health cards to Ms. Diaz after the trip is completed. The parties shall make any major decisions affecting the health of the children jointly after consultation and guidance by healthcare professionals. If they are unable to agree, Ms. Diaz shall have final decision making with regard to this issue;

(p) The parties shall each be responsible for medical or other emergencies that occur during the time the children are with them. The party who has the children at the time of the emergency, shall immediately notify the other parent of the emergency and where the child is;

(q) The parents may involve the children in their own religions and take them to church services and at services or activities while the children are with them;

(r) The parents shall make decisions with respect to school jointly. The parties shall be guided by the advice of the education professionals. If the parties cannot agree on education decisions, Ms. Diaz shall have final decision-making with regard to this issue;

(s) Mr. MacKenzie shall maintain up to date passports for the children. Mr. MacKenzie shall forthwith deliver the passports to Ms. Diaz for any trips she needs them for when travelling with the children. Ms. Diaz shall forthwith return the passports to Mr. MacKenzie when the trip is completed. The parties shall provide any written consents to the other for travel as requested.

(t) The children may phone the other parent at any time they are not residing with that parent. The parents may phone the children when they are with the other parent provided such calls do not interfere with the meals or other activities of the children while with that parent.

(u) The permanent residence of the children shall not be changed from the City of Guelph without the written consent of the other parent or a court order.

[107] The parties shall attempt to reach an agreement with regard to child support and incorporate same in this order. If they are not able to reach an agreement within 20 days, they shall contact the trial co-ordinator to set up a 1 day trial before me, to submit any further evidence, and make submissions on this issue.

[108] If the parties are unable to reach an agreement with regard to costs, they shall provide written submissions (after the child support issue is either agreed to or decided by me) as follows:

1. Applicant to serve and file written submissions within 20 days. Submissions to be 5 pages or less and include a Bill of Costs and any offers if claiming costs.
2. Respondent to have 20 days to serve and file written submissions in response to the applicant’s submissions. Such submissions to be 5 pages or less and include a Bill of Costs and any offers, if claiming costs.
3. The applicant shall have 10 days to serve and file reply to respondent’s costs submissions to be 2 pages or less.

Justice Mossip

Released: August 15, 2018