Court File and Parties

Court File No.: FS-15-20271-0000 Date: 2018-08-01 Ontario Superior Court of Justice

Between: Douglas Edward (Ted) Cuthbert, Applicant – and – Kristine Nolis, Respondent

Counsel: Mr. Cuthbert, on his own behalf Sandra J. Meyrick, for the Respondent

Heard: September 11, 12, 13, 14, 15, 18, 19, 21, 22, & 23, 2017

R.F. Goldstein J.

Reasons for Judgment

[1] Ted Cuthbert and Christine Nolis have two young children together. Their children are Grant (the older child) and Kiara (the younger child). Mr. Cuthbert and Ms. Nolis never married. They lived in a common law relationship when the children were born. They separated when the children were young.

[2] Ms. Nolis loathes Mr. Cuthbert. She feels he was a selfish partner when they were together views him as an incompetent and even dangerous parent now. Mr. Cuthbert loathes Ms. Nolis right back, although he does a better job of concealing his loathing. He clearly feels that Grant feels is unfairly influenced by Ms. Nolis. He blames her for preventing him from spending more time with his children. They both have a point.

[3] Ms. Nolis is the custodial parent. Mr. Cuthbert has access to the children Wednesday evenings and every other weekend. He wants more access, until he eventually has the children 50% of the time. He also wants joint custody. The key issue in this case is whether new custody and access arrangements are in the best interests of the children.

[4] Ms. Nolis essentially argues that Mr. Cuthbert is unfit to be a parent. Regrettably, if Mr. Cuthbert is unfit, than she is no less unfit. As I will explain, she appears to have exaggerated an allegation of sexual abuse against Mr. Cuthbert in relation to their daughter and has set up her own barriers to Mr. Cuthbert’s access.

[5] The conflict between Ms. Nolis and Mr. Cuthbert makes it difficult for them to co-parent. This trial was supposed to be about custody of and access to the children. It was about that, to a degree. Unfortunately, however, Ms. Nolis viewed it as an opportunity to litigate all of the real and perceived slights and hurts that have occurred throughout their relationship, both pre- and post-separation. Their families lined up and took sides. Much of it had little to do with the issues in the case.

[6] In my view, it would not be in the best interests of the children at this time to change the access arrangements but I do think Mr. Cuthbert should have the opportunity to change access to 50/50 as the children get older. I accept that it would cause too much anxiety to Grant, the oldest child, to change the arrangements at this time and that, on a balance of probabilities, that it is currently not in the best interests of the children to change it. Grant’s anxiety seems to have improved with age, however. I therefore think that Mr. Cuthbert should be able to move for 50/50 access as the children get older.

[7] I also believe that joint custody is in the best interests of the children. Despite their mutual loathing, I find that Ms. Nolis and Mr. Cuthbert are able to communicate on the essential issues when they manage to clear their heads from their obsession with the slights and hurts that they have inflicted on each other.

[8] The other aspect of this case involves a claim for back child support and back s. 7 expenses. Ms. Nolis argues that Mr. Cuthbert was deliberately unemployed and used it as an excuse to avoid paying child support. She is partially correct. Mr. Cuthbert was deliberately unemployed for part of the time he lacked a job.

[9] For the reasons that follow, Mr. Cuthbert’s application for expanded access is dismissed, without prejudice to his right to bring a further application after the expiry of another year. His claim for joint custody is allowed. Ms. Nolis’s application for retroactive child support and s. 7 expenses is partially granted. Her application for a change of name is also allowed.

Background

(a) The Relationship

[10] Mr. Cuthbert and Ms. Nolis began living together in October 2010. They never married. At that time Ms. Nolis was five months pregnant with their first child, Grant. Grant was born on March 11, 2011. Kiara was born two years later, on February 3, 2013.

[11] Ms. Nolis is 45 years old and has worked for the Workplace Safety and Insurance Board for 21 years. She has always had stable employment and owns a home in Markham, Ontario. She is currently the custodial parent. She has had primary responsibility for the children and has made most of the decisions.

[12] Mr. Cuthbert is a year older than Ms. Nolis. He works in the financial services industry. He has had periods of unemployment. He is renting a house down the street from Ms. Nolis’s house in Markham, Ontario. When they first began cohabitating, he was unemployed but shortly after found work at Rule Financial.

[13] Mr. Cuthbert and Ms. Nolis separated in March 2014. Mr. Cuthbert testified that they tried to reconcile. He says that they finally separated in November 2014. Although or the purposes of this trial the separation date is not particularly relevant, I find that they separated as of March 2014.

[14] Ms. Nolis called much evidence about the relationship between her and Mr. Cuthbert. In her lengthy affidavit Ms. Nolis sets out the history of the relationship. She recounts Mr. Cuthbert’s many negative behaviours towards her. She has a detailed recollection of all of the examples of Mr. Cuthbert’s poor parenting and lack of involvement. She also called evidence from her friends and her parents. This evidence was designed to show that Mr. Cuthbert is moody and difficult. The evidence was also designed to show that Mr. Cuthbert was quite a poor partner to Ms. Nolis in many small ways. In her affidavit Ms. Nolis states that Mr. Cuthbert was cruel, controlling, threatening, hyper-critical of her, non-communicative, and violent at least once.

[15] In his affidavit Mr. Cuthbert stated that he and Ms. Nolis separated on March 27, 2014. He viewed it as a short-term separation and attempted to reconcile. The attempts at reconciliation failed. On November 21, 2014 he and Ms. Nolis formalized the separation. He feels that his attempts to have more access to his children have been stymied because Ms. Nolis unilaterally denies him opportunities.

[16] The accusations between Mr. Cuthbert and Ms. Nolis descended into the petty. For example, Mr. Cuthbert says that Ms. Nolis’s assertion that he went skiing five days after Kiara’s birth is incorrect. It was 19 days. Ms. Nolis’s assertion that Mr. Cuthbert came late to Kiara’s 1st birthday because he was skiing is also incorrect. He says that he arrived on time, and in fact had taken Grant skiing that day. There are other examples of that nature.

[17] Ms. Nolis testified that she has always been the children’s primary caregiver. She states that she has assumed virtually all childcare responsibilities and decision-making since the children were born. According to Ms. Nolis:

Ted’s involvement with the children was historically minimal. He was not interested in parenting. He was often not home. He was unwilling to parent when he was home. Ted generally chose his hobbies over the children’s needs. Ted’s behaviour has been controlling, volatile, and unpredictable since the children were born. The unpredictability was exacerbated with Ted’s increased stresses as a result of his disappointments in his employment.

[18] Ms. Nolis testified that Mr. Cuthbert always put his own interests ahead of the children and the family. He put no time into his family. He booked golf trips and ski trips, he stayed downtown and socialized with his friends after work, he flew his airplane to his cottage. He purchased a ski club membership. He was so disinterested in the children that he went skiing five days after Kiara’s birth. She was forced to drive to the cottage with two small children in weekend traffic while Mr. Cuthbert flew his airplane.

[19] Ms. Nolis states that after the parties separated, Mr. Cuthbert had even less involvement with the children. He peregrinated between impermanent residences, even living at his family cottage for a time. After he lost his job he dissipated his savings on his own personal pursuits, rather than financially support his family.

[20] Ms. Nolis further states that Mr. Cuthbert never had any interest in parenting, and that he more or less abandoned her with the children, especially during the period right after their separation. She states that he lived at his cottage, and made no effort to find accommodation where he could take the children overnight. She also states that when Mr. Cuthbert did take the children he sometimes asked her to come along and assist him.

[21] Obviously Mr. Cuthbert does not agree. He denies any violence, although admits he may have pushed Ms. Nolis out of the way during argument in order to leave the room. He and Ms. Nolis moved in together when Ms. Nolis was five months pregnant with their first child. It is true that Ms. Nolis took on the majority of the parenting duties when the children were young. He points out in his affidavit, however, that Ms. Nolis was off work on maternity leave for 33 of the 36 months that they lived together after their first child was born. He worked at a full time job at the time. He says that he always took Kristine and the children to the cottage after they were born. He notes that he consistently volunteered to take the children on PA days, and look after them from time to time when he was underemployed but Ms. Nolis refused to allow him to do so. He made himself available and assisted as asked. After Grant was born he gave up many of his sporting activities. He sold his sports car and purchased a much more modest sports car, while Ms. Nolis continued to drive a BMW. Furthermore, Ms. Nolis continued to be involved in her sporting and cultural activities, including a membership in Mayfair Tennis Club and other tennis clubs as well as a subscription to the Toronto Symphony Orchestra. He looked after the children many times while Ms. Nolis pursued her own interests. Ms. Nolis has exaggerated many of the incidents of his supposedly poor parenting while conveniently forgetting her own extra-curricular activities. Mr. Cuthbert’s version of events is that Ms. Nolis interfered with his time with the children, rather than assisted.

[22] I find that there is merit in Ms. Nolis’s complaints about Mr. Cuthbert’s early parenting. His involvement was poor. Ms. Nolis carried of most of the parenting burden. That said, I find that Ms. Nolis’s complaints are exaggerated, in that they stem from the very early years. I had the opportunity to observe both parents on the stand. Mr. Cuthbert minimized his shirking and maximized his involvement. Ms. Nolis minimized Mr. Cuthbert’s contributions and maximized his shirking. Furthermore, it seems that Ms. Nolis carried on with her personal interests (such as tennis and soccer –although her activities were also reduced) while complaining that Mr. Cuthbert carried on with his. She exhibited something of a double-standard. After evaluating all of the evidence I find that Mr. Cuthbert has become a better and more involved parent. He rented a home in Markham in order to be nearer to the children and their school. The evidence indicates that Mr. Cuthbert keeps that home neat and tidy with toys and games and meals suitable for young children. He is involved with sports with the children and is on the parent council at the school (as is Ms. Nolis). Moreover, there is no evidence that the children are uncomfortable in his home now that they are older; indeed, the evidence of neutral parties is to the opposite.

(b) The Children

[23] Grant was born on March 11, 2011 and is now 7 years old. Kiara was born on February 3, 2013 and is now 5 years old. Their primary residence is with their mother and has been since separation.

[24] Grant has been described as anxious, and requiring structure and routine. He has been described as introverted and reserved. There is some evidence that he has difficulty socializing. Ms. Nolis called witnesses to describe Grant as being unhappy and anxious when required to visit his father. When he was younger, Grant preferred to sleep at his mother’s house. Ms. Nolis testified that in August 2014 Mr. Cuthbert took them overnight. The children had a difficult time. They were crying. They did not want to go with him.

[25] The family doctor, Dr. Mastrogiacomo, described him in June 2016 as being “sad” when he had to go to his father’s house.

[26] Kiara is described as more outgoing, good at sports, better socialized, and more energetic than Grant. One witness said that it takes a “team of mothers” to watch Kiara. She appears to have fewer problems moving between the residences. I infer that the problems associated with moving between residences and granting further access to Mr. Cuthbert arise from Grant’s anxiety, and not from Kiara’s issues.

(c) The Access Arrangements

[27] Prior to August 2014 Kiara did not stay overnight with Mr. Cuthbert as she was still nursing. At that time there was a temporary access schedule in place. In December 2014, Mr. Cuthbert rented a 3-bedroom house to be near the children, who resided primarily with Ms. Nolis. According to Mr. Cuthbert, in December 2014 Ms. Nolis also insisted on a formal access schedule: Wednesdays from 5 pm to 8 pm, and every other weekend from Friday at 5 pm until Sunday at 5 pm. In the spring of 2015 Ms. Nolis “unilaterally” moved to Markham. She purchased a home there. Mr. Cuthbert rented a house close to the school and Ms. Nolis’s house. He continued to exercise access in accordance with the schedule. He has also been involved in the children’s lives. He has been involved with sports and other activities.

[28] Notwithstanding the early troubles, Ms. Nolis agrees that Mr. Cuthbert has regularly exercised his access to the children:

Since mid-December 2014 until present, Ted has followed a regular access schedule with the children of every Wednesday evening after school/daycare until 8:00 pm and alternating weekends from Friday at 5:00 pm until Sunday at 5:00 pm. The Wednesday was initially until 8:30 pm; however, Ted and I agreed to make the change to 8:00 pm when Grant dropped his afternoon nap to accommodate his earlier bedtime in July 2015. Despite this being a mutual decision made in Grant’s best interest, Ted has made an issue of this change and is claiming that I imposed it. This is simply not the case.

[29] Ms. Nolis also states that, contrary to Mr. Cuthbert’s assertions, that she has never denied Mr. Cuthbert access to the children.

(d) The Proceedings

[30] This matter proceeded over several days. Pursuant to the case management order of Madam Justice Chiappetta, the evidence of Mr. Cuthbert and Ms. Nolis was filed by way of affidavit and supplemented by two hours of viva voce testimony. The remainder of the evidence (such as financial statements) went in by affidavit. Various family members, friends and acquaintances, and two professionals also testified.

Issues

[31] There are seven issues to be resolved:

(a) Should there be joint or sole custody? (b) What is the appropriate access arrangement? (c) Should the names of the children be changed? (d) What is the appropriate quantum of child support on a going-forward basis? (e) Is Ms. Nolis entitled to retroactive child support based on Mr. Cuthbert’s intentional unemployment? (f) What expenses qualify as special and extraordinary and is Ms. Nolis entitled to special and extraordinary expenses on a retroactive basis?

[32] I find as follows:

(a) Should there be joint or sole custody? Mr. Cuthbert and Ms. Nolis will have joint custody. (b) What is the appropriate parenting schedule and access arrangement? The access arrangement should remain in place for a further year. At that point, Mr. Cuthbert will be permitted to apply for an increase his access. (c) Should the names of the children be changed? Yes. (d) What is the appropriate quantum of child support on a going-forward basis? Mr. Cuthbert will continue to pay table child support to Ms. Nolis. (e) Is Ms. Nolis entitled to retroactive child support based on Mr. Cuthbert’s intentional unemployment? Yes, for part of the time. Mr Cuthbert will pay her $13,503.61 in retroactive child support. (f) What expenses qualify as special and extraordinary and is Ms. Nolis entitled to special and extraordinary expenses on a retroactive basis? Mr Cuthbert will pay her $12,345.99.

[33] I now turn to my analysis of each issue.

Analysis

(a) Should there be joint or sole custody?

[34] Mr. Cuthbert seeks joint custody of Kiara and Grant. Ms. Nolis seeks to have sole custody of Kiara and Grant.

[35] Mr. Cuthbert’s position is that the best interests of the children require that he and Ms. Nolis share joint custody of the children. He argues that he is a loving parent who has bonded with his children. He has had no difficulty with overnight stays and has been following the parenting schedule since December 2014 without difficulty. There is no evidence that he has ever been violent towards the children or otherwise incapable of parenting the children. More importantly, he argues that he and Ms. Nolis have the ability to cooperate and make decisions jointly. In the alternative, he argues that a form of parallel parenting is appropriate which would give he and Ms. Nolis authority over different aspects of the upbringing of the children.

[36] Ms. Nolis’s position is that the best interests of the children require that she have sole custody. Mr. Cuthbert’s past behaviour, parenting skills, lack of involvement, and selfish decisions disqualify him. Specifically, Ms. Nolis accuses Mr. Cuthbert of only wanting joint custody and greater access so that he is required to pay her less child support. The Nolis family, including the grandparents, was heavily involved in parenting and caring for Grant and Kiara. In contrast, Mr. Cuthbert did not care for the children even when he was available. Ms. Nolis has, up until now, been responsible for the majority of all parenting decisions and has taken on almost all of the parenting responsibilities. Finally, the children simply have a much better relationship with Ms. Nolis. Ms. Nolis argues that they simply want to be with her. They do not want to spend time with their father.

[37] I disagree with Ms. Nolis. In my view, it is in the best interest of the children to order joint custody in this case.

[38] With the greatest respect to Ms. Nolis, who sincerely feels that she has cause to feel aggrieved, her position amounts to an assertion that Mr. Cuthbert is not entitled to joint custody because he has treated her poorly and did not participate enough during the early years of the children. That is not the test. Parents are not held to a standard of perfection. She also condemns Mr. Cuthbert’s poor judgment and bad parenting and serves up numerous examples of his negligence and shoddy skills. On the other hand, as I shall shortly explain Ms. Nolis exaggerated an incident of alleged sexual touching by Mr. Cuthbert in relation bo his daughter. This extremely serious allegation on her part places her in no position to argue that Mr. Cuthbert is disqualified but she is not. I find that Mr. Cuthbert has worked to improve his parenting. He has a steady job and has tried to be a proper parent, in contrast to his early lackadaisical approach to his parental duties.

[39] I pause to note that I am dealing with custody and access separately. In this case, I mean custody to involve the legal ability of the parents to make decisions about the children. I mean access to involve scheduling.

[40] Mr. Cuthbert and Ms. Nolis are able to communicate and make decisions together effectively if imperfectly. Furthermore, most (if not all) of Ms. Nolis’s complaints about Mr. Cuthbert date from 2014 and 2015 (with some in 2016) and most of those complaints have to do with perceived slights and insults. They have little to do with Mr. Cuthbert’s current parenting skills in 2018. I agree with Ms. Nolis that Mr. Cuthbert was not as involved as he could have been (or should have been) as a new parent. The evidence suggests that he willingly left most of the parenting to her. That said, I must evaluate whether he is capable of being a good parent suitable for a joint custody arrangement as of 2018, not as of 2014. After careful review of the evidence I am satisfied that joint custody, while not without difficulties and stresses, is in the best interests of the children because it permits each parent to continue to play a meaningful role in their lives and facilitates contact.

[41] Furthermore, joint custody does not mean that Mr. Cuthbert will exercise more access. This will not affect the quantum of child support, although I expect that access will change over time as I will describe later in these reasons.

[42] Section 24 of the Children’s Law Reform Act states:

24 (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1) .

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person’s household; or

(d) any child.

[43] In Jackson v. Jackson, 2017 ONSC 1566 Chappel J. recently commented at para. 59:

Quite apart from the terms of section 16(10) of the Divorce Act, it is a well-established principle that the best interests of the child are generally fostered by ensuring that children have a loving relationship with both parents, and that such a relationship should only be interfered with in demonstrated circumstances of danger to the child's physical, emotional or mental well-being (Pastway v. Pastway, (1999), 49 R.F.L. (4th) 375 (S.C.J); Ferreira v. Ferreira, 2015 ONSC 3602 (S.C.J.), at para. 31; T.E.H. v. G.J.R., 2016 ONCJ 156 (O.C.J.)). If one parent does not facilitate a child's relationship with the other parent, or improperly undermines that relationship, this will be an important consideration in determining their ability to meet the child's needs (Leggatt v. Leggatt, 2015 ONSC 4502 (S.C.J.); T.E.H. , at para. 442 ).

[44] In order to make a joint custody order, there must be some evidence that the parties are able to communicate effectively with each other. The court should not apply a standard of perfection: Scott v. Chenier, 2015 ONSC 7866 at paras. 22-23. The existence of strife and difficulties between the parties does not preclude the making of a joint custody order. What matters is whether the parties can communicate effectively despite the strife: Ladisa v. Ladisa, 2005 1627 (ON CA), [2005] O.J. No. 276, 11 R.F.L (6th) 50, 2005 CarswellOnt 268 (C.A.). If strife were a bar to joint custody, it would be too easy for one party to unilaterally prevent a joint custody arrangement by causing strife. Fitness to parent does not enter into the calculation (assuming both parents are fit).

[45] Quinn J. described the principle in Brook v. Brook, 2006 12294 (ON SC), [2006] O.J. No. 1514; 2006 CarswellOnt 2514 (Sup.Ct.) at para. 66:

In determining whether a joint custody order is appropriate, one must take care not to hold the parents to an unrealistic level of mutual co-operation. After all, they are estranged. The co-operation needed is workable, not blissful; adequate not perfect. And, one must not use a too-finely-calibrated yardstick for measuring parental character. The quest for joint custody must not be restricted to those who can pass the Ozzie-and-Harriet test.

[46] In dealing with the question of joint or sole custody, I will first deal with communication. I will then deal with the factors set out in s. 24(2), and s. 24(3) of the Children’s Law Reform Act. I will deal with the factors again in relation to access separately from custody.

(i) Communication

[47] Ms. Nolis states in her affidavit that she and Mr. Cuthbert have difficulties communicating. They started using Our Family Wizard to communicate in September 2015. Ms. Nolis states that it was because of the increasing hostility. Ms. Nolis states that communication is not easy with Mr. Cuthbert because he wants to get his own way and does not take a common sense approach.

[48] Mr. Cuthbert states in his affidavit that he and Ms. Nolis are able to communicate:

Both Kristine and I continue to be actively involved in making decisions with respect to the children and both have enrolled them in sports and activities and have taken them to activities and appointments both together and separately. We jointly and separately communicate with our children’s doctors, teachers, and caregivers and have both become involved in Grant’s school and the local community.

Though Kristine continues to be responsible for arranging the children’s medical appointments (at her insistence), I had always been informed and involved until earlier this year when I found out, via court motion material, that she had been taking our son Grant to the family doctor for recommendations/referrals without my knowledge.

For the most part, Kristine and I get along and are able to communicate about our children and co-parent in an effective manner. While our values may differ, and we have differing opinions on some issues from time to time, we tend to get along. The notable exception being Kristine’s unwillingness to allow me more access to my children, and to work towards a reasonable long term parenting plan.

[49] Mr. Cuthbert also states that he has been involved in decision making for the children and that he has jointly and separately communicated with doctors, teachers, and caregivers. His position is summarized in paragraphs 16 and 17 of his affidavit:

For the most part, Kristine and I get along and are able to communicate about our children and co-parent in an effective manner. While our values may differ, and we have differing opinions on some issues from time to time, we tend to get along. The notable exception being Kristine’s unwillingness to allow me more access to my children, and to work towards a reasonable long term parenting plan. For the most part, any friction between us has been resulting from Kristine’s desire to be in control with respect to the children.

[50] Some Family Wizard and email messages were placed into evidence. I have reviewed them. I agree with Mr. Cuthbert that Ms. Nolis has a clear desire to be in control with respect to the children. Her desire was evident in her testimony, as well. Ms. Nolis seems to take the view that Mr. Cuthbert has no entitlement to spend time with the children, and that she permits him to do so on sufferance, as a result of her generosity and flexibility. Contrary to Ms. Nolis’s assertion in her affidavit, I do not see much evidence in the Family Wizard messages and emails that Mr. Cuthbert wants to get his own way and does not take a common sense approach.

[51] That said, Mr. Cuthbert is not without his faults as well. The Family Wizard messages and emails reveal that he sometimes does not answer questions, or fails to make decisions, and bears as much of an animus to Ms. Nolis as she does to him.

[52] At the end of the day, it is clear that Mr. Cuthbert and Ms. Nolis simply do not get along. Whatever love and affection they once had for each other has long since dissolved. The test, however, is not whether they get along. The test is whether they can effectively communicate in the best interests of the children. In my view, they can. They have demonstrated in the Family Wizard messages and emails that they have the ability to communicate and make decisions, notwithstanding the mutual hostility and discord.

[53] More importantly, and I cannot emphasize this enough, the children are not chattels to be allocated. They are human beings to be raised. Both parents have a duty to raise them. Both parents have a duty to communicate in the interests of raising them. One party cannot make communication difficult and then claim that they do not communicate well.

(ii) The factors set out in s. 24(2), and s. 24(3) of the Children’s Law Reform Act

[54] The love, affection and emotional ties between the children and Mr. Cuthbert: I have little difficulty finding that Mr. Cuthbert loves his children and that they have bonded with him. Ms. Nolis does not dispute that Mr. Cuthbert loves his children.

[55] The views and preferences of the children: There is no evidence about the views and preferences of the children except what has been described by some of the witnesses. For reasons I will explain, those witnesses were often biased. I give those descriptions little weight. Furthermore, the children are very young. I find that the views and preferences of the children cannot be reliably ascertained.

[56] The length of time the children have lived in a stable home environment: At this point, the children have been in a stable environment where they spend time in both residences for almost four years.

[57] Mr. Cuthbert’s ability and willingness to provide the children with guidance and education, the necessaries of life and any special needs: In my view, Mr. Cuthbert is capable of providing for the children’s needs.

[58] Mr. Cuthbert’s plan for custody: Mr. Cuthbert wants 50/50 access and joint custody.

[59] The permanence and stability of the family unit with which it is proposed that the children will live: In my view, Mr. Cuthbert has demonstrated the necessary stability since he moved to Markham.

[60] Mr. Cuthbert’s ability to act as a parent: I find that Mr. Cuthbert is able to act as a proper parent.

[61] Ms. Nolis called evidence about Mr. Cuthbert’s parenting, as well as her own. Constantina Panagos-Bravos has children at the same school as Kiara and Grant. She knows both Mr. Cuthbert and Ms. Nolis from the parent council. She has observed that on days when Grant went home with his father he is sad. Charmain Von Vulte is the secretary of her local church parish. She used to play soccer with Ms. Nolis. She has a son who is about the same age as Grant. She described how Grant’s anxiety throws him off. She once observed him and Kiara become upset because they did not want to go with their father and preferred to stay at home. She agreed in cross-examination that her own son also has anxiety when his routine is disrupted. Elaine Christens is a curatorial assistant at the zoo. She is Ms. Nolis’s neighbour. She once observed the children screaming because they did not want to go with Mr. Cuthbert. He grabbed them and physically put them in the car. Monika Leite’s daughter and Kiara dance at the same studio. She has observed both Ms. Nolis and Mr. Cuthbert at the dance studio. She has observed that the children prefer to interact with Ms. Nolis. She has observed that the children do not want to leave with him. They get upset and scream to get away from him.

[62] Diane Dei-Amoah is an elementary school principal. She is a tennis friend of Ms. Nolis. They have also been in the same book club. She described Mr. Cuthbert as struggling a bit with Grant. I found Ms. Dei-Amoah to be a very credible witness. She was also the most un-biased of all of Ms. Nolis’s witnesses. Unfortunately, she has not observed Mr. Cuthbert with the children since shortly after Kiara was born in 2013.

[63] Jessica Johnson is an onsite supervisor at the YMCA and supply teaches for the Durham Board of Education. She worked for Kids & Company from 2011 to 2015. She knew Grant from infancy. She noted that Grant was withdrawn on Wednesdays, the day that his father picked him up. She also observed that the children on at least one occasion cried and did not want to leave with Mr. Cuthbert. Ms. Johnson’s last observations of the interactions between Mr. Cuthbert and the children were in 2015.

[64] Lisa Li worked at Kids and Company, a daycare facility. She knows both Mr. Cuthbert and Ms. Nolis. She described how Kiara would always be excited to see her mother.

[65] All of Ms. Nolis’s friends gave evidence about her excellent parenting skills and dedication to the children. I have no reason to doubt them in that regard although they were clearly biased in that regard. Furthermore, they also generally displayed an animus towards Mr. Cuthbert. Many of their observations are dated. I agree with them that Ms. Nolis is a good parent. That judgment, however, is tempered by my conclusions about the sexual touching allegation. I will deal later with that allegation in these reasons.

[66] Ms. Nolis made attempts to show that Mr. Cuthbert has poor judgment. Her evidence was also replete with amateur psychological opinions. For example:

Ted’s behaviour has been controlling, volatile, unpredictable since the children were born. The unpredictability was exacerbated with Ted’s increased stresses as a result of his disappointments in his employment.

[67] It is one thing for Ms. Nolis to describe Mr. Cuthbert’s behaviour. It is quite another to diagnose it. Another example relates to Ms. Nolis’s diagnosis of Mr. Cuthbert’s ability to fly an aircraft. Mr. Cuthbert, who has a private pilot’s licence and did own an airplane, flew the children to his family cottage while he was on anti-depressant medication:

Ted admitted to taking anti-depressant medication when he decided to take the children up in the plane alone. Specifically he admitted that he had been taking both Zoloft and Wellbutrin from June or July 2015 to April 2016… It shows a lack of judgment that Ted was flying the children in a float-plane, by himself, while taking anti-depressants that made him lethargic and likely affected his reaction time. I have researched these medications and found that a common side effect is slower reaction times, which is of serious concern given Ted bringing the children on long drives to the cottage, flying on planes and sailing on boats.

[68] I reject Ms. Nolis’s “research” into the medications. I have no idea what research she did. Did she review the website of a reputable authority, such as Health Canada or the U.S. Centres for Disease Control? Or did she obtain her information from an “urban legend” website? As is well-known, the internet contains as much false as accurate information: the debunked myth that the MMR vaccine causes autism; the nonsense that President Obama is a secret Kenyan-born Muslim; or the U.S. government carried out the 9/11 attacks. How am I to know which type of website Ms. Nolis consulted? Furthermore, even if Ms. Nolis is correct, how am I to know whether Mr. Cuthbert takes the medication before bed, and that the side effect wears off during sleep? Is the dosage level relevant to function impairment? How, if at all, does the medication impair? Ms. Nolis has not, and cannot, answer these questions. A simple assertion based on unspecified “research” by a lay person is not sufficient for me to find that taking anti-depressants is somehow dangerous. I think I can safely take judicial notice that millions of people in North America take anti-depressant medication, and that these people live their daily lives – and also drive automobiles, surely an activity that is also potentially dangerous.

[69] Furthermore, I am puzzled that Ms. Nolis is critical of Mr. Cuthbert over his medication. Ms. Nolis says she wants the children to enjoy a good relationship with their father. I doubt her sincerity in that regard. I would have thought that Ms. Nolis would have been pleased that Mr. Cuthbert has recognized his issues and taken steps to deal with them. I would have thought that she would have seen it as a positive thing for the children that he was taking therapy and medication.

[70] Moreover, it is worth noting that Mr. Cuthbert denied that he had taken anyone up while under the influence of medication. There is no admissible evidence that he took medicine that would impair his ability to drive a car or fly a plane while he was with the children.

[71] Mr. Cuthbert also called evidence about his own parenting. He agreed in cross-examination, realistically, Ms. Nolis did most of the work in the early years and still has primary responsibility for parenting.

[72] Kristine Chandler is a lawyer. She is Mr. Cuthbert’s neighbour. She indicated that Mr. Cuthbert’s house is neat and tidy. She has observed Mr. Cuthbert playing outside with the children. She did not notice anything out of the ordinary. Marie Jennings is a teacher. She and her husband are friends with Mr. Cuthbert. They have spent time at Mr. Cuthbert’s cottage. Kiara and Grant have been there as well. He described Mr. Cuthbert as a good parent. She did not hear Kiara and Grant ever ask to leave the cottage and go back to their mother. Thomas Cuthbert is Mr. Cuthbert’s brother. He has two children who are about the same age as Grant and Kiara. He described the relationship between Mr. Cuthbert and his children as a typical father-child relationship. He did say that Mr. Cuthbert has been angry with the children, but over the last couple of years he has been more patient. He has never heard the children say that they want to leave the cottage to be with their mother. Both Ms. Jennings and Thomas Cuthbert observed that Ms. Nolis frequently contacted the children while they were at the cottage.

[73] Although Thomas Cuthbert is Mr. Cuthbert’s brother and obviously in his corner, I found him to be a credible witness for two reasons: first he willingly admitted that Mr. Cuthbert had lost his temper with the children in their earlier years; and second, his observations of the children at the cottage are corroborated by Ms. Jennings.

[74] I note as well that all of the negative evidence about Grant and Kiara at the cottage comes either from Ms. Nolis or her parents. The only direct evidence of their time at the cottage comes from Ms. Jennings and Mr. Cuthbert’s brother. Both describe happy family times, and both were forthcoming about negative behaviours by Mr. Cuthbert.

[75] Ms. Nolis’s parents testified. So did Mr. Cuthbert’s mother. I must say that I found the evidence of the three grandparents who testified to be of little value and blatantly biased. Kay and George Nolis clearly bear an animus towards Mr. Cuthbert. Caroline Cuthbert clearly bears an animus towards Ms. Nolis.

[76] I found the evidence of both Kaye and George Nolis to be almost entirely pointless and based mostly on hearsay. Most of it was designed to show that Ms. Nolis is an outstanding loving parent and Mr. Cuthbert was a cad as a partner and is now an unfit and unloving parent. Listening to Ms. Nolis’s parents, I would have thought that Ms. Nolis is only one miracle short of sainthood while Mr. Cuthbert is a sexual predator. Ms. Nolis’s parents have had a long and happy but traditional marriage. They successfully raised their daughters together. They both seem to think that because of their own long marriage and parenting they are qualified to pass judgment on the marriage and parenting of others. I do not agree. They are good people and they understandably love their daughter and their grandchildren, but they are both so completely biased that their evidence can be given no weight. They have lost any semblance of objectivity in this matter.

[77] For example, George Nolis testified that Grant seemed distraught about going to Mr. Cuthbert’s cottage. He asked Grant if he was afraid of his dad. Grant simply nodded. George testified that he told Grant that he should say if his dad had done anything. In my view, George was clearly fishing for negative things about Mr. Cuthbert from Grant. This colours his entire testimony.

[78] On the other hand, if I were to accept the evidence of Mr. Cuthbert’s mother, I would be compelled to find that Mr. Cuthbert is the hapless victim of a scheming woman who only drives a car because her broomstick is under repair. I found her evidence equally unhelpful and based mostly on hearsay. I accept that Caroline Cuthbert is also a good person and loves her grandchildren but that she, like Ms. Nolis’s parents, is simply not objective.

[79] It is understandable that each grandparent takes the side of their child and supports them during this difficult litigation. It was, however, unhelpful where their evidence more or less amounted to an opinion on the parenting skills and moral character of the other parent.

[80] That said, there is still evidence upon which I can make findings about Mr. Cuthbert’s parenting. Based on the evidence of unbiased witnesses, and taking into account the biases of the friendly witnesses, I find that Mr. Cuthbert’s parenting left much to be desired in the early years. Frankly, he was a lousy partner to Ms. Nolis and a lousy parent to his children during the early days. Moreover, I find that he continued with many of his activities (such as golfing, skiing, and socializing at bars and restaurants) while his children were young and Ms. Nolis carried the main burden. As I note later in my reasons (when dealing with imputing income) Mr. Cuthbert curbed these activities when he was unemployed, but he did not end them. Mr. Cuthbert was clearly more consumed with his own issues and activities than with his parenting duties during these early months and years of the children’s lives.

[81] He has, however, clearly and unambiguously improved to the point where he is a stable parent who is capable of undertaking all of his parenting duties. Whatever he was from 2011 to 2014, I reject the notion that he is an unfit parent in 2018.

[82] Familial relationship between the children and Mr. Cuthbert: As Ms. Nolis herself admits in her affidavit, Mr. Cuthbert loves his children and wants the best for them. Mr. Cuthbert states that the children have bonded with him. There is no evidence to suggest otherwise.

[83] Mr. Cuthbert’s past conduct: Ms. Nolis alleged that Mr. Cuthbert was been violent and controlling. She says that he struck her once and threw things against the well. She also points to a Children’s Aid Society report that suggested Mr. Cuthbert had bruised Kiara. She also notes that Mr. Cuthbert “tapped” Grant on the head at one point.

[84] In cross-examination, Mr. Cuthbert denied ever striking Ms. Nolis. He admitted that he did push her out of the way on one occasion after an argument when he walked out of the room. He denied throwing anything at Ms. Nolis but did admit that he has thrown objects around the house, including smashing a tabled on a bedpost. Mr. Cuthbert denied losing his temper around the kids, but agreed he has become angry on occasion. He denied striking either of the children but agreed that he did tap Grant on the head or shoulder on occasion but had agreed with Ms. Nolis that they would not be physical with the children. He has not done it since. The Children’s Aid Society report did not find any child protection issues.

[85] In my view, the allegations of violence are dated. I have difficulty with the credibility of both parties. I accept that Mr. Cuthbert probably did push Ms. Nolis out of the way in the course of an argument. I also accept that he probably did bruise Kiara, although I suspect it happened in a fit of temper. There is no evidence of a pattern of ongoing abuse and Ms. Nolis does not suggest such a pattern. At the end of the day, the violence allegations are insufficient to undermine the claim for joint custody.

[86] Ms. Nolis has also made an allegation of sexual abuse by Mr. Cuthbert in relation to Kiara.

[87] Ms. Nolis testified that in August 2017 Kiara told her the following: that her father touches her vagina when changing her underwear; that her father asks if he can touch her vagina and that she says “no”; and that she then puts her underwear on. Ms. Nolis advised the Children’s Aid Society of these allegations. A joint CAS-police investigation was launched.

[88] Child protection workers interviewed Kiara using open-ended questions. Kiara did not mention the sexual touching. Kiara also said that she was not afraid to be at her father’s house. It was only when direct questions were asked, in the presence of her mother, that Kiara mentioned the alleged touching. A child protection worker visited Mr. Cuthbert’s home, with the children present. She found no issues.

[89] Mr. Cuthbert testified that the Children’s Aid Society investigation was opened three weeks ahead of a motion for access before Paisley J. The York Regional Police called him on August 24, 2017. That was three days before his scheduled weekend with the children. The police and the Children’s Aid Society interviewed him for 18 hours.

[90] The allegation of sexual touching by one parent against another in relation to a child is about as serious as it gets. The Children’s Aid Society file was introduced into evidence. Although the evidentiary foundation for admissibility was questionable, I accepted the evidence and reviewed the file in detail given the seriousness of the allegation. The police did not lay charges. The Children’s Aid Society concluded that there were no child protection issues. The child protection worker concluded that Kiara did mention to her mother that Mr. Cuthbert touched her while changing her clothing. The child protection worker did not conclude that the touching actually happened. The child protection worker determined, however, that there was no sexual intent.

[91] The child protection worker also stated that Ms. Nolis did not appear to be acting maliciously when she reported it. I have my doubts about that. The timing of the allegation was suspiciously close to both the scheduled trial date and to a motion for greater access by Mr. Cuthbert. Ms. Nolis maintained during her testimony that Kiara told her after the Children’s Aid Society interview that the touching happened but that she just didn’t want to mention it to strangers. Her evidence on that point was plainly untrue. I find it was concocted. That is because Kiara did mention the alleged touching when she was asked leading questions by the child protection worker. Her evidence was clearly designed to give the impression that Mr. Cuthbert is not just a bad parent, but also a dangerous one. This evidence was part of the very clear animus that Ms. Nolis displayed towards Mr. Cuthbert throughout the trial. Although there is no basis for me to find that Ms. Nolis fabricated Kiara’s mentioning of the alleged sexual touching, I find that she exaggerated it and likely timed the disclosure with litigation in mind.

(iii) Conclusion Regarding Custody

[92] I found the credibility of both parents to be suspect.

[93] During her evidence Ms. Nolis was uncompromising, hostile, and regarded herself as the sole arbiter of the best interests of the children. She took the position that only she knew what was in the best interests of the children when compared to Mr. Cuthbert. If Mr. Cuthbert had a disagreement about parenting styles then, according to Ms. Nolis, it showed a lack of common sense on his part. She did not try to hide her hostility to Mr. Cuthbert. I have reviewed the Family Wizard messages. Without delving into unnecessary detail, my review of the messages show attempts by Mr. Cuthbert – some half-hearted – to become more involved with his children. The messages show that Ms. Nolis has taken a very hard line about Mr. Cuthbert spending more time, notwithstanding his offers. She has consistently refused to permit Mr. Cuthbert to spend more time with his children, preferring to let her own parents take the children or to leave them in daycare. Although Ms. Nolis says all the right things about wanting the children to spend time with their father, she has treated Mr. Cuthbert’s access to them as a favour to him.

[94] I have already mentioned Ms. Nolis’s amateur psychological diagnosis of Mr. Cuthbert, and her unspecified “research” into his use of anti-depressant medication. Ms. Nolis imputes motives and desires to Mr. Cuthbert that are mostly negative. She makes conclusory statements about him that are unsupported by anything other than her subjective feelings. Her evaluation of him is also self-contradictory. For example, Ms. Nolis consistently stated in her affidavit that Mr. Cuthbert’s wish to be with his children is driven purely by a desire to reduce the amount of his child support. Ms. Nolis stated at paragraph 109 of her affidavit:

Ted wants to increase his overnight access with the children to fulfill his personal objectives, and that is what is driving his request rather than the consideration of the needs or circumstances of the children.

[95] And yet, Ms. Nolis also states at paragraph 105:

I am certain that Ted loves the children and that the children enjoy seeing their father. He plays with the children and wants to understand and share information about the children and their development. He also researches parenting.

[96] Of course, Ms. Nolis then goes on to say that Mr. Cuthbert does a terrible job of applying his research.

[97] I accept that Ms. Nolis is a committed and loving parent but there is no evidence, other than her own and her parent’s (which I give no weight), that her parenting judgment is better than Mr. Cuthbert’s. The exaggerated allegation of sexual abuse is troubling.

[98] Mr. Cuthbert, for his part, also makes conclusive statements that are unsupported by actual evidence. His early parenting failures were real, and yet he minimizes them and blames Ms. Nolis for a lack of access in those early years when it seems clear that he often did not exercise access due to his personal issues. Mr. Cuthbert’s animus towards Ms. Nolis is more under control than hers, but no less real or intense. Furthermore, my review of the Family Wizard messages lead me to the conclusion that at least some of his requests for further access were as much about padding the record as about seeing the children.

[99] Again, the test is not whether Mr. Cuthbert and Ms. Nolis get along, or like each other. The test is whether they can communicate effectively. Mr. Cuthbert and Ms. Nolis will never pass the Ozzie and Harriet test; but I find on a balance of probabilities that on the key issues they can. For all their joint failures of parenting and judgment, they both clearly love their children. I believe that both parents do want the best for their children, although they disagree on what “the best” constitutes. Going forward, I find that they will communicate effectively.

(b) What is the appropriate access arrangement?

[100] Ms. Nolis has testified that her primary reason for opposing more access for Mr. Cuthbert is that it is not in the best interests of the children at this point. She states that he only wants 50/50 access in order to reduce or eliminate his child support payments. Mr. Cuthbert states that his only issues with Ms. Nolis have been her unwillingness to allow him more access to his children. He has made attempts to increase his access with the children. Ms. Nolis has resisted. He has brought motions to increase access. They have been dismissed. The status quo remains.

[101] I agree with Ms. Nolis to this extent: it is not in the best interests of the children to increase Mr. Cuthbert’s access at this time; but I also agree with Mr. Cuthbert that he should, gradually, have the opportunity to increase access with a view to eventually reaching 50/50.

[102] Anyone who has ever raised a child knows that parenting is complex and demanding task. Children don’t come with an owner’s manual. Each child is different. Siblings may be vastly different in their personalities and needs. They often are. Children also change rapidly. As a result, in any given case it may not be a simple matter of “yes” or “no” to more access.

[103] In this particular case I think more access for Mr. Cuthbert is in the best interests of the children, but I also think that it must be done in a gradual, monitored way so as to acclimate the children. The current schedule seems to be working and the children seem to be adjusting well. I would not change the situation just yet, but after the expiry of one more year I think permitting Mr. Cuthbert the opportunity to have further formal access is in the best interests of the children.

(i) Background

[104] According to Mr. Cuthbert, in December 2014 Ms. Nolis insisted on a formal access schedule: each Wednesday evening from 5:00 pm to 8:30 pm (later shortened to 8:00 pm) and alternate weekends from Friday at 5:00 pm until Sunday at 5:00 pm. I find that Ms. Nolis did indeed impose that schedule. No doubt she is sincere when she says she did so in the best interests of the children. People often have mixed motives for their actions. In this case, as I have found, Ms. Nolis also wanted to be in control. Mr. Cuthbert states that he has exercised that access consistently and there is no evidence to suggest otherwise.

[105] In August 2015 Ms. Nolis purchased a home in Markham over Mr. Cuthbert’s objections. They had previously lived in downtown Toronto. Nonetheless Mr. Cuthbert rented a home a short distance away from Ms. Nolis’s home and very close to the children’s school. Mr. Cuthbert states that he has been an involved parent and that his attempts to become more involved have been stymied by Ms. Nolis. I accept that is what happened. I also find that Ms. Nolis did unilaterally purchase a home in Markham without consulting Mr. Cuthbert. I do think, however, that Ms. Nolis was ultimately right in her decision that it was in the best interests of the children to do so. Ms. Nolis had the opportunity to purchase a home in a community where she had a support system of parents and siblings. Mr. Cuthbert’s acquiescence by renting a home nearby and his subsequent integration into the life of the neighbourhood and the school has also been good for the children. I observe that it has likely also been good for Mr. Cuthbert. An unintended consequence of Ms. Nolis’s unilateral decision was that it likely injected a note of stability into Mr. Cuthbert’s life.

[106] I find, based on my review of the evidence, that further access is not a major issue for Kiara. Kiara seems to be adaptable and a happy child. The key issue is Grant’s anxiety. I reject Ms. Nolis’s view that the only reason Mr. Cuthbert wants to increase access is to reduce his child support payments. There is no evidence to support that observation. It is only Ms. Nolis’s speculation.

(ii) Grant’s Anxiety

[107] Most of the evidence about Grant’s anxiety came from Ms. Nolis’s family. They concluded that his anxiety stemmed from spending too much time around his father. I do not have the benefit of expert evidence about the origins of anxiety disorders. I completely discount their “opinions” in this respect.

[108] There was some other evidence as well. Siobhan Torrance is an early childhood educator. Grant was a student in her junior and senior kindergarten class. She was able to observe him over the course of two years. She described him as emotionally immature but very intelligent. He found it hard to make friends. Ms. Torrance had little to say about Grant’s interaction with his father.

[109] Dr. Caterina Mastrogiacomo is the family doctor for Ms. Nolis, Grant, and Kiara. Ms. Meyrick sought to qualify her as an expert in family medicine and to give an opinion as to whether Mr. Cuthbert’s access should be expanded. I agreed that she could testify as an expert in family medicine. I determined that she could not give an opinion as to access. I did not permit that opinion for three reasons. First, Dr. Mastrogiacomo does not have the expertise to give such an opinion. Such an opinion would be outside the scope of her expertise and training. She is a family medicine practitioner. Family practice doctors do primary mental health care. She is not, however, a psychiatrist or a paediatrician. Second, much of the information about Grant was provided by Ms. Nolis and, in my view, was self-serving. Third, whether to expand Mr. Cuthbert’s access is the ultimate issue that the court is required to decide. I cannot delegate that decision to an expert, however well qualified.

[110] Dr. Mastrogiacomo testified that in March of 2015 Ms. Nolis told her that Grant was more uncooperative after being with his father. She also told Dr. Mastrogiacomo that Grant would not move his bowels at his father’s house. There were also issues about thumb-sucking. In March of 2016 Ms. Nolis also reported to Dr. Mastrogiacomo that Grant hated going to his father’s. In April 2017 Dr. Mastrogiacomo spoke to Grant and Kiara separately. Ms. Nolis was not in the room. According to Dr. Mastrogiacomo, Grant indicated that he did not like sleeping at his father’s house. His father made him do scary stuff. She tried to refer Ms. Nolis to a paediatrician to assess Grant. In January 2017 Dr. Mastrogiacomo had a further discussion with Ms. Nolis. She reported that Grant was having nightmares at his father’s house.

[111] Ultimately Dr. Mastrogiacomo noted in her chart that it was not advisable for the children to spend more time with their father. She said that Grant did not manage change well. She felt that Grant’s issues were all related to spending time at his father’s house.

[112] I found Dr. Mastrogiacomo’s views difficult to accept. Except for one session where Ms. Nolis was not present, all of her information came either from Ms. Nolis or from a session where Ms. Nolis was present when she talked to Grant. It is not clear to me whether Dr. Mastrogiacomo asked Grant open-ended questions at that session, or focussed her questions on Mr. Cuthbert. Furthermore, she did not seem to entertain the possibility that there might be other causes of Grant’s anxiety – for example, the evidence about Grant not making friends easily at daycare. There was virtually no information about how he did at school – or the fact that he had changed schools frequently. Or whether his feelings of anxiety came from the fact of the dislocation itself. Dr. Mastrogiacomo felt that a child psychologist should assess Grant – a very reasonable step. That said, Dr. Mastrogiacomo also leaped to the diagnosis that the cause of his anxiety was spending time with his father. The implication of that observation was that the fault lay in Mr. Cuthbert’s parenting of Grant. Certainly that was Ms. Nolis’s conclusion. Dr. Mastrogiacomo seems not have considered wither Grant simply has an anxiety disorder, or whether he has a disorder that is exacerbated by spending time with his father, or whether there is some other cause. Moreover, she seems not to have considered the fact that Kiara spent time with her father and did not have the same anxiety issues. Finally, I find that her information is dated.

(iii) Conclusion Regarding Access

[113] I accept the evidence that Grant is an anxious child. That said, it appears that as he has grown older his anxiety has become less of an issue in general. It has become less of an issue regarding his father, as well. No expert evidence was called about the role of a father in a boy’s life. As a judge I have no expertise in the field other than my own experience as a parent. As a matter of common human experience it can be no bad thing for a boy to have a good father as a role model. I think Mr. Cuthbert has grown into the role of good father, although it has been a tortured route and has taken time on his part. A loving father-son bond is clearly in Grant’s best interests. I have no expert evidence to suggest that a strong father-son bond would have an impact on Grant’s anxiety one way or the other.

[114] I strongly encourage the parties to work out a schedule that involves gradually increasing Mr. Cuthbert’s access. That will obviously minimize the costs to them. If they are unable to do so, the parties may make further submissions to me or another judge after one year and I will make an order.

(c) Should the names of the children be changed?

[115] Ms. Nolis seeks to change the surnames of the children so that they will be known as “Cuthbert-Nolis” rather than simply “Cuthbert”. Her position is that at the time of Grant’s birth she and Mr. Cuthbert discussed the name issue. Her evidence is that she wanted to give the children a hyphenated name, or at least some version of a hyphenated name. She testified that she felt pressured by Mr. Cuthbert and tried to appease him.

[116] Mr. Cuthbert, on the other hand, seeks to maintain the status quo. His position is that the children are established at this point. He argues that hyphenated names are unusual in York Region. Mr. Cuthbert did his own internet research indicating that only a very small percentage of children in York Region have hyphenated names. He argues that using a hyphenated name will differentiate the children in a negative way.

[117] I must reject this aspect of Mr. Cuthbert’s argument. There is nothing to back up his internet “research” other than his description of what he did. That description is not properly in evidence. Furthermore, random internet research is not particularly useful where it has not been subject to some type of peer review or at least cross-examination. I reject his “research” in the same way I rejected Ms. Nolis’s “research” into anti-depressant medications.

[118] Mr. Cuthbert further argues that the children know their names, and know how to write them. It would interfere with their emerging identities. Furthermore, Ms. Nolis agreed that the children would take his name at the time they planned their family.

[119] I disagree with Mr. Cuthbert. The last name of the children should be changed as Ms. Cuthbert asks.

[120] Subsection 5(5) of the Change of Name Act states that the Court shall determine an application to change the name of a child in accordance with the best interests of the child. The change of name is not an administrative act. It is not to be done merely for convenience. The onus is on the parent wishing the name change to demonstrate that the child will benefit from the change: Herniman v. Woltz, 1996 8087 (ON SC), [1996] O.J. No. 1083, 22 R.F.L. (4th) 232 at para. 7. I would adopt the factors set out in Wintermute v. O’Sullivan, 1985 1363 (AB KB), [1985] A.J. No. 21, 48 R.F.L. (2d) 276 (Alta.Q.B.) at para. 7:

The factors to which courts should have regard in cases of this kind are set out in Davies, Family Law in Canada (1984), at p. 32:

(a) The welfare of the child is the paramount consideration.

(b) The short and long term effects of any change in the child's surname.

(c) Any embarrassment likely to be experienced by the child if its name is different from that of the parent with custody or care and control.

(d) Any confusion of identity which may arise for the child if his or her name is changed or is not changed.

(e) The effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage.

(f) The effect of frequent or random changes of name.

[121] In applying these factors, I find that there is unlikely to be any embarrassment or confusion of identity as a result of the name change. Given the young age of the children, it seems to me to be unlikely that it will have a negative effect on the relationship with either parent. I would add that the social conditions of 2018 are not identical to the social conditions of 1985, and that hyphenated names may be beneficial: L.M.D. v. J.R.S., [2010] N.B.J. No. 258 at para. 35. Surely there is no longer any real presumption that children automatically take the name of the father.

(d) What is the appropriate quantum of child support on a going-forward basis?

[122] Mr. Cuthbert earns $125,000.00 per year in his current job. He will pay table child support to Ms. Nolis on the basis that the children primarily reside with her. The parties will exchange tax returns on an annual basis every June 1 going forward.

(e) Is Ms. Nolis entitled to retroactive child support based on Mr. Cuthbert’s intentional unemployment?

(i) Background

[123] When Mr. Cuthbert and Ms. Nolis separated in March 2014, Mr. Cuthbert was employed at Rule Financial. He was let go in July 2014. He says that stress and depression over the separation contributed to his poor performance at work. He did some consulting work in the summer of 2015. He tried to convert that work into a full-time job. It did not work out that way. He was otherwise unemployed for 2 ½ years. He obtained a permanent job in 2017 at Scionic Advisors. Scionic Advisors is a wealth management company. Mr. Cuthbert earns $125,000 per year.

(ii) Positions of the Parties

[124] Ms. Meyrick argues on behalf of Ms. Nolis that Mr. Cuthbert was deliberately unemployed for the entire period. As a result, I should impute income to him $125,000 per year for those 2 ½ years, less amounts actually paid. More specifically, she argues:

• 2014: Mr. Cuthbert declared income of $140,372.00 in 2014. After separation, from April to August, Mr. Cuthbert paid Ms. Nolis $2000 per month and a $1000 payment in December. Based on the Federal Child Support Guidelines Mr. Cuthbert should have paid $17,103.33 in 2014. He therefore owes Ms. Nolis $6103.33.
• 2015: Mr. Cuthbert was deliberately unemployed in 2015. The Court should therefore impute income to him of $125,000.00 for that year. Thus, according to the guidelines, he would be required to $20,652 (or $1721 per month). Mr. Cuthbert paid $4,900. Justice Paisley ordered another $8351 to be paid, which is being collected by the Family Responsibility Office. Ms. Meyrick argues that Mr. Cuthbert should be required to pay a further $7401.00.
• 2016: 2015: Mr. Cuthbert was deliberately unemployed in 2015. The Court should therefore impute income to him of $125,000.00 for that year. Thus, according to the guidelines, he would be required to $20,652 (or $1721 per month). Mr. Cuthbert paid $5500 to Ms. Nolis. Ms. Meyrick argues that he should be required to pay the difference, or $15,152.00.

[125] Ms. Meyrick also argues that Mr. Cuthbert was not entirely forthright about his income. She says that his spending can only be explained by an undisclosed source of money – perhaps day trading.

[126] Mr. Cuthbert’s position is that he had no secret undisclosed source of income. He also argues that it would make no sense for him to avoid unemployment and deplete his savings just to avoid a small amount of child support. His position is this:

• 2014: Mr. Cuthbert declared income of $140,372.00 in 2014. After separation, from April to August, Mr. Cuthbert paid Ms. Nolis $2000 per month and a $1000 payment in December. He argues that he fulfilled his child support obligation as he and Ms. Nolis cohabitated for the first three months of the year and he paid while he worked or was on severance. He agrees that he owes a further $4,172.00 in retroactive child support. This, he says, is based on $30,000 in RRSP withdrawals after the $1000 December payment.
• 2015, 2016, 2017: Mr. Cuthbert was unemployed and had no ability to pay child support.

(iii) Finding

[127] I do not fully agree with either party. I make the following finding:

• Mr. Cuthbert did not have a secret source of income that he has not disclosed.
• Mr. Cuthbert was deliberately unemployed for part, but not all of the time that he was off work. I agree that it is unlikely he would deplete his savings just to avoid child support payments; that said, I find that he made a lifestyle choice as much as anything else for at least part of the time that he was unemployed. Income must, therefore, be imputed to him.
• 2014: Even though Mr. Cuthbert was unemployed after July, he received severance and continued to pay – and he had a good income that year. I agree that he ought not to be responsible for retroactive child support for the first three months of the year. According to the tables, he should have paid $1900.29 per month, or $17,102.61 for nine months. He did pay $10,000.00 from April to August and a further $1000.00 in December. In my view, considering he withdrew $30,000.00 from his RRSP to fund his living expenses, he should have paid table support for the whole year. Although Mr. Cuthbert acknowledges owing a further $4172.00, I order that he pay $6,102.61 as further table support for the rest of the year.
• 2015 and 2016: I find that Mr. Cuthbert was deliberately unemployed for a cumulative total of one year, as I will explain in the next sub-section of these reasons. I agree with Ms. Meyrick that income should be imputed to him of $125,000.00 for one of those years. Thus, he should have paid Ms. Nolis $1721.00 per month for one year, or a total of $20,652. I would deduct the $8,351.00 currently being collected by the Family Responsibility office. I would also deduct $4,900.00 paid to Ms. Nolis in 2016 but not the $5,500 paid in 2015.

[128] Thus, I find that Mr. Cuthbert should pay Ms. Nolis $13,503.61 in retroactive child support. This is in addition to the $8,351 currently being collected by the Family Responsibility Office.

(iv) Was Mr. Cuthbert Deliberately Unemployed?

[129] I turn now to the issue of deliberate underemployment.

[130] The Federal Child Support Guidelines state:

19 (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following: (a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse

[131] In Drygala v. Pauli (2002), 2002 41868 (ON CA), 61 O.R. (3d) 711, [2002] O.J. No. 3731 (C.A.) the Court of Appeal set out a three-part test that a court must apply when considering imputing income at para. 23:

1. Is the spouse intentionally under-employed or unemployed?
2. If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs?
3. If the answer to question #2 is negative, what income is appropriately imputed in the circumstances?

[132] The onus is on Ms. Nolis to demonstrate that Mr. Cuthbert was intentionally unemployed or underemployed for all or part of the 2 ½ year period: Tillmanns v. Tillmanns, 2014 ONSC 6773. Ms. Nolis need not, however, show bad faith or that the unemployment was for the specific purpose of avoiding a child support obligation: D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231 at para. 9; Drygala at paras. 25-26, 29. The question is whether the unemployment or underemployment is voluntary and unreasonable.

[133] In my view, Mr. Cuthbert was intentionally unemployed for a cumulative total of one year. I recognize that this period seems somewhat arbitrary, but it is difficult to categorically break down the periods of time he was deliberately unemployed versus the periods of time he was looking for work or was suffering from medical issues. I find based on all the evidence that there were times when he was looking in good faith; there were also times when he was deliberately not looking, or making desultory efforts. It is clear that Mr. Cuthbert was having issues that required him to take therapy and medication. It is also clear that he was having those medical issues due to stress, his inability to find work, and the breakdown of his relationship. He was let go from work due to poor performance. He did make efforts to find employment and indeed had some part-time work in 2015. I accept that it was difficult to find a job after being let go, and that his reputation in his industry suffered. However, his efforts were sometimes desultory. Furthermore, he continued to do the things he enjoyed, at least to some degree. In other words, I find that part of the time he was deliberately unemployed was due to a lifestyle choice.

[134] Having determined that Mr. Cuthbert was intentionally unemployed one year, I must determine the quantum to be ordered. In Drygala at paras. 44-45 the Court of Appeal stated:

Section 19 of the Guidelines is not an invitation to the court to arbitrarily select an amount as imputed income. There must be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the court's discretion must be grounded in the evidence.

When imputing income based on intentional underemployment or unemployment, a court must consider what is reasonable in the circumstances. The factors to be considered have been stated in a number of cases as age, education, experience, skills and health of the parent. See, for example, 2002 41868 (ON CA) Hanson, supra, and Cholodniuk v. Sears (2001), 2001 SKQB 97, 14 R.F.L. (5th) 9, 204 Sask. R. 268 (Q.B.). I accept those factors as appropriate and relevant considerations and would add such matters as the availability of job opportunities, the number of hours that could be worked in light of the parent's overall obligations including educational demands and the hourly rate that the parent could reasonably be expected to obtain.

[135] That said, there must be some flexibility in the Court’s determination of the amount to be paid. In D.B.S. v. S.R.G. the Court stated at para. 95:

It will not always be appropriate for a retroactive award to be ordered. Retroactive awards will not always resonate with the purposes behind the child support regime; this will be so where the child would get no discernible benefit from the award. Retroactive awards may also cause hardship to a payor parent in ways that a prospective award would not. In short, while a free-standing obligation to support one’s children must be recognized, it will not always be appropriate for a court to enforce this obligation once the relevant time period has passed.

[136] Mr. Cuthbert is currently earning $125,000.00 – a good salary but not one that will make him rich. I have reviewed his budget – and I do not wish to impair his ability to continue to pay table support to Ms. Nolis, pay the amount that is being collected by the Family Responsibility office, and still provide a good home for his children.

[137] I also note that blameworthy conduct by a payor may be taken into account. Blameworthy conduct is anything that privileges a parent over a child: D.B.S. v. S.R.G. at para. 106.

[138] I find that there was some blameworthy conduct by Mr. Cuthbert. I do not accept Mr. Cuthbert’s assertion that he was unable to pay child support. He withdrew money from his RRSP during the 2 ½ year period of his unemployment of about $190,000.00. By his own evidence, he depleted his assets over the course of 2 ½ years by about $204,000.00. This is about $6800.00 per month or just over $81,000.00 per year. That is a not insignificant income. Although child support is based on income, and not capital depletion, I have no hesitation in finding that Mr. Cuthbert could have and should have contributed more.

[139] In all, I believe that the one-year finding properly balances the periods of time that Mr. Cuthbert was deliberately unemployed, his blameworthy conduct, and his ability to pay. As mentioned, he will pay Ms. Nolis $13,503.61 in retroactive child support.

(v) Did Mr. Cuthbert Have Undeclared Income?

[140] I will deal first with the allegedly secret source of income. I find that there is simply no evidence to support the allegation, other than an email where Mr. Cuthbert mentions day trading.

[141] Ms. Nolis expended much effort to show that Mr. Cuthbert has understated his income. She testified as such. There were deposits to his bank account but not from his RRSP withdrawals – Ms. Nolis pointed out that from April 2014 until December 2016 Mr. Cuthbert withdrew more than $190,000 from his RRSP and deposited $193,000 in his personal account.

[142] Mr. Cuthbert’s explanation is that he withdrew money from his RRSP when he was not employed because it would have been taxed at a lower rate. He explained the difference between his RRSP withdrawals and the deposits to his accounts. He said that he put nearly every expense on his credit card. He used his line of credit to pay the credit card bills and used RRSP withdrawals to pay down his line of credit or his credit card bills. He said he did it all online. He also noted that his assets were depleted over the course of his unemployment.

[143] Based on his spending, Ms. Nolis also calculated that he had spent more than he reported by a significant factor. For example, she testified that in 2016 Mr. Cuthbert spent more than $68,000 on his credit card. Ms. Nolis also pointed out that in 2015 he spent more than $57,000 on his credit cards but had no credit card debt at the end of the year. As I pointed out during the trial, however, the only credit card statements of Mr. Cuthbert that I admitted in evidence were for 2016. Those statements were put to Mr. Cuthbert in evidence. He identified them. No other statements were put to him. The rest of the statements lacked an Ontario Evidence Act affidavit or other basis of admissibility. Accordingly, I give the credit card evidence in relation to 2015 no weight.

[144] Even if I were inclined to admit the credit card evidence from other years, I reject the evidence of Ms. Nolis and the submissions of Ms. Meyrick that Mr. Cuthbert had an undisclosed source of income. Ms. Nolis is not a forensic accountant. She can certainly do the simple math associated with adding up credit card bills, but she has no expertise in reconciling financial statements. No expert evidence was called on that point. To admit lay evidence of a spouse on a topic that ordinarily requires the objectivity and skill of a qualified expert would surely be an error, and unfair to the other spouse.

[145] Ms. Meyrick also pointed to an email where Mr. Cuthbert mentioned day trading as a source of income. There is simply no actual evidence that Mr. Cuthbert earned extra income by day trading – there is no evidence of significant bank deposits from a trading account during the period in question.

[146] Ms. Meyrick also argues that Mr. Cuthbert has no credibility when it comes to employment. She says he is no stranger to lying. She argues that Mr. Cuthbert admitted to lying in some emails in order to obtain employment. Mr. Cuthbert says he embellished. I am not prepared to make an adverse finding of credibility in that regard. Undoubtedly Mr. Cuthbert padded his c.v. in order to find a job. That doesn’t make him a habitual liar. Rare is the job-seeker who hasn’t engaged in some resume-padding.

[147] I also note that Mr. Cuthbert disclosed his personal financial records to Ms. Nolis. Ms. Nolis refused to disclose hers to Mr. Cuthbert. It is certainly true that Ms. Nolis’s income is not relevant for the purposes of calculating child support given that she is the custodial parent. That said, it does not help her overall credibility, especially where she purports to give evidence about Mr. Cuthbert’s finances.

[148] After examining all of the evidence, I find that Mr. Cuthbert depleted his assets in order to continue to finance his lifestyle – at least to some degree – while he was unemployed. As stated, I do not accept that he had some secret source of income, as asserted by Ms. Nolis. I also do not accept that he lived some kind of lavish lifestyle while his children suffered. He did curb his activities. He did sell his airplane. He did, however, continue to play golf, to go skiing, and to enjoy the family cottage (and he contributed to the expenses and upkeep). He continued to socialize, going out to watering holes in the downtown financial district. I accept, however, that he did not continue these activities to the same degree as when he was employed.

(f) What expenses qualify as special and extraordinary and is Ms. Nolis entitled to special and extraordinary expenses on a retroactive basis?

[149] Ms. Meyrick, on behalf of Ms. Nolis, argues that Mr. Cuthbert should be responsible for 50% of daycare expenses on a retroactive as well as on a going forward basis. She also argues that Mr. Cuthbert should pay his proportionate share of all other s. 7 expenses. She argues that he ought to pay on the basis of his imputed income of $125,000.00 from March 2015, when Mr. Cuthbert stopped paying half of the daycare costs. Thus, Ms. Meyrick argues that Mr. Cuthbert should retroactively pay half of the daycare costs from April 2017 until the date of trial.

[150] Her position with regard to each year is this:

• 2015: The total child care expenses for 2015 were $16,596.00 of which Mr. Cuthbert paid $2440.00. The rest of the program and after-school expenses totalled $1422.15 of which Mr. Cuthbert paid none. Ms. Meyrick argues that imputing an income of $125,000 to Mr. Cuthbert means that the expenses should have been split 54-46. She argues that s. 7 expenses should be shared proportionate to income: Ms. Meyrick therefore argues that Mr. Cuthbert should pay Ms. Nolis $8821.97 less that already paid under an order of Paisley J. Mr. Cuthbert should therefore pay a total of $2939.80.
• 2016: The total childcare and s. 7 expenses for 2016 were $14,544.89, all of which were paid by Ms. Nolis. All of these expenses were paid by Ms. Nolis. Based on an imputed income to Mr. Cuthbert of $125,000.00, Ms. Meyrick argues that his proportionate share (58-42) that is owing is 8436.04.
• 2017: The total childcare and s. 7 expenses for 2017 up until the date of trial were $11,709.67 of which Mr. Cuthbert paid $980.00. Based on an actual and imputed income to Mr. Cuthbert of $125,000.00, Ms. Meyrick argues that his proportionate share (57-43) that is owing is 5694.50.

[151] According to Ms. Meyrick, therefore, Mr. Cuthbert should pay Ms. Nolis a total of $17,070.34 in retroactive s. 7 expenses from March 2015 until the day of trial. That calculation is based on imputed income of $125,000.00 per year.

[152] Mr. Cuthbert’s position is that he ought not to be responsible for any s. 7 expenses as these were not special and extraordinary. He also argues that he and his mother were available to take up daycare duties. They could have cut daycare costs considerably. Furthermore, he contributed $1200.00 to extra-curricular activities but has not sought credit for that amount.

[153] I do not entirely agree with either party. Section 7 of the Federal Child Support Guidelines states:

7 (1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation:

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

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

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

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

(e) expenses for post-secondary education; and

(f) extraordinary expenses for extracurricular activities.

(1.1) For the purposes of paragraphs (1)(d) and (f), the term extraordinary expenses means

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

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

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

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

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

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

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

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

[154] It is clear from the Guidelines that these expenses are to be shared proportionate to income. That said, s.7 does not grant to a parent a unilateral right to enrol the children in programs and then demand payment: Forrester v. Forrester, 1997 15466 (ON SC), [1997] O.J. No. 3437 (Gen.Div.) at para. 4. The non-custodial parent does not get a veto simply because he or she does not agree with the expense. Each expense must be evaluated on its own in accordance with the principles laid down in S. 7 of the Guidelines. The Guidelines are broad but not open-ended and exhaustive: Kilrea v. Kilrea, [1998] O.J. No. 3677 (Gen.Div.) . at para. 13.

[155] I have reviewed the s. 7 expenses (other than daycare) submitted by Ms. Nolis (I include before and after-school programs as part of the daycare expense: in my view it is entirely unrealistic to expect a working parent to be able to get through the workday without those programs). I found the expenses (which almost entirely related to programs and extra-curricular activities) to be reasonable, appropriate, and not extravagant. I understand Mr. Cuthbert’s point of view that he should not be forced to pay for things that he did not necessarily agree to. His position that he is excused from paying anything is, however, unrealistic. He continued to enjoy his leisure activities, such as skiing, golf, and his cottage, albeit in a reduced fashion. He will pay his share of the s. 7 costs but I will apportion those costs 50/50. The total amount of non-daycare s. 7 expenses incurred by Ms. Nolis in 2015 ($1422.15), 2016 ($2379.89), and 2017 ($5064.67) was $8866.71. Mr. Cuthbert must pay $4333.35.

[156] Regarding day-care costs (including before and after-school programs), I agree with Mr. Cuthbert that the amount could have been cut down while he was out of work. Mr. Cuthbert proposed on several occasions that daycare costs could be cut when he was unemployed. He offered to take the children for one day per week.

[157] Ms. Meyrick submits that Mr. Cuthbert was simply incapable of caring for the children, but that was clearly not the case as Mr. Cuthbert continued to exercise access, even if not access to the full extent he wished.

[158] Furthermore, Ms. Nolis took the position with Mr. Cuthbert that he should have been caring for the children when he was supposed to spend 40 hours per week looking for a job. I find that Ms. Nolis deployed this response as an excuse. She wanted as much control as possible over the children. She refused virtually every single request by Mr. Cuthbert for extra time with the children. As I have already noted, she was hostile and uncompromising. In my view, she cannot now complain that Mr. Cuthbert should be made to pay for days he would otherwise have cared for the children at no cost.

[159] Ms. Nolis incurred a total of $33,986 in daycare costs (including before/after school programs as well as camp for July, 2017 [it is not unfair to allocate camp at this time, as Mr. Cuthbert began working in 2017]) over the 30 months between April 2015 and the start of the trial. In my view, it would be appropriate to allocate 12 months of day-care costs at 50/50. That takes into account the fact that Mr. Cuthbert paid was deliberately unemployed for a year. It would be appropriate to reduce the amount of $33,986 by 20%, to reflect Mr. Cuthbert’s offer to take the children 1 day per week. I note that Mr. Cuthbert paid $480 of daycare costs in 2017. The total discounted amount over 30 months paid by Ms. Nolis was, therefore, $26,708.80. Mr. Cuthbert should pay his half of 18 of the 30 months incurred by Ms. Nolis alone, or 60% of one-half of $26,708.80. The total, therefore, is $8012.64.

[160] Thus, the total amount of retroactive s. 7 expenses to be paid by Mr. Cuthbert to Ms. Nolis is $12,345.99.

Costs

[161] The parties have had mixed success on this trial. Each has gotten part, but not all of what they want. Neither side won or lost. I therefore decline to order costs.

Disposition

[162] The parties will draft an order that reflects this judgment. More specifically, the draft order will reflect the following:

• Joint custody is awarded to both parents.
• After a period of one year Mr. Cuthbert may apply to increase access, eventually leading to 50/50 access. The parties will attempt to work out a schedule. The parties may speak to the matter before me or another judge if they are unable to work it out.
• The family names of the children will be changed to Cuthbert-Nolis.
• Mr. Cuthbert will continue to pay table support based on his current income of $125,000 per year. The parties will exchange tax returns by June 1 of each year.
• Mr. Cuthbert will pay Ms. Nolis $13,503.61 in retroactive child support. This is in addition to the $8,351 currently being collected by the Family Responsibility Office.
• Mr. Cuthbert will pay $12,345.99 in retroactive s. 7 expenses.
• The parties will attempt to work out a payment schedule for the amounts owed by Mr. Cuthbert to Ms. Nolis. The parties may speak to the matter before me if they are unable to work it out.

R.F. Goldstein J. Released: August 1, 2018