Court File and Parties

COURT FILE NO.: FC-15-2528 DATE: 2018/10/ 18 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Jeffrey Hutchinson Applicant – and – Jennifer Peever Respondent

Counsel: Rodney Cross, Counsel for the Applicant Allison Campbell, Counsel for the Respondent

HEARD: September 24 to October 5, 2018

Reasons for Judgment

Justice Engelking

[1] This is a case about the custody of two little boys, Jeffrey James, known familiarly as JJ, aged 10, and Jaxon, aged 6. Currently, JJ and Jaxon live in the parties’ matrimonial home, at least during the school year, at 14 Peters Street in Maxville, Ontario, and are cared for by their parents on a week on/week off schedule pursuant to a Temporary Order of Justice Leroy dated April 29, 2016.

[2] The Applicant father, Mr. Hutchinson originally sought an order of joint custody and continued shared parenting of the children, however by the time of trial, he was seeking an order of sole custody of the children and primary residence of them with him during the school year, access to the Respondent mother, Ms. Peever, three weekends out of four, and shared summers and holidays, although he does not appear to have ever filed an Amended Application.

[3] Ms. Peever is seeking an order of sole custody of the children and primary residence of them with her during the school year, access to Mr. Hutchinson three weekends out of four and shared summers and holidays.

[4] This is an extremely sad case, as had the parents had an opportunity to resolve matters on their own, they likely would have been able to come up with suitable arrangements for the children between themselves. Unfortunately, they were not afforded that opportunity.

Issues

[5] There are only two issues before the Court: 1) the parenting regime for the children, including custody and primary residence during the school year; and 2) whether the matrimonial home should be sold.

[6] There is no issue with summers and holidays as both parents seek shared time with them during those periods.

[7] For the reasons that follow, there will be an order that Ms. Peever have sole custody of the children, and that they primarily reside with her during the school year. Mr. Hutchinson shall have parenting time with the children three weekends out of every four, and the summers and holidays will be shared equally between the parties. There shall also be an order that the matrimonial home be sold, in the event that Mr. Hutchinson is not able to buy out Ms. Peever’s interest in the home.

Background Facts

[8] Mr. Hutchinson and Ms. Peever met when they were both very young, sometime between 13 and 16 years of age, and almost immediately became a couple, or as Ms. Peever described it “inseparable”. They both had challenging childhoods; Mr. Hutchinson was abandoned by his parents, and spent time in youth detention. Ms. Peever also appears to have bounced around somewhat as youth.

[9] In the early years, from the time they met until Ms. Peever was pregnant with JJ, the couple lived variously with Ms. Peever’s mother, Brenda, with Mr. Hutchinson’s mother and step-father, Elaine and Ron Johnson, on the street, in numerous rooms or apartments in Ottawa, and in an apartment belonging to Ms. Peever’s father in Crosby, Ontario. The couple partook in extensive drug use at times, particularly when they lived in a rooming house on Bank Street (crack cocaine), and in their apartment on Laval Street in Vanier (cocaine). They had one separation of approximately five months in or about 2005 when Ms. Peever moved from the Laval Street apartment she shared with Mr. Hutchinson to her own apartment on Innes Road.

[10] The parties reconciled and Mr. Hutchinson moved into the Innes Road apartment, where they stayed until Ms. Peever became pregnant with JJ. Ms. Peever had shortly before been pregnant and experienced a miscarriage. At the time of her first pregnancy and for approximately eight years thereafter, Ms. Peever ceased using all drugs. She was also alcohol free when pregnant or nursing. Although Mr. Hutchinson testified that they both stopped using substances, but for his use of marijuana, Ms. Peever believed him to still be using drugs at certain times, particularly cocaine or crack cocaine. At the time of Ms. Peever’s pregnancy with JJ, they moved to an apartment owned by her father in Crosby, Ontario. Both wanted to get away from the “drug scene” with which they were familiar in Ottawa.

[11] The parties lived in Crosby for several months prior to JJ’s birth and until JJ was about eight months old. Mr. Hutchinson’s parents, Ron and Elaine Johnson, had reconnected with Mr. Hutchinson as a result of JJ’s birth. They came to see JJ at the hospital when he was born, and they visited one other time in Crosby. Mr. Hutchinson was not working at the time, and the couple was struggling financially. The Johnsons offered employment to Ms. Peever in their marijuana seed business, and she began to work for them, commuting from Crosby to do so. Mr. Hutchinson also began to do some construction/renovation work for the Johnsons, and ultimately Mrs. Johnson assisted them in buying a house at 14 Peter Street in Maxville, which was four houses down the street from the Johnson’s home.

[12] Mr. Hutchinson and Ms. Peever live at 14 Peter Street, where their second child, Jaxon, was also born, until they separated in February of 2016. They married on November 17, 2011, and the home, which had previously been in Ms. Johnson’s name, was subsequently transferred to their joint names. At the time of separation, in or around February 8, 2016, Ms. Peever asked Mr. Hutchinson to leave the family home, which he briefly did. However, he returned to the Maxville home a few days later and thereafter indicated to Ms. Peever that he was not leaving. In the interim, Ms. Peever had taken the children and gone to stay with her friend, Sherri, in Orleans. When she understood that Mr. Hutchinson was intending on remaining in the family home, Ms. Peever simply remained in Ottawa. The date of separation identified in the couples’ court documents is February 12, 2016.

[13] Ms. Peever remained in Ottawa with the children, but she arranged for Mr. Hutchinson to come and visit with them at Sherri’s home. Mr. Hutchinson commenced a court application on March 17, 2016. The parties reached an interim agreement with respect to sharing March Break in 2016. Subsequent to the March Break, on an agreement that Ms. Peever believed the parties to have reached at mediation, though no document evincing same was signed, Mr. Hutchinson began to spend time with the children every second Friday from 4:30 pm to Sunday at 4:30 pm and every Wednesday to Thursday in the case of Jaxon (who was not yet in school). The parties also appeared to have reached an agreement regarding the sharing of the Easter weekend, however, on March 26, 2016, shortly before the children were to return to Ms. Peever; Mr. Hutchinson advised her that he would not be doing so. Thereafter, Mr. Hutchinson only permitted Ms. Peever to see the children for short period in a public place in his, and in some instances his parents, presence.

[14] The matter proceeded to court in Cornwall, Ontario, and on March 24, 2016, Justice Lacelle granted an order appointing the Office of the Children’s Lawyer (OCL), and recommended that a clinical investigation be undertaken. On April 29, 2016, Justice Leroy granted an order on consent of the parties that provided that the children would remain in the Maxville home in a “nesting arrangement” with each parent caring for them week about, with the exchange occurring on Fridays at 2:00 pm. This order has continued to be in place until today. Justice Leroy also ordered that the matter be transferred to Ottawa on consent of the parties.

[15] In June of 2016, the children’s paternal grandparents, Elaine and Ron Johnson, brought their own application for custody of the children, and in July of 2017, Justice Laliberté granted an order joining the two matters. The matter was originally scheduled to go to trial in June of 2018. The Johnsons’ application remained live until it was withdrawn by them shortly before the scheduled trial. As a result of their involvement, at a case conference on January 12, 2017, Master Fortier requested that the Johnsons be included in the investigation being undertaken by the OCL.

[16] Ms. Peever continued to stay in the home of her friend, Sherri, for approximately five months after separation. In the fall of 2016, Ms. Peever went to stay in the home of sister, Shannon Landriault, where she remained for approximately seven months. Both when she was staying with Sherri and with Shannon, Ms. Peever generally took the children to Ottawa on Fridays and stayed the weekend, returning them to school in Maxville on Monday mornings and then remaining in the Maxville home for her week with the children.

[17] In or about March of 2017, Ms. Peever was successful in her application for a geared-to-income rental unit on Barren Crescent in Barrhaven, not far from Shannon’s home. Thereafter, Ms. Peever brought JJ and Jaxon to her home on the weekends and spent her weeks with the children in the Maxville home during the school year. However, beginning in the summer of 2017, Ms. Peever began to spend her weeks during the summer months with the children in her home in Barrhaven as well, returning to the nesting arrangement in Maxville in each of September of 2017 and 2018.

[18] The OCL assigned the matter to a clinical investigator, Ms. Barbara Mitchell, as a result of Justice Lacelle’s order. Ms. Mitchell’s report was delayed in part, however, for a determination as to whether the paternal grandparents would be involved in her assessment. Ms. Mitchell’s initial report was released on May 24, 2017. Mr. Hutchinson sought an adjournment of the June 2018 trial, both to retain new counsel and to request an update of the OCL assessment. The adjournment was granted by Justice Kershman and Ms. Mitchell released an updated report dated September 20, 2018.

[19] All involved in this matter share the view that the nesting arrangement cannot continue.

The Parenting Regime

[20] As is indicated above, when Ms. Peever left the matrimonial home in February of 2016, she took JJ and Jaxon with her to Ottawa. Ms. Peever’s evidence was that she was not necessarily intending to separate. She and Mr. Hutchinson had had an altercation or argument on or about February 9, and she went to the home of her friend, Sherri, to have a break from Mr. Hutchinson. It was her hope that Mr. Hutchinson would get some help as, according to her, he had been suffering from mental health issues for some time. The plan, in fact, according to both Ms. Peever and Mrs. Johnson, was that Mr. Hutchinson would go to Nova Scotia to visit his father for a bit in order to give the couple some breathing space. What actually transpired is that Mr. Hutchinson went to stay with a friend for a few days, and then he returned to the family home in Maxville within the week and advised Ms. Peever that he would be remaining there. Given that she did not wish to return to the Maxville home with Mr. Hutchinson there, absent him getting some help with his issues, Ms. Peever then simply ended up staying in Ottawa with her friend. She enrolled JJ, who had been going to École élémentaire catholique La Source in Maxville, in École élémentaire catholique Arc-en-ciel in Orleans.

[21] Mr. Hutchinson and Ms. Peever were able to come to an agreement about March Break, and also attended a closed mediation on March 10, 2016. Although no written agreement was signed on that date, the parties commenced a temporary parenting regime to which Ms. Peever certainly believed Mr. Hutchinson agreed. Mr. Hutchinson began to see the children every second weekend, and also saw Jaxon on Wednesday overnight to Thursday every week as he was not yet in school. On one occasion, Ms. Peever permitted Mr. Hutchinson to also have JJ (along with Jaxon) from a Wednesday straight into the weekend as he was not feeling well one of the Wednesday or Thursday and the other was a snow day.

[22] Notwithstanding that the parties had attended mediation and seemingly reached a temporary agreement, Mr. Hutchinson refused to return the children to Ms. Peever on the Saturday of the Easter weekend, which was March 26, 2016. He thereafter only permitted Ms. Peever to see the children for an hour or two once or twice a week, normally at a restaurant in Casselman, Ontario, and in his or his and his parents’ presence. Mr. Hutchinson testified that he did not return the children to Ms. Peever because JJ was crying and expressing that he did not want to return to her.

[23] Ms. Peever testified that this period was extremely difficult for her because she had always been the primary caregiver of the children and was the one who consistently met their needs. Neither she nor the children, according to her testimony, could understand why they could only see each other for such brief visits and in public places.

[24] Ms. Peever testified that she had taken the children with her when she left the Maxville home because it was the natural thing to do; it had always been her job to care for the children, indeed it was clearly expected of her, and as far as she was concerned it remained so, notwithstanding the separation.

[25] While Mr. Hutchinson attempted to portray himself as an equal caregiver to the children pre-separation, the evidence as a whole did not bear that out. Ms. Peever was clearly the person who had the pulse of the children; she was and is very aware of their idiosyncrasies, personalities, needs and behaviours. She had the parental contact with the school administration, the children’s teachers, doctors and dentists, and was in charge of and on top of their extra-curricular activities. That this was the case was supported by information from collaterals, both those who testified and those with whom the OCL investigator, Ms. Mitchell, had contact during her investigations. Ms. Peever was responsible for all things relating to the children, including discipline. Ms. Peever was essentially a stay-at-home mom, who worked a few evenings a week for the Johnsons. It was her evidence that even when she was working, she would only go over to the Johnsons after the children had been fed, bathed and put to bed. Indeed, on the few occasions where she did not put them to bed prior to going to work, Ms. Peever indicated that she would find them still up watching TV with Mr. Hutchinson when she returned, regardless of the hour. She, therefore, generally refrained from leaving for work until after the children were put to bed.

[26] From the evidence led before me, Mr. Hutchinson’s role pre-separation appeared to be as a father who was very good at engaging the children in activity when he had an interest in doing so. He took them fishing, four wheeling and played on the trampoline in the backyard with them. He did participate in some basic care of them as young children, such as occasionally changing diapers. He was what Ms. Peever described as the “fun dad”. Mr. Hutchinson’s new girlfriend, Melissa MacDonald’s evidence actually corroborated that of Ms. Peever in that she indicated that early in their relationship, Mr. Hutchinson was too much of a friend to the children, and she in fact assisted him is being a more firm and consistent disciplinarian with the boys.

[27] None of Mr. Hutchinson, Mrs. Johnson or Mr. Johnson provided any evidence which would suggest otherwise. Indeed, there were periods during the parties’ relationship when Mr. Hutchinson was working long days, up to 12 to 14 hours, and actually had little contact with the children. All confirmed that Ms. Peever was responsible for contact with the school because she is French speaking and they are in a French Catholic school. Mr. Hutchinson testified that there was a contract of sorts between him and Ms. Peever that as the French speaker she would be responsible for the children’s school. Ms. Peever, on the other hand, testified that she put the children in a French school because she made all decisions for the children and Mr. Hutchinson simply went along with them. Regardless, there was no dispute that it was her exclusive role to liaise with the school and help JJ with his homework pre-separation.

[28] With respect to medical and dental care for the children, Ms. Peever was able to demonstrate that she arranged for and took the children to their appointments. She indicated that she also made appointments for Mr. Hutchinson, and generally accompanied him to them as well. The evidence revealed that she was the organizer of the household, be it for meals, appointments, school and the children’s regular routine. As such is the case, I find that Ms. Peever was the children’s primary caregiver prior to separation.

[29] Post-separation, she continued to be so, at least until Mr. Hutchinson prevented her from continuing in that role by refusing to return the children to her as of March 26, 2016. After the nesting arrangement was put in place, Ms. Peever continued to care for JJ and Jaxon as she had always done. Mr. Hutchinson only began to provide regular care for the children from that point forward, having never done so before. He clearly struggled in that role, so much so that he required not only the significant assistance of his parents in providing before and after school care to them, but also the assistance of Ms. Annie Fontaine, a French speaking individual, paid for by the Johnsons, to liaise with the school and help the children with homework. Mr. and Mrs. Johnson, in fact, at one point brought their own application for custody of the children, apparently being of the view that neither Mr. Hutchinson nor Ms. Peever were capable of properly caring for them. According to their testimony in the trial, Mr. and Mrs. Johnson were of the view that Mr. Hutchinson was making very bad choices for a significant period post-separation, specifically by putting his interest in reconciling with Ms. Peever ahead of the interests of the children. With respect to Ms. Peever, the Johnson’s were of the view that she was abusive to the children, and that she also abuses substances such that she should not have primary care of them.

[30] Mr. and Mrs. Johnson softened their stance in relation to Mr. Hutchinson once they saw him making “more appropriate choices”. They have never softened their stance in relation to Ms. Peever, notwithstanding that the evidence led at trial did not support their (and hence Mr. Hutchinson’s) theory of the case.

[31] Once the nesting arrangement was put in place, the Johnsons and Mr. Hutchinson appear to have become fixated on either what Ms. Peever was doing wrong, in their view, in relation to the temporary order of Justice Leroy, or on proving her to be an inadequate or unfit parent. They were all particularly fixated on when Ms. Peever was or was not in the Maxville home.

[32] The order of Justice Leroy provided as follows:

1. The children, namely Jeffrey James Peever Hutchinson born the 1st day of October, 2008, and Jaxon Patrick Hutchinson born the 13th day of August, 2012, shall remain in the matrimonial home on a full time basis, except for purposes of the enjoyment of a vacation within Canada on notice to the other party.
2. The Applicant and the Respondent shall alternate residing in the home with the children on an alternating week basis as follows: (i) The Respondent shall reside in the matrimonial home from Friday, April 29, 2016, at 6:00 PM until Friday, May 6th, 2016, at 2:00 PM; (ii) The Applicant shall reside in the matrimonial home from Friday, May 6, 2016 at 2:00 PM until Friday, May 13th, 2016 at 2:00 PM; (iii) Thereafter the parties shall alternate residing in the home on a weekly basis alternating each Friday at 2:00PM; (iv) The parties shall not attend at the home together and to ensure same, the parent leaving the home shall do so immediately upon the other parent arriving on the day they vacate the home; (v) Each parent shall have exclusive possession of the home during their time with the children in the home; (vi) The parent who does not have the children in their care may phone the children at the matrimonial home on Sunday and Wednesday at 7:30 PM;
3. Neither parent shall attend at the matrimonial home during the other parent’s time in the home.
4. Neither party shall allow friends or family to attend at the matrimonial home during the other parent’s time with the children and in the home.
5. Neither party shall damage the matrimonial home or in any way reduce the value of the home.
6. The parties may only remove their own personal property from the matrimonial home.
7. When the parties exchange residence and care of Jaxon at 2:00 PM on Friday the parties shall only express respectful “hello” and how are you.
8. All communication between the parties shall be in writing by text or email and they shall only use the telephone in any emergency. All communication shall be respectful.
9. Only the Applicant and the Respondent shall attend to exchange Jaxon at the home on Friday.
10. The parties’ vacation time shall not extend beyond their time with the children pursuant to the regular schedule.
11. The police force having jurisdiction over the parties at any time shall enforce the terms of this order if called upon to do so.
12. The children’s OHIP cards shall remain with the children in the matrimonial home.
13. The matter shall be transferred to the jurisdiction of the Superior Court of Justice –Family Division (Ottawa).
14. The Applicant shall pay the monthly expenses of operating the matrimonial home. The Respondent shall be assessed on all-inclusive rent charge of $500.00 per month for the duration of the nesting arrangement commencing May 1, 2016 to be settled from her share of the equity in the matrimonial home or from the accrual of child support otherwise payable or both as required.
15. No costs.

[33] The position of Mr. Hutchinson at trial was that Ms. Peever was in breach of the order of Justice Leroy, particularly the requirement in paragraph 1 that JJ and Jaxon “shall remain in the matrimonial home on a full time basis”, because she was taking the children to Ottawa on her weekends and also during her weeks in the summer once she obtained her own home in 2017. Mr. Hutchinson, his girlfriend, Ms. MacDonald and Mr. and Mrs. Johnson were all monitoring Ms. Peever’s comings and goings from the Maxville home. Mrs. Johnson, who habitually keeps a calendar for all her family’s activities, began to make notes in it regarding Ms. Peever’s presence in Maxville immediately upon the nesting arrangement taking effect. Her calendar included the following entries in 2016 and 2017 during Ms. Peever’s weeks with the children:

• April 29, 2016 – “Bird’s Nest starts at 6:00 pm [with in shorthand] Jen”;
• May 2, 2016 – “Jeff spoke with JJ & Jaxon for about 2 minutes JJ said mother slapped him in the fact”
• May 18, 2016 – “Jen-sitting on bench” “Around 4:45 pm JJ in trouble for talking to us” “Jen left Maxville Jeff here now”;
• May 20, 2016 – “Jen was in Maxville” “Boys still here”;
• June 10 to 12, 2016 – “JJ Beaver camp”;
• June 14, 2016 – “Jaxon in window”;
• June 26, 2016 – “OPP Neil Tavish 12 noon Home Hardware walking home” “Jen-car”;
• July 11, 2016 – “JJ stopped by to get Blue Bike @ 7:30 pm”;
• July 22 to July 26, 2016 – “Jen NH”;
• July 27, 2016 – “JJ hurt ankle”;
• August 23, 2016 – “PI (Pat Callaghan) here for visit 10:00 am”;
• September 19, 2016 – “JJ Paylon Quinn picked up bicycles”;
• September 22. 2016 – “court 9 am peace bonds”;
• September 30, 2016 – “Questioned by Jen @ 4:15 pm in front of children about taking Jen to court”;
• October 1, 2016 – “JJ’s 8th BD”;
• October 3, 2016 – “Jaxon DID NOT GO TO SCHOOL?”;
• October 20, 2016 – “JJ sick – mother” “Jaxon?”;
• November 2, 2016 – “JJ Bring Library Book Back opened to 8 pm”;
• November 14, 2016 – “JJ-medical mother” “ONLY JAXON OFF BUS”;
• November 15, 2016 – “-LEFT AROUND 10 to 4 pm No Boys OFF BUS”;
• November 17, 2016 – “Jen’s car was there around 5:15 pm”;
• November 25, 2016 – “Bus Late”;
• November 28, 2016 – “JJ & Jaxon Medical mother”;
• November 29, 2016 – “NO BUSES”;
• December 1, 2016 – “JJ & Jaxon – medical mother”;
• December 12, 2016 – “SNOW DAY NO SCHOOL NO BUSES”;
• December 13, 2016 – “JJ & Jaxon Christmas Concert 2 pm & 7 pm”;
• December 14, 2016 – “Court 9:00 am must go PEACE BOND FOR JEN “NOT””;
• December 25, 2016 – “Jeff, JJ, Jaxon here… Christmas Supper JJ sick”;
• January 9, 2017 – “SCHOOL HOLIDAYS OVER”;
• January 11, 2017 – “JJ & Jaxon Did not go to school – mother”;
• January 24, 2017 – “NO BUSES”;
• January 25, 2027 – “Seen JJ playing outside [with in shorthand] Allison & Courtney – NO MITTS Jen NO[sic] NICE;
• January 26, 2017 – “JJ sick” “JJ & Jaxon medical mother”;
• February 8, 2017 – “SNOW DAY” “NO SCHOOL” “NO BUSES”;
• February 18, 2017 – “ JJ came here in AM & asked for his skates & helmut. Told to bring back”;
• February 21, 2017 – “JJ – sick mother” JJ & Jaxon medical mother”;
• February 23, 2017 – “JJ came over to get his bike. AND said school was going skating on Friday”;
• March 3, 2017 – “BNH”;
• March 4, 2017 – “BNH”;
• March 5, 2017 – “BNH”;
• March 7, 2017 – “SNOW DAY NO BUSES”;
• March 10, 2017 – “Jen kept kids” (it was the beginning of March Break);
• March 22, 2017 – “Kids taken out of school afternoon BNH”;
• April 1, 2017 – “BNH”;
• April 2, 2017 – “BNH”;
• April 3, 2017 – “at school at 9:30”;
• April 6, 2017 – “OCL here” :went for walk to store [with in shorthand] JJ, Jaxon & Jen”;
• April 15, 2017 – “BNH”;
• April 20, 2017 – “Jen came back today”;\
• May 12, 2017 – “Boys not here”;
• May 13, 2017 – “BNH”;
• May 14, 2017 – “not home 10 pm” “BNH”;
• May 15, 2017 – “Kids not in school not home last seen Friday BNH”;
• May 26, 2017 – “Boys not here”;
• May 27, 2017 – “Boys not home”;
• May 28, 2017 – “Boys not home – 12 am”;
• May 29, 2017 – “Not in school Not home”;
• May 30, 2017 – “JJ outside crying”;
• June 9, 2017 – “Boys not home”;
• June 10, 2017 – “BNH”;
• June 23, 2017 – “Maxville Fair went [with in shorthand] JJ & Jaxon 11:30 to 4:30”;
• June 24, 2017 – “Not home”;
• June 25, 2017 – “not home at 12 pm”;
• June 29, 2017 – “Dog & Cat left alone since Fri 23 June” “SPCA & OPP called”;
• July 7, 2017 – “Jen arrived @ 2:25 pm Asked Dan (neighbour) what time it was. He said 2:20 pm. No apology” “BNH”;
• July 8, 2017 to July 13, 2017 - “BNH”;
• July 13, 2017 – “Toni the cat left inside house.”
• July 14, 2017 – “Ron picked up JJ & Jaxon” “(Jen took BluRay Player)” “no health card for camp”;
• July 21, 2017 to July 23. 2017 – “BNH”;
• July 24, 2017 – “JJ going to overnight camp”;
• July 28, 2017 – “Boys not here all week”;
• August 6, 2017 – “Toni outside all weekend”;
• August 11, 2017 – “Boys not home all week”;
• September 1, 2017 to September 4, 2017 – “BNH”;
• September 4, 2017 – “No one at house 12 midnight”;
• September 5, 2017 – “Jen at house @ 3:38 pm. JJ & Jaxon left off of Bus Peter Street”;
• September 6, 2017 – “JJ & Jaxon leave morning Peter St – Off Bus on 25 Mechanic St.”;
• September 18, 2017 – “JJ & Jaxon NOT IN SCHOOL AT COTTAGE IN QC”;
• September 19, 2017 – “JJ & Jaxon Photo Day”;
• September 21, 2017 – “Jen asked the Boys to tell Ron she wanted to speak to him”;
• September 22, 2017 – “JJ & Jaxon here at 8 AM VIDEO” “PD Day for JJ & Jaxon”;
• September 29, 2017 – “none home”;
• September 30, 2017 – “BNH”;
• October 1, 2017 – “JJ & Jaxon not in school”;
• October 2, 2017 – “JJ not in school”;
• October 4, 2017 – “Toni the cat left outside” “Lights all on”;
• October 14 and 15, 2017 – “BNH”;
• October 16, 2017 – “kids not”;
• October 17, 2017 – “JJs homework brought to principal”;
• October 18, 2017 – “*SOCCER starts 7:30 – 8:30 pm” “JJ not at soccer”;
• October 27, 2017 – “Jen left”;
• November 10, 2017 – “Elaine pick up boys from school. JJ went to Shinny in Maxville from 4-5 pm” “Police at Jen’s it was around 7:10 pm?”;
• November 11 and 12, 2017 – “NO ONE HOME FED CAT” “BNH”;
• November 16, 2017 – “For 2 nights Kids not home all night”;
• November 24, 2017 – “2 women at house [with in shorthand] Jen – Light all on Jen not at house – Front door & patio door unlocked”;
• November 25, 2017 – “Jen leaving house @ 1:43 pm”;
• December 8 to 11, 2017 – “Kids not home”;
• December 12, 2017 – “NO SCHOOL SNOW DAY. Kids not home”;
• December 22 and 23, 2017 – “Boys stayed with Jeff” (on Ms. Peever’s time);
• December 24, 2017 – “BNH”;
• December 29, 2017 – “Jen would not leave the boys with us – Police called”.

[34] In her evidence, Mrs. Johnson attempted to suggest that her observations of Ms. Peever were casual, for example when she and Mr. Johnson were out for a walk. She agreed, however, that one could only see if Ms. Peever’s car was in the driveway at 15 Peter Street by, in the very least, going out to her own front yard. The detail contained in her own calendar evinces that the monitoring of Ms. Peever and the boys when they were in her care was anything but casual. This monitoring was coupled with that of Ms. MacDonald and Mr. Hutchinson, who, whenever they were going to visit the Johnsons during Ms. Peever’s week with the children, would take note of whether she was at the Maxville home or not. Mr. Hutchinson, for reasons which remained largely unexplained, also installed outside security cameras on the driveway and outside doors of 15 Peter Street (on February 27, 2016 according to Mrs. Johnson’s calendar). Mr. Hutchinson could, therefore, watch not only the comings and goings of Ms. Peever and the children, but also anyone else she happened to have to the home. The position of Mr. Hutchinson, supported by his parents, was that Ms. Peever not being in the Maxville home during her weeks with the children was a breach of the order of Justice Leroy, and she ought to be held to account for it.

[35] Ms. Peever, on the other hand, testified that her interpretation of the Leroy J. order was that it was necessary for the boys to be in the Maxville home when they were going to school, and she complied with the order, notwithstanding extreme hardship in so doing, about which I will speak more later. Ms. Peever was very frank in her testimony that she would generally spend her weekends during the school year with the boys in Ottawa, first at her friend Sherri’s and her sister, Shannon’s, and later at her own home, and that once summer came, she would pick up the boys on Friday in Maxville and spend her entire week with them in Ottawa. For the summer of 2018, moreover, Ms. Peever’s counsel wrote to Mr. Hutchinson (who was unrepresented at the time) on June 29, 2018 and advised him as follows:

Vacation As per paragraph one of the current Court Order, this shall constitute Ms. Peever’s notice that she shall be spending her summer vacationing with the children in Ottawa.

Pets Again, my client is no longer able to continue to maintain the dog and the cat in the matrimonial home and is not prepared to continue under the current arrangement.

If arrangements have not been made when Ms. Peever reenters the home on June 29, 2018, she will be surrendering the animals.

[36] Despite Mr. Hutchinson and Mr. and Mrs. Johnson noticing her absences from 2016 on, and despite being of the view that Ms. Peever was in contempt of the Leroy J. order, Mr. Hutchinson never took any steps to seek such a finding from the court. Ms. Peever’s testimony in this regard was that given the amount of conflict that was going on, and the level of animosity she received from the Johnson/Hutchinson family (about which I will again speak more later), she thought it was better for JJ and Jaxon to spend time with her in a neutral and positive environment whenever that was possible. She did not want the boys to continue to be exposed to situations that were, in her view, causing them harm. Ms. Peever was also of the view, incidentally, that one couldn’t look at one paragraph of the order of Justice Leroy in isolation; if paragraph 1 was being breached by her (which she didn’t accept), so too were paragraphs 3, 4, 7, 8 and 9 by Mr. Hutchinson and/or the Johnsons.

[37] In addition to the excessive monitoring of her time that was being done by the family members, Ms. Peever was also subjected to Mr. Johnson hiring two separate private investigators to conduct surveillance on her, Patrick Callaghan and Russel Crawford Private Investigations, ostensibly for the purpose of finding her working under the table or doing illicit drugs. The private investigators found evidence of neither, but they did on more than one occasion tail Ms. Peever, and, in the case of Russel Crawford, take several photographs of Ms. Peever and/or the staff of her cleaning business at the homes of her clients.

[38] Over and above these already very intrusive activities, Mr. Johnson illicitly installed a GPS tracking device on Ms. Peever’s car, and Mr. Johnson and Mrs. Johnson entered and took photographs inside the home on Ms. Peever’s time when she was not there. As a result of these activities, Mr. Johnson is currently charged with two counts of trespassing at night contrary to s. 177 of the Criminal Code of Canada and one count of being unlawfully in a dwelling contrary to s. 349(1) of the Code. Mrs. Johnson entered the home ostensibly to feed the cat with the permission of Ms. Peever, but she nevertheless took a photograph of the children’s school agenda while she was there. On top of all of this, because Ms. Peever did not take the family pets with her to Ottawa (on at least one occasion for the dog and more for the cat), the Johnsons and/or Mr. Hutchinson reported her to the SPCA and the OPP, this despite that Ms. Peever indicated to Mr. Hutchinson that she could not maintain the pets as per Ms. Campbell’s letter of June 29, 2018, as referenced in paragraph 35 above.

[39] Mr. Hutchinson and Mrs. Johnson also tracked when JJ and Jaxon were or were not at school, and attempted to make an issue of it with the court, notwithstanding that JJ’s teacher, Brigitte Dillon, did not consider the number of times he was absent from school out of the ordinary or problematic, even though she noted them to be predominantly on Ms. Peever’s time.

[40] Communication between Mr. Hutchinson and Ms. Peever, between Ms. Peever and Mr. and Mrs. Johnson, and between Mr. Hutchinson and Mr. and Mrs. Johnson at times, was, moreover, highly problematic. Indeed, this is a case that is characterized as high conflict. Ms. Peever found Mr. Hutchinson’s communication with and attitude towards her abusive for some time prior to separation. Post-separation, there were numerous instances of highly negative and unhealthy interactions between all parties.

[41] In May of 2016, Mr. Hutchinson had a falling out with Mr. and Mrs. Johnson because they did not approve of him permitting JJ and Jaxon to visit with Ms. Peever on Mother’s Day. They, in fact, were involved in a scuffle at the Johnson’s home to which police were ultimately called. They broke off relations for some time, and Mr. Hutchinson would not permit the children to have any contact with the Johnsons for a number of months, even though the children were used to doing so regularly. In March of 2017, they had another falling out of a shorter duration of a couple of weeks, but again Mr. Hutchinson did not permit the children to see their grandparents during that period of time.

[42] For her part, Ms. Peever did not want any contact with the Johnsons based on all that she was experiencing, and based on things that had been communicated to and about her by Mr. Johnson. Mr. Johnson had sent Ms. Peever a text message shortly after separation in which he stated: “It’s obvious now you’re just as much a tramp, ho, and scum as your mother was. The apple doesn’t fall far from the tree does it Jen”. He also authored a particularly vitriolic Facebook post about Ms. Peever under the name of “Dick Citizen” in response to a go funding page she had set up. Mrs. Johnson accused Ms. Peever of trying to run her down with her car on the street in Maxville. A complaint was made to police, and the Johnsons attempted to obtain a section 810 C.C.C. restraining order against Ms. Peever, at which they were ultimately not successful. Finally, Mr. Johnson sent numerous email communications to both the CAS of Stormont, Dundas and Glengarry and the OCL clinical investigator, Ms. Mitchell, replete with allegations against Ms. Peever.

[43] The parties had conflict over the children’s OHIP cards, which according to the order of Leroy J. were to remain in the home. Ms. Peever indicated in her testimony that the cards were kept in the home until she had to replace them twice, once because Mr. Hutchinson ran over them with a lawn mower and once because he lost them. Because she was the party who typically took care of such things, and because Mr. Hutchinson seemed incapable of doing so, she was the one to replace the cards. She testified that she thereafter kept them with her because she didn’t want to have to replace them again, but that she would always make them available to Mr. Hutchinson if he needed them. Mr. Hutchinson and his parents simply saw this as another breach of the order by Ms. Peever, the former taking no responsibility for why she may have come to that strategy. A great deal of conflict was focused on the children’s OHIP cards – who had them, where they were kept, whose address was on them. Ultimately, notwithstanding that the children had OHIP cards (albeit with Ms. Peever’s home address on them), Mr. Hutchinson got them new ones, and they are kept not in the matrimonial home, as per the court order, but in the home and possession of Mrs. Johnson.

[44] Not only did Mr. Hutchinson replace the children’s OHIP cards, he also replaced their family doctor and Jaxon’s ophthalmologist without any consultation or agreement with Ms. Peever, and without, I conclude, consideration of the children and the relationships they may have already had with the professionals in their lives. The Johnsons and/or Mr. Hutchinson also had JJ assessed by a psychologist in Cornwall without the knowledge or consent of Ms. Peever.

[45] There was additionally intense conflict over the children’s belongings, such as skates, running shoes, sleeping bags, bikes and soccer gear. So much so that Ms. Peever gave up on taking JJ to soccer, and was then blamed by Mr. Hutchinson and the grandparents for him missing soccer on her weeks. The court was struck by Ms. Peever’s statement that one of the saddest things about the whole situation was that: “JJ’s belongings ceased to be his”; rather they became objects to be held, contracted over, fought over and accounted for.

[46] Ms. Peever recognized in her testimony that the Johnsons have been very good grandparents to JJ and Jaxon, and that Mrs. Johnson in particular is a wonderful grandmother. However, she did not encourage the children to see the Johnson’s during her weeks with them, in part because of the conflict that was occurring between them and in part because she felt her own time with the children was so limited. Ms. Peever acknowledged that she likely swore at and called Mrs. Johnson names at times as well. In this regard, she would have contributed to the conflict.

[47] As between Mr. Hutchinson and Ms. Peever, the communication was often negative, particularly by text message. Mr. Hutchinson appeared to escalate more often than not, while Ms. Peever continually attempted to keep the interaction focused on issues relating to the children. A particularly illustrative interaction is a text message between them relating to the cost of litigation. Mr. Hutchinson wrote to Ms. Peever when he learned that a $30,000 lien had been placed on the matrimonial home by Legal Aid Ontario. Although Mr. Hutchinson was the one to commence litigation, while Ms. Peever was looking to resolve their issues outside of court, he was very upset with her about the lien. It that exchange, he wrote: “The kids will live here and I won’t lose the house so fuck you U are stuped [sic] as fuck Welfare junky bum”. On a couple of occasions, once when Jaxon was sick and Ms. Peever wanted Mr. Hutchinson to pick him up at the end of his work day rather than her return him to school or Mrs. Johnson in Maxville, and once when she was going to be an hour late for the exchange, Mr. Hutchinson threatened to call the police on her. On neither occasion did his actions align with the best interests of the children. Indeed, Mr. Hutchinson and Mr. and Mrs. Johnson appear to have regularly been more interested in either making Ms. Peever do what they thought she should do or in punishing her for perceived wrong doing than they were in what would have been optimal for the children in the given circumstances.

[48] These situations and communications did not go unnoticed by the boys. JJ, in particular, appears to have been most overtly negatively impacted by the conflict, though Jaxon too demonstrated some physical signs of the stress. The impact on JJ was increased anxiety, manifested by storytelling, increased fragility and sadness. That on Jaxon was a period of regression in toileting, to the degree that he was wetting himself up to several times a day at school, until Ms. Peever, in conjunction with his teachers, implemented a reward sticker program which seemed to lessen the problem.

[49] JJ began to make numerous allegations of either physical abuse or drug use by Ms. Peever. He alleged that Ms. Peever dragged him up the stairs at her home by his nose (putting her fingers in the inside of his nostrils) or ears, that she threw him into a wall, and that she snorted what he believed to be cocaine out of a jar in purse. JJ’s allegations were investigated by the CAS of S., D. and G. and were not verified. However, what was verified on more than one occasion was that emotional harm was being done to the children as a result of adult conflict. S. D. and G. CAS attempted to assist the parties in reducing such conflict, including by recommending that they only communicate via Our Family Wizard. Ms. Mitchell, who had recommended the use of such a communication tool a year earlier, was also preoccupied by the conflict that was occurring and causing harm to the children.

[50] The CAS did not verify JJ’s disclosures on the basis that they were inconsistent when the physical logistics of his allegations were reviewed, for example when he stated he jumped out of a second floor window and broke a glass table below, both of which were still intact, or because his demeanour in delivering his disclosures did not match their content. In other words, he delivered them by rote and displayed no fear or trepidation around Ms. Peever. There was no clear evidence that JJ was coached to say things against Ms. Peever by Mr. Hutchinson or Mr. and Mrs. Johnson, but there was, in the very least, a wonder expressed by Ms. Mitchell as to whether JJ felt encouraged to do so as a result of the positive reception he received from his paternal family when he did.

[51] With respect to the issue of drug use by Ms. Peever, she admitted both to the OCL clinical investigator and to the court, that from the time Jaxon was about two years old until early 2018, she would use speed and ecstasy four times per year (her birthday, Mr. Hutchinson’s birthday, New Year’s Eve and Canada Day), but that she has since stopped even doing that. Mr. Hutchinson’s evidence was that he and Ms. Peever were using those drugs on weekends, essentially every weekend for approximately the last two years of the relationship. He, therefore, asserts that Ms. Peever is a drug abuser who cannot be trusted with the care of the children. However, his evidence, along with Ms. Peever’s and others to whom Ms. Mitchell spoke, was that he and Ms. Peever would have the children cared for by others when they went to party. He relied on one text message from Ms. Peever to assert that she was using when cleaning the house with a friend while caring for Jaxon, but Ms. Peever’s explanation for the text message was plausible. In any event, the court received no evidence, beyond that text message, even if it could be relied upon, which suggested that the children were impacted by either parent’s illicit drug use over the years. Ms. Peever testified that she has ceased using illicit drugs, and the court received no evidence to suggest otherwise.

[52] In the end, Ms. Mitchell recommended both in her report in May of 2017 and in her update in September of 2018, that Ms. Peever have sole custody and primary residence of the children during the school year. She did so because she saw, as do I, Ms. Peever to be the person who had always been responsible for the primary care of the children, the person who attended to their education and their medical needs, the person who organized their activities and the household. Although Ms. Mitchell saw some improvements in Mr. Hutchinson’s care of the children in her September 2018 report, she still had serious concerns about the level of reliance Mr. Hutchinson had on the Johnsons to be able to care for the children during his weeks, including in relation to communications with the school and the use of Ms. Lafontaine, and about the stability and reliability of their support. The Johnsons and Mr. Hutchinson all testified that they are getting along well and there is no need to worry about the steadfastness of their relationship. The sense the court got from the Johnsons’ testimony, however, is that so long as Mr. Hutchinson is behaving in a way of which they approve (unlike in May of 2016 and February of 2017), there is no risk of disruption. I share Ms. Mitchell’s concern that Mr. Hutchinson (and therefore the children) are at risk of further rejection or abandonment, in the event that he does something which does not meet with their approval. This has been the pattern in their family dynamics since Mr. Hutchinson was an adolescent, and because they are currently getting along does not mean that the pattern is altered. I suspect, moreover, that Mr. Hutchinson’s improvement in his parenting skills has more to do with the presence and influence of Ms. MacDonald than it does with his innate ability to be more organized and child focused.

Analysis

[53] Mr. Hutchinson presented as a defensive and angry young man. He took little to no responsibility for any role he may have had in the breakdown of the relationship. While he attempted to attribute it to one event, him refusing to engage in group sexual activity with a particular acquaintance, Ms. Peever’s testimony was that the demise of the relationship was a long time coming and was based on Mr. Hutchinson’s treatment of her and his own mental health issues. Her testimony was corroborated in part by the records of her attendances with the couples’ family physician reviewed by Ms. Mitchell, with whom Ms. Peever discussed the issues, and in part, by Mrs. Johnson, who confirmed Ms. Peever had spoken to her and requested her assistance/intervention.

[54] Mr. Hutchinson, moreover, was very negative about the mother of his children. He, essentially, had nothing good to say about her at all. Unfortunately, his parents did not appear to have been of assistance to him in this regard. The lengths to which the Johnsons, and in particular, Mr. Johnson, went to “prove” Ms. Peever’s unworthiness as a mother only served, in my view, to reinforce Mr. Hutchinson’s anger towards her. The extreme violations of Ms. Peever’s basic privacy as a human being - entering the home in her absence on her time and taking photographs, placing a GPS device in her car, monitoring her movements themselves, and having not just one, but two, private investigators also monitor her movements - were extraordinary, and cannot and should not be condoned by the court in the context of a family law matter. That Ms. Peever has been able to sustain the nesting arrangement to the degree that she did in the face of such adversity is not only remarkable, but also a testament to her personal strength and her commitment to the children.

[55] Far from accomplishing what the Johnson’s intended, these actions served only to erode whatever trust or good will may have been salvageable between Mr. Hutchinson and Ms. Peever. These parents both love and cherish JJ and Jaxon. They ought to have been able to put the boys’ interests front and centre and collaborate on meeting their needs. That they have not been able to do so is unfortunate in the extreme. In not doing so, moreover, they have caused damage to both children, but more particularly to JJ.

[56] Mr. Hutchinson urges the court to reinforce the status quo of the children living in Maxville. However, the status quo which a court always seeks to preserve or restore is that which existed immediately prior to separation. I have found that pre-separation Ms. Peever provided primary care to the children and was typically the decision maker for them. That status quo was actually disrupted by the unilateral action of Mr. Hutchinson in refusing to return the children to her care on March 26, 2016, contrary to their needs and best interests. It is that status quo which the court will restore.

[57] In the result, there will be a final order of sole custody of JJ and Jaxon to Ms. Peever. The primary residence of the children during the school year will be with her, and their summers and other vacations shall be shared equally between the parties. Ms. Peever, after consultation with Mr. Hutchinson, JJ’s counsellor, and JJ and Jaxon’s teachers, shall have final decision making authority over the issue of when the children will change their school from La Source in Maxville to Pierre Elliot Trudeau in Ottawa. In the event that the decision is to do so over the Christmas Break such that JJ and Jaxon will commence school in Ottawa in January 2019, the nesting arrangement will remain in place until the first day of the boys’ Christmas vacation.

[58] Once the decision of when the boys’ school will change is made and comes into effect, Mr. Hutchinson will have the boys for three weekends out of four during the school year. Pick up and drop off of the children will be at the end of the school day on Friday and the beginning of the school day on Mondays. In the event that either Friday or Monday is a holiday or PD day, Mr. Hutchinson’s weekend will extend to be from Thursday or to Tuesday respectively. During the summer, the exchange of the children shall take place on Sunday at 6:00 pm at public location agreed upon by Ms. Peever and Mr. Hutchinson. For all other shared holiday time, the exchange shall take place at a time and public location agreed upon by Ms. Peever and Mr. Hutchinson. Notwithstanding that I have indicated the exchange is to be at a public place, it is my hope that these parents will eventually normalize the situation such that the children can be exchanged at home.

[59] It is and will continue to be the responsibility of the parents to determine how frequent and what type of contact the children will have with the Johnsons. It is logical to think that it would be primarily Mr. Hutchinson’s role to foster the children’s relationship with his own parents when they are with him. Unless his relationship with Mr. and Mrs. Johnson breaks down again, which they have all assured the court will not happen, I see no risk that the Johnsons will not have contact with JJ and Jaxon as grandparents. Ms. Peever indicated that she would be open to some joint counselling with them in an effort to reduce, or get beyond, the conflict they have experienced. I would encourage Mr. and Mrs. Johnson to consider this option. However, whether they do or they don’t, the responsibility over the children’s relationship with their grandparents will remain with their parents.

The Matrimonial Home

[60] As was indicated above, the matrimonial home at 14 Peter Street in Maxville, Ontario, was purchased in or about 2009 with the assistance of Mrs. Johnson. Ms. Peever indicated that this was done without the knowledge of Mr. Johnson and that there was a great deal of secrecy around this issue, lest he find out. After the parties married in November of 2011, title to the home was transferred to Mr. Hutchinson and Ms. Peever. Mr. Hutchinson would like to maintain the family home. Ms. Peever’s position is that she would welcome Mr. Hutchinson buying out her interest in the family home, but barring the parties coming to an understanding on that issue, it should be sold and the proceeds divided between them.

[61] Certainly, there is clear jurisdiction under the Partition Act to order the sale of jointly owned property, including a matrimonial home. In this case, particularly as the children will reside with Ms. Peever during the school year, I can find no basis not to exercise that jurisdiction.

[62] In his temporary order of April 29, 2016, however, Mr. Justice Leroy provided at paragraph 14 that Ms. Peever would be required to pay an “all-inclusive rent charge of $500.00 per month for the duration of the nesting arrangement commencing May 1, 2016 to be settled from her share of the equity in the matrimonial home or from the accrual of child support otherwise payable or both as required”. Ms. Peever submits that the home should be listed for sale and the proceeds should be divided equally between Mr. Hutchinson and herself, after the debts and disbursements relating to the home are paid off. She submits that rather than go through the exercise of determining the amount payable once her “rent” and set off child support are accounted for, the parties should start at zero and simply divide the proceeds. She submits, moreover, that if such an exercise is to be undertaken, then she should not be held accountable for the delay caused by the Johnsons application and by Mr. Hutchinson’s requested adjournment of the trial. To require her portion of the equity to be diminished for those periods would, in her view, simply be unfair.

[63] According to his Notice of Assessment for 2016, Mr. Hutchinson’ income in that year was $21,901. According to his Notice of Assessment for 2017, his 2017 income was $31,969. Monthly child support payable by him from May 1 to December 31, 2016, for two children was $332. In 2017, child support payable by him was $465 per month to the end of November. As of December 1, 2018, Mr. Hutchinson’s child support payment would be $487 per month.

[64] According to Ms. Peever’s Notice of Assessment for 2016, her income was $23,527. Her income for 2017 was $10,427. While Mr. Hutchinson has argued that certain expenses claimed for Ms. Peever’s cleaning business for tax purposes may not qualify or may need to be added back into her income for child support purposes, he has not identified which and to what degree. Based on her Line 150 incomes for those years, Ms. Peever’s child support obligation from May to December of 2016 was $352 per month, and her 2017 obligation was $0.00 per month to November. As of December 2017, Ms. Peever’s monthly child support payment would be $0.00 per month.

[65] Ms. Peever would thus owe Mr. Hutchinson $160 for child support for 2016 ($20 x 8). Mr. Hutchinson would owe Ms. Peever $5503 for child support for 2017 ($465 x 11 + $487), and $4870 for the first 10 months of 2018 ($487x10). The total owing by Mr. Hutchinson to Ms. Peever in set-off child support for JJ and Jaxon is $10,213 ($5503 + $4870 - $160)

[66] I agree that Ms. Peever should not be held responsible for the considerable delay occasioned by the Johnsons’ application and insertion into the proceedings. They commenced their application in June of 2018, and the issue of whether they would be included in the OCL assessment was not decided until January of 2017. Additionally, Mr. Hutchinson sought an adjournment of the trial originally scheduled to proceed in the May of 2018 trial sittings, and again, Ms. Peever should not be held accountable for that delay, which she contested. Thus, Ms. Peever is not required to pay $500 per month from June 1, 2016 to January 31, 2017, and again from June 1, 2018 onwards. She would thus owe Mr. Hutchinson $500 for May of 2016, and $8000 from February 1, of 2017 to May 1, 2018, for a total of $8500.

[67] The result is that Mr. Hutchinson owes Ms. Peever $1713 when child support and Ms. Peever’s rent are taken into account. Ms. Peever, however, has continued to solely claim the Canada Child Tax Benefit for both children following separation. Mr. Hutchinson would have been eligible to receive one half of the CCB once the time sharing arrangement was put in place. He shall, thus, receive a credit of one half of the net amount of CCB received by Ms. Peever from May 1, 2016 to October 31, 2018. If the parties are unable to agree on what that amount is, they may schedule an appearance before me through the Trial Coordinator’s office after having exchanged their respective calculations.

Order

[68] There shall be a final order as follows:

1. The Respondent shall have sole custody of the children, Jeffrey James (JJ) Peever Hutchinson, born October 1, 2008 and Jaxon Patrick Hutchinson, born August 13, 2012;
2. Primary residence of the children shall be with the Respondent during the school year;
3. The Respondent shall have final decision making authority, after consultation with Mr. Hutchinson, JJ’s counsellor, and JJ and Jaxon’s teachers, over the issue of when the children will change their school from La Source in Maxville to Pierre Elliot Trudeau in Ottawa;
4. In the event that the decision is to do so over the Christmas Break such that JJ and Jaxon will commence school in Ottawa in January 2019, the nesting arrangement will remain in place until the first day of the boys’ Christmas vacation;
5. For all future decisions regarding the children, the parents shall utilize paragraphs 1 through 7 under the title “Decision Making” in the draft order provided by the Respondent, a copy of which is attached as Schedule “A” hereto, and same shall be incorporated into this order;
6. Once the decision of when the boys’ school will change is made and comes into effect, parenting time with the children shall be as per paragraphs 18 through 38 under the title “Parenting Schedule” in the draft order provided by the Respondent, and same shall be incorporated into this order;
7. Communication between the parties shall be as set out in paragraphs 9 to 12 under the title “Communication Between the Applicant and Respondent” in the draft order provided by the Respondent, and same shall be incorporated into this order;
8. Paragraphs 15 and 16 under the title “Documentation” in the draft order provided by the Respondent shall be incorporated into this order;
9. Paragraph 39 under the title “Telephone Access” in the draft order provided by the Respondent shall be incorporated into this order;
10. Paragraph 40 under the title “Travel with the Child” in the draft order provided by the Respondent shall be incorporated into this order, except that the title shall refer to the Children;
11. Paragraphs 41 to 49 under the title “Child Support” in the draft order provided by the Respondent shall be incorporated into this order, except that the commencement date in paragraph 41 shall be November 1, 2018, and the date in paragraph 42 shall be as of October 31, 2018;
12. Paragraphs 50 to 54 under the title “Extended Health Benefits” in the draft order provided by the Respondent shall be incorporated into this order;
13. Paragraphs 55 to 62 under the title “Life Insurance” in the draft order provided by the Respondent shall be incorporated into this order;
14. Paragraph 63 under the title “Police Enforcement” in the draft order provided by the Respondent shall be incorporated into this order;
15. Paragraphs 64 through 66 under the title “Matrimonial Home” in the draft order provided by the Respondent shall be incorporated into this order;
16. The parties shall sell the matrimonial home and the proceeds are to be divided equally between the Applicant and the Respondent, after any encumbrances on the home and the costs of sale have been paid, except that the Applicant shall receive credit in his share of the proceeds for one half of the net amount of CCB received by the Respondent from May 1, 2016 to October 31, 2018, less $1713 which the Applicant owes to the Respondent in child support arrears.

Costs

[69] If the parties are unable to resolve the issue of liability for costs of the Trial after 15 days, after having exchanged copies of their bills of costs and all offers to settle, the parties may schedule an appearance before me through Trial Coordination to make brief submissions, and the court will make an order.

Madam Justice Tracy Engelking Released: October 18, 2018