Court File and Parties

COURT FILE NO.: 25/16 DATE: 20190107 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Matthew Bruce Ince Applicant – and – Amanda Mattson Respondent

COUNSEL: Mark Simpson, for the Applicant David Reid, for the Respondent

HEARD: October 16, 17, 18, 19, 22 and 23, 2018

Raikes J.

[1] The parties are the biological parents of Matison Archer Ince born December 17, 2014. Matison is in junior kindergarten at Blue Water Coast Public School in Hensall, Ontario. She started school in September 2018.

[2] By all accounts, Matison is a healthy, bright, precocious little girl. She loves unicorns, playing with her step-sister, Cora, swimming, horses and catching bugs with her friends. She is adored by both parents and their new partners, and by her grandparents. All in all, Matison is a very fortunate child.

[3] The primary issues on this trial are custody and the care schedule for Matison. A related corollary issue is child support for Matison which will follow from my decision on the care schedule. The final issue concerns a claim for constructive trust for monies spent by the respondent for improvements to the applicant’s home during the time they cohabited.

[4] In addition to the parties, there were five other witnesses: Matison’s maternal grandparents (Perry Mattson and Trudy Archer), the respondent’s aunt (Joan Corbett), her new partner (Deryk Rader), and the applicant’s new partner, Jessica Hodgins. I was impressed by each of them as a witness. Each gave his or her evidence in a straightforward manner. They avoided inflammatory characterizations of the other party. They seemed to appreciate that Matison’s best interests were best served by being candid.

[5] Both parties testified. Although there is some common ground, they tell very different stories of events. I was struck by how both want what is best for Matison, how both love Matison and yet, they cannot get past their history. Far too much time and emotional energy was wasted reading in antagonism to the other’s communications or conduct. I will address some but not all of their inconsistencies and only those that are necessary to the outcome.

[6] In these Reasons I will deal first with custody and the child care schedule. I will then address each of child support and the constructive trust claim separately and in that order.

The Applicant

[7] Matthew Ince is Matison’s father. Matthew is 28 years old. He grew up in the Parkhill area. After he graduated high school, he went to Alberta to work on pipelines. He stayed in the West to work in the oil and gas industry, initially in health and safety.

[8] In 2012, Matthew joined MBB Power Services as an employee working on a project to rebuild a furnace for Imperial Oil. In 2013-2014, he worked on a project at the Nanticoke refinery in Port Dover building two storage tanks. He also did a storage tank project for four weeks in Conklin, Alberta in 2014 after he and the respondent were a couple and before Matison was born.

[9] Since 2014, Matthew has worked for Design Group Staffing at Imperial Oil in Sarnia, Ontario as a contractor. He joined Imperial Oil just before Matison was born. Matthew is now a mechanical supervisor, a position he has held for approximately two years. He works Monday to Friday from 7:30 a.m. to 4:30 p.m. He works some overtime and can turn it down. He is typically home from work by 5 p.m..

[10] Matthew lives with Jessica Hodgins. They started dating in June 2016 and have lived together since December 2016. As at the time of trial, they had one child, Cora Rose Ince born May 30, 2017, and Jessica was expecting their second child due at the end of November 2018.

[11] Matthew and Jessica and their family live in a five bedroom home in Grand Bend, Ontario. Matison has her own bedroom that Jessica has decorated in unicorns. The children have their own bathroom that is likewise decorated for children.

[12] Jessica is a stay-at-home mother who will likely go back to work in some capacity after the children are in school. She is very organized. She has helped to date with access exchanges and is willing to provide care and transportation for Matison if the schedule is altered as Matthew seeks. She and Matison have an excellent relationship. Jessica is careful to encourage and not intrude upon Matison’s relationship with Amanda.

The Respondent

[13] Amanda Mattson is 31 years old. She grew up in Hensall, Ontario; in fact, her parents live in the same house today and Matison is a student in the school Amanda went to as a child.

[14] After high school, Amanda attended Conestoga College where she obtained a diploma as a Personal Support Worker. She then attended Fanshawe College to study nursing. She was guaranteed a job for six months by the Ontario Government upon graduation from nursing. As a result, she worked at Zurich Nursing Home as a nurse for six months. She then went to work for St. Elizabeth Home Care as a nurse starting in 2010.

[15] Amanda worked for St. Elizabeth until November 2016 with a maternity leave in that time period that lasted a little over a year when Matison was born. In November 2016, Amanda transitioned to an Education Assistant at Seaforth Public School. She did so to be available for Matison before and after school and on school breaks. She recently moved to Clinton High School as an Education Assistant.

[16] Amanda now lives with Deryk Rader in a home owned by him in Zurich, Ontario. It has three bedrooms on the main floor, a bedroom/playroom in the basement and three bathrooms. She and Matison resided in Hensall until the end of August 2018 when her house sold. She was gradually moving into Deryk’s home before then. Amanda’s home in Hensall was mere doors away from her parents’ home.

[17] Deryk operates a home style catering business that his father originated and he has taken over. During the winter, Deryk typically works 8 a.m. to 3:30-4 p.m.. In the summers, he is busier doing BBQs and works Saturday mornings.

[18] Deryk is also a volunteer firefighter. He has a passion for golf which he has started to teach to Matison. He cut down some of his mother’s old clubs for her. They read books together and colour. Deryk is a good cook and he prepares most of their meals.

[19] Amanda’s work hours are such that she drops Matison off at school (a ten minute drive) in the morning and is done work in Clinton most days by 3 p.m.. Some days she is able to be there when Matison comes out of the school at 3:15, and other days her parents or her cousin bring Matison home to their place where she picks her up. Amanda’s cousin’s daughter, Lexi, is Matison’s best friend at school.

[20] Matthew and Amanda met in August 2013. Amanda testified that they began living together in October 2013. Matthew was then working on a small job in Sarnia. She had an apartment in Exeter. He began staying over most nights and paid half of the rent.

[21] Matthew indicates that they began living together on May 14, 2014 when he closed the purchase of the Hendrick Road property. Before then, they stayed together for periods of time. They also had periods of separation after an argument or because of work.

[22] I find that beginning in the Fall of 2013, the parties were spending more nights together than apart. The relationship was not ideal. Both were young. Each had their own idea of how the relationship should work. There were arguments and there were brief periods when they were apart. Nevertheless, they continued their relationship.

a. Purchase of Home

[23] They began looking to purchase a home and entered into an agreement of purchase and sale as purchasers for the Hendrick Road property on January 26, 2014. Amanda found out she was pregnant in late April 2014. Matthew was thrilled, Amanda less so. She was terrified.

[24] Matthew testified that Amanda discussed having an abortion which upset him greatly. They split up briefly. He had the agreement of purchase and sale amended to remove her as a purchaser.

[25] According to Amanda, they had an argument. He was upset that she was not as excited by the pregnancy as he was. She denies she mentioned having an abortion.

[26] In any event, he left her apartment and they separated for a week. When he returned, he had been to the realtor. He put an amendment to the agreement of purchase and sale in front of her and told her that if she did not want his child, then he did not want her to have any part of the property. She signed it.

[27] According to Exhibit 1, the agreement of purchase and sale was amended on May 14, 2014 to delete Amanda as a purchaser. Matthew became the sole purchaser and title was taken in his name alone when the transaction closed.

[28] Regardless why her name was deleted from the agreement, the parties resumed cohabitation. They moved into the Hendrick Road property. Although together, their relationship was strained. They argued frequently and there were brief separations.

b. Strained Familial Relations

[29] Matthew had a very good relationship with Amanda’s parents. He saw them regularly with Amanda. He confided in them from time to time and/or sought their advice on personal issues including a difficult childhood.

[30] By contrast, Matthew's relationship with his own parents was more complicated. Matthew’s mother had a long history of very serious illness that started in his childhood and was ongoing. Matthew warned Amanda before she met his parents for the first time that his mother took medications that affected how she acted. Although Matthew loved his family, he was more distant to them.

[31] According to Matthew, Amanda did not want his parents around Matison or their home. Her attitude toward his parents produced great strain and ultimately led to his decision to end the relationship.

[32] Amanda testified that soon after they moved into the Hendrick Road property, Matthew’s mother was a frequent visitor. She would come unannounced to do things around the property when they were out. She seemed to be always there. Amanda needed her space.

[33] In cross-examination, Matthew testified that:

a. Matthew was in Alberta for work on a project in June or July 2014, when Amanda was pregnant;

b. While he was away, his mother came to their house every day for a few hours;

c. Amanda was upset that his mother was at their home so much;

d. He spoke to his mother to suggest that she call before she stopped in. He discussed boundaries with her;

e. On one occasion, his mother came to their home and Amanda was yelling at him in the house that she wanted his mother to leave. He then asked his mother to leave;

f. Both Amanda and his mother were upset;

g. His mother voiced her concerns to him. She could not “wrap her head around” the idea that she was not welcome;

h. Amanda’s family were always welcome at their home without repercussions;

i. Amanda’s parents tried to help resolve the issue;

j. After one argument about his family, Amanda left the house and came home around 3-4 a.m.. She told him she had spent the night sleeping in a park in Exeter. He thought her story seemed extremely dramatic since her parents, cousins and aunts lived only 10 minutes away from their home;

k. He was the one who usually left the house when they fought or separated;

l. He “dragged” Amanda to his parents’ house before Matison was born. He had to push hard for her to go. In his words, she “poked the bear”. His parents were very upset and Amanda walked out;

m. He believes she stopped in to his parents’ place in Grand Bend on her own once before. They argued. She called him upset, so did his parents.

c. Christmas 2014

[34] Matison was born December 17, 2014 when Amanda was induced early as she had preclampsia. Her blood pressure remained high for a brief period after she gave birth. Matthew was home from work for the first few weeks after discharge to assist with Matison’s care.

[35] He testified that his parents first met Matison on Christmas Day 2014, eight days after she was born. They came to the Hendrick Road house for that visit. Amanda stayed upstairs and cried. Her mother came over to console her. His parents were bewildered and hurt that she would not join them. They could hear her crying.

[36] Because of that incident and Amanda’s reluctance to let his parents be part of Matison’s life, his parents did not see Matison again until May 2015. They next saw Matison after Matthew and Amanda separated.

[37] Amanda denies that she refused to come downstairs to join Matthew’s family on Christmas Day when they met Matison. Rather, she indicated that she was told by Matthew that they preferred that she not be there. She was quite hurt by that snub. Her mother came over to be with her.

[38] Trudy Archer testified that Amanda asked her to come over when his family were visiting Matison. She believed it was Boxing Day. In any event, she understood from Amanda that Matthew told Amanda that his family did not want Amanda to be present. She came and spent the time upstairs with Amanda.

d. May 2015 Visit

[39] Ms. Archer was also present in May 2015 when Matthew’s family came out to their home for a visit. Matison was then approximately 4 months old. Matthew and Amanda asked her to be there for support. Ms. Archer thought the visit went well. She recalled that Matthew’s mother cried a lot. She also remembered that at one point during the visit, Amanda handed Matison to Matthew’s father to hold her.

e. May 2015 Separation

[40] In May 2015, Matthew asked Amanda to leave their home. He felt his relationship with his family was completely broken because Amanda refused to permit him to take Matison to see his parents. Amanda went to her parents’ house for a week with Matison. She agreed to return but only if he agreed to go to counselling which he did.

[41] The counselling was unsuccessful. Matthew expressed frustration that his parents could not see Matison. He felt that his relationship with his parents and brother were temporarily destroyed because Amanda was withholding Matison. He felt that the issue was a “dead-end street”; there was no “give”. He refused to attend after a couple of sessions because it was going nowhere in his mind.

f. October 2015 Separation

[42] In October 2015, they separated again. Matthew testified that he was again pressing her to let him take Matison to see his parents. She refused. He left for one night.

[43] When he returned, Amanda advised that she was only prepared to continue their relationship if they went for counselling. Matthew agreed. He arranged for his parents to see a different counsellor with the intent that at the end, they would all get together to resolve the issue.

[44] He agreed in cross-examination that during the counselling, he presented as defensive and stubborn. He advised the counsellor that his mother required heavy pain medication that influenced her mood and behaviour at times. He denied that he told the counsellor that he had anxiety issues throughout his life.

[45] In any event, he felt the counselling was not going well because his parents were not seeing Matison. They were keeping their distance at that point. The counselling was unsuccessful in bringing about a reconciliation between his parents and Amanda.

g. Final Separation

[46] On January 28, 2016, Matthew and Amanda separated permanently. Matthew testified that on that day, he received a call from his mother who advised that their counsellor had led them to believe that there not much prospect of a relationship with Amanda. She was upset, so was Matthew.

[47] Matthew discussed the call with Amanda. He was angry with her. He understood from his mother that there would be no meeting to try to bring everyone together – the whole purpose of the counselling. He was tired of the conflict.

[48] According to Matthew, they argued once again about his family seeing Matison. Amanda threatened to get a restraining order against them which was, in his mind, the final straw. He decided that he could not live isolated from his family.

[49] During the argument, he accused Amanda of believing that he was “just as crazy as my family”. She made a remark that he took as meaning life was terrible. He testified that he responded sarcastically that: “I should just drive my truck into oncoming traffic if it is so bad.”

[50] He indicated that she became so upset that she went into the bathroom and locked the door. She had Matison with her and would not let him see her. He heard her briefly speaking to her mother on the phone but he did not hear what was said. He left the house for the night. Amanda left with Matison and some of their belongings the next day. He returned and lived at the Hendrick road property until July 2018 when he sold it.

[51] Amanda testified that:

a. Following their October 2015 separation, they agreed to go to counselling. One of the issues to be addressed was the relationship with his family. They did not know how to fix that relationship;

b. Matthew was frustrated with his parents who yelled at him and blamed them for the situation;

c. After they started counselling, it was suggested that his parents see their own counsellor;

d. Matthew and Amanda continued the counselling until they separated in January 2016;

e. On January 28, 2016, Matthew received calls from his mother who was very upset. He did not know who to believe and was very frustrated;

f. They called their counsellor who confirmed that she did not speak with the counsellor for his parents. Matthew refused to accept her information;

g. They argued. He said that he could not keep doing this and “why don’t I just go out and drive my truck into traffic”;

h. She took Matison into the bathroom and locked the door;

i. Matthew paced outside the door. He told her that “you think I’m crazy like my family”;

j. He heard her Skyping her mother from the bathroom and demanded that she open the door;

k. He left the house and she came out of the bathroom after he was gone;

l. She stayed at the house overnight and he did not come home; and

m. The next day, she took Matison to daycare and returned to pack up some things with which to move. He called as she was packing to find out what she was doing. She told him that she and Matison were moving to her parents’ home.

[52] Ms. Archer testified to her call with Amanda from the bathroom. She was then in Florida with her husband. They typically stay in Florida from January to March each winter. She urged Amanda to go to their home. Exhibit 12 is a printout of part of their conversation.

[53] I pause to note that most of the above history has minimal relevance, if any, to the issues of ongoing or future custody and access. There was no violence. It is not for me to fix responsibility for their break-up.

[54] I have included these conflicting accounts only because they inform the parties’ subsequent conduct and perceptions of the other. As will be seen, the seeds of distrust and conflict were firmly planted.

[55] I also note that in his evidence, Matthew repeatedly accused Amanda of using Matison “as a weapon” or as “leverage”. This characterization started in his account of events leading to their final separation and continued into his evidence of matters post-separation.

h. Care of Matison Before Separation

[56] When Matison first came home from hospital, Matthew assisted in her care. So too did Amanda’s mother. She came by daily until she and her husband returned to Florida in early January.

[57] Matthew was working at Imperial Oil in Sarnia. He left for work at 5:30 in the morning and returned home between 6 and 7 p.m.. In addition to working in Sarnia, Matthew had various side projects including looking after three cattle, some turkeys and chickens on their property, and a YouTube show with a friend that he hoped would turn into a television show. He did hobbies mostly on weekends.

[58] I find that Amanda was the primary caregiver for Matison from soon after she was born until the parties separated in January 2018. She breast fed for the first four months. She gave Matison her baths. She arranged and took Matison to her doctor appointments. That is not to say that Matthew was absent and did nothing. I am satisfied that he did some of the caregiving when home but the bulk of the responsibility was borne by Amanda.

Procedural History

[59] It is undisputed that Matthew and Amanda were living together in a home owned by Matthew at 34481 Hendrick Road, Dashwood, Ontario until January 28, 2016. Upon separation, Amanda and Matison moved out. They initially resided with her parents and eventually moved into a house close by in Hensall.

[60] When they separated, Matthew was not allowed to see Matison despite repeated requests for time with her. These requests were made to Amanda and to her lawyer. Amanda testified that she had concerns for Matison’s safety especially given his threat to drive his truck into ongoing traffic. Matthew expressed shock that he was not allowed to see Matison and that Amanda’s first lawyer threatened potential police involvement.

[61] Matthew proposed mediation to resolve matters. Amanda refused. Everything was to go through her counsel. In the meantime, Matthew did not see Matison.

[62] As a result, Matthew brought an urgent motion prior to a case conference. The motion was converted to a case conference before Justice Aston on March 2, 2016. On that date, the parties entered into interim without prejudice Minutes of Settlement by which,

a. They agreed to communicate with each other through their respective aunts;

b. Matthew was to have immediate supervised access with Matison three evenings each week for two hours, and Saturday and Sunday visits of three hours;

c. The visits were to be supervised by the aunts or any other third party the supervisors agreed to;

d. The visits were to take place at Matthew’s home;

e. The child’s dog, Aldy, was to accompany her on the visits; and

f. The supervisors were to make notes of the visits and provide them to counsel for the parties.

[63] The interim Minutes of Settlement were approved by the court and became the terms of the order made by Justice Aston. Matthew’s motion was suspended without prejudice to either party bringing it back to court upon notice to the other.

[64] Matthew participated in the supervised access visits reluctantly given that he did not feel that supervision was necessary. He found them to be intrusive and humiliating. Nevertheless, he agreed to these terms so that he could see Matison. He had not seen Matison in the 37 days since the day Amanda left the home with her.

[65] The supervised visits went largely without incident despite Matthew’s misgivings. Matthew then brought the motion back to court seeking unsupervised time with Matison. The motion came before Justice Gorman on June 16, 2016. Once again, interim without prejudice Minutes of Settlement were agreed upon and presented to the court for approval.

[66] On June 16, 2016, Justice Gorman approved the Minutes of Settlement and ordered, inter alia, that:

a. The parties would communicate with each other concerning Matison using Our Family Wizard or the Talking Parents website;

b. Matthew was to use one of those services to make inquiries about Matison and Amanda was to use it to provide information after Matison’s time with her;

c. Both were to communicate with each other in a polite and child-focused manner;

d. Matthew’s visits with Matison were expanded to alternate Saturdays and Sundays from 9 a.m. to 5 p.m. each day, and one weekday evening each week from 5 p.m. to 7 p.m.;

e. These visits were unsupervised.

[67] Matthew was still living on Hendrick Road at that time. The weekday visits were problematic. He picked up Matison at 5 p.m. and drove her to his home which took at least 20 minutes. Once there, he fixed her dinner. They had very little time to play together before he had to travel back to Amanda’s home for 7 p.m.. Amanda was unwilling to help with transportation.

[68] Matthew brought another motion to have joint custody of Matison and to further expand his time with her. That motion was argued. On January 5, 2017, Justice Heeney ordered, inter alia, that:

a. The parties have interim joint custody of Matison;

b. Matison’s primary residence is with Amanda;

c. Matthew’s access was

i. Alternate weekends from Friday at 6 p.m. to Sunday at 7 p.m.;

ii. On Thursday following an access weekend from 5 p.m. to 7 p.m.;

iii. On Mondays and Wednesdays following a non-access weekend from 5 p.m. to 7 p.m.;

d. If either party required a care provider during his or her time with Matison, the other parent shall have first option to do so provided he or she was not working; and

e. All communications between Matthew and Amanda were to be done through Our Family Wizard.

[69] The last interim order dealing with custody and access is that of Justice Hebner dated September 27, 2017. She ordered, on consent, that:

a. Matthew’s weekend access would expand to include an additional day in the event of a long weekend;

b. Matthew’s girlfriend (Jessica) could assist with pick up, if necessary, for the Monday access which would be from 4:45 p.m. to 7:30 p.m..

[70] A great deal of evidence was adduced about events and communications that took place before and after each of these orders. I will address same as necessary to my decision below.

Post-Separation Interactions

[71] Save for two brief periods where the parties’ communications appear to have been almost amicable, their communications and interactions post-separation are notable for their heightened sensitivity, suspicion and rancor, particularly, but not exclusively, on Matthew’s end. On several occasions, Matthew took what seem to me to be harmless, innocuous messages from Amanda as criticism, an attempt at control or provocation. On other occasions, he accused Amanda or her family or Deryk of inappropriate conduct like slamming doors, failing to get Matison proper medical care and even cutting Matison’s bangs without consulting him.

[72] Amanda tried at points to interact directly with Matthew – to pursue more normalized communications. Regrettably, those efforts were rebuffed by Matthew’s accusations and rude emails. She simply gave up trying and used her family and loved ones as intermediaries for access exchanges. She continued to use My Family Wizard for virtually all communications, mostly as a buffer against what she perceived as unjust and overly aggressive criticism by Matthew. In the result, she did not consult Matthew or discuss issues with Matthew as much or as openly as would be optimal for Matison.

a. Supervised Access

[73] During the time when access was supervised, Matison’s aunt, Joan Corbett, was diligent in her duties as a supervisor. Matthew thought overly so. She was somewhat critical of his home and parenting. He found himself under a microscope.

[74] Matthew testified that he was accused of having the wrong car seat even though it was new and properly installed in his car. He was required to let Perry Mattson inspect the car seat to satisfy Amanda that the car seat was safe. He found that to be both insulting and one of many roadblocks thrown up by Amanda and her family to discourage him from seeing Matison.

[75] In order to see Matison on weekdays, Matthew had to leave work early to drive home from Sarnia. According to Matthew, there was no willingness to accommodate his schedule. He was repeatedly reminded that Matison’s bedtime was 6:30 p.m.. Amanda knew that the schedule was a hot button issue for him and she repeatedly used it for control.

[76] While I do not agree with Matthew’s interpretation of these events, his significant effort to spend time with Matison must be acknowledged. It cannot have been easy for him to balance his work/home life in these circumstances.

b. Unsupervised Access

[77] As indicated, Matthew has had unsupervised access with Matison since June 2016. There was a period in 2017 where his mid-week visits did not happen because he was required to work extra hours. Otherwise, the access visits have taken place as scheduled.

[78] There are no concerns with respect to his care of Matison. They enjoy a close father-daughter relationship. Matthew does age-appropriate activities with Matison. She has bonded with his new family, with his extended family including his parents and with Jessica’s family. She adores her younger sister, Cora. In short, when Matthew is with Matison, he is a good and loving father.

[79] Problems surface, however, whenever Matthew perceives that he is not getting enough time with Matison, he is not being kept sufficiently informed, he has not been consulted and given his approval, or he is being insulted or controlled. When that happens, Matthew gets angry, defensive and stubborn. He lashes out with accusations and/or aggressive texts or emails.

[80] In October 2016, the parties were in one of those brief periods where communications were mostly positive. Amanda made an effort to bridge their discord by asking Matthew if he would like to join Matison and Amanda when they went trick-or-treating on Halloween. Matthew declined. His reasoning is instructive.

[81] Matthew testified in cross-examination that he refused that offer because:

a. Given the past history of allegations by her against him, he was not going to spend time with her. That would not be a smart thing to do;

b. He would not walk down a dark street in Hensall with Amanda but he would go to a public park to watch Matison play;

c. She had accused him of things that are morally wrong. He did not appreciate that. He had to be careful. She broke “a level of trust with me”;

d. He was “terrified” of putting himself in a position for more allegations;

e. It was very confusing to him how one could go from those allegations to walking down the street trick-or-treating; and

f. He is still living “in that shadow”. He was not comfortable with being with Amanda at that point.

[82] He went on say that his feelings are the same today. He still would not go trick-or-treating with her and Matison. He would “be nervous to walk down a street one on one with” Amanda. I find that that lack of trust and the hurt he still harbours inform how he perceives each interaction or issue and his response. He has not been able to let go of the past – each new issue is simply another attempt to hurt or control him, to undermine or minimize his relationship with Matison.

[83] The following are examples:

a. On August 6, 2016, Amanda sent an email to Matthew to let him know that they had “cemented” Matison’s night-time routine and provided her bedtime so that they could be consistent. As part of that email, she advised that it was working well because “she [Matison] loves being in her room and she has her very own house she calls it matys [sic] house well everyone does lol…”.

Matthew testified that that was not a positive message; rather Amanda was taking “a poke at me” by referring to Matison’s home and she loves her room. Amanda constantly brought up the schedule “as control” – she “knew it upset me”.

b. On August 11, 2016, Amanda emailed Matthew to ask that he keep Matison on her regular sleep schedule as her routine was important. She wrote: …as you stated she was off her routine over the weekend as per your notes over the weekend which no harm is done it’s just really hard to get her back on. So I’m asking for next time to have her nap in the afternoon instead of the morning and bed by 730 as she does at home for her best interest and limit the stress put on her. Thanks a lot.”

Matthew responded soon after. As part of his response, he told her that her message did not make sense and that “I don’t want to participate in anymore [sic] games in attempt to make me look bad…”.

c. The parties signed an informal agreement on November 13, 2016 to work cooperatively for Matison’s care. The agreement contemplated that Amanda would be flexible about pick up and drop off times and in letting Matthew spend more time with Matison. It was not an agreement that Matthew could see and have Matison whenever he wanted or for as long as he wanted.

On December 1, 2016, Matthew had to go to a funeral nearby. He emailed Amanda that day to ask if he could pick up Matison to spend time with her that afternoon. Amanda responded that she already had something planned for Matison with a group of her friends from daycare. She suggested 4 p.m.. Matthew became very upset. He testified that if she said she had plans, it meant “no” and he became used to the word “no”. It turned out that he was not finished the post-funeral visitation until near 4 p.m. in any event.

d. On December 12, 2016, Matison woke up after a visit at Matthew’s place with “pink eye”. Amanda took her to the doctor. She asked the doctor what causes pink eye. He gave her some information. Amanda texted Matthew to let him know about the pink eye and conveyed the information provided by the doctor without indicating the source.

Matthew immediately took her text as an insult - she was accusing him of having a dirty house. His response to her was rude and aggressive. When she explained that she was merely passing on information from the doctor, there was no apology by Matthew.

e. Matison’s second birthday was December 17, 2016. Matthew and his family celebrated with Matison the previous weekend during an access visit. Amanda had a birthday party planned for Matison with her family. Matthew texted to ask to be able to spend time with Matison on her birthday.

Amanda repeatedly asked him what time he wanted. At trial, he said 8 a.m. to noon would have been perfect, but at no point did he convey that to her. Amanda offered him 11 a.m.-1 p.m.. Matthew was furious. Nevertheless, he picked up Matison at 11 a.m. only to return her twenty minutes later because she fell asleep.

Soon after, they exchanged texts. Matthew was clearly upset and made that known. He wrote:

“I’ve had enough of this shit

You give me a hard time for being a half hour late and won’t let me come see her last minute because there’s not enough notice

And you didn’t say it was after her nap

You think you call the shots

Offer me 2 hours

This really isn’t working out to well for me”

The conversation went on but the upshot is he was upset because he did not get more time with Matison on her birthday despite the fact that his request was made at the last minute. Amanda’s inability to read his mind and know what time he wanted amounted to her controlling him through Matison.

f. Matthew also testified that “she gouges me on holiday time”.

g. He sent several messages to Amanda complaining that she was not at the door when Matison was being dropped off by him. Instead, her parents or Deryk were at the door or came out to the driveway to get Matison.

h. He accused Amanda, Deryk and Trudy Archer in various emails of slamming the door at exchanges. Both Amanda and her mother testified that the door to their home cannot be slammed shut. I accept their evidence on this point.

i. Matthew accused Amanda and/or her mother of expressing sympathy for Matison when she came home from a visit with him, saying “you poor thing” even though she was walking happily up the driveway. Similarly, he accused Amanda of telling Matison that “it’s ok, it is just a short visit this time”. By doing so they were signalling to Matison that going to his home was something to be endured not enjoyed.

Sometimes children do not want to go on an access visit even though they unquestionably love that parent and usually have a good time when with him or her. I find that Amanda and her parents supported and encouraged Matison to go to her father’s home for visits even when she expressed a preference not to. I also find that they did not suggest by word or conduct that going to Matthew’s for visits was a bad thing or something to be endured. Matthew has taken words spoken in one context (for example, a sleepy Matison is being carried up the driveway) and transposed them into other circumstances.

j. Matthew also accused Amanda of planting thoughts in Matison’s head that she should feel guilty about being with him because it makes Amanda sad. He testified that Matison has cried on some visits and when asked why she is crying, she says because she knows “mommy is sad and misses” her.

I have no doubt that Amanda has told Matison that she will miss her while she is with her father. That is a natural thing to say. That does not mean, however, that Amanda was trying to sabotage his visits with Matison or undermine their relationship.

k. Amanda cut Matison’s bangs. She did so without talking to Matthew. When he saw Matison next, he was mortified. He thought Amanda should have consulted him before cutting her hair. She should have used a professional. Matison’s hair looked horrible in his mind. Again, he messaged Amanda with a scathing rebuke for cutting Matison’s hair.

l. Some parents send clothes back and forth between homes. Others do not. Matthew testified that Matison arrives at his home in the same clothes she went back with last time. On one occasion, Amanda’s mother removed rubber boots Matison was wearing that he had purchased and handed them to him in the driveway. Again, that was insulting. Ms. Archer explained that Matison had a pair of rubber boots at Amanda’s home so it made sense that they remain with Matthew.

m. Soon after Matthew’s access time expanded, Matison’s bedtime changed to later. Matthew testified that he could not understand why her bedtime suddenly changed after months of forcing him to leave work early to be able to spend any time with Matison. That showed that the earlier bedtime was arbitrary to inconvenience and discourage him.

I do not accept that the early bedtime was deliberately imposed to make things difficult for him. Children need routine but those routines change over time.

[84] The above should not be taken to mean that the communication issues are entirely one-sided. I have concerns on Amanda’s side although they are largely matters of omission rather than acts done to antagonize or inflame the situation.

[85] For example, Matison started school in September 2018. Amanda did not advise Matthew of the school start date for Matison. He was not given the chance to be there to see her go to school for the first time.

[86] Amanda registered Matison for school. Matthew was not involved. Matthew’s contact information and the court order of Heeney J. were not provided to the school. It took Matthew two weeks or more to sort out administratively that he was entitled to get information about Matison.

[87] Amanda stopped being directly involved in access exchanges, she has made little or no effort to get to know Jessica even on a superficial level, and she has insisted on the continued use of Our Family Wizard instead of direct communication with Matthew. In short, she has pulled back to avoid or minimize the risk of direct confrontation or further allegations by Matthew but, in doing so, she has often informed Matthew after the fact of events like medical appointments, enrollment in swimming classes or other activities.

[88] With respect to extracurricular activities, Matthew has emailed Amanda about swimming lessons, horseback riding, and summer baseball registration for Matison. They do not then arrange to speak by phone even. Rather, Amanda has simply indicated that Matison is too young or Matthew should not register her. She registered Matison for swim classes in Vanastra without Matthew’s knowledge.

[89] The lines of direct communication between Matthew and Amanda are very limited and generally only through Our Family Wizard. They do not sit down and talk about Matison or upcoming events.

[90] There were other incidents and communications raised in evidence of which I took note. Suffice to say, the above provides a sample of the communication issues that plague their parenting arrangements. I need not delve into every point of disagreement.

Applicant’s Position

[91] Matthew seeks joint custody of Matison with an equal sharing of time on the following repeating two week schedule:

Week 1: two days with Matthew, two days with Amanda, three days with Matthew

Week 2: two days with Amanda, two days with Matthew, three days with Amanda.

[92] The 2-2-3 schedule would start on Monday after school. All exchanges would take place at school except when Matison does not have school. In that case, Matthew would pick up Matison from Amanda’s home at the commencement of his access time and she would pick up Matison from his home at the commencement of her access time.

[93] He proposes that each parent having care of the child will make day to day decisions without consultation. Important decisions concerning Matison’s welfare including education, language of education, health, extracurricular activities and religious activities shall be made together. If there is a dispute, they will engage in mediation. If the dispute remains, they will arbitrate or litigate.

[94] The endorsement sought by Matthew is Exhibit “B” at trial. The proposed endorsement deals with holiday parenting time and special occasions, and provides further parameters around parenting. Some issues are not disputed. I will address those that are below.

Applicant’s Care Plan

[95] Exhibit 3 is a brief prepared by Matthew and Jessica that details the expected routine and care of Matison while with them. Jessica took the lead in its preparation since much of the detail falls into times when she will be looking after Matison. Matthew provided input and final approval of the plan.

[96] It is contemplated that on days when Matthew is working, Jessica will be the primary caregiver for Matison. Jessica will be caring for Cora and their new child at the same time. She helped raise her two younger sisters and strikes me as both experienced and organized.

[97] On school days, Jessica will transport Matison to and from school in Hensall. She will also prepare and pack Matison’s lunch. The brief contains maps from MapQuest showing the route between their home and Amanda’s home, and their home and Matison’s school.

[98] Matthew and Jessica live in Grand Bend. The distance to Amanda’s home is approximately 12 miles, most of which is on county roads/highways. The estimated travel time is 16 minutes assuming ordinary road and weather conditions. The distance to Matison’s school is approximately 18 miles. The estimated travel time is 26 minutes with the same assumption.

[99] Matthew resides outside the catchment area for Matison’s school. Thus, assuming no change of his residence, Cora and, eventually, their newest child will be attending a different school closer to home.

[100] Both Matthew and Jessica testified as to the care plan, the arrangements for Matison when with them, the activities they do now and would expect to do in future. Matthew strongly believes that Matison should be engaged in various healthy activities that will assist with her social skills. She is presently a little shy.

[101] Matthew continues to work with horses. Last year, he and Jessica helped rehabilitate roughly 30 horses that were at risk. Matison has been exposed to horses and enjoys horseback riding. Matthew has also taken Matison sailing, something he would like to continue.

[102] Matthew and Jessica stepped in to care for a baby under a kinship order for a brief period. Their home was assessed by CAS as part of that placement. There were no concerns and the placement went ahead. There is no suggestion by Amanda that Matthew’s home is inadequate or unsafe for Matison.

[103] Matthew testified that:

a. Matison has expressed to him that she wants to stay longer when it is time to go back to Amanda’s;

b. He feels she will benefit from having a strong male influence in her life – someone she can always turn to;

c. Expanded time will allow them to do more together as a family;

d. Four days/month is simply not enough time with her father;

e. When with him under his proposed care plan, Matison can call Amanda before or after dinner;

f. He will email Amanda to let her know how things are going;

g. He wants to be more involved in her care and upbringing. For example, he wants to take her to doctor appointments, to help her with homework, to go to school events etc.;

h. He wants to be a real partner with Amanda in raising Matison;

i. He wants Matison to be able to spend more time with her siblings;

j. He will encourage and support Matison’s relationship with Amanda. He recognizes the need for normalcy in Matison’s life and will show they care about “mommy” too;

k. She has met and enjoys spending time with his family and Jessica’s family; and

l. His parenting style is to have fun, be affectionate, to maintain his credibility with the child, and to encourage the child to be part of the resolution of issues. He wants to be an involved father.

[104] Jessica largely confirmed much of the evidence given by Matthew as to the care arrangements proposed. She also indicated that:

a. Matison loves to help with Cora’s care, to play with their dog, to help with her garden and to play with Cora;

b. She has enrolled Cora in a gymnastic program in Goderich which is roughly 30 minutes from Grand Bend. It is close to the same distance to Exeter where Matison has recently started gymnastics. She would like the two girls to go to the same class;

c. She decorated Matison and Cora’s rooms and the bathroom;

d. She made Halloween costumes for the kids this year;

e. She plans birthday parties for Matison although they have not had her on her actual birthday;

f. She does not expect that the new baby will affect her ability to care for Matison – “it’s what I do”;

g. She worked with Matison to make a card for Amanda for Mother’s day; and

h. She prepares crafts for the children to do.

[105] I was troubled by only one aspect of Jessica’s testimony: her apparent awareness of and involvement in some of the strident messaging by Matthew to Amanda. It struck me that she became part of the fray albeit in the background. Otherwise, I find her to be a good witness and a good caregiver for Matison when she is with Matthew.

Respondent’s Position

[106] Amanda wishes to have sole custody of Matison. She is open to an additional evening visit with Matthew, but not overnight at this age. She prefers to keep the same alternating weekend access schedule during the school year. She has no concern with Matthew having unlimited access to Matison’s health, dental and education records; however, she wishes to have final say on those issues.

Respondent’s Plan of Care

[107] Amanda did not present a care plan, as such. Instead, she wishes to largely continue the care arrangements that already exist. She will get Matison to and from school. She will arrange and take Matison to doctor appointments and to her extracurricular activities. Matison will live with her and Deryk in Zurich where she has her own room, friends and a routine.

[108] Amanda notes that she has already adjusted her career and work schedule to be able to get Matison to school and to pick her up after school. She has support from Deryk and family. She testified that Matison is thriving in her care and they have a very close bond.

[109] Each of Amanda and her parents testified to the close loving bond that Matison has with her maternal grandparents. They have seen Matison regularly and assisted in her care as needed.

[110] Amanda indicated that she is uneasy transporting Matison to Matthew’s home given their history and challenges communicating. She is prepared to share some of the transportation burden for exchanges but would prefer a neutral location.

[111] Because she has avoided participation in access exchanges and has had no direct interaction with Jessica, she offered no direct criticism of Jessica, their home or their care plan save that the 2-2-3 schedule would be hard on Matison because she would be going back and forth.

[112] I will deal with differences in position on Christmas and school holiday schedules in the analysis section below.

Analysis – Custody and Care Schedule

[113] The parties never married. Therefore, custody and access issues are governed by the provisions of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as am. (hereafter “CLRA”). Access includes the right to visit and be visited, and the right to information concerning the child’s health, education and welfare: s. 20(5) CLRA.

[114] The merits of a custody and access application are to be determined by the best interests of the child: s. 24(1) CLRA. In determining the best interests of the child, the court must consider the factors enumerated in s. 24(2) which states:

(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 entitled to or claiming custody of or access to the child,

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

(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) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

[115] I presage my analysis of the above factors by observing that both parties are loving, capable parents whose biggest obstacle remains effective communication for which each blames the other. They seem unwilling or unable to recognize that Matison needs them to figure it out – to work together cooperatively for her best interests. They are old enough, smart enough and mature enough to do so. All that has been lacking is the will and resolve needed.

a. Love, Affection and Emotional Ties

[116] Matison has a close and loving relationship with each of her parents, their new partners, her grandparents, and her half-sister, Cora. She is a happy, loving child. She has bonded with those who are a regular part of her life.

b. Child’s Views and Preferences

[117] It is undisputed that Matison is too young to ascertain her views and preferences.

c. Length of Stable Home Environment

[118] The parties separated when Matison was little more than a year old. She has lived primarily with Amanda since then. The orders of Aston J. and Gorman J. were made on a without prejudice basis pursuant to interim Minutes of Settlement. Matthew’s time with Matison has expanded gradually as a result of motions brought by him. The current schedule has been in place since September 2017.

[119] Amanda has been Matison’s primary caregiver since birth. Matthew argues forcefully that his involvement has been limited and controlled by Amanda, and I should give little weight to any alleged status quo as a consequence.

[120] The order of Heeney J. fixed interim joint custody with Matison’s primary residence with Amanda. That order was made with prejudice; viz. the motion was argued and the order was not expressly without prejudice. Thus, for the past two years, Matison’s primary residence has been with Amanda pursuant to that order.

d. Ability to Provide Guidance Etc.

[121] Both Amanda and Matthew are capable of providing guidance and education, the necessaries of life and meeting any special needs that Matison may have. They are each well-educated, financially secure, in stable relationships and devoted to Matison’s well-being.

e. Plan of Care

[122] Matthew has put forward a plan of care which is detailed above. It is thorough, appropriate and well-thought out. I have only one concern: the distance to school from Matthew’s home during the winter when roads in Huron County are frequently more hazardous. According to Jessica, she will transport Matison to and from school on those days when in Matthew’s care.

[123] As mentioned, Amanda did not prepare a formal plan of care; instead, she wishes to continue what is already in place. Matison is, by all accounts, doing well in school; she is meeting her developmental milestones; she is healthy and happy. She is engaged in age appropriate activities in the community.

f. Permanence and Stability of Family Unit

[124] Matthew and Jessica have been living together since December 2016. They have started their own family. It appears that theirs is a stable and long-term relationship.

[125] Amanda and Deryk’s relationship is more recent in time. Nevertheless, they are living together and appear to be in a stable, committed relationship.

g. Ability to Act as Parent

[126] I have no concern with the ability of either party to act as a parent to Matison; viz. to properly care for and nurture Matison as she gets older.

[127] In his evidence and closing submissions, Matthew urged me to find that Amanda has restricted his time with Matison and has failed to promote and foster a positive relationship between Matison and Matthew. In doing so, she has not acted in Matison’s best interests. I should find that her ability to parent is compromised by this failing. Amanda has placed her interests and anger toward Matthew ahead of Matison’s need to have a close, loving relationship with her father.

[128] I disagree. I find that Amanda made early efforts to engage Matthew in a positive and collaborative parenting relationship. Matthew was unable or unwilling to take up those opportunities. Amanda has avoided direct contact and communication with Matthew except through Our Family Wizard. She has done so to avoid confrontation, accusations and unnecessary stress. She has not done so to harm or undermine Matison’s relationship with her father.

[129] There is no question in my mind that Matthew bears significant responsibility for Amanda’s approach to access and communication. His hyper-sensitivity and aggressive tact cannot be ignored when assessing the reasonableness of Amanda’s conduct. I agree that Amanda could have and should have advised of medical appointments ahead of time so that he could attend. I agree that she should have told him the date and time of Matison’s first day of school. Did she do so to punish him or to undermine his relationship with Matison – no.

[130] I find that Amanda has encouraged Matison to have a positive relationship with Matthew. She has facilitated his access consistent with the orders made. She has not thrown up barriers to his access. She has put in place measures to ensure the access occurs without exposing Matison to conflict between her parents.

h. Blood Relationship

[131] This factor is neutral as the parties are the biological parents.

Joint Custody Principles

[132] As a matter of law and common sense, joint custody requires a high degree of cooperation between the parents: Johnson v. Cleroux, [2002] O.J. No. 1801 (C.A.). The issue before the trial judge in a custody case is the best interests of the child. Where one parent professes an inability to communicate with the other parent, that assertion alone does not mean that a joint custody order cannot be considered. Rather, the court must consider whether there is some evidence that, despite their differences, the parents are able to communicate effectively with one another: Kaplanis v. Kaplanis, [2005] O.J. No. 275 (C.A.); Ladisa v. Ladisa, [2005] O.J. No. 276 (C.A.); Giri v. Wentges, 2009 ONCA 606, [2009] O.J. No. 5173 (C.A.), leave to appeal refused [2009] S.C.C.A. No. 438.

[133] Joint custody is not appropriate where parents are unable to cooperate and communicate effectively and are unlikely to be able to achieve a sufficient level of cooperation: Lawson v. Lawson, [2006] O.J. No. 3179 (C.A.); Kappler v. Beaudoin, [2000] O.J. No. 1558 (S.C.J.). However, one parent cannot create problems with the other parent and then claim custody on the basis of a lack of cooperation: Lawson.

[134] There is no default position in favour of joint custody in Ontario. Each case is fact based and discretion driven. Past parenting experience, both during cohabitation and after separation, is of critical importance to the court’s decision whether to order shared parenting in any form: Patterson v. Patterson, [2006] O.J. No. 5454 (S.C.J.).

[135] Joint custody under a parallel parenting regime may be suitable where both parents love the child and should play an active role in the child’s life, yet have difficulty communicating or reaching a consensus on the child’s upbringing. In a parallel parenting regime, the court typically allocates decision-making on major matters so that in the case of conflict, one parent will have final say: Ursic v. Ursic, [2006] O.J. No. 2178 (C.A.).

[136] Emphasis must be placed on the importance of bonding, attachment and stability in a young child’s life: Barnes v. Parks, [2001] O.J. No. 643 (C.A.).

[137] As I have indicated above, I have no concerns with either party’s ability to parent Matison. Both adore Matison. Both are caring, responsible individuals who are in relationships that provide a safe, nurturing base for Matison’s care. The critical issue here is their ability or inability to cooperate and communicate effectively for Matison’s benefit.

[138] The evidence establishes that:

a. While they cohabited, they were able to communicate adequately to properly care for Matison. There was a division of labour which necessarily reflected Matthew’s ongoing work schedule;

b. For brief periods post-separation, they were able to speak directly and to communicate by text or email without conflict;

c. Regrettably, those periods were brief and limited;

d. There is ongoing mistrust, frustration and poor communication between the parents;

e. Third parties have been used by both sides to facilitate access exchanges; and

f. There is little evidence to support anything more than a hopeful wish that they will be able to cooperate and communicate better in the future.

[139] I note that this is not a case where the parties have regularly involved police or CAS in their disputes. There are no public displays of aggression and conflict. Neither has spoken badly of the other to Matison or permitted others to do so in her presence. On the scale of low to high conflict, this case falls in the middle at worst.

[140] In her cross-examination, Amanda indicated that she would be “ok” with joint custody and meaningful consultation. I understand her answer to be that she will accept that result if ordered. However, in her closing submissions, she indicated through counsel that she seeks sole custody.

[141] I am mindful that Matthew expressed a desire to be a true partner with Amanda in raising Matison. He indicated his desire to be involved in decision-making for their daughter. Unfortunately, the history of their interactions post-separation do not accord with that approach and do not give me any confidence that the necessary degree of respectful dialogue can be had. For example, even in his evidence at trial, he referred to Amanda weaponizing and leveraging Matison.

[142] I conclude that this is not a case where joint custody is in Matison’s best interests. I am satisfied that it is better for Matison that decisions be made for her care and upbringing by Amanda who has done a very capable job to this point. It is hoped that with the issues of custody and decision-making authority resolved, the parties can find effective means of communication and consultation as needed.

[143] I have considered whether a parallel parenting regime is workable and appropriate. In my view, it is not appropriate because of the very real prospect that every issue will be contentious and lead to further disputes including more litigation. In addition, when I considered who should have final decision-making authority for each area, I concluded that Amanda was best situated to do so. I find that a requirement that Amanda engage in meaningful consultation and discussion with Matthew is better for Matison.

[144] Therefore, I conclude that Amanda shall have sole custody of Matison. She shall consult Matthew and meaningfully discuss issues affecting Matison’s health, education including language of education, religious upbringing and her well-being. In the event of disagreement, Amanda shall have final say. There are various related ancillary terms which I will set out below.

[145] I turn now to the care schedule.

Care Schedule

[146] Matthew submits that the maximum contact principle set out in s. 16(10) of the Divorce Act should be applied in this case. Although the parties never married, he argued that the maximum contact principle has been referred to in non-divorce proceedings. It is consistent with the importance of bonding, attachment and stability which are critical to Matison’s best interests.

[147] Section 16(10) of the Divorce Act states:

In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[148] Because the parties never married, section 16 (10) of the Divorce Act does not apply. I note that even under that provision, the maximum contact principle is subject to consistency with the best interests of the child. Frankly, I do not see where this argument materially contributes to the analysis of Matison’s best interests. It is those best interests that will dictate the amount of time she should spend in Matthew’s care.

[149] Matison is now four years old. Under the existing interim access regime, Matison spends approximately four nights and six evenings each month with Matthew. Matthew submits that the existing schedule is insufficient; it is in Matison’s best interests that she spend more time with him to promote and foster a close relationship with her father.

[150] I agree that it is in Matison’s best interests that she spend more time with Matthew. She is of an age where parental bonds are forming and being reinforced. She has half-siblings with whom she is also forming relationships. It is in her best interests to strengthen and develop those attachments through greater interaction with Matthew, Jessica, Cora and the new child.

[151] I do not agree that adding an extra evening visit, as proposed by Amanda, is sufficient. Given her age and the travel involved for evening visits, an extra evening will add little to parental and familial interaction.

[152] I also do not agree with the schedule proposed by Matthew. It is designed to share time equally and to ensure that Matison sees each parent every two or three days. I agree with Amanda that the 2-2-3 schedule is too disruptive especially given that the parents do not live in the same community.

[153] I indicated above my concern with the winter travel required to take Madison to and from school when she is in Matthew’s care. Grand Bend and Zürich are small communities that are relatively close by when the roads and weather are good. In winter, travel between these two communities and the additional travel to the more distant Hensell can be quite hazardous.

[154] I am mindful that Matison is still very young and the care schedule will hopefully prove workable for many years to follow. Her bedtime, for example, will change as she gets older. The activities in which she is involved and the timing of same will likewise change.

[155] I find that commencing March 1, 2019 and during the school year until she starts grade three, Matison should be in Matthew’s care as follows:

a. Alternating weekends from after school on Thursday until her return to school on Monday. If Monday is not a school day, then until returned to school on Tuesday morning; and

b. Thursdays after school until 7:30 p.m. in the week when he does not have weekend access.

The existing care schedule established by the orders of Heeney J. and Hebner J. shall remain in effect until February 28, 2019.

[156] When Matison starts grade three, the alternating weekend access will commence after school on Wednesday. The balance of the preceding paragraph shall continue to apply.

[157] It is, of course, open to the parties to agree to a different schedule. Failing such agreement, the schedule will be that set out above. I note that the weekday evening visit is slated to end at 7:30 p.m. in recognition of Matison’s young age. As she gets older, it may be appropriate to push that time to 8 or 8:30 p.m.. Again, that is something the parties can discuss and, one would hope, be able to agree upon.

Summer Holidays

[158] The school care schedule is suspended during the school summer holidays. In its place, the parties will share care of Matison on an alternating week about basis. The party in whose care Matison is not residing shall be entitled to a midweek visit with Matison from 4 p.m. to 7:30 p.m. on Wednesdays. In the event the parent with Matison for that week has plans to be away, he or she will notify the other and appropriate makeup time shall be given. Matison will call that parent if possible during that week.

[159] Grand Bend is a tourist community that enjoys enviable beaches on the shore of Lake Huron. There is much to see and do in the summer in Grand Bend. It is also the time of year when parents take vacation to spend time with family.

[160] In my view, Matison will benefit from more extensive time with Matthew and his family in the summers. I have allowed for the possibility that either parent may, for example, decide to go camping for a week or travel abroad with Matison. If so, the midweek visit must be replaced and a telephone call or Skype visit will occur if possible.

[161] I am mindful that Amanda works in the education system and, therefore, has summers free. It is expected that Matthew will be working at least part of the time when Matison is to be with him. I do not regard that as an impediment to week about access. It is beneficial to Matison to spend time with Matthew, Jessica and their family during periods when Matthew is in his usual work routine. She will experience their regular family life. Moreover, I am satisfied that Jessica will organize and ensure appropriate child centred activities.

Christmas, March Break, Birthdays and Special Days

[162] School shuts down for two weeks at Christmas. School likewise shuts down for a week or two in March during which some families travel while others stay home. It is common for access schedules to be suspended during those periods. Again, Amanda will have the same weeks off work as Matison has off school.

[163] Neither party provided any evidence of special Christmas traditions. Amanda indicated a willingness to share time over the Christmas holiday.

[164] Therefore, the regular school access schedule will be suspended during Christmas holidays. Matison’s care schedule shall be as follows:

a. In odd numbered years, Matison shall be in Matthew’s care from 5 p.m. on Christmas Eve until 5 p.m. on Christmas Day, and in Amanda’s care from 5 p.m. on Christmas Day to 5 p.m. on Boxing Day;

b. In even numbered years, Matison shall be Amanda’s care from 5 p.m. on Christmas Eve until 5 p.m. on Christmas Day, and in Matthew’s care from 5 p.m. on Christmas Day to 5 p.m. on Boxing Day;

c. The balance of the Christmas break shall be divided evenly.

[165] For March Break, the school access schedule shall be suspended and the parties shall divide the time equally. If either party wishes to travel with Matison during that week, he or she shall notify the other and provide full details of the proposed trip. The travelling party shall request permission to use the other’s time during that week, which consent shall not be unreasonably withheld. In that case, the party who gave such consent shall have Matison in his or her care for all of March Break the following year.

[166] Birthdays are usually special days best celebrated with family and friends. Since they separated, Matthew has had little, if any, time with Matison on her birthday. Generally, he has celebrated her birthday with her and his family during an access visit before or after her birthday.

[167] I find it is a Matison’s best interests that she see and spend some time on her birthday with each parent where practicable. Accordingly, if Matison’s birthday falls on a weekend, the parent who does not have care of Matison that weekend shall be entitled to spend from 8 a.m. to noon with Matison. Where Madison’s birthday falls on a school day, it is impractical to try to compress anything more than a telephone call or Skype call into the time available for her celebration. In that case, the parent who does not have Madison in his or her care shall be entitled to contact Madison by telephone or Skype for a visit not to last longer than 30 minutes at a time mutually agreed upon between the parties.

[168] Regardless who is entitled to care for Matison under the care schedule, Matthew shall have Matison in his care on Father’s Day from 10 a.m. to 5 p.m., and Amanda shall have Matison in her care on Mother’s Day for the same time.

[169] Matthew’s endorsement request includes an equal sharing of Easter and Thanksgiving. In my view, those weekends should simply fall under the regular school year care schedule. If the parties wish to divide or share them, they may mutually agree upon same.

Child Support

[170] Exhibit 7 is the support payment brief of the applicant. That brief indicates the amounts actually paid by Matthew to Amanda on account of child support in 2016, 2017 and 2018 based on Matthew’s income through October 2018. The front page also indicates the amounts payable pursuant to the Ontario Child Support Guidelines during the same period. Matthew claims that he has overpaid child support by approximately $1,896.

[171] The Exhibit contains various DivorceMate calculations based on Matthew’s income and that of Amanda.

[172] It follows from the ongoing care schedule above that child support is payable to Amanda for the benefit of Matison at the Table amount for all but two months where time is divided equally. Matthew’s estimated income in 2018 is $130,146. The Table amount payable for monthly child support is $1,114.

[173] During the months where they equally share Matison’s residence, an offset is required. Amanda’s income is $26,708 according to her financial statement sworn October 3, 2018. I accept that figure as an accurate reflection of her ongoing income. Therefore, the Table amount payable by Amanda by way of off-set is $210. The net amount payable in those months is $904/month.

[174] In an effort to find a steady amount payable, I have calculated the aggregate amount payable for child support by Matthew net of the offset in July and August, and divided that amount by 12 months. That results in monthly child support payable of $1,079.

[175] I order that Matthew pay monthly child support to Amanda for Matison Archer Ince born December 17, 2014 in the amount of $1,079 commencing January 1, 2019 based on Matthew’s estimated 2018 income of $130,146 and Amanda’s 2018 income of $26,708 net of a setoff for Amanda’s child support payable for July and August.

[176] With respect to s. 7 expenses, the parties shall share same in proportion to their 2018 incomes above.

[177] Child support payable shall be adjusted annually on June 30th retroactive to January 1 of that year based on the previous year’s line 150 income for both parties. The first adjustment shall take place June 30, 2020. To that end, both parties shall provide to the other a copy of their respective tax return and Notice of Assessment for the previous year by May 31st each year.

Constructive Trust Claim

[178] Amanda claims a constructive trust in and/or the value of contributions made to Matthew’s home on Hendrick Road in the amount of $10,618 based on unjust enrichment. The contributions are the purchase of a dishwasher that was installed in the kitchen and the purchase of a new lifetime roof for the upper roof. Both expenditures were made during the period Amanda was residing in the home with Matthew.

[179] The home on Hendrick Road was owned solely by Matthew. He sold that home in 2018 for considerably more than he paid for it in 2014.

[180] On February 18, 2015 while they were cohabiting, Amanda purchased a new dishwasher from Groves TV & Appliance Centre for $1,491.59 inclusive of installation, removal of the old dishwasher and applicable taxes. It is undisputed that the dishwasher was installed and remained in the home when Amanda left permanently.

[181] On July 2, 2014, Perry Mattson obtained a quote from Diamond Roof to install steel shingles on the main house only (upper roof). On July 31, 2014, MW Simpson Construction Ltd. invoiced Amanda for the supply and installation of a slate gray Diamond steel shingle roof. The invoice amount for materials, installation and tax was $8,837.73. The invoice was paid the same day from an account held solely by Amanda.

[182] Matthew testified that Amanda’s parents paid for the roof; in fact, they insisted upon going with the steel shingles. When he did the lower roof, he was forced to go with the same more expensive shingles in 2015. He did not want the more expensive shingles but it was a gift and he went along with it.

[183] Amanda’s parents gifted $10,000 to each of their three children. Although Perry Mattson was involved in obtaining the quote and in dealing with the supplier, I find that the monies paid to purchase the roof came from Amanda’s account. There is no question that Amanda’s parents gave her the money that was used to pay for the roof; however, they did not pay for it – Amanda did.

[184] At the time the upper roof was purchased and installed, Amanda and Matthew were living together. They were expecting Matison. At that point and despite their regular arguments, they expected to be a couple for many years to come. The new roof came with a long warranty, one that survived Amanda’s departure.

[185] To succeed on a claim for unjust enrichment, Amanda must establish on a balance of probabilities that;

a. Matthew received a benefit;

b. Amanda suffered a corresponding deprivation; and

c. There is no juristic reason for the benefit Matthew received.

[186] Matthew argues that the house did not need such an expensive roof and he had to pay more to do the lower roof a year later as a result. Accordingly, he says there was no benefit.

[187] Matthew owned the house. The house got a new dishwasher and a new roof. Matthew did not pay for either. Both the dishwasher and roof stayed when Amanda left. There is no suggestion that either the new roof or new dishwasher were not working properly when installed or after Amanda left. Matthew clearly derived a benefit.

[188] Matthew disputes that there was any deprivation by Amanda because the true payors were her parents, and he was led to believe that it was a gift from them.

[189] Amanda paid for both the new dishwasher and new roof. But for those purchases, she would have had those funds at her disposal for other needs or wants. She has suffered a corresponding deprivation. She did receive some benefit from the use of same while she lived with Matthew. That benefit is best addressed in the assessment of the remedy.

[190] In Kerr v. Baranow, 2011 SCC 10, Cromwell J. explained what is meant by “no juristic reason” at para. 40 as follows:

The third element of an unjust enrichment claim is that the benefit and corresponding detriment must have occurred without juristic reason. To put it simply, this means that there is no reason in law or justice for the defendant’s retention of the benefit conferred by the plaintiff, making its retention “unjust” in the circumstances of the case… [Italics added]

[191] A two stage analysis is required to determine if there is an absence of juristic reason for the benefit conferred. In the first stage, the court must consider whether the defendant/respondent’s retention of the benefit can be justified on the basis of any of the established categories of juristic reasons such as a contract, a donative intent or other valid common law, equitable or statutory obligation: Garland v. Consumers’ Gas Company Ltd., 2004 SCC 25 at para. 40. See also Kerr at para. 41.

[192] If the retention is justified under the first stage, that ends the inquiry. In that case, there is no unjust enrichment. If, however, the retention cannot be justified by one of the recognized categories of juristic reason, the second stage of the analysis must be undertaken: Garland, para. 43.

[193] If he or she gets to stage two, the plaintiff/applicant has established a prima facie case and the defendant/respondent then has the opportunity to show that there is an alternate reason to deny recovery: Garland, para. 45. The burden of proof rests on the defendant/respondent to show why he or she should be allowed to retain the benefit. The court considers the parties’ reasonable expectations and public policy: Garland at para. 46; Kerr at para 43.

[194] Dealing with stage one, Matthew argues finally that there was a juristic reason for the purchase of these items: Amanda was living there and expected to derive the benefit of the use of them for an indefinite period. He argues that there was a donative intent.

[195] I agree that when Amanda purchased and paid for the dishwasher to be installed, she expected to live in the Hendrick Road home indefinitely. The same is true for the purchase and installation of the upper roof.

[196] I do not agree, however, that those purchases were made with a “donative” intent. Amanda did not gift those purchases to Matthew nor did she intend to gift same to him. Rather, she made those purchases expecting that they would both derive the long-term use and benefit of them as they lived together in the home. She was contributing financially to their shared residence by making improvements to it.

[197] Donative intent is the only basis advanced by Matthew as the established juristic reason to retain the benefits. Given my finding, it is necessary to move to stage two.

[198] There was no discussion between the parties as to what, if anything, would occur regarding these improvements to the home if their relationship did not last. Neither side appears to have addressed their mind to that possibility at the time. There were no expectations save that both presumably understood that once installed, these items became part of the house. The fact that Amanda signed the amendment agreement so that title to the house was in Matthew’s name alone does not, in my view, signify an understanding or expectation that all improvements to the home, including those she paid for, would accrue solely to Matthew’s benefit.

[199] I find that Matthew has not satisfied me that he should be entitled to retain the full benefit of these improvements having regard to the parties’ reasonable expectations and/or policy considerations.

[200] I conclude that Amanda has proven an unjust enrichment on a balance of probabilities. The house has been sold. Matthew received the proceeds of sale net of any encumbrances, sale and closing expenses. The appropriate remedy is a monetary reimbursement to Amanda by Matthew with due regard for the fact that Amanda resided in the Hendrick Rd. home until January 2016; thus, she had the use of and benefit of those improvements for a period of time.

[201] I find that an appropriate discount on the amounts paid is 15%. Neither side made submissions as to what an appropriate discount might be. Given the life-expectancy of the roof and dishwasher, and the period of time Amanda resided at the home before she left permanently, the percentage chosen strikes me as fair and reasonable.

[202] The aggregate of the two improvements is $10,330. After reduction by 15%, the amount payable by Matthew to Amanda is $8,780.50.

Conclusion

[203] I order as follows:

1. That Amanda Mattson shall have sole custody of the child, Matison Archer Ince born December 17, 2014.

2. The parties shall consult and meaningfully discuss issues affecting Matison’s health, education and well-being. In the event of disagreement, the Respondent shall have final say.

3. All communications between the parties shall be polite and respectful, and shall be restricted to matters pertaining to Matison unless they agree otherwise.

4. Each party may make such decisions as are necessary to meet Matison’s needs while she is in his or her care.

5. The Respondent shall select Matison’s health care providers and shall notify the Applicant of any change to same as soon as practicable.

6. To the extent practicable, the Respondent will inform the Applicant promptly of all medical and dental appointments for Matison.

7. The Applicant shall be entitled to attend medical and dental appointments and will promptly notify the Respondent if he is going to do so.

8. In the event the Applicant is not present for a medical or dental appointment, the Respondent will advise the Applicant promptly of the outcome of the appointment.

9. In the event of any health-related emergency for Matison, the party in whose care Matison is at the time shall notify the other as soon as possible.

10. The Respondent will provide to the Applicant notarized copies of Matison’s birth certificate, health card, social insurance card and passport (if and when she is issued same). If new documents are issued in the future, the Respondent will provide notarized copies to the Applicant

11. Both parents are entitled to access to Matison’s health, dental and education records, and to contact and discuss Matison’s health and education with health care providers and educators, respectively.

12. Both parties are entitled to attend any events for Matison at her school including but not limited to parent-teacher meetings, graduations, field trips, concerts and athletic events.

13. Both parties shall be listed as emergency contacts at Matison’s school.

14. Both parties are entitled to attend to watch any extracurricular activities in which Matison is engaged regardless whether that activity is during his or her care time.

15. Matison will not be enrolled in more than two extra-curricular activities at any one time unless the parties mutually agree otherwise. The parties will work cooperatively to ensure that Matison’s activities are not excessive and do not unduly interfere with time to be spent with each parent. All activities will be age appropriate.

16. Each party shall be entitled to select an extra-curricular activity of their choice for Matison provided it does not overlap the time for the other parent’s activity. To avoid any overlap, they will alternate who picks the activity first with the Applicant selecting first.

17. Each parent is responsible for ensuring Matison’s attendance at extra-curricular activities for which she is enrolled while in his or her care.

18. Either party may, on notice to the other, apply for a passport for Matison. If so, the other party will sign the application forthwith upon request. The Respondent will hold the passport for Matison but will provide it to the Applicant when needed for travel. The cost of the passport will be shared equally.

19. If either party plans to take Matison outside of Canada for a vacation, he or she will provide the other with at least 30 days written notice. The notice will include dates of travel, flight information if applicable, destination, hotel or other accommodation as well as emergency contact information. If a notarized letter of permission is required for travel purposes, the other party will promptly sign same. The cost to notarize shall be borne by the party seeking the letter.

20. If either party is travelling outside Canada without Matison during a time when Matison would be in his or her care, he or she will notify the other party who shall have the first right of refusal to care for Matison during that period. The party travelling shall provide contact information.

21. The Respondent shall notify the Applicant promptly of any change in her address. She shall not move outside of the school catchment area for the school in which Matison is then enrolled unless with the Applicant’s consent or by court order.

22. Each party will notify the other in writing if he or she begins residing with another adult person, excepting their current common law partners. The notifying party shall promptly obtain and provide a s. 35.1 affidavit in respect of the new adult.

23. Neither party will make an application to change Matison’s surname and will ensure that her surname (Ince) is used for school, health and extra-curricular registrations.

24. The parties shall encourage a positive relationship between Matison and the other parent.

25. Neither party will disparage the other or permit any other adult to do so in the presence of Matison.

26. Neither parent will discuss the litigation with Matison.

27. Neither party will attempt to influence Matison’s views and preferences with respect to time spent with the other parent or members of his or her extended family.

Care Schedule

28. Commencing March 1, 2019 and during the school year until Matison starts grade three (3), the Applicant shall have Matison in his care for the following times:

a. Alternating weekends from after school on Thursday until her return to school on Monday. If Monday is not a school day, then until return to school on Tuesday; and

b. Thursdays after school until 7:30 p.m. in the week when he does not have weekend access.

29. Once Matison starts grade three (3), the alternating weekend access will commence after school on Wednesday. The balance of the preceding paragraph shall continue to apply.

30. The regular school access schedule will be suspended during Christmas holidays. Matison’s care schedule shall be as follows:

a. In odd numbered years, Matison shall be in Matthew’s care from 5 p.m. on Christmas Eve until 5 p.m. on Christmas Day, and in Amanda’s care from 5 p.m. on Christmas Day to 5 p.m. on Boxing Day;

b. In even numbered years, Matison shall be Amanda’s care from 5 p.m. on Christmas Eve until 5 p.m. on Christmas Day, and in Matthew’s care from 5 p.m. on Christmas Day to 5 p.m. on Boxing Day;

c. The balance of the Christmas break shall be divided evenly.

31. For March Break, the school access schedule shall be suspended and the parties shall divide the time equally. If either party wishes to travel with Matison during that week, he or she shall notify the other and provide full details of the proposed trip. The travelling party shall request permission to use the other’s time during that week, which consent shall not be unreasonably withheld. In that case, the party who gave such consent shall have Matison in his or her care for all of March Break the following year.

32. The school care schedule is suspended during the school summer holidays. In its place, the parties will share care of Matison on an alternating week about basis. The party in whose care Matison is not residing shall be entitled to a midweek visit with Matison from 4 p.m. to 7:30 p.m. on Wednesdays. In the event the parent with Matison for that week has plans to be away, he or she will notify the other and appropriate makeup time shall be given. Matison will call or Skype that parent if possible during that week.

33. If Matison’s birthday falls on a weekend, the parent who does not have care of Matison that weekend shall be entitled to spend from 8 a.m. to noon with Matison. Where Madison’s birthday falls on a school day, the parent who does not have Madison in his or her care shall be entitled to contact Madison by telephone or Skype for a visit not to last longer than 30 minutes at a time mutually agreed upon between the parties.

34. Regardless who is entitled to care for Matison under the care schedule, Matthew shall have Matison in his care on Father’s Day from 10 a.m. to 5 p.m., and Amanda shall have Matison in her care on Mother’s Day for the same time.

35. Matthew shall pay monthly child support to Amanda for Matison Archer Ince born December 17, 2014 in the amount of $1,079 commencing January 1, 2019 based on Matthew’s estimated 2018 income of $130,146 and Amanda’s 2018 income of $26,708 after a setoff for Amanda’s child support payable for July and August.

36. The parties shall share s. 7 expenses in proportion to their incomes.

37. Child support payable shall be adjusted annually on June 30th retroactive to January 1 of that year based on the previous year’s line 150 income for both parties in accordance with the Ontario Child Support Guidelines. The first adjustment shall take place June 30, 2020. To that end, both parties shall provide to the other a copy of their respective tax return and Notice of Assessment for the previous year by May 31st each year.

38. Matthew shall pay to Amanda the sum of $8,780.50 as compensation for the amounts paid by her for the upper roof and dishwasher at the Hendrick Road property.

39. I have endeavoured to track all orders/terms made earlier in this decision. If for any reason, one has been missed in this summary, it should be included at this point.

40. Finally, if the parties cannot agree on costs, they may make written submissions not exceeding 3 pages within 21 days hereof.

Justice R. Raikes

Released: January 7, 2019

COURT FILE NO.: 25/16 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Matthew Bruce Ince Applicant – and – Amanda Mattson Respondent REASONS FOR JUDGMENT Raikes, J. SCJ

Released: January 7, 2019