Court File and Parties

COURT FILE NO.: 532/17 (St. Catharines) DATE: 20190515 ONTARIO SUPERIOR COURT OF JUSTICE – FAMILY COURT

BETWEEN: Keith Bradley Stouffer, Applicant – and – Elizabeth Victoria Stouffer, Respondent

Counsel: Nathalie G. Fortier, for the Applicant Richard G. Startek, for the Respondent.

HEARD: April 15-18, 2019

R. A. Lococo J.

REASONS FOR JUDGMENT

I. Introduction

[1] Keith Bradley Stouffer and Elizabeth Victoria Stouffer (known as Victoria) separated in January 2017 after being married for two and half years and cohabiting for four years. During their marriage, the parties had two children, Myles and Eli. At the time of the parties’ separation, Myles was three years old. Tragically, Eli (who was then 19 months old) died shortly before the parties separated.

[2] Keith commenced this Family Court application a few months after the parties’ separation. Equalization of the parties’ net family properties has already been determined on a final basis, as has the parties’ divorce (effective May 17, 2019). The key remaining issues relate to the parenting schedule for Myles and the location of his school. Other unresolved issues include allocation of holidays and vacation time as well as child support.

[3] Based on the trial evidence, it is obvious that both parties are loving parents who are devoted to their son. Both of them clearly understand the importance to the other of having Myles as a central focus of their lives. Refreshingly in the context of family law proceedings, they both indicated their comfort with the other party’s parenting abilities and expressed no issues relating to the other’s care of Myles.

[4] The parties agree that each of them should share joint custody and parenting responsibilities for their son Myles. To the parties’ credit, some of the other parenting terms to be included in the final order are also being resolved on consent. The parties do not agree, however, on how the parenting schedule for Myles should be structured or where he should go to school.

[5] Since the parties’ separation, they have shared responsibility for Myles’ care, with Myles generally spending part of each week in each parent’s care. That arrangement became more complicated when Myles reached school age, in particular given the parties’ residence in different localities.

[6] At the time of their separation, the parties lived in a house that they owned in St. Catharines. That residence was sold soon after their separation.

[7] Keith moved to the Brantford area, where he continues to reside with his parents at their residence. He is currently 31 years old and works part-time performing maintenance for Brantford city buses.

[8] Victoria moved to a rented house in Beamsville, and subsequently re-partnered. She is currently 28 years old and employed as an elementary school teacher in Dunnville. At the time of trial, Victoria and her partner were imminently expecting their first child. They were also about to move to a new house they purchased in Smithville. She is scheduled to be on a 12-month maternity leave starting in June 2019.

[9] Since starting school in September 2017, Myles has attended Woodland Public School in St. Catharines. On mornings when Myles is staying with Victoria (generally Monday to Thursday), Victoria drives Myles to her mother’s residence in St. Catharines, which is in Woodland’s catchment area. A school bus picks up Miles in the morning, and returns him to his grandmother’s residence after school, where Victoria picks him up each afternoon he is in her care. On Thursday, Keith picks Myles up after school and takes him to his residence in Brantford. The next morning, Keith drives Myles back to his grandmother’s residence in St. Catharines to catch the school bus, and then picks him up at the end of the day for return to Brantford for all or part of the weekend.

[10] In his application, Keith initially sought to have Myles reside primarily with him and attend school in the Brantford area near his residence. Keith now proposes to leave the parenting schedule much as it is now. Myles would continue to attend Woodland Public School in St. Catharines, in order to avoid disrupting his established relationships with school friends. The parties would continue to shuttle Myles back and forth between their respective residences, the maternal grandmother’s residence and Myles’ school in St. Catharines, as they did at the time of trial.

[11] Victoria would like Myles to change schools, instead attending a public school in Smithville near her new home. She proposes a parenting schedule where Myles would stay with Keith alternate weekends from Friday after school until Sunday evening plus one evening each week after school (or alternatively, three weekends each month). Therefore, Myles would generally be in Victoria’s care on school days. She would be able to drive Myles to school each morning and (except when Keith was scheduled to do so) pick Myles up after school.

[12] For the reasons set out below, I have decided to permit Victoria to enroll Myles in school in Smithville, effective with the new school year in September 2019. The final order will also include a parenting schedule that adopts some of the elements proposed by each of the parties in the draft orders they have provided. The final order also addresses the ancillary issues relating to Myles’ healthcare professionals, child support and section 7 expenses as well as other parenting matters not addressed in the consent order terms.

[13] In the balance of these Reasons, I will first set out further background information about the parties and events relevant to the matters in issue. I will then address the matters being determined, under the following headings:

1. Regular parenting schedule/school location
2. Summer vacation/holidays/special occasions
3. Myles’ healthcare professionals
4. Child support and section 7 expenses

II. Background Information

[14] The parties began cohabiting in the fall of 2012. They resided with Keith’s parents in the Brantford area. After Myles’ birth in 2013, the parties moved to a rented apartment in Brantford. Victoria attended college (having previously completed a university degree), leading to certification in early childhood education. Except for a few months following Myles’ birth, she also worked part-time as a restaurant server. Keith also worked as a restaurant server, and later at a local Home Depot. They shared parenting responsibilities, each caring for Myles when the other was working or (in Victoria’s case) at school, with some assistance from Keith’s parents. Victoria’s mother, step-father and father (who live in the Niagara Region) also assisted on occasion.

[15] Shortly after the parties’ marriage in July 2014, they moved to St. Catharines, where they purchased a house. Keith found full-time work at a Niagara-area Home Depot. Victoria worked in childhood education starting in September 2014, and was also employed part-time as a restaurant server, taking a few months off to stay at home with the children after Eli’s birth. She later attended Brock University, obtaining her teacher’s certificate in June 2018. The parties continued to share caregiving responsibilities for the children. When both of them were working or (in Victoria’s case) at school, the children were placed in daycare, initially in the Merrittville area, and later at the Brock University student daycare.

[16] After the parties agreed to separate in January 2017, the parties continued to share responsibility for Myles’ care, under an informal “nesting” arrangement. Under that arrangement, Myles continued to live at the matrimonial home with one of the parties during that party’s parenting time. The other party would stay with his or her parents during the first party’s parenting time. The nesting arrangement was intended to be short-term, pending sale of the matrimonial home. The house sold quickly, closing April 30, 2017. Victoria arranged rental accommodation in Beamsville, effective April 1. After closing, Keith moved to his parents’ residence in the Brantford area.

[17] After the sale of the matrimonial home and through the summer of 2017, the parties continued to share responsibility for parenting Myles. Myles would typically be in Victoria’s care in Beamsville from Sunday evening until Wednesday or Thursday evening, and in Keith’s care from Wednesday or Thursday evening until Sunday evening. With some effort, the parties were able to work out arrangements for sharing holidays and vacation time on an ad hoc basis. They were generally able to do so without the assistance of counsel, whom the parties had retained to address outstanding issues between them.

[18] After the parties agreed to separate, the issue of where Myles would go to school became a matter of some contention. Myles was due to start junior kindergarten in the fall of 2017. Keith wanted Myles to attend a school in the Brantford area, where he resided with his parents. Victoria wanted him to attend school in Niagara.

[19] Late in 2016 prior to the parties’ separation, the parties discussed enrolling Myles at Lockview Public School in St. Catharines when he began junior kindergarten. The parties’ St. Catharines residence was in the catchment area for that school. Shortly after the parties’ separation, without further consultation with Keith, Victoria applied to enroll Myles at that school, effective September 2017. On the enrollment application, she indicated as an alternative choice Woodland Public School, whose catchment area included the residence of Victoria’s mother and step-father. As discussed further below, Myles in fact started school in September 2017 at Woodland Public School in St. Catharines, over Keith’s objection.

[20] The issue of where Myles would go to school came to a head in the summer of 2017. By previous agreement, Myles was spending a few days with Victoria at her grandparents’ residence in cottage country in late August. After that, Myles was scheduled to spend a few days with Keith over Labour Day weekend, returning to Victoria’s care Sunday evening. Prior to Myles’ scheduled return time, Keith’s lawyer asked Victoria’s lawyer to accept service of Keith’s Family Court application. The application indicated that, among other things, Keith was seeking joint custody of Myles, with his primary residence being with Keith in Brantford. The application also indicated that Keith had registered Myles to attend kindergarten at a Brantford area school. Upon learning of the application, Victoria declined to allow Myles to return to Keith’s care at the scheduled time, seeking assurance that Myles would be returned to her the following Sunday.

[21] Following correspondence between the parties’ counsel, the parties agreed to a revised parenting schedule on a temporary and without prejudice basis. Under that schedule, Myles is in Victoria’s care from Sunday at 6:30 p.m. until Thursday at 6:30 p.m. and in Keith’s care from Thursday at 6:30 p.m. to Sunday at 6:30 p.m., except for one weekend a month, when Keith returns Myles on Saturday at 12:00 noon. That parenting schedule remained in place at the time of the trial.

[22] The parties subsequently entered into minutes of settlement in which they resolved on a final basis the parties’ claims for the equalization of net family property, including the distribution by Victoria’s counsel of the net proceeds from the sale of the matrimonial home. Those proceeds were distributed to the parties in June 2018.

[23] The trial relating to the remaining issues occurred over a four-day period. During the course of the trial, the parties were able to agree on a number of parenting-related terms to be included in the final order. Those terms are included in the Final Order Terms set out in Appendix A of these Reasons under the heading Consent Order Terms. Those order terms related to (i) joint custody and shared parenting responsibilities for Myles, (ii) information sharing relating to Myles’ professional service providers, schooling and extracurricular activities, (iii) the maximum permitted distance between the parties residences, (iv) travel consents/passport, (v) benefits, and (vi) spousal support (none being payable on the basis that the parties are financially independent of each other).

[24] The remaining issues to determined are addressed in the balance of these Reasons.

III. Regular Parenting Schedule/School Location

A. Positions of the parties

[25] As previously noted, Keith initially sought to have Myles reside primarily with him and attend school in the Brantford area. He now proposes to leave the parenting schedule much as it is now.

[26] Under Keith’s proposed regular parenting time schedule, Myles would be in Victoria’s care each week from 6:30 p.m. on Sunday until the start of school on Thursday, and in Keith’s care from the start of the school day on Thursday until Sunday at 6:30 p.m., except for one weekend per month, when Myles would be returned to Victoria at 12:00 noon. Keith would continue to be responsible for ensuring Myles attends school on Friday. Unless otherwise provided in the final order, Myles would spend school vacation days falling on a Friday with Keith, and school vacation days falling on a Monday with Victoria. Myles would spend all professional development days with Keith, since Victoria is a teacher and would have to work those days.

[27] Keith’s proposed order would also provide that Myles would continue to attend Woodland Public School in St. Catharines unless otherwise agreed in writing by Keith and Victoria. The principal rationale for Myles continuing to attend Woodland is to avoid interfering with the schooling routine that Myles is used to, including the disruption of Myles’ established relationships with school friends.

[28] Under Victoria proposed regular parenting time schedule, Myles would be in Keith’s care (i) alternate weekends from 4:00 p.m. (or after school) Friday until 6:30 p.m. on Sunday, and (ii) one evening each week from 4:00 p.m. (or after school) until 7:00 p.m. As an alternative proposal, Myles would be in Keith’s care three weekends each month from 4:00 p.m. (or after school) on Friday until 6:30 p.m. on Sunday. If a professional development day falls on a Friday and Keith is not scheduled to work, Myles would also be in Keith’s care starting after school on Thursday. Myles would be in Victoria’s care all other times.

[29] Victoria’s proposed order would also permit her to enroll Myles to attend Smithville Public School, effective immediately. She would be able to drive Myles to school in the morning from her new home a short distance away, before driving to work in Dunnville. At the end of the day, it will be necessary to make arrangements for Myles’ after-school care for a short time until she can arrive to pick him up after completing her teaching duties for the day. Victoria’s rationale for an immediate change in Myles’ school (as opposed to waiting until the next school year in September 2019) is to allow Myles to make contact with children who live in the area of Victoria’s new residence in Smithville, forming relationships that would carry though the summer before the start of the next school year.

B. Legal principles

[30] As legal support for Keith’s proposed parenting schedule, his counsel relied on the principles set out in s. 16 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). Victoria’s counsel also referred to parallel principles in s. 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12.

[31] When making a custody or access order, the guiding principle is the child’s best interests: Divorce Act, s. 16(8); Children’s Law Reform Act, s. 24(1). Under s. 16(8) of the Divorce Act, the court is directed to take into consideration “only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.” Similarly, s. 24(2) of the Children’s Law Reform Act directs the court to consider “all the child’s needs and circumstances” and provides a non-exhaustive list of needs and circumstances to consider. As well, s. 16(10) of the Divorce Act directs the court to give effect to the principle that a child should have as much contact with each parent as is consistent with the best interests of the child.

[32] Keith argued that his proposed parenting schedule would be in Myles’s best interests and consistent with the maximum contact principle in s. 16(10). Unlike under Victoria’s proposed schedule, Myles would be in each parent’s care on an approximately equal basis, consistent with what has occurred since the parties’ separation (including under the temporary and without prejudice arrangement in place since September 2017 when Myles started school).

[33] Keith also argued that Victoria’s choice of school reflects her own convenience in having Myles in school close to her new residence, rather than at Woodlawn, where he has established relationships. According to Keith, Victoria is therefore putting her own best interests ahead of Myles’, which is not consistent with the requirement in s. 16(8) of the Divorce Act to consider “only the best interests of the child”.

[34] In support of Keith’s position, his counsel cited the Ontario Court of Appeal decision in Berry v. Berry, 2011 ONCA 705, 343 D.L.R. (4th) 501. Berry is a mobility case in which both parents shared equal time with the child and the mother wished to relocate from Toronto to Kingston. In reaching its decision in Berry, the Court of Appeal applied the principles set out by the Supreme Court of Canada in Gordon v. Goertz, [1996] 2 S.C.R. 27, with necessary adjustments. In Gordon, the mobility issue arose on an application to vary an existing custody order, placing in issue (among other things) the question of a material change in circumstances. In Berry (as in the application now before me), there was no previous custody/access order in place.

[35] In Berry, at para. 10, the Court of Appeal states as follows:

In Goertz, the Supreme Court emphasized that the superordinate consideration in a mobility case is the best interests of the child determined from a child-centered perspective. The court set out, at para. 14, a number of factors to be considered. Taking into account that this case involves two custodial parents, those factors can be stated as follows:

• the existing custody arrangement and relationship between the child and each of the custodial parents;
• the desirability of maximizing contact between the child and both parents;
• the views of the child (when applicable);
• the parent's reason for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child;
• disruption to the child of a change in custody; and
• disruption to the child consequent on removal from family, schools, and the community the child has come to know. [Emphasis in original.]

[36] In Berry, the Court of Appeal allowed the appeal, setting aside the trial judge’s decision to permit the mother to move to Kingston with the child. The court held, at para. 26, that in the circumstances of that case, the trial judge did not attach proper weight to the maximum contact principle, observing “While the maximum contact principle is not absolute, it is mandatory.” In doing so, the Court of Appeal paraphrased the Supreme Court’s language in Gordon, at p. 49, as follows:

The "maximum contact" principle, as it has been called, is mandatory, but not absolute. The [Divorce] Act only obliges the judge to respect it to the extent that such contact is consistent with the child's best interests; if other factors show that it would not be in the child's best interests, the court can and should restrict contact …. [Citation omitted.]

[37] It should be noted that the application before me is not, strictly speaking, a mobility case. Victoria is moving a relatively short distance from her current residence, in the same regional municipality. Travel between the parties’ residences once Victoria has moved will not be materially more or less convenient that before the move. The same observation applies to travel between Keith’s residence and either of Myles’ proposed schools. As well, except for parenting-time exchanges that occur at Myles’ school, the parties are agreed that they will meet at some geographic midpoint to be settled between them. Accordingly, many of the practical difficulties that arise in other mobility cases are not material considerations in this case.

[38] That being said, the principles set out in Gordon and Berry apply to the matters in issue in this case, taking into account the factual distinctions outlined above. Consistent with Gordon, at p. 102, and Berry, at para. 10, the overriding consideration is the child’s best interests determined “from a child-centered perspective”. To the extent applicable, the factors outlined in Berry, at para. 10, are to be considered, including (on a mandatory basis) the maximum contract principle. However, the latter consideration does not necessarily mandate something approaching equivalent parenting time if other factors indicate such a parenting schedule would not be in the child’s best interest: Gordon, at p. 49.

C. Location of Myles’ school

[39] With that background, I will first address the key issue of where Myles should go to school. As previously noted, Keith argues that requiring Myles to change schools would not be in his best interests, since doing so would interfere with the schooling routine that Myles is used to, including the disruption of Myles’ established relationships with school friends. Keith says that the issue of further disruption should be considered in the context of Myles’ having previously attended at two different daycare centres during his young life. Keith also argues that changing the current arrangements would also interfere with time Myles enjoys with his maternal grandmother and her two young sons (Myles’ uncles). One of those young uncles is in his last year at that school and travels with Myles to and from school on the school bus. Myles is also in that uncle’s care for a short time after school (after being dropped off at his grandmother’s) until Victoria is able to pick him. Keith also notes that Victoria previously used some of the same arguments to justify Myles’ continued attendance at school in St. Catharines, rather than Keith’s preferred option of attending a Brantford area school. As well, Keith noted that despite his initial opposition to Myles’ attending Woodland, Keith has become involved in assisting on a volunteer basis with various programs at Woodland, which he considered to be an excellent school for Myles to attend.

[40] Having considered Keith’s submissions, I do not agree with him that it is Myles best interests to continue to attend Woodland Public School in St. Catharines. Whatever the historical basis for his attending that school, I consider his continued attendance (when weighed against the alternative Victoria proposes) to be the more disruptive and inconvenient outcome for all involved, including and especially Myles. By way of possible exception, it does not appear that Keith would be materially inconvenienced one way or the other if Myles instead attends school in Smithville rather than St. Catharines. It is commendable that Keith has become involved in volunteer programs at Woodland. However, consistent with a “child-centered perspective”, he can presumably volunteer at Myles new school if he chooses.

[41] Looking at the current arrangements from Myles’ perspective (as I am required to do), whether Myles is staying with Victoria or Keith on a school day, he is transported to his grandmother’s residence early the morning to catch a school bus to take him to school, returning by bus after school to his grandmother’s before Victoria picks him up. If Myles instead attends school in Smithville, that additional intermediate step would be eliminated as unnecessary when his is staying with Victoria. While Myles apparently enjoys the time he spends with his young uncle on the school bus, that arrangement will come to an end this year when his uncle moves on to another school. In the coming year, there is no assurance that his uncle will be available or willing to care for him after school before Victoria picks him up, requiring alternate arrangements to be put in place.

[42] I also consider Keith’s concerns about disrupting Myles’ familiar routines and relationships with school friends to be overblown. From all accounts, Myles is a well-adjusted five year old, who will be six by the time the next school year starts. He apparently has no difficulty making friends. He has to date attended only one school in his young life. I see no relevance to the fact that he previously attend two different daycares. In one case, he was under two years old at the time. The other daycare was on campus while his mother attended school nearby. In these circumstances, I do not see the negative pattern of disruption to Myles’ routines that is causing Keith concern.

[43] Taking the forgoing considerations into account, I have concluded that it would be in Myles’ best interests if Victoria is permitted to register Myles for school at Smithville Public School, within the catchment area of her new home in Smithville, effective at the commencement of the next school year in September 2019. With respect to the timing of the change in schools, I considered Victoria’s position that the change should be effective immediately, in order to provide Myles with the opportunity to make immediate contact with children who live in the area of Victoria’s new residence. However, changing schools so close to the end of the school year did not appear to be advisable, also taking into account other necessary adjustments arising from the change in Victoria’s residence occurring at that same time. In all the circumstances, I see no compelling reason to interfere with the arrangements currently in place during the short time remaining in the current school year.

D. Regular parenting time schedule

[44] To recap, Keith’s proposed final order would leave the regular parenting schedule for Myles much as it is now. During the school year, Myles would be in Victoria’s care each week from Sunday evening until the start of school on Thursday, and in Keith’s care from the start of the school day on Thursday until Sunday at 6:30 p.m., except for one weekend per month, when Myles would be returned to Victoria at 12:00 noon.

[45] Under Victoria’s proposed parenting schedule, Myles would stay with Keith alternate weekends from Friday after school until Sunday evening and one evening each week after school. Under her alternate proposed schedule, Myles would be with Keith three weekends each month without mid-week access time, providing Keith with approximately the same amount of time with Myles on a monthly basis as her first proposed schedule.

[46] Looking at these proposals from Myles’ perspective, each of them has pluses and minuses. Keith’s proposal has the advantage of continuity with what has been in place since Myles started school, as well as affording Myles the opportunity of being in each of his parents’ care for something approaching equivalent time. On the minus side, even with school in St. Catharines being out of the equation, Keith’s schedule would continue to involve an inordinate degree of shuttling back and forth for Myles. While to some extent unavoidable (given that the parties lives some distance apart), I consider that aspect of Keith’s proposed schedule to be inherently disruptive, likely increasingly so as Myles gets older, becomes involved in other activities, and develops friendships at his new school.

[47] Under Victoria’s proposed schedules, Myles would be spending more time in the location where he will be going to school, also cutting down on the amount and frequency of the required travel. As a corollary, however, Myles would be spending less time in total with his father, raising the issue of whether the maximum contact principle would be complied with.

[48] The parenting schedule adopted in the final order set out in Appendix A adopts elements of the parties’ proposed schedules. The schedule will be based on a four-week cycle. During the school year, the schedule will operate as follows:

(a) In weeks 1 and 3, Myles will be in Keith’s care from after school on Thursday until 6:30 p.m. on Sunday. Keith will be responsible for ensuring that Myles attends school on Friday. (b) In week 2, Myles will be in Keith’s care from after school on Wednesday (or such other day as the parties may agree) until 7:30 p.m. the same day. Myles will remain in Victoria’s care that weekend. (c) In week 4, the schedule will be the same as weeks 1 and 3, except that Keith’s parenting time with Myles will start after school on Friday instead of Thursday unless Friday is a holiday or a professional development day (which, in the latter case, would be a work day for Victoria, being a teacher).

[49] In structure, that parenting schedule resembles Victoria’s alternate proposal, since Myles would spend three out of every four weekends with Keith and the other with Victoria. However, the schedule being adopted provides Myles with more time with his father than under Victoria’s proposals. Myles would continue to have Thursday overnight parenting time with his father preceding two of those weekends, as well as an evening with Keith during the week Myles would not otherwise see his father.

[50] While the parenting schedule being adopted results in some reduction in Keith’s current parenting time with Myles, the schedule also reduces somewhat the level of disruption involved in Keith’s proposed schedule, including reducing by half the Thursday overnight parenting-time exchanges. In all the circumstances, I consider the schedule being adopted to be in Myles best interests at the present time when compared to the proposed alternatives. As well, in my view, the relatively modest reduction in Keith’s parenting time under that schedule does not compromise the maximum contact principle, being one of the factors relating to Myles’ best interests that must be taken into account.

[51] That being said, consistent with my previous observations, it may well be necessary to revisit the parenting schedule in the future. As Myles gets older, he would be expected to become involved in various activities and develops new relationships at school and elsewhere. His own preferences will also need to be taken into account. As well, Keith’s work and personal status could change, affecting his availability. The parties will therefore need to be flexible about the parenting schedule and open to varying it to the extent necessary on an ongoing basis.

[52] In order to assist in that process (and to avoid future contested variation motions to the extent possible), I am including a term in the final order requiring the parties to pursue mediation before coming back to court. While such a term was not included in the consent order terms, counsel indicated during submissions that they were not adverse to a term of this nature being included in the final order, while expressing a concern about the potential expense involved in use of private mediation. Therefore, the term being included requires the parties to pursue mediation using services available through the Family Law Information Centre in St. Catharines or (if the parties agree) through private mediation.

IV. Summer Vacation/Holidays/Special Occasions

[53] Under the final order, the parenting schedule for the period from the end of the school year in May until the return to school after Labour Day will provide for Myles to be in each parent’s care on an approximately equal basis. The schedule is based on a two-week cycle, with Myles being in one parent’s care for four days and the other parent’s care for three days. The pattern would reverse in the following week. Keith’s parenting time will begin at 6:30 p.m. each Thursday and end (i) on Monday at 6:30 p.m. in the first week, and (ii) on Sunday at 6:30 p.m. in the following week. Myles would be in Victoria’s care the rest of the time. By way of exception, Myles would be in each parent’s care for one continuous vacation week, as noted further below.

[54] The summer vacation parenting schedule generally follows the proposed schedule in Victoria’s draft order. In Keith’s draft order, he proposed that his parenting time with Myles be weighed in Keith’s favour. Myles would be in Keith’s care each week more than four full days, that is, from 1:00 p.m. on Wednesday until Sunday at 6:30 p.m. The additional summer parenting time in Keith’s draft order is intended to balance the fact that Victoria has Myles in her care for more than half the time during the school year.

[55] I do not agree it would be appropriate to take the approach Keith suggested. During the school year, Victoria works full-time as a teacher, limiting her opportunity to provide her undivided attention to Myles. During the summer months, she would be better able to spend “quality time” with Myles, to his benefit. In these circumstances, I have concluded that it would be in Myles best interests to be able to spend equivalent time with both parents during the summer months. In reaching that conclusion, I took into account the fact that Victoria is scheduled to be on maternity leave for most of the next school year, but did not consider that fact to be a sufficient basis for imposing an unequal timesharing regime this summer.

[56] As previously noted, the final order also provides that each party shall have one continuous vacation week with Myles, as suggested by both parties. The mechanism for determining the vacation week for each party reflects the more structured approach suggested in Keith’s draft order, minimizing the need for interaction between the parties on each occasion. While the parties have generally been able to work out matters of that nature on an ad hoc basis in the past, the trial evidence indicated that there was considerable back and forth between the parties, often leaving one side or the other less than satisfied with the outcome.

[57] At the same time, it is clear that both parties recognize that they will need to be flexible going forward in applying the order, regardless of how its terms are formulated. The final order therefore included provisions adapted from Victoria’s draft order reflecting that sentiment.

[58] In their draft order, the parties also proposed what they considered an equitable sharing of parenting time on statutory holidays and special occasions. The proposals made by both parties were generally fair and equitable. I included some aspects of both parties’ proposals in the final order, taking a structured approach where feasible for the reasons previously indicated.

V. Healthcare Professionals

[59] Both parties’ draft orders include terms relating to the medical and dental professionals who are to provide services to Myles. The proposed terms arose from previous disputes between the parties in this area.

[60] An issue relating to Myles’ dental care arose after Keith took Myles to his dentist in Brantford to have his teeth cleaned without consulting Victoria. Both parties now agree that Myles’ current dentist in St. Catharines should continue to be his regular dentist. The final order includes a term to that effect. There is a family connection to that dentist through Victoria’s father. Myles knows the dentist well and is comfortable with her.

[61] The parties continue to disagree with respect to Myles’ medical care. As an infant, Myles had the same family doctor in Brantford as Keith and Victoria. When the parties moved to St. Catharines in 2014, a St. Catharines doctor became the family doctor for the whole family. However, after Eli’s death in 2017, Myles became dissatisfied with that doctor, who has subsequently retired. Apparently with Victoria’s knowledge, Keith consulted their previous Brantford family doctor about Myles, principally to obtain referrals for genetic testing. While Myles is apparently healthy, the genetic testing was thought advisable following the sudden death of his younger brother. The parties have subsequently taken Myles to medical specialists together, but no medical issues have been identified to date.

[62] Keith’s draft order would require that Myles continue to be treated by Keith’s family doctor in Brantford. Keith argues that Myles has a history with that doctor, both as an infant and since Eli’s death. The family doctor Myles had in St. Catharines is now retired, providing no alternative with a previous history with Myles.

[63] The final order instead adopts the term proposed in Victoria’ draft order, permitting Victoria to register Myles with Victoria’s family doctor in Smithville. Given the parenting schedule that is being adopted, it makes more sense logistically if Myles’ family doctor is close to Victoria’s residence, where Myles will be spending most of his time during the school year. The clinic where Victoria’s doctor practises has evening hours that will allow Victoria to take Myles there for appointments herself. As well, Myles’ connection with Keith’s Brantford doctor is either dated or limited. Therefore, I see no material ongoing advantage to Myles’ being treated by Keith’s Brantford family doctor.

VI. Child Support and Section 7 Expenses

[64] In general terms, the parties agree that child support should be dealt with in the final order on a prospective basis only. In other words, arrears of child support is not an issue.

[65] Keith’s draft order proposes that child support be determined on an offset basis commencing July 1, 2019, based on the parties’ 2018 incomes. (In 2018, Keith’s income was $30,390 and Victoria’s income was estimated at $42,016.) That method of calculation presupposes a shared parenting regime in which Myles is in each party’s care for an equivalent amount of time: see Federal Child Support Guidelines, SOR/97-175, s. 9. Since Victoria’s income was higher than Keith’s, the result would be that Victoria would be required to make a monthly child support payment of $122. Section 7 expenses would be shared proportionately based on the parties’ 2018 income ratio (that is, 42 per cent for Keith and 58 per cent for Victoria). The child support payments and section 7 expenses ratio would be adjusted annual on July 1 each year, commencing in 2020.

[66] Victoria’s draft order proposes that Keith be required to make child support payments to Victoria in the amount of $259 per month, the table amount under the Guidelines for Keith 2018 income of $30,390, for each month from September to June each year. No child support would be payable for July and August, when Myles would be in each party’s care equally. Section 7 expenses would be shared equally, based on the expectation of approximately equal incomes for the parties, given the imminence of a 12-month maternity leave for Victoria.

[67] The final order generally adopts the approach to child support and section 7 expenses set out in Victoria’s draft order. Under the parenting schedule set out in the final order, the time Myles is in Keith’s care does not approach the 40 per cent threshold in s. 9 of the Guidelines, whether calculated by reference to the regular (school year) parenting schedule or on an annual basis taking into account the summer parenting schedule: see Nitsopoulos v. Alousis (2000), 5 R.F.L. (5th) 430 (Sup. Ct.), at para. 9. Therefore, commencing June 1, 2019, Keith will be required to make child support payments to Victoria in the amount of $259 per month. I am also adopting Victoria’s suggestion that no child support be payable for July and August, given the equal time-sharing regime for the summer months.

[68] With respect to section 7 expenses, I agree with Victoria’s counsel that the final order should require those expenses to be shared equally for the time being. To date, section 7 expenses have not been an issue between the parties but may well be in the future. In my view, it is appropriate to set the expense ratio initially at 50/50, given the expectation that Keith’s 2019 income will not be materially different than last year and that Victoria’s income will be reduced this year based on her imminent 12-month maternity leave. At the request of either party, the section 7 expense ratio (as well as the table amount of child support) may be revisited as of July 1 each year commencing in 2020, taking the approach suggested in Keith’s order.

VIII. Disposition

[69] Accordingly, a final order will issue, as follows:

1. The final order will include the terms set out in Appendix A of these Reasons.
2. Support deduction order to issue.
3. Unless settled between the parties, costs will be determined based on written submissions.

[70] If the parties cannot agree on costs, each party may serve and file brief written submissions (not to exceed three pages) together with a bill of costs within 21 days. Each may respond by brief written submissions within 14 days. If no submissions are received within the specified timeframe, the parties will be deemed to have settled costs.

The Honourable Mr. Justice R. A. Lococo

Released: May 15, 2019

APPENDIX A

Final Order Terms

Consent Order Terms

CUSTODY

1. The parties shall share joint custody and parenting responsibilities of the child: Myles James Stouffer, born [insert birth date].

2. The parties shall each receive information from Myles’ doctor, dentist, healthcare provider, teacher, counsellor, instructor or other professional involved with Myles. The parties shall sign all necessary Authorizations and Releases so that each may receive information directly from the source.

3. The parties shall keep each other informed of the names and contact information of any professionals involved with Myles.

4. The parties shall notify the other of any appointment scheduled for Myles at the time the appointment is scheduled and both parties shall be permitted to attend the appointment.

5. The parties shall each be permitted to attend at Myles’ parent teacher interviews and extracurricular activities. Neither party will enroll Myles in activities without the consent of the other with consent not to be unreasonably withheld and which activity will not interfere with the timeshare schedule of the other.

6. The parties shall consult with one another and make decisions together on the following major issues concerning Myles: a. Health; b. Religion; c. Education.

7. In the event of an emergency, the residential parent shall tend to the emergency and immediately notify the other.

8. Neither party shall move to a location that is a further driving distance than 120 km from the other party, based on the current addresses of both parties. Currently, this distance is 85 km. a. The Applicant Father’s current address is: [insert address in Brantford]. b. The Respondent Mother’s address as of April 30, 2019 is: [insert address in Smithville].

TRAVEL CONSENT AND PASSPORT

9. The Respondent Mother shall apply for a Canadian passport for Myles. The parties shall cooperate in obtaining a Canadian passport for Myles.

10. The Respondent Mother shall retain the passport and provide the same to the Applicant Father when required. The Applicant Father shall return the passport to the Respondent Mother upon return from travel with Myles.

11. The parties shall notify the other of their intent to travel with Myles and shall provide the other with a detailed travel itinerary at least seven (7) days before trips in Canada, except in case of family emergency, and at least thirty (30) days before international trips. Details of the itinerary must include dates of travel, destination, address and telephone number of destination, name of travel carrier.

12. Should one party wish to travel with Myles outside of Canada, the other party shall sign a travel consent letter if requested.

13. Travel consent is not required for day trips to the United States; however, the party traveling with Myles shall notify the other of the travel plan.

14. The parties shall not unreasonably withhold their consent to travel.

BENEFITS

15. The parties shall each maintain a life insurance policy of no less than $200,000. Myles shall be the beneficiary of both policies, with the other party to be named as trustee for the Myles’ benefit if he is a minor when the other party passes.

16. Yearly statements must be provided by the parties by June 1st each year in order to show that their respective life insurance policies are maintained and that the trustee named remains the other party.

17. The parties shall maintain medical, dental, and extended health benefits for Myles as they are available through their respective places of employment, or that may become available to them through their places of employment.

Spousal Support

18. The parties are financially independent of each other and therefore, there shall be no spousal support payable by either party.

Other Order Terms

School and Health Care

19. Myles shall attend Smithville Public School, commencing September 2019. The Respondent Mother is permitted to enroll Myles at that school. The Respondent Mother shall provide the Applicant Father with details of any appointment made to attend at the school to enroll Myles. The Applicant Father is entitled to be present for the appointment.

20. Myles’ regular family physician shall be the same as the Respondent Mother’s family physician.

21. Myles shall continue to be treated by Dr. Krach for his regular dental care.

22. The Applicant Father shall return Myles’ health insurance card and birth certificate to the Respondent Mother. The Respondent Mother shall provide the Applicant Father with notarized copies of each.

PARENTING TIME SCHEDULE

REGULAR SCHEDULE

23. Except as otherwise provided in this order, during the school year, parties shall share parenting time with Myles based on a four-week revolving cycle, as follows: a. In weeks 1 and 3, Myles shall be in the Applicant Father’s care from after school on Thursday until 6:30 p.m. on Sunday. The Applicant Father shall be responsible for ensuring that Myles attends school on Friday. b. In week 2, Myles shall be in the Applicant Father's care from after school on Wednesday (or such other day as the parties may agree) until 7:30 p.m. the same day. c. In week 4, Myles shall be in the Applicant Father’s care from after school on Friday until 6:30 p.m. on Sunday, provided that if Friday is a holiday or a professional development day, Myles shall be in the Applicant Father’s care commencing after school on Thursday at 6:30 p.m. instead of Friday. d. At all other times, Myles shall be in the Applicant Mother’s care.

24. The Applicant Father shall pick up Myles at the commencement of the Applicant Father’s parenting time. The parties shall meet at Limeridge Mall, Hamilton (or such other place as they may agree) to exchange Myles if he is not scheduled to be returned to school.

25. The parties shall be flexible in the approach to time sharing and shall cooperate in adjusting the schedule from time to time to allow Myles to attend weddings, funerals, other family functions, social activities, events and special occasions arising from time to time that would be in Myles’ best interests to attend.

26. Myles shall call the non-residential parent every day between 6:30 p.m. and 7:30 p.m. (or at such other time as agreed between the parties) via FaceTime. The residential parent shall initiate the call to the other parent, but shall not force Myles to talk if he does not wish to do so.

27. In the event of the death of either party, the surviving party shall ensure that Myles continues to have contact with the deceased party’s side of his family to maintain those relationships.

SUMMER SCHEDULE

28. Except as otherwise provided in this order, from the end of the school year until the Labour Day weekend, the parties shall share parenting time with Myles based on a two-week revolving cycle, as follows: a. In week 1, Myles shall be in the Applicant Father’s care from 6:30 p.m. on Thursday until 6:30 p.m. on Sunday. b. In week 2, Myles shall be in the Applicant Father's care from 6:30 p.m. on Thursday until 6:30 p.m. the following Monday. c. At all other times, Myles shall be in the Applicant Mother’s care.

29. The parties shall each have one uninterrupted week of vacation with Myles. a. In odd years, the Respondent Mother will have first choice of vacation week. She will provide the dates to the Applicant Father in writing by May 1 of those years except that in 2019, the Respondent Mother’s choice shall be made by June 1. b. In even years, the Applicant Father will have first choice of vacation week. He will provide the dates to the Respondent Mother in writing by May 1 of those years.

OTHER HOLIDAYS AND SPECIAL OCCASIONS

30. The following holidays and special occasions schedule shall override the rest of the timesharing schedule.

March Break

31. The parties shall share parenting time during Myles’ March break equally each year such that Myles shall be in the Applicant Father’s care from after school on Friday immediately before the break week until the following Thursday at 12:00 noon and in the Respondent Mother’s care for the balance of the break.

Myles’ Birthday

32. Myles shall spend his birthday with the party who has care of him pursuant to the regular schedule.

Christmas School Break

33. In odd years: a. Myles will be in the Respondent Mother’s care on Christmas Eve from 3:30 p.m. until Christmas Day at 3:30 p.m. b. Myles will be in the Applicant Father’s care from Christmas Day at 3:30 p.m. until Boxing Day at 3:30 p.m.

34. In even years: a. Myles will be in the Applicant Father’s care on Christmas Eve from 3:30 p.m. until Christmas Day at 3:30 p.m. b. Myles will be in the Respondent Mother’s from Christmas Day at 3:30 p.m. until Boxing Day at 3:30 p.m.

35. The rest of the Christmas school break will be divided evenly between the parties in a manner that minimizes the exchanges between them to the extent feasible.

Mother’s Day and Father’s Day

36. Myles shall be in the Respondent Mother’s care on Mother's Day each year from the previous evening at 6:30 p.m. for the balance of the weekend if not otherwise in her care.

37. Myles shall be in the Applicant Father’s care on Father's Day each year from the previous evening at 6:30 p.m. to Sunday evening at 6:30 p.m. if not otherwise in his care.

Hallowe’en

38. Hallowe’en will be spent in accordance with the regular timesharing schedule, unless the parties otherwise agree in writing.

Other Statutory Holidays

39. Family Day: a. In odd years, Myles shall be in the Respondent Mother’s care on Family Day. b. In even years, Myles shall be in the Applicant Father’s care on Family Day, until school begins on the following day.

40. Easter weekend: The parties shall share Easter weekend such that Myles shall be the Applicant Father’s care from Thursday after school to Sunday until 2:00 p.m. at which time Myles shall be in the Respondent Mother’s care.

41. Victoria Day: a. In odd years, Myles shall be in the Applicant Father’s care on Victoria Day until school begins the following day. b. In even years, Myles shall be in the Respondent Mother’s care.

42. Canada Day/Civic Holiday: Canada Day and the Civic Holiday will be spent as provided in the summer schedule, in order to avoid complications scheduling vacation weeks.

43. Labour Day: Myles shall be in the Respondent Mother’s care, with the exchange occurring at 6:30 p.m. on Sunday evening before Labour Day.

44. Thanksgiving Monday: Myles shall be in the Respondent Mother’s care, with the exchange occurring at 6:30 p.m. on the Sunday evening before.

TAX AND BENEFITS

45. The parties shall claim Myles as a dependent on their taxes on alternate years. a. In even years, the Applicant Father shall claim Myles as a dependent on his income tax return. b. In odd years, the Respondent Mother shall claim Myles as a dependent on her income tax return.

46. The Applicant Father shall repay the Respondent Mother the sum of $5,000, representing the previous reassessment of the Respondent Mother’s entitlement to the Child Tax Benefit.

CHILD SUPPORT AND SECTION 7 EXPENSES

47. Commencing June 1, 2019, the Applicant Father shall pay monthly child support to the Respondent Mother in the monthly sum of $259 per month in accordance with the Federal Child Support Guidelines, based on the Applicant Father's annual income of $30,390, provided that there shall be no child support payable during the months of July and August each year based on Myles’ being equally in each party’s care for the summer months.

48. As of June 1, 2019, no child support or arrears are due by either party.

49. The parties shall share section 7 expenses equally, taking into consideration the parties’ expected 2019 incomes and in light of the Respondent Mother’s scheduled maternity leave.

50. On or before June 1 each year commencing in 2020, the parties shall exchange their income tax returns and notices of assessment for the previous year.

51. Each year commencing in 2020, upon the written request of either party, the child support amount payable and the section 7 expenses sharing ratio shall be adjusted on consent on a prospective basis as of July 1 that year, in accordance with the parties’ respective incomes for the previous year.

52. Neither party shall incur a section 7 expense without seeking the other party’s prior consent for the expense. The parties shall respond to a request for consent within seven days. The parties shall not withhold their consent unreasonably. If a party incurs a section 7 expense without the other party’s consent, the incurring party shall not be entitled to contribution from the other party unless the other party unreasonably withheld his or her consent for the expense.

DISPUTE RESOLUTION

53. If the parties cannot reach an agreement about a decision to be made pursuant to this order, they shall attend mediation (through the Family Law Information Centre in St. Catharines or, if the parties agree, though private mediation) before bringing the issue to court.

54. Should mediation be unsuccessful, the parties shall provide the other party 60 days’ notice in writing before filing any motion to vary the existing order, except in case of emergency.