Court File and Parties

BARRIE COURT FILE NO.: FC-15-1227-01 DATE: 20190828 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

L.H. Applicant – and – S.B. Respondent

Counsel: Self-represented (for L.H.) Self-represented (for S.B.) C. Rogers, Agent for the Office of the Children’s Lawyer

HEARD: May 16, 17, 21, 22, 23, and 24, 2019

REASONS FOR DECISION

Jarvis, J.

[1] The parties (hereafter “the father” and “the mother”) were married on July 10, 2004 and separated on June 28, 2015. There are three children of the marriage, a son BB (now 14 years old) and twins, a daughter AB and son EB (almost 11 years old). In earlier proceedings settled between the parties, McDermot J. made a final Order dated August 15, 2016 (“the Order”) that dealt, among other things, with parenting and child support. Both parties have requested changes to that Order. This proceeding is what may be described as a high conflict case.

The Order

[2] The parenting terms of the Order provided that the parties would share joint custody of the children on an alternating week basis with mid-week access to the parent with whom the children were not residing that week, access to the mother on a Tuesday evening when the children were residing with their father and daily telephone or similar contact with the children by the non-residential parent. Terms detailing transportation responsibilities, access exchange location, attendance at the children’s sports activities and more general provisions dealing with consultation about major decisions involving the children, third party professional consultation (i.e. teachers, doctors, etc.), school choice and mobility (this list is not exhaustive) were also ordered.

[3] Paragraph 1.6 of the Order directed the parties to abide by paragraphs 5, 6 and 7 of a temporary Order made by Wildman J. on December 15, 2015:

5. The Applicant Mother shall not go into B[B]’s hockey dressing room.
6. The Respondent Father shall not go in E[B]’s dressing room until 15 minutes before game time, when the Applicant Mother will leave.
7. Church – the Respondent Father shall sit on the right hand side of the church (facing alter), the Applicant Mother on the left, and the children to do the same and sit with the parent who is scheduled to care for them.

[4] Paragraph 1.6 was also made subject to paragraph 1.7 of the Order. It provided as follows,

1.7 The parties will attend with a parent coach/family counsellor through Family TLC with a view to addressing the following details:

(a) Communication between the parties and between the parties and the children. (b) Determining a method to resolve disputes regarding the children’s activities – both enrolling the children in activities and the parties’ attendance at and participation in those activities. (c) Adjustments to the midweek schedule, including midweek visits on Monday, Tuesday and Thursday evenings, and paragraphs 5 through 7 of the Order of Justice Wildman dated December 15th, 2015. (d) Determining a holiday sharing schedule.

[5] Relevant to these proceedings is paragraph 1.8 of the Order:

1.8 If the parties cannot finalize these issues with the assistance of a parent coach/family counsellor, then either party may commence a motion to change without the requirement of demonstrating a material change in circumstance with regard to the issues listed in paragraph 1.6 to 1.7.

[6] The parties’ child support obligations were set out in paragraph 10 of the Order:

10.1 The Applicant’s income is presently $53,000.00. The Respondent operates his own business, Apexia, and owns several investments as set out herein. The Respondent’s line 150 income is approximately $32,000.00. However, he will have income imputed to him because some of his income is through cash agreements with clients, and because he may be able to obtain employment as opposed to being self-employed. Because the children presently reside with the parties according to a shared parenting arrangement, neither party shall pay child support to the other, which is in accordance with the Child Support Guidelines and in particular section 9 of the Guidelines. 10.2 The parties will provide each other with the following information each year by no later than May 30th:

(a) Copies of income tax returns and supporting documentation and notices of assessment. (b) Copies of income tax returns along with all supporting documents, notices of assessment and the annual financial statements for Apexia or any other closely held corporation for which the parties are a legal or beneficial shareholder. (c) Copies of any information necessary to determine the special or extraordinary expenses for the children. (d) Any other information requested by the parties in writing that are necessary to determine child support obligations. This information shall be provided within 14 days of the request.

The Issues

[7] The mother started her Motion to Change on November 6, 2017. She asked that the Order be changed to give her sole custody of BB, that there be changes made to its parenting terms and that the father pay her child support for BB. The father asked in his responding claim that no change be made to the parties’ joint custody of the children, that the mother’s weekday access be reduced by one day (from two) and that the mother pay child support on a set-off basis pursuant to the shared parenting provisions of s. 9 of the Child Support Guidelines (“CSG”). He also brought a Motion to have the mother found in contempt of various terms of the Order.

[8] The issues for trial are the children’s parenting, their parents’ support obligations and whether the mother should be found in contempt of the Order, more specifically:

(a) custody of the children; (b) decision-making for the children; (c) scheduling of the children’s sports and extra-curricular activities, and their holiday and special event access; (d) determining the parties’ incomes (particularly the father’s income) for child support purposes; (e) identification and payment of the children’s s. 7 special or extraordinary expenses; and (f) the mother’s alleged contempt.

[9] The issues involving parenting (i.e. (a) to (c)), child support (i.e. (d) and (e)) and contempt (f) will be separately addressed.

[10] Each of the parties testified. The mother called a friend as a witness to several interactions involving the parties and the children and the father called his mother and her partner as his witnesses. Requests to Admit Facts and Responses to those Requests were also exchanged.

Parenting

[11] In the thirty-three months after the August 2016 final Order and the start of this trial, all but nine [1] have involved parental conflict of varying degrees impacting the children, sometimes several episodes a month. These have included miscommunication, and deliberate failure to communicate, about medical issues affecting the children; conflict about the choice of healthcare providers for the children (i.e. naturopath/medical doctor: hygienist/dentist); enrolment (by the father) of the children in activities despite the objection of the mother and which impacted a child’s, or the children’s, time with the mother; audio-recording of interactions between the parties and between the children and the other parent (by the mother); video-recording (by the father) and his tallying to the minute (sometimes as little as seven minutes) of times when the children were returned late to his care by the mother, the father then penalizing the mother afterwards by withholding the children from her to make up for his lost time (and making her late for work); and involvement (by both parties) of the local child protection society (“the Society”) and the police.

[12] The parties dislike each other and have little respect for the other as a parent. The children know this. When this case was scheduled for trial, the case management judge directed that the children’s evidence be introduced through the Children’s Lawyer (“OCL”). Ms. Rogers acted as agent for the lawyer appointed by the OCL. She reviewed her predecessor’s notes and did follow-up meetings with the children before trial in addition to those conducted earlier. She reported parental conflict that preceded the final Order (which the parties’ evidence confirmed) and which escalated afterwards, especially (and perhaps counter-intuitively) as the likelihood of trial became more obvious and its start date approached. The father brought a motion to be heard at trial that the mother be found in contempt of various terms of the Order, and he made a complaint to the Society two weeks before trial.

[13] Ms. Rogers told the court that the children, referring to AB as an example, knew that her parents disliked each other, and that (referring to all three children generally) their parents’ fighting bothered them. More often than not the children witnessed their parent’s behaviour. According to Ms. Rogers (and confirmed by the parties’ evidence) BB has had no meaningful contact with his father since mid-September 2017 and has no wish to see him now. Ms. Rogers added that the twins expressed concern about their father’s reaction should they disregard his insistence that they spend equal amounts of their time with him.

[14] The Minutes of Settlement that preceded the final Order left important parts of the parties’ parenting unresolved. These were to be addressed by paragraph 1.7 of the Order in the hope that the parties would be able to resolve any parenting dispute with less conflict and expense through coaching and family counselling than proceeding to court. This did not happen. With the exception of efforts to deal with Christmas access and dividing the children’s bank accounts in late 2016/early 2017, the latter of which was unsuccessful, the parties ignored that paragraph of the Order. Predictably, there was conflict, it escalated and it has permeated all aspects of the children’s parenting.

Activities

[15] The mother said, and the father did not dispute, that he was very involved in sports, particularly in the boys’ hockey where he was their coach, less so in AB’s ballet or dance activities as those weren’t team events. This was a frequent point of conflict between the parties because the father insisted, over their mother’s objection, that the boys play on two teams each: their different schedules reduced the time when they’d be in their mother’s care and complicated her transporting the boys and AB to their activities when with her. The mother said that the father did not support AB’s ballet, would not take her to her classes when she lived with him: eventually AB switched to tap dance classes. The paternal grandmother often took AB to those classes because the father was coaching hockey.

[16] Several incidents are noteworthy:

(a) July 6, 2017 was an evening when the children were in their father’s weekday night care pursuant to the Order. The father took the children to a baseball game at a local sports complex where BB was playing baseball. Rather than pick up the children at the father’s home at the end of their designated time with him (7:45 p.m.) the mother drove to the complex, arriving there at around 7:40 p.m. as the father’s van with the children inside was leaving. The children saw their mother and were waving at her. The father did not stop but drove past her and returned to his home, forcing her to follow him. In an audio-recording by the mother of the children taken right after she picked up the children, they told her that they had seen her and had asked their father to stop but he refused. In an email, the father accused BB, in particular, of lying about this. The father insisted that exchanges take place at the other party’s residence (in this case, his) pursuant to the Order; (b) in early October 2017, the parents disagreed about EB trying out for, and participating in, a local church-affiliated hockey team. This was a separate league from one in which EB was already playing on a team coached by his father. The mother thought that the children needed to have a well-balanced life, one not so dominated by sports, one which mixed family, physical activity, social and rest time. The father disagreed. He was unsympathetic and accused the mother of being selfish and being a disappointment to her own father. The mother felt bullied and told that to the father. She had little option but to acquiesce because the father encouraged EB to play on this second team knowing, or expecting, that EB would be upset if his mother refused to let him play in those weeks when he was living with her; (c) December 12, 2017 was a night when AB and EB were living with their father and the mother was entitled to have time with them but EB had a hockey game after school (this was in the league to which the mother had objected EB’s participation). The mother asked the father to change her time to the following night because she worked until 5:00 p.m. and EB needed to be at the arena by then. The father declined saying that he had spoken to the children and that since she had an extra day per week with the children they “had no problem with seeing you 30 minutes less a week”. When the mother noted that she would not have the children until after their regular dinnertime and asked the father to feed them, he declined, saying that was her responsibility; (d) February 27, 2018 was the mother’s birthday. This was a Tuesday in a week when the children would be living with her. Plans were made with third parties for a celebration that also involved the children. That night was also a night that EB had a hockey game. The father intended that EB attend the hockey game and knew that the mother objected. He showed up at EB’s school anyway to take EB before the mother could pick him up. The father attended with the Order. School staff called the police. To avoid a scene at the school the mother agreed that EB could go with his father and miss her party; (e) on April 23, 2018, the father picked up EB from his school and took him to a hockey game with the paternal grandmother. This was during a time when EB was living with his mother. She insisted that EB be returned to his school where other children on the team would ordinarily be returned after their game. [2] The father and his mother took EB out to shop and for dinner after the game knowing that the mother was waiting for him. Despite her request to return EB to his school, the father returned to his home and asked the mother to let him know when she planned to pick up EB; (f) in mid-November 2018 EB was scheduled to play hockey early on a Saturday morning when he was living with his mother. She proposed that EB stay overnight on the Friday with his father rather than her picking him after school for the following week when he would be in her care. The mother said that EB had been made to worry by his father about not getting to the game on time. The father accepted the mother’s suggestion but criticized her by emailing that the children could not count on her being on time and that EB “is doing what he needs to do to ensure his enjoyment in life is not hindered by your lack of organization and planning skills… I hope you enjoy sleeping in tomorrow”. The mother attended the hockey game. The father said that the mother disrespected the children and him. He made it clear that he had no respect for her. An angry exchange of emails followed with the father saying that he was going to request a psychological assessment of the mother in these proceedings; (g) March 2, 2019 was an important hockey event for EB. Both he and AB were in their father’s care. The mother was attending the game when a few minutes before it began she received a text from the father that she needed to take AB to her tap dance class. There had been no prior arrangement between the parties about this. Often the paternal grandmother (as already noted) had done this. The mother approached the paternal grandmother and her partner and asked whether they would be able to assist. The paternal grandmother told her partner not to get involved and declined. AB was present. As a result the mother took AB to her class, returning to the hockey game just before it ended. The father had no reasonable explanation why his text to the mother was sent only a few minutes before EB’s game began, why he had not made prior transportation arrangements for AB and, when pressed by the court, he reluctantly conceded that his mother’s behaviour was unacceptable.

[17] The foregoing list is not exhaustive.

Education

[18] Paragraph 1.14 of the Order directed that the children attend a designated local school. On September 14, 2017 the mother informed the father that she had enrolled BB in a different school than the school in the Order. She said that BB had been wanting to change schools for a year to be with his friends. This decision was made after BB had discussed with his father and paternal grandmother spending more time with his mother. The mother interpreted this as giving her the authority to register BB in a new school, which she needed to do right away given that the new school year had just started: the father disagreed. The mother emailed the father telling him “[a]s I’ve learned, even with a court order, a child 12 and over can decide which parent they want to stay with” (BB turned 12 in the previous May). The mother spoke to the children about this change and told the father what times BB wanted to be living with him.

[19] The father did not dispute that there had been discussions between the parties, and also between BB and his paternal grandmother, about BB living more with her but in an email to the mother shortly afterwards he wrote that “[j]ust because I am willing to allow [BB] to stay at your place, to take care of you, for some extra days during the month does not mean I agree with him transferring schools”. The father took the Order to the proposed new school and to the school where BB had been attending with his siblings. As a result BB remained at the designated school: since then he has refused to live with his father. Apart from two brief stays with his father, encounters at the family’s church at Christmas in 2017 and 2018 and at least one telephone call (recorded by the mother) BB and his father have had no meaningful contact since December 2017.

[20] In August 2018 the mother pleaded with the father (again) to allow BB to attend the school where his friends attended and said that BB thought that he was being punished by his father. In an August 31, 2018 email the father blamed the mother for the rupture in BB’s relationship with him and, in different words but whose intent and meaning was plain, upbraided her for failing to use tough love (“…You have him believing that I’m a “bad” person and that he can be rescued by you anytime he needs to leave an uncomfortable situation instead of working through the issue. This is not going to help in life especially when he learns what his “Mother” has done. Who will rescue him then? Do you think that he will have any respect for you?”). Earlier in that email the father told the mother that he didn’t trust what she said or did but that “the truth will come out in court as it has in the meetings with CAS that you have taken the children to”.

[21] In late October 2018 the father asked the mother to update him about BB’s recent math and science test results. There was no evidence that the father had made any effort on his own at any time to contact BB’s teacher or the school.

[22] Shortly before trial the parties agreed (with the involvement of the OCL) that BB would attend a new school.

Healthcare

[23] Management of the children’s healthcare was compromised by their parent’s conflict This included disputes about the need for care, the choice of healthcare provider, unilaterally changing appointments and failure to inform the other parent about important information until requested, some examples of which include the following:

(a) The parties disagreed with each other’s choice of dental care provider for the children. Although the children had usually seen a naturopathic dental hygienist, the mother decided that they should see a dentist licenced by the Royal College of Dental Surgeons of Ontario. She made that decision, and booked a dental appointment, after contacting the hygienist’s offices and learning that no appointments had been scheduled. She informed the father. After accusing the mother of a historical lack of interest in the children’s dental health, the father booked an appointment with the hygienist. A week after the children saw the hygienist the mother took them to a dentist who discovered deficiencies in the children’s oral health (i.e. untreated cavities). The father complained that the mother never informed him of the identity of the dentist until he was told by the children about their appointment. The mother then provided that information; (b) AB suffered from a recurrent urinary tract infection. In late January 2018 the mother took AB to a walk-in clinic and arranged for an ultrasound. She was later contacted by a doctor’s office advising her of an appointment. As it was scheduled on a date that AB would be living with her father, the mother rescheduled the date to a time when AB would be living with her. There is no evidence that she informed the father about any of this, but he found out about the appointment anyway. The father attended the first (now cancelled and rescheduled) appointment date but AB could not be seen as that appointment had been cancelled so the father changed the appointment that the mother had made to a later date when AB would be living with him and he told the mother that this was done “at the request of [AB]”. When the mother attended that appointment, she testified that she was made to feel uncomfortable by the father and that he kept AB from her. Both parents saw the doctor with AB. Afterwards the father emailed the mother to tell her “[w]hat a surprise it was for [AB] and I today that you showed up for her doctor’s appointment that you weren’t invited to by either [AB] or myself”; (c) In early 2018 BB hurt a knee and saw a doctor. This injury prevented him from participating in sports activities through late winter and into early spring. The mother told the father in April that no further check-ups with the doctor were needed but in May the father questioned why the mother wasn’t keeping him informed about BB’s condition when he noticed BB wasn’t participating in his school’s Track and Field Day. Even though the father knew the name of the treating physician, there was no evidence that he had tried to speak to him. The father acknowledged that he made no effort; (d) In late December 2018 the father took AB to a physiotherapist for a knee complaint. The mother was not consulted beforehand. The physiotherapist recommended seeing AB twice weekly. The mother wanted AB to see a doctor or, if needed, a specialist and she refused to take the child to the physiotherapist when AB was living with her. The father accused the mother of delaying AB’s recovery and, after sending her excerpts from the Criminal Code of Canada dealing with a parent’s duty to provide the necessities of life to a child, which included failure to provide medical attention, the father prefaced his subsequent bi-weekly emails to the mother with “As required by court order I’m updating you on [AB]’s health (knee) issue”. Part of the father’s support claim in this trial is for the physiotherapist expenses he incurred; (e) In February 2019 the father sent to the mother invoices for the children’s dental care when with him, demanding her contribution within 14 days or he would present them to the court to determine her share together with “any interest and penalties”; (f) In April 2019 a recurrence of AB’s urinary tract infection was suspected when she was living with her father. A urine specimen was taken to a local lab. [3] When AB returned to live with her mother the father did not inform her that an infection had been suspected or that it was being investigated. The mother was subsequently contacted by the pharmacy that a prescription had been filled for AB. She picked it up but did not administer it because AB “showed no signs of an infection which sometimes happens that it goes away on its’ own as hers did”. The mother stored the medication in her refrigerator. After AB was returned to her father’s care, he insisted that the mother give him the medication “which you refuse to give her against the advice of her doctor”. There was no indication that AB was presenting with any signs or complaints of infection. The father made a complaint to the Society. The mother was contacted and spoke with a Society representative on May 16, 2019, the day before this trial began. It was decided that no action would be taken but arrangements were made for someone from the Society to come to the mother’s home anyway; (g) The mother told the court that BB was seeing a psychotherapist and acknowledged that she had not consulted the father nor wished his involvement because “there was no way to consult [the father] on anything because usually something comes back derogatory, blaming… everything to me… that’s been the last fourteen years”. BB had attended two psychotherapist appointments and didn’t want his father involved.

Notable Events

[24] In November 2017, shortly after the father opposed any change to BB’s school and BB began to live with his mother, the father decided to have the family cat, “Spring”, put down. The cat was very ill. Two years earlier another family cat had died and, according to the mother, BB had been made then by his father to dig a hole and bury the pet. The father was adamant that Spring be put down and that BB dig the hole and bury him too. AB and EB were upset: BB was distraught. The mother pleaded with the father to reconsider his decision and offered to take the pet. The father made her sign some kind of document the contents of which she could not fully recall. As of trial, the cat was still alive and living at the mother’s residence.

[25] In addition:

(a) Well before the parties separated BB won $1,000 in a draw at a local fishing festival, the ticket for which had been purchased by his father. The father kept the money. In an audio-recording made by the mother, BB called his father and demanded that the money be returned to him. The father answered that he had purchased the ticket and intimated that BB wasn’t entitled to the money, or at least not its entire amount. BB had ended the telephone call with his father with a profanity directed at his father. Ms. Rogers told the court that this issue was one of several very important issues for BB. In his closing submissions, the father disclosed that the money was in an account in the names of BB and him and that he would abide by whatever Order the court saw fit to make with respect to its disposition. In my view, neither parent acted responsibly with respect to this issue - the mother by facilitating the call and the father by his reaction and failure to deal with this issue earlier; (b) On numerous occasions the mother let the father know that her fixed work hours and child transportation responsibilities affected her ability to pick up and return the children at the times set out in the Order. She made it known that the father’s inflexibility jeopardized her employment on several occasions. The father was unsympathetic - he demanded strict compliance with the Order and would penalize her by withholding the children if she was late returning them to him. He set up a video-recording device at his home that recorded the times when the mother returned and picked up the children and kept a tally sheet; (c) After BB began residing with his mother and she would call to speak to the twins, the father would insist that he first speak to BB as a pre-condition. BB did not want to speak to him so the mother was often unable to speak to the twins; (d) Despite efforts by the mother to have the children spend Mother’s Day and Father’s Day with that parent in 2017 and 2018 this did not happen (the evidence is unclear about Mother’s Day in 2019); (e) Despite efforts by the mother to arrange visits for BB with his father at a neutral location, this did not happen. The father insisted that BB come to his residence; (f) Despite efforts by the mother to have BB spend time during Christmas in 2017 and 2018 with his father and siblings, this did not happen; (g) BB was not contacted by his father on his birthday in 2018 or 2019; (h) The father said that he had purchased Christmas presents for BB in 2017 and 2018 and birthday presents in 2018 and 2019 but had not given them to him. The presents were at his residence for BB to pick up when he went there; (i) In a remarkable text exchange, the father complained on December 16, 2018 that the children had not called him that evening. They were attending a Christmas church event. The mother noted that the father didn’t approve of calls after 8:00 p.m. (it was 9:45 p.m.). The father’s reply was that as he was “the children’s father, they can call me whenever they want. You, on the other hand, don’t have the same privilege”; (j) In April 2019, shortly before this trial the father insisted that the mother pay him $11 immediately or AB would not be allowed to participate in a dance class at her school but instead assigned math work. The father told the mother that she could tell AB herself that she couldn’t attend dance class when the mother’s reply didn’t attach an online payment code. The mother was, understandably, outraged and indicated that she would deal directly with the school, and did. AB was able to attend dance class.

[26] This list is not exhaustive.

Credibility

[27] Not surprisingly, each party challenged the other’s credibility and the reliability of their testimony. In Baker-Warren v. Denault [4], Forgeron J. noted that credibility assessment was not a science:

“It is not always possible to “articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.” R. v. Gagnon, 2006 SCC 17, para. 20. I further note that “assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization.” R v. R.E.M., 2008 SCC 51, para. 49.”

[28] Forgeron J. provided a useful checklist of assessment factors. These included internal and external consistency of witness testimony with the testimony of other witnesses and the documentary evidence, motive, self-interest, clarity and logic of narrative, witness presentation (distinguishing candor from evasive or strategic testimony) and, to a lesser degree, witness demeanor. Assessing credibility is, in every respect, an holistic undertaking incapable of precise formulation. [5]

[29] I prefer the evidence of the mother to that of the father in this case, especially where that involves parenting, for these reasons:

(a) The mother’s narrative of the parties’ conflict was more comprehensive, more often supported by text and email exchanges between the parties and far less accusatory than the father. I found her a more reliable witness than him about the circumstances surrounding their conflict; (b) The objective, or central theme, of the father’s case was punitive. He wanted final decision-making authority “as a penalty” he said for the mother’s contempt, police enforcement of any court Order to prevent the mother’s efforts in keeping the children away from him “on [his] time”, and $10,000. This desire biased his evidence. For example, he accused the mother of withholding information about BB’s school progress and school events but later acknowledged that he had made no effort to obtain that information himself; (c) The father was uncharacteristically vague in recalling events that reflected poorly on him. On one occasion, he purported to return the children to the mother’s home when he knew that she was working late and wouldn’t be home. He said that he could not recall receiving a text message from the mother beforehand. He could have simply kept the children or taken the children to his mother’s home. Instead he threatened to take them to daycare. On another occasion, he said that he couldn’t recall whether he allowed the children to call their mother on her birthday when they were residing with him. On still another occasion (as noted in paragraph [16] (a) above), he drove past the mother when she had shown up to obtain the children after a baseball game and disputed that he had seen her. The children did see her. This forced the mother to follow the father for about 20 minutes to his home, where he had insisted that exchanges take place. I don’t believe the father that he hadn’t seen the mother; (d) I accept the mother’s evidence about the events on March 2, 2019 dealing with EB’s hockey game (see paragraph [16] (g) above). The last minute text to the mother about it being her responsibility to take AB to her tap dance class put the mother in an impossible situation - either the mother missed EB’s hockey game or AB missed her class. I reject the father’s evidence that he couldn’t understand why his text was sent so late or why he hadn’t made prior arrangements for AB to get to her class. It was the father’s responsibility to make arrangements for AB. He set up the mother to fail. His mother enabled his unacceptable behaviour.

[30] In preferring the mother’s evidence, I am not unmindful of Ms. Roger’s submissions about the questionable independence of the children’s views. All of the children witnessed their parent’s behaviour, were often silent (but interested) participants in the conflict and expressed views to the OCL that suggested parental influence (impliedly, BB and AB by the mother and EB by his father). The audio-recordings by the mother support this concern as do the father’s efforts to enlist EB to get BB to speak to him. The OCL advised that EB had even brought a list of questions to an interview and asked about the legal age when he could choose about which parent with whom he could live.

[31] I am not unmindful either that there were many situations where the mother returned the children late to their father. One time (about which the father complained) involved the children attending an OCL interview: others were the result of transportation and abbreviated meal-time challenges caused by the children’s different activities to which the mother had to drive them, often at the expense of any meaningful time by them with her, and the father’s strict insistence on “his” time with the children. The father retaliated by holding back the children from their pick up time by their mother knowing that problems would be caused. In many situations, the mother was resorting to self-help.

Analysis

[32] The Order provided for joint custody. However desirable, increasingly popular and probably dated that kind of parenting disposition may be (particularly in light of the recent amendments to the Divorce Act) the fact is that rarely will it be ordered in the absence of evidence of meaningful, child-positive communication and cooperation between parents or other caregivers. It is not an appropriate disposition where few, if any, of its pre-conditions are present and it can be especially problematic where it appears, as in this case, that the parties rushed to the settlement that led to the 2016 Order leaving unresolved serious communication and cooperation issues that could, and have in my view have, negatively impacted the children.

[33] Each case must turn on its own facts. In assessing the evidence in this case, it is important to consider the circumstances where joint custody is appropriate. A useful compendium of guiding principles was summarized by Sherr J. in J.V.M. v. F.D.P. [6] as follows,

[40] The Ontario Court of Appeal in Kaplanis v. Kaplanis, 2005 ONCA 1625, 194 O.A.C. 106, 249 D.L.R. (4th) 620, 10 R.F.L. (6th) 373 [2005] O.J. No. 275, 2005 CarswellOnt 266, set out the following principles in determining whether a joint custody order is appropriate:

1. There must be evidence of historical communication between the parents and appropriate communication between them.
2. It cannot be ordered in the hope that it will improve their communication.
3. Just because both parents are fit does not mean that joint custody should be ordered.
4. The fact that one parent professes an inability to communicate does not preclude an order for joint custody.
5. No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.
6. The younger the child, the more important communication is.

[41] Joint custody should not be ordered where there is poor communication and the parties fundamentally disagree on too many issues affecting the child’s best interests. See Graham v. Bruto, 2008 ONCA 260, 165 A.C.W.S. (3d) 103, [2008] O.J. No. 1306, 2008 CarswellOnt 1906 (Ont. C.A.); Roy v. Roy, 2006 ONCA 15619, 27 R.F.L. (6th) 44, [2006] O.J. No. 1872, 2006 CarswellOnt 2898 (Ont. C.A.).

[42] Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard of perfection is not required and is obviously not achievable. See Griffiths v. Griffiths, 2005 ONCJ 235, 141 A.C.W.S. (3d) 265, [2005] O.J. No. 3090, 2005 CarswellOnt 3209 (Ont. C.J.). The issue is whether a reasonable measure of communication and cooperation is in place and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. See Warcop v. Warcop, 2009 ONSC 6423, 66 R.F.L. (6th) 438, [2009] O.J. NO. 638, 2009 CarswellOnt 782 (Ont. S.C.).

[43] Where a conflict between parents (such as an inability to communicate effectively) is primarily the fault of one parent, that parent should not be able to use the conflict as justification to oppose a joint or shared parenting order. To do so allows an obdurate parent to engineer a result in his or her favour. However, where the conflict is extreme and there is substantial blame to be levelled against both parents, a joint or shared custody approach is not appropriate. See Geremia v. Harb (No. 5), 2008 ONSC 19764, 90 O.R. (3d) 185, 54 R.F.L. (6th) 274, [2008] O.J. No. 1716, 2008 CarswellOnt 2483 (Ont. Fam. Ct.).

[34] The conflict between the parties in this case is extreme and obvious from their failure to reasonably and respectfully communicate and cooperate on a broad range of critical parenting issues involving the children’s activities, education, health and daily events.

[35] Section 24(2) of the Children’s Law Reform Act (“CLRA”) identifies those considerations relevant to determining custody of, or access to, a child. Depending on the nature of the proceeding and the evidence, some of the mandated considerations are weightier than the others. In this case those are the children’s views and preferences (subsection (b)) and the ability of the parties (referenced expansively as “persons”) to act as a parent which, in my view, includes encouraging a meaningful relationship with the other parent (subsection (g)). While each of the parties often strayed in their testimony in telling the court about what the children were telling them (and were cautioned accordingly when that happened), Ms. Rogers’ summary of the OCL’s involvement with the children was most helpful. This included contacts with AB’s doctor, the local police and the Society.

[36] In reviewing the OCL’s involvement, Ms. Rogers repeated what each of the parties thought about the other (and which was evident from their evidence). The mother thought that the father was emotionally abusive, controlling and manipulative. The father thought that the mother had mental health issues (I found no evidence of the latter but share the mother’s concerns about the father, certainly in terms of his attitude toward the children’s relationship with her).

[37] BB was able to express his feelings; EB was polite, talkative and friendly; AB enjoyed activities with her mother. BB said that his father laid “guilt trips”; EB wanted his parents to get along; AB said that her parents didn’t like each other. Incidents at school involving her parents scared and embarrassed her, as they did with BB. While (as already noted) the independence of the children’s views and preferences was questionable, they were strong and consistent (less so with EB). BB remained angry with his father and only wanted to see him when he wanted; EB initially wanted to spend more time with his father but later, with AB, was concerned about his father’s reaction if there was any change to shared parenting time; AB wanted extra time with her mother.

[38] The following factors are also relevant:

(a) The mother was more empathetic than the father. She tended to focus on the children’s emotional needs whereas the father weaponized the Order, demanding the mother’s strict compliance with its terms, in particular exchange times and location. Elsewhere, the father’s failure to recognize the impact of his behaviour on the children dealing with, for example, the family cats and demanding that BB dig their graves demonstrated poor insight (to say the least). There are numerous other examples; (b) The father demonstrated no insight into the impact of his refusal to agree to BB attending a different school than his siblings in 2017 and 2018. His refusal to engage BB, except on his own terms, for Christmas in 2017 and 2018 and for BB’s 2018 and 2019 birthdays, and withholding presents, was heartbreaking. BB was left in tears at the church in 2017 when his father walked away from him; (c) The mother’s documentary evidence (which included the parties’ text and email exchanges, often duplicated by the father in his evidence although more selectively) supported her trial testimony about the difficulty in engaging the father in even simple matters. For example, the father had no reasonable explanation why over two years had passed since he had agreed to divide the children’s bank accounts with the mother and he had done nothing; (d) The mother’s submissions, and often her evidence, focussed on her efforts to be flexible and adaptive to the children’s daily circumstances and changing needs. The father’s submissions focussed on the court penalizing the mother and finding her in contempt; (e) The father treated the mother with obvious contempt, accusing her of poor parenting skills, lying, being untrustworthy, a disappointment to her own father and claiming that the children would have no respect for her in the future. While the mother’s conduct has not been beyond reproach, her frustration with the father’s intransigence and controlling behaviour was palpable and, more so than the father, she stepped back from situations that would have exposed the children to more conflict. A good example was her not insisting that EB attend her planned birthday celebration in February 2018 because the father demanded and had encouraged EB to play hockey instead.

[39] The mother proposed that she have custody of BB and AB and decision-making authority for both children. EB’s custody and residency schedule would be unchanged from the Order although the mother wanted mid-week access to be eliminated. Her draft Order contained provisions for communication, respecting the other parent’s employment obligations (this was directed at the father) and, more generally, parenting rules and allocation of responsibility between the parties for scheduling the children’s activities. She also presented a proposed holiday and special event schedule.

[40] The father wanted no change to the Order but that he have final decision-making authority about important decisions affecting the children’s health, education and general welfare after consulting in writing with the mother. Notwithstanding that BB had not resided with him for almost two years, the father wanted the court to continue the week-about residency schedule for all three children and for the OCL to explain to the children why that would be good for them, BB in particular. He also presented the court with a holiday and special event schedule.

Conclusion on Custody and Parenting

[41] Joint custody in this case has clearly not benefited the children. Quite the opposite. Given the family dynamics that resulted in the Order, and what has happened since, joint custody was (at best) a chimera. I agree with Lafreniere J. in J.B.H. v. T.L.G. [7] that a child has the “right to grow up in a parenting regime that is co-operative and effective, where decisions are made in a child-focused way and with the least amount of acrimony and stress”.

[42] In Jackson v. Jackson [8] Lafreniere J.’s observation was noted in the context of crafting an appropriate decision-making regime. Chappell J. extensively reviewed the concepts and principles associated with sole custody, joint custody and tailor-made or customized dispositions more suitable for children than simply sole or joint custody. Alternative dispositions involved hybrid custody Orders, full parallel parenting Orders and joint custody Orders with divided parallel parenting.

[43] Parallel parenting may be appropriate in high conflict cases where joint custody is not, or is no longer, a feasible option. In Jackson, Chappell J. reviewed two Court of Appeal decisions [9] and summarized the important considerations for parallel parenting.

72 The decisions in Lefebvre and Cox and the subsequent case-law that has addressed the issue of parallel parenting highlight the following factors and considerations as figuring prominently in the determination of whether a divided parallel parenting order is in the best interests of a child:

1. The strength of the parties' ties with the child, and the historical level of their involvement with the child are critical to the analysis. In almost all cases where parallel parenting has been ordered, both parents have consistently played a significant role in the child's life on all levels (M.(T.J.) v. M.(P.G.), 2002 CarswellOnt 356 (S.C.J.); Hildinger; Moyer v. Douglas, [2006] O.J. No. 5124 (S.C.J.); Caulfield v. Wong, 2007 ABQB 732; Andrade; K.(V.) v. S.(T.); H.(K.) v. R.(T.K.), [2013] O.J. No. 3463 (O.C.J.); M.B. v. D.T., [2012] O.J. No. 797 (S.C.J.); Hoffman v. Hoffman, [2013] O.J. No. 289 (S.C.J.)).
2. The relative parenting abilities of each parent and the quality of their decision-making respecting the child are also important considerations. Where one parent is clearly more competent, responsible and attentive than the other, this may support a sole custody order rather than a parallel parenting arrangement (Moyer; K.(V.) v. S.(T.); Ryan v. Scott, 2011 ONSC 3277, 2011 CarswellOnt 5924 (S.C.J.); Hajkova v. Romany, 2011 ONSC 2850, 2011 CarswellOnt 3237 (S.C.J.); Scervino v. Scervino, 2011 CarswellOnt 7845 (S.C.J.); H.(K.) v. R.(T.K.); Izyuk v. Bilousov; Hoffman; Warner v. O'Leary, 2014 CarswellNS 319 (S.C.); Suchanek; Palumbo).
3. A desire to ensure formal equality of influence between the parents is not in and of itself sufficient to found a claim for a divided parallel parenting order (L.L. v. M.C., 2012 ONSC 3311, [2012] O.J. No. 3347 (S.C.J.)).
4. A history of domestic violence or any evidence suggesting that there is a significant power imbalance between the parties will work strongly against a parallel parenting order, as this type of dynamic could frustrate the objective of achieving an equilibrium of influence through parallel parenting (Hildinger; K.(V.) v. S.(T.); H.(K.) v. R.(T.K.); Docherty v. Catherwood, 2013 CarswellOnt 11366 (S.C.J.); L.L. v. M.C., 2012 ONSC 3311, 2012 O.J. No. 3347 (S.C.J.); Ganie v. Ganie, 2014 ONSC 7500 (S.C.J.); Tiveron v. Collins, 2014 ONCJ 574 (O.C.J.)).
5. Divided parallel parenting will not be considered appropriate where the evidence indicates that one party is seeking this arrangement solely as a means of controlling the other parent, rather than as a means of fostering the child's best interests (H.(K.) v. R.(T.K.); S.(S.) v. K.(S), 2013 ONCJ 432, 2013 CarswellOnt 10801 (O.C.J.)).
6. The extent to which each parent is able to place the needs of the child above their own needs and interests is often a compelling consideration. Evidence that a party tends to place their own wishes and needs over the child's overall best interests will often vitiate against a divided parallel parenting regime, even if that party is in all other respects a loving and competent parent (Potter v. DaSilva, 2014 ONCJ 302 (O.C.J.); Heuer; Alqudsi).
7. The court should carefully consider all of the evidence in the case, and determine whether a parallel parenting order is more likely to de-escalate the conflict between the parties or inflame it. If it is likely to intensify the conflict, an order for sole custody may be more appropriate (H.(K.) v. R.(T.K.); S.(S.) v. K.(S.); Suchanek; Palumbo).
8. The court will consider the nature and intensity of the conflict between the parties, and whether the parties are likely to at least be able to navigate basic issues such as scheduling and interpretation of the order under a divided parallel parenting regime. The court should be particularly vigilant in considering whether the dynamics between the parties are such that they are likely to have disputes regarding the scope of each of their areas of decision-making in situations where the dividing line may be unclear. In H.(K.) v. R.(T.K.), Sherr, J. referred to this potential problem of unclear boundary lines between areas of decision-making as "the spillover effect." If it is unlikely that the parties will be able to manage basic issues such as scheduling and potential spillover challenges, a parallel parenting order will likely not be appropriate as it will simply serve as a catalyst for further parental strife (H.(K.) v. R.(T.K.); S.(S.) v. K.(S.); Izyuk v. Bilousov; Suchanek).
9. With respect to parental conflict, the court should also carefully consider whether one party is the major cause of discord between the parties. If this is the case, an order for sole custody in the other party's favour may be the more appropriate choice (H.(K.) v. R. (T.K.); Graham v. Bruto, [2007] O.J. No. 656 (S.C.J.), aff'd 2008 ONCA 260 (C.A.); Warner).
10. Ultimately, with respect to parental conflict, parallel parenting will generally not be considered appropriate where it is clear from a careful review of all of the evidence that one or both of the parties will never be able to disengage from combat. In such circumstances, delineating areas of decision-making will not achieve the goal of alleviating the conflict for the sake of the child but will simply provide a further breeding ground for parental dissonance (Seed v. Desai, 2014 ONSC 3329 (S.C.J.); Nloga v. Ndjouga, 2015 ONSC 5925 (S.C.J.); Ruffudeen).
11. A parallel parenting order is by nature detailed and complex, and the success of such a regime will depend largely on the ability of the parties to respect the carefully crafted terms of the order. Accordingly, this type of regime will typically not be granted where one or both of the parties has a history of failing to comply with court orders or processes (Izyuk v. Bilousov; Nova Scotia (Ministry of Community and Social Services) v. F.(B.), 2014 CarswellNS 202 (S.C.)).
12. Evidence that a party is interfering with contact between the child and the other parent, alienating the child from the other parent or marginalizing the other parent's role will often be a significant factor in determining whether a parallel parenting order is appropriate (Ching Pang v. Chin Pang, 2013 ONSC 2564, 2013 CarswellOnt 7824 (S.C.J.); Rodriguez v. Guignard, 2013 CarswellOnt 503 (S.C.J.); Potter). For instance: a) Where the parent with primary care has engaged in this type of conduct, but that parent is otherwise very loving and competent, the courts have often considered a reversal of custody as too drastic a measure and have opted for parallel parenting as a means of protecting the other parent's role and influence in the child's life. Parallel parenting orders in this type of situation are often referred to as "defensive parallel parenting orders". In Grindley, the court emphasized that the goal of defensive parallel parenting orders is not to protect the interests of the parent, but to foster the child's respect for both parents and their sense of security in the care of both parents. (For other cases in which defensive parallel parenting orders have been granted, see Plugers; Cox; Andrade; Batsinda v. Batsinda, 2013 ONSC 7869 (S.C.J.); Sgroi v. Socci, 2007 CarswellOnt 8526 (O.C.J.); Gorman v. Gorman, [2008] N.B.J. No. 516 (Q.B.); L.(A.) v. M.(C.), 2010 CarswellNB 58 (Q.B.); Hensel; Bushell v. Griffiths, [2013] N.S.J. No. 184 (S.C.); Suchanek); b) Where the non-primary parent is loving and attentive but has engaged in undermining or alienating behavior, this is often a factor that tips the scales in favour of sole custody to the other parent if they are also competent (Griffin v. Bootsma, 2005 ONCA 35095, 2005 CarswellOnt 4702 (C.A.); Perron v. Perron, 2010 ONSC 1482 (S.C.J.); and c) If both parties are involved in severe alienating and undermining conduct, the court may conclude that neither can be trusted to exercise sole custody responsibly. In such circumstances, if both parties are equally competent and loving parents, parallel parenting may provide an effective means of keeping both of them in check, protecting the child from exposure to damaging parental conflict and ensuring that the child benefits from the contributions that both parents can make to decision-making. The concern in these types of situations is that an award of sole custody to one of the parents may result in that parent using their decision-making authority as "an instrument of oppression" (see Hart v. Krayem, 2016 ONSC 5754 (S.C.J.); K.(V.) v. S.(T.); A.T. v. J.J., [2013] O.J. No. 1785 (S.C.J.)).
13. The geographical distance between the parties is another factor that may impact on the decision respecting parallel parenting. As Sherr, J. noted in H.(K.) v. R.(T.K.), the implementation of a parallel parenting regime may be problematic if there is a significant distance between the parties. It could lead to practical challenges if the primary parent is required to transport the child during their time to locations in the other parent's area in order to implement that parent's decisions respecting the child (see also Heuer).

[44] Two themes from the foregoing are particularly reflected in the evidence in this case. The first is the court’s assessment, admittedly predictive, whether maintaining joint custody or some other kind of parenting arrangement such as parallel parenting or a hybrid of that and custody will de-escalate parental conflict and the second is the ability of the parents to respect the terms of any Order crafted. This is not to suggest that none of the other considerations is relevant (most are) but rather the court’s concern that dividing, in particular, decision-making authority will only replicate the conflict under a different name.

[45] I have no hesitation in ordering that BB reside with his mother, in her care and sole custody. While Ms. Rogers expressed some concern about the independence of BB’s views, they were consistent and strong. The father demonstrated little insight into how his behaviour was affecting BB, blaming the mother almost entirely for BB’s refusal to spend more time with him. Wishing a return to what was clearly an unworkable parenting arrangement is not in BB’s best interests. The mother shall have sole decision-making authority. Efforts must be undertaken though to rehabilitate BB’s relationship with his father. He (the father) should consider a parenting course.

[46] More problematic are the custody and parenting arrangements for AB and EB. Like BB, their parents’ conflict has impacted most areas of their lives. While both parties share responsibility for the conflict, I am not confident that the parties can effectively communicate and cooperate on important parenting decisions which, in this case, center on the children’s activities, education and healthcare.

[47] The mother’s proposal that she have custody of AB but that AB spend slightly more time with her than with her father makes sense. She has demonstrated greater empathy than the father about the children’s needs. I have far greater confidence in the mother than the father that she will be more flexible and understanding than him when dealing with unexpected issues involving the children’s needs and parenting time, and far less likely to inappropriately weaponize a court Order in circumstances where it should be obvious that strict insistence on its terms might not be in the children’s best interests. Given AB’s exposure to her parent’s conflict, her views, as expressed through the OCL, must be given some weight.

[48] Both parents agree that there should be no change to EB’s week-about schedule. The OCL reported some concern by EB should there be a change to the current schedule but there is not enough evidence to warrant any change, except for how the parenting Order should be expressed and allocating decision-making authority.

[49] Not surprisingly, the nucleus of the parties’ conflict is control fuelled by their disdain for the other. While I have no doubt that each parent is attentive, committed, competent and loving, neither likes, respects or trusts the other. The mother views the father as manipulative of the children and inflexible and he dismisses her parenting ability and as trying to alienate the children from him. The weight of the evidence inclines toward the mother’s view.

[50] It is fortunate that apart from school and healthcare there do not appear to be any other major issues that portend significant conflict between the parties. Directions with respect to the children’s activities and limiting the times that the parties will need to interact can, in my view, be managed in a way so as to avoid future conflict and its escalation. But there must be a final arbiter on the education and healthcare issues. That will be the mother. She must, however, keep the father apprised of important issues, situations and school and healthcare decisions involving the children, including BB. Failure to do so will constitute a material change in circumstances meeting the threshold test to vary the custodial regime. Nothing relieves the father from his obligation to contact the appropriate third parties, such as the children’s school, teachers and healthcare providers.

[51] The Order made will change BB’s custody and AB’s residential time with her father, give AB more time with her mother and respect EB’s time with his father with whom he seems more actively engaged. The parties and BB will be directed to participate in counselling to rehabilitate BB’s relationship with his father and to report to the court on the progress of that counselling.

[52] A detailed parenting Holiday and Special Event Schedule is appended to this Decision and shall form part of the Order made. Although the parties agreed on what that schedule should comprise, their proposals were diametrically opposed in terms of choice of time and may require some future modification after release of these Reasons.

Child Support

[53] Each party claims that the other earns more income than disclosed and that additional income should be imputed to determine the other’s child support obligation. Each has also incurred, and continues to incur, what they contend are s. 7 special or extraordinary expenses for the children (hereafter “s. 7 expenses”).

Parties’ Incomes

[54] When the 2016 Order was made it recorded that the mother’s income was $53,000. She was then, and remained at trial, a salaried arms-length employee with a local mortgage brokerage company. As for the father, the Order recorded that his income from self-employment was “approximately $32,000” and that income would be imputed to him to reflect “cash agreements with clients” and “because he may be able to obtain employment as opposed to being self-employed”. The father owns and operates an internet, phone and TV service connection and installation business. Specific reference was made in the Order to the parties’ shared parenting arrangements pursuant to s. 9 of the CSG. It is not unreasonable to assume that given their equal parenting-time schedule the parties settled the earlier proceedings on the basis that their CSG-qualifying incomes in 2016 were roughly equal, that is $53,000 a year.

[55] The father alleged that there should be added to the mother’s income the value of hotel stays which the mother said were paid by her employer for off-site conferences, periodic gifts and parking passes. There was no evidence of any effort by the father before, and certainly none pursued at trial quantifying those amounts. The burden of persuading the court that income should be imputed rests with the claimant party. [10] I am not satisfied that the mother’s income is other than she reported to Canada Revenue Agency (“CRA”) and to this court for 2017 ($60,758) and 2018 ($66,258).

[56] The father reported that he earned $29,250 in 2017 and $26,626 in 2018. His trial financial statement sworn April 30, 2019 disclosed a total annual income of $30,137.40, inclusive of child tax benefits, and annual expenses of $47,744.28, reflecting a $17,606.88 annual shortfall. He told the court that his mother would periodically assist him financially in an amount ranging between $2,000 and $3,000 a year and that his $20,000 line of credit had been incurred over a period of about two years. His business was incorporated and had a fiscal year end of October 31 but, as of trial, he had not filed the company’s 2018 income tax return (it was due April 30, 2019).

[57] In Drygala v Pauli [11] the Court of Appeal held that when imputing income “[t]here must be a rational basis underlying the selection of any such figure”. [12] In my view there is a rational basis for imputing to the father a $53,000 income (at least) for 2017 and 2018, for a number of reasons:

(a) The father was unable to satisfactorily explain how he was able to fund his annual, and significant, revenue/expense shortfall of between $4,000 and $5,000 [13] a year which, grossed-up for tax equivalency purposes, would increase his qualifying support income to anywhere between $35,000 to $40,000 a year. [14] This estimate does not include any unreported cash income; (b) The father said that when the 2016 Order was made he had only earned $300 in unreported income but that he no longer did that, nor did he engage in what may be described as “contra” transactions (which the mother alleged, without corroboration) in which the value of different services are reciprocated on a cashless basis. However, given the significant difference in the parties’ reported 2016 incomes (the mother’s was $53,000 and the father’s was $32,000) why would the father have signed Minutes of Settlement acknowledging cash agreements with clients for only $300 (in addition to the implication that he was underemployed)? I don’t believe him and suspect that the father does earn an unreported income in excess of what he minimized although its amount can’t be estimated; (c) The Order, which was based on the parties’ Minutes of Settlement, implicitly if not explicitly, acknowledged that the father chose to earn less through self-employment than exploring more remunerative third-party employment. At trial, the father said that he was content with his income and that he had not actively sought out other employment since the Order was made. He likes his job flexibility. He controls his work schedule, stopping at 3:00 p.m. daily. He enjoys better than average health. In my view, the mother should not be expected to subsidize the child support consequences of the father’s self-employment choices.

[58] Taking into account that the mother has custody of BB and that the parties share custody of AB and EB, the father has a presumptive set-off child support obligation of $30 a month based on the mother’s 2018 income of $66,258 and the father’s imputed income of $53,000. A copy of the pertinent support calculation is appended to these Reasons. For the reasons set out in paragraph [62] payment of that amount is suspended until June 30, 2020.

Section 7 Expenses

[59] Each party claimed a contribution from the other for the children’s s. 7 expenses. While paragraph 10.2 of the Order required the parties to annually exchange information necessary to determine those expenses, the Order was silent as to what they included. Schedule C to each party’s financial statement listed the categories of claimed expenses. They included sports activities (basketball, baseball, dance, hockey, soccer and taekwondo), after school care, a school trip, camp, and chiropractic, dental and medical/prosthetic expenses (the last being leg braces for an injury BB had sustained).

[60] The mother claimed a total net annual amount of $8,462 for the children’s s.7 expenses; the father claimed $10,370. These sums included expenses incurred from 2016 (in the mother’s case) or from the date of the parties’ 2015 separation to March 2019 (in the father’s case). The evidence was unclear about current and proposed s. 7 expenses - the father did not identify which of the expenses he claimed had been incurred before the 2016 Order although it was clear that expenses were incurred by both parties for hockey and healthcare in different amounts. The mother alleged that the father manipulated his income to qualify for activity subsidies.

[61] The underlying premise of the Order was that both parties enjoyed roughly equal incomes. Taking into account the fact that the father’s greater expense included pre-Order amounts, it is not unreasonable that each of the parties spent about the same aggregated amount for the children’s s. 7 expenses after the Order was made.

[62] I am not prepared to make any Order dealing with claimed s. 7 expense arrears or to retroactively calculate and adjust for any theoretically disproportionate share of the children’s s. 7 expenses incurred by the father before January 1, 2019 based on the difference in the parties’ 2017 and 2018 incomes. For example, he incurred physiotherapy expenses for AB in total disregard of the mother’ objections and, in all likelihood, the amount is modest. I am prepared, however, to suspend his presumptive obligation to pay the support as set out in paragraph [58] until July 1, 2020.

[63] The matter of current and future s. 7 expenses is more problematic. The mother complained that the father would over-involve the children, particularly the boys, in sports activities to the detriment of their spending time with her and their sister. Expenses (such as AB’s physiotherapy) would be incurred by the father despite the mother’s objection about its need and her wish that AB be seen by a licenced physician if there really was a medical problem. The father ignored the mother’s concerns and expected her to contribute to the expense.

[64] It is not uncommon that parents will claim a contribution for expenses captured by the CSG table amount. Nor is it uncommon that parents will unilaterally try to expand the range of contributory expenses and/or incur an expense without prior notice to, or despite the objection of, the other parent. In this case, it is clear that given the miserable level of communication and cooperation between the parties, there must be firm guidelines for what constitutes a s. 7 expense. Without detracting from the categories of qualifying expenses as set out in s. 7 of the CSG, these are the additional guidelines for the parties:

(a) The children shall be registered in one extra-curricular activity for Spring, Fall and Winter. For greater certainty this does not include a child’s school-related activity; (b) The mother shall assume full responsibility for enrolling/registering BB and AB in activities without financial contribution from the father. The father shall have full responsibility for enrolling/registering EB in activities without financial contribution from the mother; (c) The children shall not be registered in any activity that will take place during a child’s residential time with the other parent without that parent’s prior consent, such consent not to be unreasonably withheld; (d) In the event that either party wishes to enroll/register a child in an activity at their sole expense in addition to that permitted by (a) above, he or she shall be guided by (c) above. In the event that the parties are unable to agree then either may bring a motion on notice to the other in these proceedings for directions from the court without having to start a Motion to Change or Application. The parties are encouraged to attend a parenting coach/counselor through Family TLC but this is not a pre-condition to any motion; (e) Each party is entitled to attend any child’s activity; (f) After-school care, camp and uninsured health care expenses are qualifying s. 7 expenses. In the case of healthcare costs, the mother shall have final decision-making authority but shall first consult the father; (g) Neither party shall incur an expense (regardless whether it qualifies as a s. 7 expense) for which they intend to seek a contribution from the other parent without the other parent’s prior consent, such consent not to be unreasonably withheld; (h) The ratios for those expenses which do qualify as a contributory s. 7 expense for the period from January 1, 2019 to June 30, 2020 shall be 56% (mother) and 44% (father) and shall be totalled and calculated as of December 31 and June 30 of each year within 30 days after each of those dates and so on in future. For 2019/2020 the first date shall be December 31, 2019 and the parties’ incomes shall be as set out in paragraph [58] above. In future years the prior year’s assessed income will be used (in the case of the mother) and the father’s imputed income of $53,000 will be used (or such higher amount as may be determined by the court). A party shall pay their share, after any set-off, to the other parent within 15 days of the amount due being calculated and may be enforced by filing a Statement of Arrears with the Family Responsibility Office; (i) Any issue with respect to whether a proposed expense qualifies as a s. 7 expense or whether consent is being unreasonably withheld may be determined by 14A Motion in these proceedings without the need to start fresh proceedings pursuant to Family Law Rules 8 or 15.

Contempt

[65] Shortly before trial, the father brought a motion to have the mother found in contempt of a number of terms of the Order. There were eleven breaches alleged. Two dealt with events in September 2016 involving the former matrimonial home; four dealt with events in 2017; two dealt with events in 2018; one dealt with the annual exchange of financial disclosure; one with a general allegation about the father being prevented “[o]n multiple occasions” from speaking to the children; and the last that the mother had not provided the father with notarized copies of the children’s health cards, birth certificates and passports (there was no evidence that passports were ever issued for the children).

[66] Most of the father’s complaints are the subject matter of the relief contested by the parties in these proceedings and in light of the absence of evidence why the father had not moved much earlier for relief, his failure to act suggests that his motive in bringing his motion two months before trial is primarily tactical.

[67] For example, the father complained that in September 2016 the mother had failed to vacate the former matrimonial home for three days after he purchased her interest in it and that she had failed to remove a gazebo from the property. Paragraphs 3.8 and 4.4 of the Order provided as follows:

3.8 The Applicant will vacate the matrimonial at the same time as the transfer occurs or by September 1st, 2016, whichever is later. The Applicant will pay the Respondent $50.00 per day or partial day that she spends in the matrimonial home after the transfer occurs subject to reimbursement for the Applicant’s payment of August expenses for the matrimonial home, on a pro-rated basis. 4.4 The Applicant and the Respondent will equally divide their household contents that do not belong to extended family members. The Applicant shall be entitled to retain the hot tub and gazebo. Any gifts that were given directly to one party shall be the property of that party. Once all household contents have been divided, the parties will execute the Acknowledgement. If the parties cannot agree on a division, they will use the section of this Order entitled “Dispute Resolution” to resolve the issue. This section applies whether or not the Respondent purchases the Applicant’s interest in the matrimonial home. The Applicant shall have hot tub and gazebo removed, and will pay for any damage to matrimonial home that may result. (bolding added)

[68] In a September 9, 2016 email to the mother, the father claimed that “according to his observations and calculations” the mother owed him $150 and he owed her nothing for the property’s August expenses. There was no evidence at trial dealing with this allegation. In any event, payment of money is not enforceable by a contempt Order. [15]

[69] As for the gazebo, there was evidence that while the mother had not removed the structure (it was affixed to the home and was in decrepit condition) the father had brought a claim in Small Claims Court for the relief sought, which claim was dismissed for reasons not made clear to this court. Even so, the mother had no reasonable explanation why she had not complied with this Order after having agreed to remove the gazebo. She should be given an opportunity to remedy this breach.

[70] The father did ask the mother for notarized copies of the children’s health cards and birth certificates in August 2017 and July 2018, even though he had copies of them. The mother testified that she was unaware when she signed the Minutes of Settlement that these could cost between $50 and $75 per child. In my view, she must comply with this Order.

[71] When viewed in the context of both of the parties’ actions, and with the exception of the issues relating to the removal of the gazebo and notarized copies of the children’s documents, the father’s complaints are misconceived, self-serving, and reflect a misguided effort brought far too late after the alleged events took place and for purely tactical purposes. His motion is otherwise dismissed.

Miscellaneous Issue

[72] Before the Order was made the parties cancelled a joint policy of life insurance having a $3,173 cash-out value, the proceeds of which were divided between, and paid to, the parties. A T5 statement was issued by the insurer but, according to the father, he was fully taxed on the proceeds. He asked the court to direct the mother to send a letter to Canada Revenue Agency (“CRA”) confirming that the proceeds had been equally paid to the parties and that each party should be responsible for reporting their share of that income in their 2016 income tax returns.

[73] I am not prepared to make the direction sought for these reasons:

(a) When the father was reassessed for the additional income, he requested that CRA review his file. CRA determined that its reassessment was correct and no further adjustment would be made; (b) The reassessment resulted in the father owing only a further $53.50; (c) Given his lower income for 2016 and the mother’s higher income for that year (see paragraph 10 of the Order at para. [5] above), it is conceivable that mother could be responsible for additional tax well in excess of what the father was required to pay; (d) This issue was not an issue for trial as set out in the Trial Scheduling Endorsement and deserves no further comment.

Disposition

[74] It is critical to the well-being of the children that the points of conflict between their parents be narrowed and that decision-making be allocated and ultimately managed by one parent. Accordingly, paragraphs 1 and 10 of the Order of McDermot J. dated August 15, 2016 are rescinded and the following are ordered:

Custody

1. The mother shall have custody of BB born […], 2005;
2. The father shall have parenting time with BB as the parties and BB may agree;
3. The parties shall retain a counsellor recommended by the OCL to improve the relationship between BB and his father, the cost for which shall be equally shared by the parties. This recommendation shall be made by September 30, 2019. A condition of the counsellor’s retainer shall be that they agree to briefly report to the court at the end of each month, starting the second month after counselling has started, as to the progress of the counselling and making such recommendations as may be appropriate. The father shall file with the court by October 11, 2019 an affidavit confirming the identity of the counsellor and that counselling is proceeding. This affidavit and the counsellor’s reports shall be brought to my attention;
4. The incidents of custody respecting AB and EB (“the children” for the purposes of paragraphs 5-11) shall be allocated between the parties in accordance with the terms set out in this order;
5. Starting September 2, 2019 and alternating weekly afterwards on a Week I/Week II schedule (“the regular schedule”) AB and EB shall reside with their parents as follows: i. for Week I from Monday at the start of school (for September 2, 2019 only, with their mother from 2:00 p.m. if they are not then residing with her) until Friday when the school day ends (or until after school on the Thursday before if the Friday is a PA day or statutory holiday) and thereafter with their father; ii. for Week II, AB shall reside with her father until Wednesday after school and with her mother afterwards. EB shall reside with his father until Friday after school (or until Thursday after school if the Friday is a PA day or statutory holiday) and with his mother afterwards.
6. All weekday exchanges of the children shall take place at their school. In situations where there is no regular school, exchanges of the children shall take place at each party’s residence. The party with whom the children will be residing shall be responsible for picking up the children. It is expected that the parties will demonstrate flexibility in exchange times.
7. The mother shall have sole decision-making rights and responsibilities in all matters relating to the children’s academic education over which the parties are unable to agree after a consultation period of 14 days. These rights and responsibilities shall include but not be limited to the following: a) The right to decide which schools the children attend and to enroll them in school; b) The right to decide whether the children require academic assistance and support, including but not limited to tutoring, and to decide upon and retain the professional(s) who will provide any such assistance and support; c) The right to decide whether the children should undergo psycho-educational or other assessments recommended to assess their academic needs, and to decide upon and retain the professional(s) who will carry out any necessary assessment(s); d) The right to make and take the children to all appointments relating to this area of decision-making; e) The right to sign consents relating to the children’s academic education; and f) The right to sign consents relating to the children’s school activities.
8. The mother shall have sole decision-making rights and responsibilities with respect to counselling services for the children to address their emotional needs and issues, including but not limited to family issues. This authority may only be exercised after a consultation period of 14 days. These rights and responsibilities shall include but not be limited to the following: a) The right to decide upon and retain the professional(s) who will provide the counselling services; b) The right to sign consents relating to any counselling services; and c) The right to make and take the children to all appointments relating to this area of decision-making.
9. The mother shall have sole decision-making rights and responsibilities in all areas relating to the children’s medical/health care, treatment and assessment, including but not limited to issues relating to the children’s physical health, psychiatric health, dental care and eye care. There shall be a 14 day consultation period. On or before October 25, 2019 the mother shall have the children (including BB) seen by a physician in good standing with the College of Physicians and Surgeons of Ontario for an annual health assessment and to ensure that all vaccinations as recommended by the doctor have been administered. The mother shall file with the court an affidavit by October 31, 2019 that she has complied with this direction, which shall be brought to my attention. In addition, the mother’s rights and responsibilities shall include but not be limited to the following: a) The right to decide which medical and other health care professionals will be involved with the children; b) The right to make and take the children to all appointments respecting the children’s medical/health care, treatment and assessment; and c) The right to sign all consents relating to the children’s medical/health care, treatment and assessment.
10. The terms of paragraph 9 shall not preclude the father from administering standard over-the-counter medications and treatments to the children for routine children’s health issues or concerns.
11. In the event that a child requires immediate medical/health care, treatment or assessment while in the father’s care, he shall forthwith take all reasonable steps to contact the mother so that she may exercise her rights under paragraph 9. If he is unable to reach the mother after making reasonable efforts to do so, or the situation is urgent and the time required to contact the mother would place the child at risk, the father shall have the right to make emergency medical/health care, treatment or assessment decisions respecting the child.
12. Paragraphs 5-11 shall apply with such modifications as may be necessary to BB;
13. In the event that any child experiences a medical emergency, the party who has care of the child shall notify the other party as soon as is reasonably possible in the circumstances.
14. The mother shall provide to the father by September 30, 2019 contact particulars for all of the children’s healthcare providers and, upon request by the father, written authorizations prepared by him directing that the healthcare provider may communicate with the father on the same basis as with her. These signed authorizations shall be returned to the father within 14 days of the mother’s receipt of them;
15. Except as otherwise provided, and for greater clarity, each party has the right to consult with, and obtain information from, the children’s teachers and other professionals about the education, health and general welfare of the children;
16. The mother shall have primary obligation to consult with the father on those matters set out in paragraphs 7-9. The parties are encouraged to consider the terms of paragraph 1.7 of the Order (of McDermot J.) dated August 15, 2016 with respect to any such consideration if there is any dispute. The consultation must be meaningful.
17. Schedule “A” dealing with holidays and special events shall apply to, and form part of, the Order and shall supersede the Week I/Week II schedule;
18. The parties shall communicate with each other about matters relating to the children through Our Family Wizard, the cost of which shall be equally shared. Text or email communication is acceptable for unexpected situations. The communications must be respectful and non-accusatory;
19. The children shall be entitled to telephone the parent with whom they are not residing whenever they wish but neither parent shall dictate to, or require, the children to call. The parent with whom the children are not residing shall be entitled to contact the children by telephone or Skype between 7:00 p.m. and 8:00 p.m. twice weekly. These calls shall not be recorded;
20. Neither party shall speak negatively about the other party in the children’s presence. Both parties shall make their best efforts to ensure, and prevent, third parties from doing so as well. Neither party shall permit the children to read these Reasons;
21. The mother shall provide to the father by September 30, 2019 notarized copies of the children’s health cards and birth certificates at her expense. In the event that the mother fails to do this by the deadline ordered, then she shall be subject to a penalty of $100 a day to be paid to the father;
22. The father shall provide to the mother by September 30, 2019 an amount equal to one-half (including interest) of the children’s funds held by him, including the $1,000 won by BB with applicable interest (if any), failing which he shall be subject to a penalty of $100 a day to be paid to the mother. The mother shall set up accounts in the children’s names and provide details of those accounts to the father by October 30, 2019, failing which the penalty set out in subparagraph (21) above shall also apply;
23. The parties shall be equally responsible for payment of any passports for the children. The mother shall hold the passports. In the event of any travel involving any one or more of the children for which a passport may be required by the father, the mother shall provide the passport(s) to the father at least one week before departure and they shall be returned to the mother forthwith upon the child’s, or the children’s, return to their mother’s care. The mother shall provide to the father a copy of the passport for each child within 10 days of her receipt of the passport(s). A notarized copy is not required;

Child Support

24. The mother’s income is $66,258 and the father’s income is $53,000. The father’s presumptive obligation to pay $30 monthly set-off table child support shall be suspended until June 30, 2020 [16];
25. Without restricting the categories special or extraordinary expenses set out in s. 7 of the CSG, the provisions of paragraph 64 to (i) shall apply to the children’s s. 7 expenses, and shall be incorporated into the issued Order;
26. Each parent’s claim for a contribution from the other for arrears of child support, including s. 7 expense claims incurred or paid before January 1, 2019 is dismissed;
27. On or before June 15 of every year starting June 15, 2020 and for so long as there is a dependent child of the marriage the parties shall exchange complete copies of their income tax return from the previous year and their Notice of Assessment for that year together with such other income information as may be required pursuant to s. 24.1 of the Child Support Guidelines. This obligation to disclose income tax returns and notices of assessment shall apply to any corporation owned by either party;
28. The parties’ child support obligations shall vary each year starting on July 1, 2020 and shall be based on each party’s assessed line 150 income from the previous year. In the case of the father that income shall not be less than $53,000.

Contempt

29. The father’s motion to find the mother in contempt of the Order of McDermot J. dated August 15, 2016 is dismissed save and except for the relief sought with respect to removal of the gazebo. The father shall permit a representative of the mother to attend at the property before September 30, 2019 at a time when no child is present to inspect and determine what needs to be done to remove the gazebo without damage to the home and the estimated cost of that work. A copy of that estimate shall be provided to the father by no later than October 7, 2019. The mother shall have the option of removing the gazebo by November 4, 2019 at her expense or paying to the father an amount equal to the estimated cost of the removal and remediation (if any) work required. In the event that further directions are needed, either party may bring a motion to my attention.

[75] In many respects the Order made with respect to the custody of AB and EB resembles what might be described as a not uncommon custody/access arrangement with one parent being given sole-decision-making authority. In principle, joint custody should not require a detailed spelling out of parental obligations but without that having been done in this case the parties’ conflict has impacted the children. There must be a final arbiter, as already noted, but that should not be viewed by the mother in this case as a reason to exclude the father from his meaningful involvement in the children’s education or healthcare. The father’s status as a custodial parent is maintained as is his participation in the decision-making issues most affecting the children at this time, but no longer at the risk of conflict and paralysis.

[76] One last point.

[77] In her 2015 Order, Wildman J. contemplated that in the event that the parties experienced communication and parenting difficulties then they should seek out counselling services. It is regrettable that despite an early attempt in late 2016/early 2017 to resolve issues then outstanding the parties ignored that Order and made no apparent effort afterwards to explore out-of-court solutions. The parties should have considered the delays associated with pursuing the court process and taken earlier steps to deescalate their conflict. Defaulting to the trial process is not a good parenting choice - it is a failure of parenting.

[78] Court administration shall prepare and issue the Order.

[79] A Support Deduction Order shall issue indicating that child support for the children shall start July 1, 2020 in the amount of $30 a month.

[80] Given the evidence in this case, the parties’ conduct and their financial circumstances, I am not inclined to award costs. However, if a party does intend to seek costs, the following directions apply:

(a) The party seeking costs shall file their costs submissions in the Continuing Record (“CR”) by September 30, 2019; (b) The other party shall file their costs submissions in the CR by October 15, 2019; (c) Reply submissions (if any) by the party seeking costs in (a) above in the CR by October 28, 2019; (d) All submissions shall be served on the other party and in the case of (a) and (b) double-spaced and no longer than four pages: in the case of reply (i.e. (c)) no longer than two pages; (e) Offers to Settle, Bills of Costs and any authorities upon which a party may wish to rely shall be filed by the deadline indicated but shall not form part of the CR; (f) the parties shall advise the judicial assistant (Meghan.Billings@ontario.ca) when they have filed their material.

Justice David A. Jarvis

Released: August 28, 2019

SCHEDULE A

HOLIDAY AND SPECIAL EVENT SCHEDULE

This holiday and special event schedule is in addition to the regular schedule and overrides that schedule in the event of conflict. The reference to “children” shall be to AB and EB, and may include BB depending on the circumstances.

HOLIDAYS

Family Day Weekend The children will reside with the father on Family Day weekend in odd-numbered years and with the mother in even-numbered years, with times on Friday the same as regular schedule and drop off at school on Tuesday.

School Spring Break The children will reside with the father during the school Spring Break in even-numbered years and with the mother in odd-numbered years, with times on Friday the same as regular schedule and drop off at school on Monday.

Easter Weekend The children will reside with the mother on Easter weekend in even-numbered years and with the father in odd-numbered years, with times on Thursday after school for the father and 5:30 p.m. for the mother with return to school on the following Tuesday.

Mother’s Day The children will reside with the mother from regular pick up time on Friday to Monday with drop off at school.

Victoria Day Weekend The children will reside with the father during Victoria Day weekend in odd-numbered years and with the mother in even-numbered years, from their leaving school on Friday until their return to school on Tuesday.

Father’s Day The children will reside with the father from after school Friday to Monday with drop off at school.

Canada Day The children will reside with the parent on Canada Day with whom they are then living pursuant to the regular schedule.

August Civic Holiday The children will reside with the parent on the August Civic Holiday weekend with whom they are then living pursuant to the regular schedule.

Labour Day Weekend Excepting 2019, the children will reside with the parent on Labour Day with whom they are then living pursuant to the regular schedule with drop-off at school on Tuesday.

Thanksgiving Weekend The children will reside with the father on Thanksgiving weekend in odd-numbered years and with the mother in even-numbered years, from their leaving school on the Friday before Thanksgiving until their return to school on the following Tuesday.

Halloween The children will reside with the mother on Halloween in odd-numbered years and with the father in even-numbered years, from their leaving school on Halloween or at 3:30 p.m. if it is not a school day, until their return to school the next day or their return to the other parent at 8:30 a.m. The parent who has the children for Halloween will be responsible for the children’s costumes.

Christmas Break The parties will share equally the children’s school Christmas Break. The children will reside with the father for the first half of the Christmas Break in even-numbered years and the last half of the Christmas Break in odd-numbered years, and with the mother for the first half in odd-numbered years and the last half of the Christmas break in even-numbered years. The first half will start after school on the children’s last day of school in December and end at noon on the date that is the half-way point of the Christmas Break. The second half will start at noon on the date that is the half-way point of the Christmas Break and end on the morning the children’s return to school in January.

Christmas Eve/Morning and Christmas Day Regardless of the Christmas Break schedule set out above, the children will reside with the father on December 24th at 9:00 a.m. until Christmas Day at 1:00 p.m., and with the mother from 1:00 p.m. on Christmas Day until 7:30 p.m. on Boxing Day in even-numbered years, and with the mother on December 24th at 9:00 a.m. until Christmas Day at 1:00 p.m., and with the father from 1:00 p.m. on Christmas Day until 7:30 p.m. on Boxing Day in odd-numbered years.

New Year’s Eve/New Year’s Day Regardless of the Christmas Break schedule, the children will reside with the father on New Year’s Eve from 6:00 p.m. until 1:00 p.m. on New Year’s Day in odd-numbered years starting December 31, 2019 and with the mother from 1:00 p.m. on New Year’s Day until 8:30 a.m. the following morning. This will alternate each year.

SPECIAL EVENTS

Children’s Birthday The birthday will fall as per regular schedule with the parents celebrating with the child on their own weekend.

Children’s Sports Activities/Tournaments In the event that a child is involved in weekend sports activity or tournament then the parent with whom the child is then residing shall have the option of taking the child to the activity/tournament or requesting that the child reside after school with the other parent to ensure that the child is able to attend the event in a timely way. The child shall be returned to the residence of the parent with whom they are scheduled to be residing within 2 hours of the end of the event.

All other Holidays and special events are in accordance with the regular schedule.

[1] Four of these months were in September to December 2016 although there were percolating issues in those months after the Order that led to the parties resorting to paragraph 1.7 for coaching, counselling and dispute resolution assistance. [2] This was a frequent point of conflict between the parties as the Order directed that the exchange locations be their residences. The mother was uncomfortable about attending the father’s residence: it also required more driving time. [3] Both parties had specimen containers at their homes. [4] Baker-Warren v. Denault, 2009 NSSC 59 (N.S.S.C.). [5] See also Ouellette v. Uddin, 2018 ONSC 4520 (at para. 9). [6] J.V.M. v. F.D.P., 2011 ONCJ 615, [2011] O.J. No. 5437, 211 A.C.W.S. (3d) 122. [7] J.B.H. v. T.L.G., 2014 ONSC 3569 (at para. 354). [8] [2017] O.J. No. 1997, 2017 ONSC 1566. [9] Lefebvre v. Lefebvre, 2002 CarswellOnt 4325 and Cox v. Stephens, 2002 CarswellOnt 4554. [10] Laramie v Laramie, 2018 ONSC 4740, paras 86-94. [11] (2002), 2002 ONCA 41868, 61 O.R. (3d) 711. [12] Ibid, para. 44. [13] This range results from the $17,606.88 financial statement shortfall less $2,500 (being the average of annual financial assistance from the paternal grandmother) and one-half of the $20,000 line of credit. [14] Ayesh v. Zeiden, [2017] O.J. No. 6663, 2017 ONSC 7407 at para. 61 following Benotto J. (as she then was) in Orser v. Grant, 2000 O.J. No. 1429. The gross-up is estimated. [15] FLR 31(1). [16] DivorceMate calculations accompany this Order.