COURT FILE NO.: FC-14-130

DATE: 2019/07/18

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

N. S.

Applicant

– and –

R. M.

Respondent

Christian Pilon, Counsel for the Applicant

Rodney Cross, Counsel for the Respondent

HEARD: October 11, 12, 13, 16, 17, 20, 23, 24, 25, 26, 27, 2017; June 28, 2018; December 3, 2018; February 13 and 14, 2019 and June 4, 2019

REASONS FOR JUDGMENT

Justice A. Doyle

[1] The Court will determine, among other things, the custodial and financial arrangements of the parties’ two daughters: L.M. who is almost seven years old and C.M.-S. who is five years old. The children currently live with the Applicant mother and visit with the Respondent father twice during the week for approximately two hours and every Sunday for four hours.

[2] The parents cohabited for two years and since their separation have been involved in high conflict litigation requiring numerous court attendances.

[3] The mother lives in Orleans (an Ottawa suburb) and wishes to move with the two children to Montreal so she can eventually take over her mother’s business. Her home was purchased by the maternal grandmother.

[4] The father objects to the move and wishes to have a meaningful relationship with the children. In 2017, he bought a home in Orleans to be closer to the children and their school. He was taken by surprise when the mother announced her desire to move to Montreal in the summer of 2017.

[5] The issues for determination are:

1. Is it in the children’s best interests to move with their mother to Montreal, Quebec? In determining this issue, the Court must consider the factors set out in Gordon v. Goertz 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27. The Court will first determine:

i) What Custody Order is in the children’s best interests?

ii) Determine whether the move is in the children’s best interest and then:

iii) What amount of time should the children spend with their father?

2. Does the Court have jurisdiction to order a Parenting Coordinator as recommended by the assessor and requested by the father? Alternatively, should the Court case manage this matter?

3. Should the mother be permitted to travel to the United States without the father’s permission?

4. Should retroactive child support be payable?

5. What ongoing and retroactive s. 7 special and extraordinary expenses are payable pursuant to the Child Support Guidelines (Ontario)?

6. What ongoing child support is payable?

7. Should the father maintain an extended health/dental plan designating the children as beneficiaries?

8. Should the father maintain a life insurance policy designating the mother as irrevocable beneficiary for the children?

9. What retroactive spousal support is payable?

10. Is the father entitled to the return of his personal belongings which he says are in the mother’s residence?

11. Is the mother entitled to $60,000.00 from the father for her financial contribution to the parties’ laboratory equipment business?

[6] On consent, the Court ordered that the names of the parties will only be identified by initials pursuant to the Children’s Law Reform Act, R.S.O. 1990, c. C. 12 (“CLRA”).

[7] In his written submissions, the father requested a change of name for one of the children. This issue was not presented, argued nor discussed at the trial. There was no evidence led on this issue. Hence the court declines to deal with this request.

Background

[8] The parties cohabited from 2011 and separated on November 4, 2013.

[9] At the time of the separation, L.M. was almost two years old and C.M.-S was not yet born. The father was advised of C.M.-S.’s birth by a police officer who had been asked to do so by the mother.

[10] The mother’s work as a translator is on a contract basis and she also works part-time for her mother who resides in Montreal and operates a rental property business.

[11] The father works as a corporate planning advisor with the federal government. He has recently renovated his Orleans home to make it more comfortable for the girls, e.g. installed a gazebo in the backyard for dinners and purchased a puppet theatre and playhouse.

[12] He states that the children enjoy their time with him and do not want to go home at the end of their short visits with him. The children enjoy their time with their paternal Aunt Frances, their grandfather, the father’s friends and their children.

[13] At the commencement of the trial, the Court permitted an amendment of the mother’s pleadings to request an order that she be permitted to move with the children to Montreal with a right to the father to file an Amended Answer.

Procedural History

[14] The application was commenced in January 2014.

[15] On March 26, 2014, Master MacLeod (as he then was) made an order on consent regarding disclosure.

[16] The temporary order of Blishen J., dated May 30, 2014, provided that the children’s primary residence was with the mother and the father would have access as follows:

• every Sunday from 11:00 A.M. to 3:15 P.M.;

• every Tuesday for two hours between 5:00 P.M. and 7:15 P.M..; and

• every Wednesday for two hours between 5:00 P.M. and 7:15 P.M. (which was changed to Thursday).

[17] Blishen J. also ordered that:

• The father pay child support in the sum of $1,587.00 per month based on an annual income of $114,000.00;

• Dr. Alex Weinberger conduct a custody/access assessment; and

• The father designate the mother as beneficiary in trust for the children of his life insurance policy.

[18] The parties also consented to the surname of the youngest child. The father did not agree that the child’s surname on the birth certificate be the mother’s surname.

[19] The Children’s Aid Society (“CAS”) was contacted by the mother as she had serious concerns regarding the food fed to the children by the father. Due to the conflict between the parties, the CAS recommended a neutral place for exchanges and the father would not agree to this condition, so he missed three visits.

[20] The matter was before Minnema J. on September 16, 2014 at which date the mother requested supervised access.

[21] Minnema J. ordered supervised access exchange (not supervised access) and that the father pay for half of the retainer for Dr. Weinberger. The Court commented on the fact that the father would not acknowledge the mother at exchanges or show a minimal attitude of civility. The mother alleges that he turns away from her at exchanges. The Court expressed concerns regarding the effect that the parents’ conflict was having on the children.

[22] On May 21, 2014, Labrosse J. set out timelines for filing of documents and dealt with interim access pending the return of the interim motion on a without prejudice basis.

[23] On April 14, 2015, Master MacLeod refused the father’s request for an emergency motion and noted that he had refused to proceed with the custody/access assessment.

[24] A settlement conference proceeded before Kershman J. on April 27, 2015 and the Court ordered disclosure and permitted the father to provide names of three moving companies to the mother’s counsel, so he could arrange to remove his personal belongings from the mother’s residence.

[25] On January 4, 2017, after an investigation, the CAS found that the allegation of sexual harm to L.M. made by the mother against the father was unfounded and that there was no reason for the father to not have access to the children. The police investigation was concluded on February 7, 2017 and they found the allegation was unfounded.

[26] The matter was adjourned from the trial sittings as the assessment had not been completed. The matter then came before De Sousa J. on April 6, 2017 as the mother refused to allow Dr. Weinberger to meet with the father and children for an observation session and she had denied access.

[27] De Sousa J. made a finding of contempt against the mother and noted that the assessment was stalled because the mother refused to allow the assessor to observe the children interact with their father in his home. The mother had refused access to the father as she believed that he had sexually abused L.M. De Sousa J. also made a finding that these allegations were “yet another attempt by the mother to severely restrict the role that this father will play in the lives of these very young children”. She also ordered that the exchange take place in a public place, i.e. Tim Horton’s on Watters Road in Orleans and that Dr. Weinberger could observe the father with the children. She confirmed that this was a high conflict case.

[28] At the penalty stage of the contempt motion, De Sousa J. noted that the mother had purged her contempt as access had resumed. She fined her $2,000.00 and ordered that she pay costs in the amount of $4,000.00. The father had not yet complied with the life insurance policy designation and was given another 30 days to do the same.

[29] The matter came before Master Champagne (as she was then) on December 15, 2017 in procedural court as the mother brought an urgent motion regarding dental care. It was deemed not to be urgent, however, the parties resolved the issues on an interim basis so that the mother would be permitted to make the arrangements regarding the dental care of the child and that no general anesthesia would be used.

[30] In addition, the mother was permitted to travel to Florida with the children over the Christmas break and the father would have make up time and the access exchange would be completed in the presence of a social worker. The parties agreed that they would share any dental expenses not covered by health coverage in proportion to their 2014 incomes.

[31] There have been at least eight CAS openings.

Is it in the children’s best interests that they move to Montreal with their mother?

Mother’s Position

[32] The mother is requesting an order for sole custody and that the children reside with her in Montreal. If the Court does not permit her to move with the children to Montreal, she plans to stay in the Ottawa area with the children.

[33] If the move is permitted, the mother stated that she would come to Ottawa every second weekend to enable the children to visit with their father and she would stay in her current Orleans home. She is flexible to allow the father to come for dinner in Montreal with prior notice and is also suggesting an every second weekday visit in Montreal.

[34] She proposes that the father’s access would be as follows:

a. from the date of this decision until November 2019;

i. every second weekend on Saturday from 9:00 A.M. to 1:00 P.M. and Sunday from 9:00 A.M. to 1:00 P.M.;

ii. every second Wednesday after school or daycare until 7:00 P.M. in Montreal,

b. from December 1, 2019 to June 1, 2020;

i. every second weekend on Saturday from 9:00 A.M. to 3:00 P.M. and Sunday from 9:00 A.M. to 3:00 P.M.;

ii. every second Wednesday after school or daycare until 7:00 P.M. in Montreal;

c. from June 1, 2020 onwards;

i. every second weekend on Saturday from 9:00 A.M. to 5:00 P.M. and Sunday from 9:00 A.M. to 5:00 P.M.;

ii. every second Wednesday after school or daycare until 7:00 P.M. in Montreal; and

d. two non-consecutive weeks in the summer during the children’s summer break with no overnights.

[35] The mother is prepared to seek the father’s input regarding decisions pertaining to the children and their Inuit identity.

[36] The mother’s plan regarding the move to Montreal is that:

• Given the maternal grandmother’s (“grandmother”) age and health issues, the mother will need to take over the multi-million-dollar real estate business to continue to generate income. The grandmother was originally from Quebec City but moved to Montreal in 2007. She is over 75 years old and her health has deteriorated, and she would like to eventually have the mother take over the business.

• The mother intends to work with the grandmother with the business and during her two-year training, the grandmother would pay her $50,000.00 per year.

• The mother will eventually take over the business and this will provide financial security for the children.

• The mother and children are familiar with Montreal as they visit the grandmother frequently and stay in a condominium that the grandmother purchased where the mother plans to live if permitted to move there. The condo is child-friendly with a pool and there is lots of room for the children. The children have spent summers there as well.

• The grandmother has a close relationship with the children as she visits Ottawa three days per month. She would provide support to the mother if she were to move to Montreal as she would be able to help with the children e.g. babysitting and preparation of meals.

• The mother has found a French school with a sports integrated program where the children could attend. The proposed daycare is two minutes’ walk from their home.

• There are many programs in figure skating and gymnastics, and skating at a high level is available in Montreal.

• The father’s access would be increased, and Montreal is very close as the train takes two hours and by car, the travel time is two and a half hours.

[37] The grandmother intends to set up a trust so the mother can receive $100,000.00 to $150,000.00 per year which would be in addition to her income earned from the rental business.

[38] The properties owned by the grandmother are in Quebec City which is approximately two hours from Montreal. If permitted to move, the mother can manage the properties from Montreal but it would not be possible to do so while living in Ottawa.

[39] If she stays in Ottawa, she will continue with translation but there is no flexibility as there are deadlines and children must go to daycare. She has no intention of moving to Montreal without the children.

[40] Finally, living in Montreal would promote the children’s francophone background and the children could also be exposed to Inuit culture as there are a number of centres there.

Father’s position

[41] The father is requesting joint custody with a gradual increase of his time with the children until he has equal time with his children.

[42] The father submits that the Court should accept Dr. Weinberger’s recommendation that it is not in the children’s best interests to move to Montreal.

[43] He submits that the children would be estranged from him if they moved to Montreal. The access proposed by the mother does not promote a meaningful relationship with the children as he would only see the children every second weekend and there would be five hours of travel time.

[44] It is in the best interests of the children that he play an active role with the children and the schedule recommended by Dr. Weinberger which provides for increased time with his daughters and eventually equal time, cannot be implemented if the children live in Montreal.

[45] It is important for the children’s development and their future that their father’s time and involvement with them increase over time.

[46] If a move is permitted, he will not be able to move as his employment position is not transferable.

[47] The father proposes the following parenting schedule:

a. commencing June 1, 2019, parenting time with the father shall be:

i. Tuesday and Thursday from 5:30 P.M. to 7:45 P.M.;

ii. Sunday from 12:15 P.M. to 7:45 P.M.;

b. commencing December 1, 2019, parenting time with the father shall be:

i. Tuesday and Thursday from 5:30 P.M. to 7:45 P.M.;

ii. Sunday from 9:00 A.M. to Monday drop off at school or the mother’s residence at 9:00 A.M.;

c. commencing June 1, 2020, parenting time with the father shall be:

i. Wednesday from 5:30 P.M. to Thursday drop off at school or the mother’s residence by 9:00 A.M.;

ii. Sunday from 9:00 A.M. to Monday drop off at school or the mother’s residence at 9:00 A.M.;

d. commencing December 1, 2020, parenting time with the father shall be:

i. Wednesday from 5:30 P.M. to 7:45 P.M.;

ii. alternate weekends from Saturday from 9:00 A.M. to Monday drop off at school or the mother’s residence by 9:00 A.M.; and

e. commencing June 1, 2021, parenting time with the father shall be:

i. for the first week beginning with the mother on Monday 9:00 A.M. to Wednesday 9:00 A.M. and with the mother again on Friday 9:00 A.M. to Monday at 9:00 A.M.; and

ii. for the second week beginning with the father on Monday at 9:00 A.M. to Wednesday 9:00 A.M. and to the father again on Friday 9:00 A.M. to Monday 9:00 A.M.

[48] On an annual basis, he wishes to alternate parenting time on holidays and requests that upon notice, ten days of parenting time for an annual vacation. He also wishes time on special occasions.

[49] He is of Inuit background and wishes to ensure that the children are exposed to their culture.

The Law

[50] In determining whether there should be a move with the children, the Court is guided by the relevant factors set out by the Supreme Court of Canada’s leading case in Gordon v. Goertz:

a. no legal presumption in favour of de facto custodial parent;

b. focus is on the best interests of the child and not the wishes of the parent;

c. the court should consider the existing parenting arrangement;

d. the desirability of maximizing contact with both parents;

e. the views of the child;

f. custodial parent’s wishes to move are only considered if they are relevant to their ability to meet the needs of the children; and

g. disruption to the child by change in school, community and family they have come to know.

[51] The cases of Butler v. Percy, 2009 CanLII 46443 (Ont. S.C.), and Ashman v. James, 2008 ONCJ 786, provide examples of cases where a move was prohibited:

a. the custodial parent is moving for an improper purpose such as to frustrate an access parent’s relationship with the child: Jantzi v. Jantzi, 2003 CarswellOnt 5370 (Ont. S.C.).

b. the custodial parent is moving away from something, not to something: Bjornson v. Creighton 2002 CarswellOnt 3866 (Ont. C.A.).

c. the move would completely sever the relationship between the access parent and the child because of distance and prohibitive costs of access: Bartlett v. Bartlett, 2004 ONCJ 276.

d. the parents shared equally the tasks of parenting and to some extent the time involved with the child: Saunders v. Saunders (Bilquist), 2005 CarswellNS 58 (N.S.S.C., Fam. Div.).

e. plans for the move are poorly thought out and fraught with uncertainty: Maillet v. Gauld, 2005 NBQB 23.

[52] In some of the cases, the following principles emerge:

a. the fact that the parents share joint custody is not sufficient to prevent a move: Johnson v. Cleroux 2002 CarswellOnt 787 (Ont. C.A.).

b. the fact that a parent’s access will be disrupted is not sufficient to prevent a move: Bjornson v. Creighton, supra.

c. custodial parent’s views and wishes are to be given serious consideration: Bjornson v. Creighton, supra.

d. reasons for move are bona fide and not made to frustrate access or relationship with access parent: Sheikh v. Sheikh, 2005 CarswellOnt 1690 (Ont. S.C.).

e. disruption in custody would have more serious consequences to the child than the disruption of moving: Lindsay v. Lindsay, 2002 CarswellOnt 4291 (Ont. S.C.).

[53] The reason for the move is not relevant and should only be considered in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child. (See Hellberg v. Netherclift, 2018 BCCA 404, 17 R.F.L. (8th) 101). A Court may consider a parent’s reason for a move such as financial reasons where it is relevant to meeting the needs of the children. In that case, the British Columbia Court of Appeal stated at para. 17: “A parent must only demonstrate that relocation is in a child’s best interests. Those best interests can be shown even where a child is currently healthy and happy.”

[54] Before determining whether the mother should be permitted to move with the children to Montreal, the Court will determine custody.

What custodial arrangements are in the children’s best interests?

Legal Principles

[55] In determining custody, the Court must consider the children’s best interests as set out in s. 24 of the CLRA:

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

Best interests of child

[56] The Court shall consider all the child’s needs and circumstances, including:

a. the love, affection and emotional ties between the child and:

i. each person entitled to or claiming custody of or access to the child;

ii. other members of the child’s family who reside with the child; and

iii. persons involved in the child’s care and upbringing.

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

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

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

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

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

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

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

Past conduct

[57] A person’s past conduct shall be considered only:

a. in accordance with subsection (4); or

i. if the Court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.

Violence and abuse

[58] In assessing a person’s ability to act as a parent, the Court shall consider whether the person has at any time committed violence or abuse against:

a. his or her spouse;

b. a parent of the child to whom the application relates;

c. a member of the person’s household; or

d. any child.

[59] The Court should consider the level of hostility and the extent to which that hostility may undermine the child’s stability. Wilson v. Wilson, 2015 ONSC 479.

[60] In resolving custody disputes, emphasis must be placed on the importance of bonding, attachment and stability in the lives of young children. Barnes v. Parks (2001), 2001 CanLII 24146 (ON CA), 141 O.A.C. 362 (C.A., in Chambers).

[61] In Kaplanis v. Kaplanis (2005), 249 D.R.L. (4th) 620 (Ont. C.A.), the Court of Appeal for Ontario stated at para. 11:

The fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered. On the other hand, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody. There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another. No matter how detailed the custody order that is made, gaps will inevitably occur, unexpected situations arise, and the changing developmental needs of a child must be addressed on an ongoing basis. When, as here, the child is so young that she can hardly communicate her developmental needs, communication is even more important. In this case there was no evidence of effective communication. The evidence was to the contrary.

[62] In Ursic v. Ursic (2006), 2006 CanLII 18349 (ON CA), 32 R.F.L. (6th) 23 (Ont. C.A.), the Ontario Court of Appeal dismissed the appeal from a trial decision which ordered joint custody. There, the parties had largely cooperated on major decisions affecting the child, except for the schooling.

[63] In Khairzad v. MFarlane, 2015 ONSC 7148, 72 R.F.L. (7th) 436, and Fraser v. Fraser, 2016 ONSC 4720, the Courts have found that where it is necessary to preserve the balance of power between the parents, but one party has been primarily responsible for the conflict, joint custody versus sole custody may be appropriate. In V. K. v. T.S. 2011 ONSC 4305, Justice Chappel explored various factors that a Court can consider in determining whether a joint custody order is in a child’s best interests. After conducting a thorough analysis of the case law in this regard, she summarized the law on joint custody at para. 74:

The existence of conflict and strife between the parties from time to time will not necessarily preclude the court from making an Order for joint custody. The question to be determined is whether the conflict between the parties is impacting or likely to impact on the well-being of the children. If the evidence indicates that the parties, despite their conflict with each other, have been able to communicate, shelter the children from the conflict reasonably well, and put the children’s interests ahead of their own when necessary, an order for joint custody may be appropriate. The question for the court to determine 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. [citations omitted.]

[64] Chappel J. discusses parallel parenting at para. 96:

A review of the case-law respecting parallel parenting suggests that the following factors are particularly relevant in determining whether a parallel parenting regime, rather than sole custody, is appropriate:

a) The strength of the parties’ ties to the child, and the general level of involvement of each parent in the child’s parenting and life. 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.

b) The relative parenting abilities of each parent, and their capacity to make decisions that are in the child’s best interests. Where one parent is clearly more competent, responsible and attentive than the other, this may support a sole custody arrangement. On the other hand, where there is extensive conflict between the parties, but both are equally competent and loving parents and are able at times to focus jointly on the best interests of the child, a parallel parenting regime may be ordered.

c) Evidence of alienation by one parent. If the alienating parent is otherwise loving, attentive, involved, competent and very important to the child, a parallel parenting arrangement may be considered appropriate as a means of safeguarding the other party’s role in the child’s life. On the other hand, if the level of alienation is so significant that a parallel parenting order will not be effective in achieving a balance of parental involvement and will be contrary to the child’s best interests, a sole custody order may be more appropriate.

d) Where both parties have engaged in alienating behaviour, but the evidence indicates that one of them is more likely to foster an ongoing relationship between the child and the other parent, this finding may tip the scale in favour of a sole custody order.

e) The extent to which each parent is able to place the needs of the child above their own needs and interests. If one of the parties is unable to focus on the child’s needs above their own, this may result in a sole custody order, even if that parent is very involved with the child and otherwise able to meet the child’s day to day needs.

f) The existence of any form of abuse, including emotional abuse or undermining behaviour, which could impede the objective of achieving a balance of roles and influence through parallel parenting. [citations omitted.]

[65] With respect to parallel parenting, the Court of Appeal for Ontario in Cox v. Stephen, 2003 CanLII 18571 (ON CA), 47 R.F.L. (5th) 1 (Ont. C.A.), upheld a parallel parenting order where mother would have final decision-making responsibility with respect to education and the father would have final decision-making responsibility with respect to physical health despite the longstanding history of conflict between the parties.

Analysis

Introduction

[66] Each case must be decided on its own unique facts based on the best interests of the children.

[67] In determining the decision-making aspect of custody and what is in the children’s best interests, the Court shall consider the children’s needs and circumstances having regard to the parties’ historical interaction and their limited ability to effectively communicate regarding matters pertaining to the children.

[68] The Court finds that the mother has been the primary caregiver from the date of the separation, the father’s time has been limited to eight hours per week with no overnight visits. Historically, there has been high conflict and poor communication. Finally, there have been comments from the CAS, Dr. Leonoff and the Court on a previous hearing that the mother’s past actions can be viewed as marginalizing the father’s role with the children. There has been some improvement as the mother has involved the father more in children’s issues.

[69] Having considered the children’s needs and best interests, for reasons that follow, the Court orders that the mother will have sole custody. To ensure that the father’s role is not marginalized and that the children benefit from his parenting, prior to making any major decision regarding the children such as health, dental, education or religion, the mother must fully inform the father of the nature of the decisions and options, and allow him input. As the sole custodial parent, she will have the final decision-making power.

[70] Most significantly, the father will have direct access to all information pertaining to the children and he will be kept apprised of all developments regarding the children.

The children

[71] L.M. has completed Grade 1 at a French school. Her recent report card dated February 2, 2019 shows the following areas where “amelioration necessaire” (improvement is necessary): reliability, independence, organization, initiative, and auto-regulation. She was given “satisfactory” in the area of collaboration.

[72] Nevertheless, she is progressing well academically as she has A’s and B’s in math, science, French, social sciences and art. She does well in gymnastics and excels at figure skating.

[73] Due to bullying she had experienced at another school, the mother took steps and completed research to effect a change in schools for L.M. Initially, the father refused to sign the form permitting the change of schools but a CAS worker convinced him to allow the change.

[74] The father obtains information directly from the school regarding events but does not attend those events as he states he wishes to avoid conflicts with the mother. The mother was upset when she learned the father gave the school a copy of Dr. Weinberger’s report without consulting her and she felt it was a breach of privacy.

[75] The mother has arranged the children’s daycare attendance with Kids’ Kingdom daycare centre.

[76] At age 2.5, L.M. had some language development issues which resulted in a referral to the First Words program at the Children’s Hospital of Eastern Ontario (CHEO) by the family doctor. Due to a lengthy waiting list, the mother hired a private therapist to come to her home to work with L.M. on eight occasions. She did not ask the father for reimbursement to avoid issues but she put the claim through the father’s insurer and she had to ask him for reimbursement which caused some conflict.

[77] L.M. has some anxiety issues and lacks organization.

[78] L.M. has certainly been affected by this high conflict between the parties. She has been exposed to some negative talk about the father in the mother’s household. She is the older child and therefore been exposed to her parents’ conflict and lack of communication for a longer period of time than her younger sister. In addition, she was almost two years old when the parties separated.

[79] The family doctor, Dr. Daigneault, provided a referral to their paediatrician Dr. Shawn Kelly. She has obtained counselling from Dr. Baldeep K. Saran from September 2018 to December 2018. L.M. prefers to be alone at these appointments and would rather that the father not be present.

[80] The mother states that L.M. has dental demineralization which is genetic and has predisposed her to cavities. She has been advised to avoid juices and candies. She is overseen by a paediatric dentist, Dr. Mahal. A source of contention between the parties is that the father gives the children candies and this upsets the mother. The father believes that a little candy is not bad for them and he ensures that they regularly brush their teeth.

[81] C.M.-S. has completed Jr. Kindergarten at a French school and her February 2019 report card reports that she participates in class, is creative and is aware of the structure and timetable of the periods. She also respects the rules of the classroom but, at times, must be redirected by the teacher. She receives glowing reports from gymnastics instructors.

[82] With respect to love, affection and emotional ties, the Court finds that the children have a bond with both parents.

[83] The children have a close relationship as well with the maternal grandmother, paternal aunt and grandfather.

[84] With respect to the children’s views and preferences, they are young and their views and preferences cannot reasonably be ascertained. There is evidence that they enjoy their time with their father and their mother.

Home environment

[85] The children have been with the mother since birth. She has provided a stable home environment.

[86] The history of this family demonstrates that to date the mother has been the main caregiver for the children. She has organized and set up all the vital connections with the community for the children: i.e. the doctor, dentist, dental surgeon, schools and change of school, speech therapist, paediatrician, speech therapist, activities such as gymnastics, skating and swimming.

[87] For the most part, the mother has completed these tasks and told the father after the fact. However, more recently, the mother has involved the father in advance. For example, the mother followed up with a suggestion by the father regarding a dentist who could be of some assistance to L.M.’s dental issues.

[88] However, there have been issues regarding dental work. The mother set up the dentist for the children and it was detected that L.M. had dental demineralization. She was referred to a specialist, Dr. Mahal, upon the recommendation from the dentist. It is a congenital problem and the mother told father that this has caused two cavities. The father would not consent so she brought an urgent motion before Master Champagne on December 17, 2015. The father stated he withheld consent as he did not want general anesthesia used. The matter was resolved on consent at a motion and the surgery proceeded.

[89] The father insists on giving her candy which has caused conflict between the parties as the mother does not believe it is in L.M.’s best interests.

[90] To date, the father’s time with the children has been limited but generally consistent. The interim order of 2014 is still in existence but there have been disruptions in the past five years, which, in part, are due to investigations by the CAS regarding allegations against the father. However, I note that the father was involved for the first nine months of L.M.’s life by taking a leave from work and did care for the child when the mother had a contract in Maniwaki.

[91] The father did attempt to become involved with the family doctor, Dr. Daigneault, by making appointments but the mother cancelled the two visits he had set up. He did meet with Dr. Daigneault to talk about the children’s health. He also sent a request to transfer L.M.’s file to Akausivik Inuit Family Health Team without telling the mother.

[92] The father has some French ability but is not able to assist with homework to the extent the mother can. He has not participated in the children’s activities as he states he is trying to avoid conflict. When there was friction over an issue, he would usually defer to the mother.

Relationship between the parents

[93] The acrimonious litigation demonstrates the high conflict and communication issues that have plagued the parties. There has been no history of joint decision making. The evidence indicates that both parents approach the other tentatively, and past events show that the interaction with the other parent causes them stress and uncertainty. This type of relationship does not bode well for a joint custody arrangement.

[94] Although there has been some improvement since De Sousa J.’s Order, their animosity has dictated their behavior which has resulted in lack of trust and confidence in the other party’s ability. This lack of trust and confidence has impacted negatively on their ability to communicate with each other as it pertains to the children.

[95] Before we turn to the events regarding the children, the Court notes that even the parties’ personal relationship was marked with disagreement and was short lived. The mother alleges that during their short cohabitation, the father yelled at her and would call her names in the presence of the children.

[96] The mother alleges that the father tells people that she has mental health issues.

[97] Early in the relationship, the mother had some concerns regarding the father. The mother’s discovery of misogynist literature on the father’s computer upset her and when she confronted the father, he admitted that it was his. At trial, he denied that it was his creation but rather that he was editing it for a friend.

[98] She alleges that the father grabbed her by the throat on three occasions.

[99] In addition, there was a strain in the relationship as the maternal grandmother was living with them and the mother was primarily responsible for the household as she was not working.

[100] Also, the mother alleges that she was sexually assaulted and as a result of that rape, the youngest child was born. She gave her testimony in graphic details as to how the father forcefully penetrated her and her description of the incident was compelling. She described that he put his hands around her neck as if to choke her. The mother believes that she was violated by the father and she continues to suffer from that experience.

[101] On the other hand, the father denies he forced sex on her and states that she consented to the sexual act. No charges were laid and hence there has been no legal finding on this event. The father is presumed innocent until proven guilty.

[102] For the purposes of this litigation which focuses on the children’s best interests, the Court finds that this alleged sexual assault has impacted on the mother’s perception of the father and she believes that he has a potential for violence. Her concerns were supported by the father’s former girlfriend, Kimberley-Ann Whalen, who also testified that the father used to put his hands around her neck. It should be noted Dr. Weinberger had concerns regarding Ms. Whalen and he did not place any weight on her statements that she made to him for, in his view, she has mental health issues.

[103] The mother indicates that his abusive behaviour during their short relationship did not instil confidence and respect for the father. In addition, the mother states that, at the time of separation, the father told her the following: “I will make your life miserable”.

[104] Turning now to the children, the Court notes that one theme continues in this family’s lives. The mother states that she hears disturbing things from the children and when she asks the father for an explanation via an email, he refuses to engage in a discussion. She then feels that she has no choice but to contact an appropriate third party and/or authority.

[105] These concerns cause her some anxiety as it relates to the two children and she is concerned whether the father’s quick to anger temperament will be manifested through actions against the children.

[106] For that reason, she is hyper vigilant about the children’s time with their father, and it would appear, whether prompted or not, the children report to her what they did with their father on their visit.

[107] On the other hand, the father believes he is being attacked without any evidence and as he is not present, he cannot verify what the children have been saying. To avoid conflict, he does not respond to these allegations in her emails.

[108] Even as early in the summer of 2010, when L.M. cut her leg, the parents were unable to communicate regarding the details that led to the injury.

[109] In June 2014, the mother alleged that the father was feeding C.M.-S., who was a baby, inappropriate food. She also alleged the father nearly ran over the mother’s foot with his car. The CAS investigated and recommended that in order to minimize the contact with each other, that access exchanges take place in a public place or at the police station. Minnema J. ordered exchanges to take place through the Supervised Exchange Centre in Ottawa.

[110] The mother was unable to obtain a travel consent from him to be able to travel with the children to Florida in December 2015. This was addressed in court before Master Champagne.

[111] In March 2015, the mother noted that L.M. came home from a visit with her father with a very wet diaper and she had a red vagina. She was not verbal and did not make disclosures.

[112] In April 2015, the father unsuccessfully brought an emergency motion before the Courts alleging that the mother’s negligence caused one of the girls’ hands to freeze, that she did not feed them properly and that they had a fever.

[113] The high conflict in this case is demonstrated in Kershman J.’s order of April 27, 2015 in which he stated that the father has brought several motions and contemplated bringing at least three more motions. He ordered that the father be required to obtain leave of the Court to bring any further motions after that date.

[114] The CAS records of August 2016 indicate that the CAS discouraged the parents from speaking ill of each other in the children’s presence and emphasized the need to collaborate to make access a positive experience for the children.

[115] In November 2016, the mother reported that L.M. spoke of an incident between the father and L.M. of a sexual nature.

[116] In December 2016, the mother was concerned that L.M. was overly preoccupied with her vagina.

[117] In December 2016, Dr. Emilie Daigneault testified that she spoke to L.M. but admits to not having experience questioning in sexual abuse cases and since CAS and the police were already involved, she did not contact the CAS.

[118] In August 2017, the mother involved the CAS because she was concerned of a possible sexual incident with L.M. The father would not take a polygraph test. Although the father was under no obligation to take the test, the father’s refusal caused the mother further anxiety and concern regarding the father’s actions.

[119] The Ottawa Police Services (“OPS”) conducted interviews with the mother and L.M. The OPS was not prepared to charge the father. The father was silent about it and it upset the mother that he would not discuss it, and she wondered why L.M. made these disclosures.

[120] In summer 2017, the mother was concerned about a report back from the children that the father was looking at C.M.-S’s genitals and using rubber gloves and a mirror. The father refused to discuss what happened to the mother but it was later explained that he was using gloves as he was cleaning an accident of “poop”.

[121] There has been little history of discussing and agreeing on issues. The parties’ use of the communication book was short lived as the father accused the mother of using the book to write about other matters pertaining to the children other than access. The father refused to make entries into the communication book. In 2015, the mother complained that the father allowed his girlfriend to make entries in the book and the mother felt it was a platform for negative communication. The use of the communication book ended in December 2015 and the parties currently use emails and if it is urgent, they text each other.

[122] L.M. can be anxious according to both parents. The mother states that at times she has body pains. The father would not agree to counselling for L.M. by someone suggested by mother as he believed there should be a referral received from Dr. Weinberger. Eventually, L.M. did obtain some counselling.

[123] Another example of conflict occurred on October 30, 2018, when the mother stated that L.M. complained to her that the father forced the candy back in her mouth after she spat it out and allegedly he wrapped his arms around her neck. This was reported to the mother who asked the father about it in an email to which he did not provide an explanation.

[124] As a result, the mother contacted the CAS. who investigated and found that the children spoke of inappropriate physical behavior by the father but the CAS. was again concerned that the children had many conversations with their mother about their father and that there was negative messaging. These allegations are noted in the CAS records including from Amélie Roy who was summoned for trial but was unable to attend trial as she was on sick leave. These comments have not been subject to cross-examination.

[125] On December 18, 2018, the CAS. was involved again as L.M. told the mother that the father had used inappropriate physical force.

[126] The father and his then girlfriend commenced an action against the mother and her previous lawyer for $25,000.00 for “moral damages” as the mother had looked at his iPad and saw an email. The action was eventually abandoned.

[127] This lack of a basic level of respectful communication does not bode well for a joint custody regime. The impact on the children’s wellbeing and the parties have not been able to shelter the children from this conflict.

[128] In recommending joint custody, Dr. Weinberger expected that the parties would engage a parenting coordinator to assist in the gradual increase of access and decision making.

Mother’s actions in marginalizing the father

[129] The Court finds that despite some improvement, some of the mother’s past actions could be described as marginalizing the father’s relationship with his children.

[130] The CAS reports show that the worker reported that there was evidence of negative discussions by the mother with the children at their home.

[131] The mother denied access and was found in contempt by De Sousa J. who commented that the mother was trying to minimize the father’s role.

[132] Certain efforts have been made by the mother to involve the father, especially after De Sousa J.’s order. She has consulted him regarding the last change of school and recently regarding dental treatment. She has indicated the father as a contact person at the school.

[133] There has been some cooperation regarding rescheduling between the parents. However, the mother was not cooperative regarding the children attending the father’s Christmas Eve office party and, in 2018, this was permitted but he had to give up another access visit.

[134] Regarding education, the parents have a common ground as they both agree that the children attend a French school. Despite the fact that the father is not fluently bilingual, he promotes the children’s best interests in ensuring that they become bilingual and thereby increasing their future opportunities.

[135] However, despite some improvements, the Court must, with this order, ensure that the father’s role is enhanced.

Father’s lack of engagement

[136] The father has not attended the children’s activities. He indicates that the he wishes to minimize conflict but certainly efforts can be made to minimize that potential risk. The children would benefit from having their father present when they participate in an activity.

[137] The father does not acknowledge the mother at exchange visits and when he does, the mother says he berates her or is verbally abusive and for that reason, she would like the access exchanges to return to the supervised access exchange program. She also finds that the father is better behaved when paternal Aunt Frances attends. The father says his lack of engagement is his way to avoid conflict and he mistrusts the mother given the number of allegations made against him in the past.

[138] This was commented by Minnema J. in 2014 when this matter came before him and this continues to this day. The father makes no effort to be civil or acknowledge the mother during access exchanges. Again, he states that he is trying to avoid conflict, but this non – communication and avoidance strategy certainly would not go unnoticed by the children and is not in their emotional best interests.

[139] When the children report to the mother that something occurred during a visit with their father, the mother emails the father. The father refuses to respond to her thereby leaving the mother no choice but to contact a third party about it. He confirmed in cross-examination that “I am not going to be interrogated by the mother”.

[140] The father’s refusal to respond and communicate with the mother does create a barrier to a joint custody arrangement which requires a minimal level of engagement and a desire to communicate.

The parents’ circumstances

[141] The mother has no partner and her mother has played a significant role in raising the children. The father has had prior partners. Dr. Weinberger suggested that the father obtain individual counselling to obtain some perspective as to why he chooses partners who are not necessarily suitable for him. The father currently has a friend who has children and he visits with her and her family regularly when he has his own children. He denies the mother’s allegation that this relationship is more than just a platonic relationship.

[142] The Court finds that both parties are good parents. Each parent has the ability to parent the children and provide them love, attention, care and guidance. The father has not had the opportunity to demonstrate his parenting skills to any extent. Due to the limited time with the children, he has not been able to show that he can get the children ready for school, prepare lunches, do homework, bring them to scheduled activities and take them to medical/dental or other types of appointments. He has reached out to the schools to learn about his children’s academic work. He has also tried to reach out to the doctors who have not always been forthcoming in providing him information he was seeking.

Dr. Weinberger’s assessment

His conclusions

[143] Dr. Alex Weinberger prepared a custody access assessment report dated October 10, 2017, on the eve of the commencement of this trial. He gave evidence as an expert in custody access assessments.

[144] In the preparation of his report, Dr. Weinberger reviewed court documents, met with the parents individually on numerous occasions, observed the children with the parents, met with the children and contacted collateral sources, reviewed Family Service Ottawa (“FSO”) exchange notes and police general occurrence reports, met with the maternal grandmother, paternal grandfather and aunt, and the father’s partner at the time.

[145] There was delay in the finalization of the report for various reasons and hence, the report spans a period of approximately 2.5 years which is an exceptionally long time to complete an assessment.

[146] Dr. Weinberger made the following observations:

• children and parents have meaningful attachments;

• the children willingly attend their visits with their father and enjoy their time with him;

• there has been no confirmation of the mother’s allegations against the father;

• the mother has been the primary caregiver since birth and the father has contributed to their development;

• he notes the dysfunctional relationship but near the end of the assessment process (2015 to 2017) notes it is somewhat more conciliatory “although strains still persist”;

• both parents acknowledged that they do not communicate well and hence they use email and rarely phone, and exchanges occur in a public venue “which suits both”;

• CAS intervened to speak to the father regarding a change of L.M.’s school;

• both valued family;

• no police involvement since December 2016; and

• the parents have been able to alter the schedule cooperatively.

[147] Dr. Weinberger sets out his concern with respect to the father withholding dental treatment when it was medically necessary and his premature introduction of solids to an infant. The Court is also concerned that the father attempted to transfer the child’s medical file from the doctor’s office without prior notice to the mother. The child had been seeing the doctor on a regular basis and there were no indicia that the child’s medical needs were not being met by this particular doctor. In addition, the mother stated that the father had registered L.M. at a clinic without her knowledge or consent. There are no issues with respect to how the children are being cared for by their paediatrician Shawn Kelly who was referred by the family doctor Dr. Daigneault.

[148] Dr. Weinberger was able to observe the father on visits with his children on two occasions and once with the mother. He also conducted some testing of the parents.

[149] At the time of the early part of the assessment in April 19, 2016 the father told Dr. Weinberger that his goal: “earlier was 50/50 but I have a full-time job so the practicality of it…I don’t know.” This is an example, at least in the early stages of the assessment process, of the father’s tentative view of what role he should play in his children’s lives.

[150] Dr. Weinberger recommends joint custody with the use of a parenting coordinator if the parties have a dispute. Alternatively, he recommends joint custody with the mother having final decision-making power as it relates to medical decisions. In recommending joint custody, Dr. Weinberger expected that the parties would engage a parenting coordinator to assist in the gradual increase of access and decision making. As set out below, the Court will not order a parenting coordinator.

[151] He recommended joint custody as there was no competency issues with the father, the father should be involved, and play a significant role with the girls. The children benefit when both parents are involved.

[152] The father has some limited French and hence would not be able to assist with homework to the extent the mother can and he has not been involved with the children’s activities. When there was friction over an issue, he would usually defer to the mother. She did keep him informed with respect to medical, dental and children’s activities. He mentioned some weight placed for his culture.

[153] Dr. Weinberger only learned a couple of weeks before the completion of the assessment that the mother wanted to move to Montreal but concluded that this would impair the relationship development between the father and the children. If his access is every second weekend, it would limit the nurturing of the children with their father and these young children would spend five hours of that weekend in a vehicle if the weather conditions are favourable.

[154] Therefore, Dr. Weinberger recommends that the children remain in the Ottawa area as he believes that the father’s role with the children will be marginalized if the children are permitted to move to Montreal with their mother.

Court’s findings

[155] Dr. Weinberger did provide the Court with some observations such as the parents’ respective relationship with the children and communication issues between the parents.

[156] The Court agrees with Dr. Weinberger’s comments that both parties have their own stress of raising two children as single parents and that the stress is exacerbated by the parties’ interpersonal relationship.

[157] I note that he started his report in 2015 and due to some delays, he did not complete it until October 2017 on the eve of the commencement of the trial. Although this is an exceptionally long time to complete an assessment, this allowed him to observe developments in the children, the parents’ parenting skills and their interpersonal relationship. It is encouraging that he noticed an improvement in the ability to collaborate with each other and feeling a bit more comfortable with each other. However, Dr. Weinberger felt time pressures in completing the report and it was not produced until the eve of the trial.

[158] Dr. Weinberger did not place weight on the mother’s allegations of abuse as, among other things, there were no charges or corroborating evidence.

[159] As stated earlier, I am not tasked with determining if there was a sexual assault but suffice to say, the event that occurred on that evening had an effect on the mother. It has shaped, to some extent, how she interrelates with the father. It detracts from her ability to trust him.

[160] On the flip side, the father who has had numerous allegations directed toward him including sexual allegations against his daughter, harbours resentment and frustration to the point where he refused to interact or acknowledge the mother at access exchanges.

Conclusion on Custody

[161] For reasons set out below, the Court awards sole custody to the mother. The Court does not agree with Dr. Weinberger’s recommendation of joint custody.

[162] The above findings impact on the parties’ respective abilities to act as joint custodial parents in serving the best interests of the children. They both have expressed an interest in providing the children with guidance and education, the necessaries of life and any special needs of the children. To date the mother has played the lead role. The father wishes to be involved and has demonstrated a willingness to do so. It is in the best interests of the children that the father be involved in the children’s care and upbringing but the evidence demonstrates that this involvement is not best done by way of ordering joint custody whereby the parties make decisions together. Despite some marginal improvements, the level of cooperation is not present for a joint custody order.

[163] Firstly, I find the following:

• mother has played the lead role in setting up the medical/dental, activities, school, camps, etc. Generally, she has not involved the father in the decision making but does advise him after the fact;

• the mother and father both have a loving relationship with the children; and

• there has not been a spirit of cooperation on the decision-making pertaining to the children.

[164] The Court finds it is in the best interests of the children that the mother involve the father and ensure that the children benefit from his input and love and guidance and hence his views will be sought with respect to all major decisions involving the children.

[165] Despite various allegations by the mother against the father pertaining to the children, after investigations by the CAS and/or OPS, the allegations were not substantiated nor were charges laid.

[166] In determining what custody arrangement is in children’s best interests, the Court must consider the relationship between the parties. Unfortunately for the children, the parents cannot work together to be part of a true joint decision-making regime.

[167] As set out in the evidence above, the level of communication and problem solving during their relationship and post separation has been very poor. The short cohabitation and the post separation events demonstrate the inability of the parties to cooperate and work together to deal with issues. Their frequent attendances at Court and seeking third party intervention demonstrates their inability to work together for the benefit of their daughters.

[168] In his testimony, the father stated that “parallel parenting is worth trying” and “joint custody is worth trying”. As stated in Kaplanis v. Kaplanis, at para. 2, the Court should not order joint or paralleling parenting with the hopes that it will work in the future.

For the reasons that follow, I would agree with the mother that the order of joint custody should be set aside on the grounds that the trial judge erred in principle in awarding joint custody (a) where there was no evidence of historical co-operation and appropriate communication between the parents, and (b) in the hope that it would improve the parenting skills of the parties. I would also agree that the trial judge exceeded her jurisdiction by making an order that the parties attend counseling and by imposing on them a requirement that, in the event they could not agree, the unnamed counselor was to decide the matter for them. Inasmuch as an order for joint custody is not appropriate, and the father did not seek sole custody of the child, I would order that the mother be awarded sole custody of the child. I would further order the trial of an issue with respect to the terms of the father’s access.

[169] In addition, Dr. Weinberger’s recommendation of joint custody is predicated on a Court order that the parties must attend with a Parenting Coordinator to help resolve disputes. As discussed below, this would not be in the children’s best interests.

[170] Therefore, the Court finds that it is not in the children’s best interests that the parents have joint custody of the children because:

• The communication between the parties has been below the level required to have a joint decision-making regime, even though recently there has been some marginal improvement; and

• The mother is hyper vigilant on issues which causes the father to be defensive and non-communicative resulting in an impasse and lack of engagement by the father on issues touching the children.

• I am concerned by the father’s efforts to undermine the mother’s caregiving of the children: e.g. the transfer of the medical file to the Kauirik Inuit team without her knowledge or consent, refusal to provide consent to dental treatment. In addition, he attacks her support networks including her child care provider and her lawyer.

[171] In addition, this is not a case for parallel parenting at this time as:

• There are some concerns of the actions taken by the father in the past including inappropriately feeding an infant, withholding necessary dental treatment and transferring a medical file from the children’s doctor’s office to another medical clinic without notifying the mother;

• The father’s involvement with the children has been frequent but for short periods of time and has not been actively involved in the caregiving of the children; and

• Parallel parenting envisions that the parties will discuss a major issue and then only if there is no agreement, one parent will have the final decision making power on a major issue. This would require the parties to be able to effectively communicate and this is not possible at this time.

[172] It is in the best interests of the children that the mother have sole custody of the children. The mother’s care of the children to date including addressing L.M.’s special needs, the children’s academic needs (changing schools when L.M. was bullied), dental health and physical and social life has been exemplary.

[173] The mother will continue making decisions for the children. It is in their best interests that the decisions pertaining to the children do not cause a conflict between the parents which in the past has required the mother to attend court, e.g. for dental care.

[174] There will be no delays if the mother is tasked with these decisions, it will minimize conflict with the father and decrease the stress and anxiety that has occurred to date in dealing with issues regarding the children, e.g. the change of school for L.M. when she was bullied.

[175] She will be permitted to continue to make those decisions subject to the clauses set out below.

[176] The Court orders that the mother is required to obtain the father’s input on major decisions, to seek his advice on major issues and via email they can discuss the matter. The father will have the right to be consulted on all major decisions regarding academic, dental medical or religion. The mother will be required to provide him reasonable notice and fully inform him on major decisions so that he can provide his input. The mother as the sole custodial parent will have final decision-making power.

[177] By providing that the mother must obtain the father’s input prior to making any major decision, the Court will be ensuring that the father’s role in child rearing is not marginalized.

[178] Although he is not entitled to make the final decision, he has options available in the court system if he believes that the mother’s decision on a major issue is not in the children’s best interests.

[179] As stated earlier, the mother, in the past, has sought out the father’s input, e.g. on dental issues and this process should continue.

[180] In addition, as provided below, the order providing the father with rights to direct access to the children’s records will allow him to be fully informed and participate if he so chooses.

[181] With this order, as set out below, the Court is permitting the mother to move to Montreal with the children. Although the mother will with the children in another city, she will be required to involve the father in these major decision and in addition, as set out below, the court will be increasing the father’s time with the children both quantitatively and qualitatively. The move to overnight visits sooner than requested by the father, will allow the father to further engage with the children in a more meaningful way.

[182] The Court notes that the father stated that if the children were to move to Montreal, “I am sure that the mother will pick a good school in Montreal”.

[183] Since the father has had past issues in accessing information from the children’s medical/dental people, the Court orders that the father will have direct access to all of the children’s records, whether academic, medical, dental, orthodontic, therapeutic or children’s activities.

[184] With respect to the children’s activities, the mother will only enroll them in activities falling on the father’s time with his consent. The father shall have a right to attend all their activities including practices, rehearsals, recitals, competitions, games or any other sporting/artistic event regardless of when they occur.

[185] The father will have the right to participate in all school events, including parent-teacher meetings and school outings.

[186] The mother will advise the father of the exposure of the children to their indigenous heritage and she will make accommodation if the father has an indigenous event in Ottawa so that the children can attend with him. He will provide reasonable notice of the event, and the mother will make best efforts to ensure that the children attend the event.

[187] With respect to the schooling, in the past the parties did not agree on the change of school as the mother was concerned that L.M. was being bullied at the school and the CAS had to intervene and convince the father to sign the form. However, she did consult him with respect to this last change of school and obtained his input.

[188] Prior to any change of school, the Court orders the mother to provide advance notice and details of the school options for the children and to provide the father a reasonable opportunity to provide his input.

[189] The children’s health cards will be kept current and copies of the cards will travel with the children during the father’s parenting time.

[190] Each party will notify the other parent of medical/dental appointments or attendance for emergency care and the other parent may attend that appointment or attendance. Each party will keep the other informed regarding any medical/dental treatment with respect to the children. If possible, the mother will be permitted to deal directly with the medical/dental health plan provider and the father will cooperate and ensure that all forms are completed to effect this.

[191] The parties will have to develop some mode of communication to attempt to rebuild some trust in their relationship. This is absolutely necessary to meet the children’s best interests.

[192] The mother spoke of requiring assistance to differentiate between genuine concerns regarding the child or a situation where there was no need to report. The mother seeks a response from the father as she states that she is reluctant to constantly involve outside authorities but in the face of not having an adequate response, she feels she has no choice.

[193] On the other hand, the father does not want to engage in a debate of the different version of events especially when he has not heard from the children directly of what the mother says has occurred.

[194] The father’s failure to respond to mother’s concerns and the parties’ mutual distrust highlights the low level of communication between the parties. Communication is an exchange of words aimed at conveying meaning, stories and feelings. The father is hesitant to enter into a dialogue with the mother as he does not trust her. She is very concerned when her daughters come back, especially L.M., recounting events that have occurred during the father’s visit.

[195] The Court will not order counselling without the parties’ consent. However, it is recommended that both parents obtain some assistance so that they can better communicate together and work collaboratively in the best interests of the children.

[196] The mother has consented that Ontario will maintain jurisdiction on this case on a short-term basis to allow the transition to the children’s new home and the father’s new access regime to take place. If there are any issues in this transition period, the matter can be returnable before me and I will remain seized of this matter for 12 months.

Decision of the College of Psychologists of Ontario “College” dated May 24, 2019

[197] Counsel wrote to me before the final written submissions were to be filed, requesting an audience before me as the College’s decision dealing with the complaint by the mother against Dr. Weinberger had been released on May 24, 2019.

[198] At the hearing, the parties agreed that the decision should be considered by the Court in its determination of custody and access.

[199] The Court finds that the decision should be considered by the Court as it meets the criteria for the introduction of new evidence at the trial. I am not functus as I have not rendered my decision, I am therefore in a position to consider it.

[200] The Court finds that:

• This decision can have an effect on the outcome of the trial;

• This decision could not have been obtained with due diligence;

• This decision is relevant and reliable with the panel consisting of two psychologists and one public member and the decision has not been appealed. It deals with a neutral assessment that is a key piece of evidence at the trial and this decision extensively discusses the assessment;

• There is potential prejudice to the children if the decision is not considered by this Court and when the Court considers their best interests it should also have the decision to guide it; and

• The Court should take a broad approach when dealing with the child’s best interests.

[201] The parties could not agree on what weight I should place on this decision.

[202] The College found the following:

• There were some concerns regarding “some of Dr. Weinberger’s opinions may have not been based on adequate, reliable, current and appropriate information, as required by the Standards of Professional Conduct” (Page 8).

• He did not interview several collateral sources as requested by the mother even though they appeared to have some relevant information: the au pair girl who had frequent contact with the children, the mother’s therapist and the father’s former partner. Dr. Weinberger acknowledged that, in hindsight, it may have been appropriate to interview other collaterals associated with the mother when issues of child and spousal abuse are alleged.

• He conducted two home observations with the mother and the children without a French language interpreter present which would have allowed him to understand the conversations between the mother and the children who speak French in the household.

• There were several factual errors that do not seem to impact on the final recommendations, but could undermine the confidence of the client and the soundness of the report’s conclusions.

• The Panel was concerned with the length of time it took to complete the assessment and whether Dr. Weinberger made all efforts to complete the assessment in a timely matter. The Panel was concerned as to whether the children’s developmental changes due to the passage of time of two years and two months were adequately considered in the report. Dr. Weinberger acknowledged that the extended delays fell short of professional standards and that better time management of files is necessary.

• The Panel was concerned with Dr. Weinberger’s lack of response on several occasions to the mother and others.

• The panel required Dr. Weinberger to attend at the College to receive a caution in person on this issue as well.

[203] The mother submits the following:

• She only obtained the assessment during the trial process and decided to lodge her complaint after she testified at the trial;

• She was surprised to the extent that the College criticized the methods employed by Dr. Weinberger and could not have anticipated their conclusions and hence did not raise it at trial;

• The father has consented to the decision being put before this Court, and has decided not to recall Dr. Weinberger nor call any evidence to counter the College’s decision;

• Dr. Weinberger admitted some errors before the College;

• The College’s decision places into doubt the processes employed by Dr. Weinberger during the assessment and hence there are issues regarding the reliability of his recommendations; and

• The College questioned the father’s denial of the document that was misogynist in nature and said it was a friend’s and he no longer wished to participate in a discussion with this friend and others who subscribed to those views.

[204] The father indicates that little weight should be provided to the decision as:

• The College Panel members are not experts;

• Dr. Weinberger was not cross-examined on this complaint and hence this complaint was not properly explored during the trial process;

• The Court has all the evidence to determine what is in the children’s best interests;

• Even though Dr. Weinberger did not contact the collaterals, the Court had the benefit of receiving the evidence of the collaterals including the au pair girl, the ex-girlfriend and the mother’s therapist. The mother could have summoned her other collaterals if she felt they had something to add to the trial; and

• The mother could have requested a second assessment, or critique or elected to examine Dr. Weinberger in a questioning process outside the trial process

• The trial had been completed and hence there is no further opportunity to explore any alleged deficiencies with the assessment.

[205] Neither party wished to re-open the trial process or call further evidence.

[206] In my view, the most significant concerns are Dr. Weinberger’s failure to contact collaterals and have a French interpreter available during his meeting with the children in the mother’s home. The Court is also very concerned with the delay in the release of the report but not all the delay was caused by Dr. Weinberger. For example, the mother refused to allow the father to be observed with the children by Dr. Weinberger and the father delayed in paying his retainer for the assessment which required a motion and a Court order.

[207] Dr. Weinberger’s failure to follow up on collateral sources may have provided Dr. Weinberger with more insight in the relationship between the parties and impacted on whether the parties could have a functional joint custody arrangement. These shortcomings certainly question the reliability of his conclusions when he has not followed professional standards.

[208] Therefore, based on these shortcomings and my findings above, I do not accept Dr. Weinberger’s recommendation that the parties be awarded joint custody.

Is it in the children’s best interests for them to move with their mother to Montreal?

Analysis

[209] For the reasons set out below, the Court will permit the mother to move to Montreal with the children, as of August 26, 2019.

[210] There is no legal presumption in favour of a de facto custodial parent who is in this case the mother. As stated in para. 48 of Gordon v.Goertz:

While a legal presumption in favour of the custodial parent must be rejected, the views of the custodial parent, who lives with the child and is charged with making decisions in its interest on a day-to-day basis, are entitled to great respect and the most serious consideration. The decision of the custodial parent to live and work where he or she chooses is likewise entitled to respect, barring an improper motive reflecting adversely on the custodial parent's parenting ability.

[211] At para. 50:

In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child's access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new?

[212] Firstly, although the mother has been granted sole custody and the children have been in her care since separation, the determination of the relocation issue is determined based on the children’s best interests. That is the paramount principle.

[213] In accordance with Gordon v. Goertz, the Court must weigh the move to Montreal with their mother where she will have other opportunities and a support network and financial security against encouraging more frequent contact and an increasing involvement with their father.

[214] Counsel have asked me to consider the amendments to the Divorce Act, which have just received Royal Assent. However, the amendments pertaining to the provisions dealing with parenting will not come into force until there is an Order in Council. Therefore, the Court will conduct its analysis under Gordon v. Goertz which is binding on this Court.

[215] The focus is on the best interests of the child and not the wishes of the parent. In determining best interests, the Court has considered the existing parenting arrangement and the children’s time with each parent. The Court will also promote the desirability of maximizing contact with both parents.

[216] As set out above, the children’s views cannot be reasonably ascertained although there is evidence that L.M. does show some anxiety in her life, and in the mother’s view it is attributed to her visits with her father.

[217] Regarding the mother’s reason for the move, under Gordon v. Goertz, the Supreme Court stated that the parents’ reason for moving is to be considered only in exceptional cases and only as it is relevant to the parent’s ability to meet the needs of the child (see Berry v. Berry, 2011 ONCA 705, 343 D.L.R. (4th) 501, at para. 16). The Court stated that in order for the reason to be relevant to the mobility application, it needs to be connected to the children’s best interests in the circumstances after the separation (see para. 18). In that case, the Court of Appeal allowed an appeal of a trial judge’s decision. It permitted a move by the mother who had joint custody with the father and who had the child half time and his parenting time would be reduced to access every second weekend. The Court found that the judge failed to consider the maximum contact principle and relied heavily on the mother’s reason for moving to Kingston. At para. 19, the Court stated: “While the mother’s wish to move to Kingston and live with her sister is understandable, the evidence did not establish that the move was necessary in order for her to meet the needs of the child. There was no evidence in this case that she would be anything but a good mother to the child no matter where she lived.”

[218] Here, the Court finds that the mother’s reason for moving falls within the exceptional circumstances presented by Gordon v. Goertz. I find that it is relevant to their best interests and will affect how the mother can meet the children’s needs. It is relevant to note that the mother believes the move would be advantageous to the children on financial, cultural, employment and sporting levels. She submits that the move will improve her ability to meet the needs of the children.

[219] There will, of course, be some disruption to the children by changes in school, community and family they have come to know. The father has been living in the same community as the mother for the past two years as he purposely found a place near her residence and the children’s school.

[220] The children have been attending the same school since “maternelle” (junior kindergarten) and they have neighborhood friends.

[221] In addition, they are enjoying regular time with their father three times per week and it is evident that he participates in activities and outings with them that can include his family members and friends and their children.

[222] While there will be disruption to the children, they will be moving to a city that they are familiar with and with their mother who has been their primary caregiver since separation.

[223] Maximization of contact by the child to both parties is also a major indicator of whether a party in a custody proceeding can also best meet the needs of the child. Although this matter is not under the Divorce Act, the Supreme Court has stated that this an important factor to consider in a mobility case.

[224] A parent who promotes the child’s contact with the other parent is presumably doing so because he or she also desires to promote the child’s relationship with the other. The willingness to do so is obviously a positive attribute for any person seeking custody as this shows that the parent is willing to set aside any of their own personal animosities against the other in the best interests of the child. It bodes well for the child’s relationship with both parents in the future as well as future cooperation between the parties. The corollary of this is, of course, that custody is contraindicated for a party who does not wish to promote the relationship between the child and the other parent. For obvious reasons, that is seen as harmful to the child and it eventually sets the stage for potential parental alienation. The “maximum contact” principle has been applied in custody matters on numerous occasions and is an essential part of any consideration of the best interests of a child subject to a custody dispute.

[225] A young child with attachments to both parents needs sufficient contact with both, without prolonged separations to maintain a meaningful and close relationship with them. Van Den Driessche v. Van Den Driessche, 2011 MBQB 134, 265 Man. R. (2d) 163; Wilson v. Wilson.

[226] As will be discussed below, at the time of the 2014 consent interim order, the children were very young and frequent but short visits with the father certainly allowed the father to have that constant contact with children of such a young age (six months and two years old in 2014).

[227] At this time, they are almost seven and five years old and with a connection with their father, their contact can be increased so that they have longer stretches of time with their father which will permit him to spend some qualitative and quantitative time with them.

[228] The Court can ensure that the maximum contact principle is adhered to by ensuring that the Court maximizes the children’s time with their father and injecting other opportunities during holidays when they can spend time with their father in Ottawa. As will be set out below, access will move to overnight visits so that the children can enjoy more time with their father and he can learn their bedtime routines and waking time routine. In this way, even though they are in Montreal he will have a whole weekend with them every second weekend. This is more time than he has now.

[229] Dr. Weinberger reported that the mother advised near the end of the assessment that she wished to move to Montreal. Dr. Weinberger would not recommend this as:

• it would disrupt rather than facilitate the relationship; and

• would mean a lot of traveling for the young children exposing them to time on the road and winter travel.

[230] I find that Dr. Weinberger did not fully explore the benefits of the move for the children. He did not canvas with the mother the details of her plan and how it would in her view be in the children’s best interests.

[231] He did not fully discuss the pros and cons of the mobility issue but rather was dismissive out of hand. He said it would be disruptive to facilitating the relationship with their father and spoke of the travel and roads, and winter travel. Dr. Weinberger did not complete a full analysis. One would expect that an assessor who is asked to deal with the important issue of mobility, would explore what this could look like for the children if they moved and how their relationship with their father would be affected. A recommendation regarding mobility should take the approach of determining what is in their best interests.

[232] The Court must, in determining the children’s best interests, balance the benefits of the children remaining in the custody of their mother who wishes to pursue a career in Montreal as she is the sole beneficiary of her mother’s multi-million-dollar business and estate against the current frequent but short visits the father has with the children. He wishes to increase his time with the children and the Court finds that this can be accomplished even if the children live in Montreal which is only two hours away.

[233] The Court has considered the best interests of the children to allow the mother to move into a new career path which will result in more flexibility in her work schedule and financial benefits. Ultimately, her future will involve being the head of the succession planning of a profitable business.

[234] Due to the traumatic effects of the armed robbery at a pharmacy that she was working at which caused her to take a leave of absence, she will not be returning to the world of pharmaceuticals. This is not an unreasonable position nor has it been challenged by the father.

[235] Her translation work that she has done for approximately the last ten years has provided her only a modest income and less flexibility in her work hours.

[236] After the robbery at the pharmacy, she did work at hospitals (including three weeks in Maniwaki) but they required a Master’s degree. The father played a lead role in caring for the child at this time. After separation, she did not pursue a Master’s as she had full time care of the children.

[237] While living in Montreal, the children will have opportunities to excel in dance and figure skating programs that the mother describes as being of high caliber.

[238] The only issue is the best interests of the children, but as stated in Bjornson v. Creighton (2002), 2002 CanLII 45125 (ON CA), 62 O.R. (3d) 236 (C.A.), at para. 29 referring to Woodhouse v. Woodhouse (1996), 29 O.R. (3d) (C.A.), “Likewise, careful attention should be paid to the potential positive effects on the child should the parent be permitted to relocate.”

[239] The Court of Appeal in Bjornson also held at para. 30 that the court should also “give due regard to the relationship between the quality of the custodial parent’s emotional, psychological, social and economic well-being and the quality of the child’s primary care-giving environment”.

[240] The lifestyle improvements, which include support from her mother, better financial opportunities and a new career path involving a family business, a wide selection of cultural and extracurricular activities can only augment the best interests of the children. Put another way, improving the main caregiver’s emotional, psychological, social and economic well-being advances the children’s lives and best interests.

[241] The children are already familiar with Montreal. Their grandmother has already purchased them a condo where they stay when they frequently visit Montreal. Due to their frequent weekend and summer trips to Montreal with their mother, it is not a strange city to them.

[242] I have considered the maximum contact principle. The father’s current access is minimal at eight hours per week. However, its frequency of three times per week allows him to see the children frequently and be current to events in their lives. This type of frequent contact will not be sustainable when the children move to Montreal. Therefore, as set out below, the father’s time with the children must be maximized despite the fact that they will be living in a city two hours’ travel time away from Ottawa. This can be attained given the short distance.

[243] At para. 24, the Supreme Court stated:

The "maximum contact" principle, as it has been called, is mandatory, but not absolute. The Act only obliges the judge to respect it to the extent that such contact is consistent with the child's best interests; if other factors show that it would not be in the child's best interests, the court can and should restrict contact: Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at pp. 117-18, per McLachlin J.

[244] The move is financially beneficial to the children, there will be a disruption to the children’s community but it is in their best interests that they be permitted to move with their mother and the terms of my Order will provide the father with meaningful input, direct access to information regarding the children and meaningful time with the children.

What amount of time should the children spend with their father?

[245] Here, the 2014 interim order has been in place for five years. The children were six months old and two years old. Seeing the children three times per week for short periods of time was in the children’s best interests as they were young. However, the father should be entitled to longer periods of time with the children.

[246] Since the children will be living with their mother in Montreal, the mid-week access which has been a feature of the children’s lives to date, will not be able to be continued unless the father is in a position to arrange his work and personal schedule to travel to Montreal.

[247] Not only is this onerous to the father, but he would spend more time travelling than spending time with the children.

[248] Hence, the Court finds that it is in the children’s best interests that his time with the children during his every second weekend be maximized as much as possible and to that end, the Court will move to a full weekend including overnights.

[249] Dr. Weinberger found the paternal grandfather to be a “passionate individual” who can be blunt and puts great value in family. He recommended that the grandfather not be left alone with the children without a supervisor but did not elaborate. The mother testified regarding her strained relationship with him. He has been diagnosed with Parkinson’s disease. The father admits that he does not leave the children with the paternal grandfather alone for more than 15 minutes.

[250] In order to ensure that the children have meaningful contact with their father, it is important that there be maximum contact with their father during this summer vacation and also that they have quality time with both sides of the family. To ensure that there is consistency and regularity of contact with their father, the Court finds that the summer 2019 schedule will be as follows:

• Commencing August 3, 2019, he will have access every Saturday from 9:00 A.M. to 7:00 P.M. and every Sunday from 9:00 A.M. to 7:00 P.M.;

• He will have access on Monday August 5, 2019 (civic holiday) from 9:00 A.M. to 7:00 P.M.

• In addition, he will have access on Wednesdays from 5:00 P.M. to 8:00 P.M.

[251] After the mother moves to Montreal as of August 26, 2019, the father’s access will change as set out below. Unless noted to the contrary below, the father’s access will take place in Ottawa with the mother bringing the children to Ottawa:

• Commencing, August 30, 2019, every second weekend commencing Saturday at 9:00 A.M.to 7:00 P.M. and Sunday 9:00 A.M. to 5:00 P.M. to be exercised in Ottawa whereby the mother will come to Ottawa with the children;

• He may have one weekday visit from 5:00 P.M. to 8:00 P.M. in Montreal provided that he provides 2 weeks’ written notice to the mother;

• The father will have access on Christmas Day from Noon to 7:00 P.M. in 2019;

• Commencing February 8, 2020, the father’s weekend access will increase to every second weekend from Saturday at 9:00 A.M. to Sunday at 5:00 P.M.; (if Monday is a civic holiday, Professional Development Day or a statutory holiday in Quebec) then the father will have the children until Monday at 5:00 P.M.;

• During the summer of 2020, the father’s time with the children will allow at least one week with the children and he will provide notice to the mother by May 1 which week he wishes;

• The mother will also have the right to have one week with the children uninterrupted by the father’s access and she will provide notice to the father by May 15 of each year of which week she prefers;

• Commencing at Christmas 2020, the parties will equally share the two-week Christmas break. In even-numbered years, the mother will have the first week of the break beginning on the Saturday after the last day of school for one full week and the father will have the second week;

• In odd numbered years, the sharing of the Christmas break will be reversed with the father having the first week and the mother will have the second week;

• The father may have Skype, Facetime or phone calls with the children two evenings per week, i.e. Tuesdays and Thursdays at 7:30 P.M. or before bedtime (if they are attending an activity);

• The parties can arrange other access times as agreed between them; this includes special occasions such as anniversaries, family reunions, special birthdays, etc.

[252] The evidence indicates that there has been animosity and conflict at times at access exchanges. In addition, there have been occasions where the father does not engage or sometimes not acknowledge the mother thereby making it very hard on the children. Therefore, to the extent possible dependent on the hours available, exchanges for access will take place at the access exchange centre available in the community.

[253] However, if this is not possible due to hours of business or lack of availability, then the meeting place will continue to take place at Tim Horton’s on Watters Street in Orleans.

Does the Court have jurisdiction to order a parenting coordinator?

[254] The Court has not been provided with authorities regarding its jurisdiction to order a parenting coordinator. In Bozin v. Bozin, 2010 ONSC 1010, 85 R.F.L. (6th) 360, the parties agreed to the involvement of a parenting coordinator. As stated by McGee J. at para. 5 “There are many advantages in moving parenting issues from the courts to a parenting coordinator. It is a decision increasingly being made by separated parents, and it is their decision alone. It is outside the jurisdiction of the court to delegate the court’s authority to a parenting coordinator, or to dispense with the consent of a parent to an Agreement for Mediation/Arbitration, or an Agreement for Parenting Coordination Services and Arbitration in accordance with the Arbitration Act, S.O. 1991, c.17 and the Family Statute Law Amendment Act, 2006, S.O. 2001, c.1.”

[255] In addition, in Steels v. Butrimas, 2012 ONSC 5119, Czutrin J. stated at para. 13 that “The parenting coordinator role is a secondary arbitration governed by the Arbitration Act. Secondary arbitration is defined as “a family arbitration that is conducted in accordance with a separation agreement, a Court order or a family arbitration award that provides for the arbitration of possible future disputes relating to the ongoing management or implementation of the agreement, order or award” (Family Law Act, s. 59.7(2))”.

[256] The Court further stated that “the power of the parenting coordinator is rooted in the parties’ consent.” (at para. 13).

[257] Whether this person is perceived as a mediator which a Court can order the parties attend or an arbitrator who is a third-party decision maker, the Court does not have jurisdiction to order a parenting coordinator unless both parties’ consent.

[258] The mother does not agree to the involvement of a parenting coordinator.

[259] She should not be rewarded for this position yet on the other hand, the Court is tasked with determining how the major decisions will be completed in the future when the past indicates numerous problems, impasses and the requirement of third-party intervention whether it be the CAS or Court.

[260] Given my conclusion on decision-making, the mother will ultimately make the final decision as it pertains to the children. The father will have the opportunity to provide input to these decisions and will have other recourses if he does not believe a decision made is in the children’s best interests.

[261] Even if the Court does have jurisdiction to order a parenting coordinator, the Court finds that it is not in the children’s best interests to order a Parenting coordinator because:

• The court should not implement a process where the court delegates the authority to a third party to make decisions regarding parenting with the hope that the parents’ cooperation will improve; (see Kaplanis)

• There are allegations of abuse and mistrust of each other;

• There has been a past pattern of non-communication; and

• The father’s reluctance to even acknowledge the mother at access exchanges and when he does she alleges he is verbally attacking.

[262] I question the utility of a parenting coordinator. In my view, it would just provide another forum for the parties to enter into conflict. This would not be in the children’s best interests.

Should written consents for travel outside Canada be required from the other parent?

[263] The mother travels to Florida in the winters as her mother spends part of the winters there. The children have frequently attended there to be with their maternal grandmother and this travel has been part of their childhood.

[264] On one occasion, the mother had to obtain a Court order permitting the travel as the father would not consent.

[265] The Court notes that the United States is a signatory of the Hague Convention and hence the Canadian courts would be in a position to facilitate the return of the children should they not be returned. The father would have recourse to that international law if the mother fails to return the children.

[266] It is in the children’s best interests to be afforded the opportunity to continue enjoying time with their mother and grandmother in another country that will provide them with other experiences and activities.

[267] Travel can be educational and subject to the assurance that the father’s time with the children is not affected or there is make-up time provided to the father, the children should be given the opportunity to travel with their mother.

[268] Therefore, the mother will be permitted to travel with the children to the U.S. without the father’s written consent on the following conditions:

1. The mother will provide 45 days’ written notice to the father;

2. She will provide a full itinerary, travel arrangements and contact number;

3. This travel will not interfere with the father’s time with the children unless he provides his written consent; and

4. The father will be entitled to make up time if he misses his time with the children due to this travel.

Should Retroactive Child Support be Payable?

[269] The mother claims that she did not receive child support for the month of November 2013. The parties separated on November 4, 2013. Since he earned $125,236.97 in 2013, he should have paid $1,078.00 that month.

[270] The father states that he paid over $6,000.00 through his previous counsel (now deceased) after separation and should not be required to pay twice.

[271] The Court dismisses this claim as there is no evidence to confirm what payments were made at the time, such as bank deposits, cheques, correspondence between counsel or the parties regarding this payment.

What ongoing and retroactive section 7 special and extraordinary expenses are payable?

[272] The mother states that since separation she has spent $58,974.29 in s. 7 expenses. In her submissions she outlines that since separation she has spent:

• Figure skating: $24,194.28

• Gymnastics, music, swimming, dance, theatre: $13,162.49

• Daycare: $19,880.25, since 2015

• Medical expenses of $1,737.27

[273] She states her income varied from $12,000 to $51,000 in this period of time.

[274] She relies on Walker v. Walker, 2011 BCSC 582, where the Court confirms the benefits of recreational activities for children and how they derive health and wellbeing from participating in organized sport.

[275] In accordance with D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231, the Court can order retroactive support.

[276] The mother asked him for reimbursement in October 2018 when receipts were provided through counsel and the father has refused to pay.

[277] In December 2016, she asked him to assist in the reimbursement of speech therapist expenses for L.M. He had received the health plan reimbursement, but she only received the reimbursement when it was requested through counsel.

[278] She claims that the father owes as of January 2014 when she gave him notice as relief claimed in her application.

[279] The father states that the mother never consulted with him regarding these expenses, the receipts were provided at trial and there is no evidence of after-tax statements.

[280] He is prepared to share the retroactive health and dental expenses that he consented to. He did not consent to the private speech therapist that attended the mother’s home on eight occasions to assist L.M. The mother did not wish to wait for the father’s consent.

Legal Principles

[281] Pursuant to the Family Law Act, R.S.O. 1990, c. F.3, s.37 (2.1) (a), the Court has jurisdiction to order retroactive child support payments.

[282] In D.B.S., the Supreme Court of Canada set out the principles in the exercise of that discretion. The Court articulated two overarching principles governing claims for retroactive child support and retroactive increases in support: 1) Each parent has an obligation to ensure that his/her child receives proper support in a timely manner; and 2) courts considering these claims must balance the payor’s interest in the certainty of the status quo with the need for fairness and flexibility.

[283] The Court set out four factors to be considered in such claims:

1. reason for the delay in bringing the claim;

2. conduct of the payor parent;

3. circumstances of the child; and

4. hardship that may be caused by a retroactive award.

Analysis

[284] The Court declines to make an order for retroactive s. 7 expenses for the following reasons:

1. Notice

Certainly, the mother claimed special and extraordinary expenses in her

application but did not itemize or detail them at that time. The particulars

were provided during the trial. Not only was there no consultation provided to the father, the mother did not advise the father that she was registering them in activities or asking for his input. The mother gave no indication to the father that she would be looking for a reimbursement for activities.

He was aware that the children had dental expenses (not covered by his plans), that they were in swimming and skating. But he was not asked to contribute anything until the trial. The father is prepared to pay his share of the dental/medical expenses not covered by his health/dental extended plan.

2. Conduct of the payor

It can be argued that he should have offered to assist in these expenses. He did show some openness to assist on ongoing expenses but it was his understanding that the maternal grandmother assisted in these expenses.

3. Circumstances of the children

The circumstances of the children do not seem to have been affected. L.M. continues to compete; the mother does not show serious financial difficulties nor accumulation of debt as a result of the father’s lack of contribution to these expenses.

The mother shows a credit card debt of $3,826.00 at the date of statement (September 11, 2017) but she did not give evidence regarding the reason for this balance. There is no balance at the date of separation as this is not required from her as the parties were not married and values at the date of separation are not relevant to property. However, there is no measuring stick as to whether her debts have increased since separation as a result of taking over all of the children’s s.7 expenses.

Conversely, her investments show a value of $79,154.00 at the date of statement.

It appears that she registered the children in these activities knowing that the children would enjoy them and they would benefit from the physical activity.

In addition, the mother admits that the maternal grandmother also pays for some of the skating lessons which were extensive, including at times L.M. would attend four times per week and C.M.-S. would attend two times per week. If the mother expected the father to contribute to these expenses, she should have included him in the discussions leading up to the registration of the children in these activities.

4. Hardship

I find a retroactive award would pose financial hardship to the father. The issue of retroactive support does take into consideration the fact that normally individuals plan their finances based on known facts. Consequently, if a person is aware that there are other financial commitments, then they would likely have taken other alternative plans in planning their financial future.

[285] Accordingly, the Court finds that the father should be responsible only for his proportionate share of medical expenses of $1737.27 (net of tax deductions and credits).

What is ongoing child support?

[286] Commencing June 1, 2019, the father will pay child support for two children in the amount of $1,947.00 based on his 2018 annual income of $139,770.00 per year.

[287] It should be noted that the father did not disclose his 2018 annual income to the mother until his final submissions in the trial. He would have known what his 2018 income was at least in February 2019 when he should have received his T4 slip from his employer or during the year 2018 when he received his retroactive pay that resulted in an increase in his income for that year.

[288] Commencing June 1, 2019, the parties will exchange their most recent income tax return along with all schedules and attachments, and notices of assessment. Child support will be adjusted in accordance with the Guidelines effective July 1^st of each year.

[289] The father should contribute his proportionate share of s. 7 special and extraordinary expenses provided that the mother consults with him and that the father consents, for which consent must not be unreasonably withheld. The activities that are considered must be guided by the factors set out in s. 7 of the Guidelines, i.e. necessity of the expense in relation to the best interests of the children and the reasonableness of the expense in relation to the means of the parties and those of the child.

[290] Pursuant to s. 7 (2) of the Guidelines, the Court finds that it is appropriate and reasonable that those expenses will be shared in proportion to the parties’ respective incomes.

[291] The first adjustment will occur July 1, 2019 after the parties have exchanged their most recent 2018 tax return and notice of assessment.

Should the father maintain an extended health/dental plan designating the children as beneficiaries?

[292] The father agrees to designate the children as beneficiaries of his health and dental insurance plans and that the mother can make independent claims on behalf of the children so long as they are eligible.

[293] The father will provide proof of this designation within 30 days from the date of this decision and will provide proof on an annual basis, commencing July 1, 2020.

[294] If the mother obtains employment with an extended health plan, then she will name the children as beneficiaries as well. She will advise the father immediately if this occurs. So long as the father has an available extended health/dental plan with his employer he will designate the children as beneficiaries for so long as they are eligible.

[295] Any expense (net of taxes, subsidies, etc.) not covered by the plan or plans will be shared by the parties in proportion to their respective incomes.

Should the father maintain a life insurance policy in the minimum face amount of $200,000.00 designating the mother as irrevocable beneficiary in trust for the children?

[296] The father is prepared to designate the mother as irrevocable beneficiary of his life insurance policy with the face amount of $200,000.00 to be held in trust for the children. He will provide proof of same to the mother within 30 days from the date of this Court order.

What retroactive spousal support is payable?

[297] The mother is requesting spousal support as follows:

2013: $3,306.00

2014: $18,120.00

2015: $18,852.00

2016: $22,056.00

2017: $22,140.00

2018: $21,948.00

2019: $5,487.00

Totalling: $111,909.00.

[298] The father’s position is that she is not entitled to retroactive spousal support but he is prepared to assist in spousal support through reimbursement of career counselling fees to assist her in advancing her career.

Legal Principles

[299] Before the Court determines if there should be retroactive spousal support, it must determine if the mother is entitled to spousal support.

[300] Section 30 of the Family Law Act states:

Every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so. R.S.O. 1990, c. F.3, s. 30; 1999, c. 6, s. 25 (3); 2005, c. 5, s. 27 (7).

[301] Section 33 states:

A court may, on application, order a person to provide support for his or her dependants and determine the amount of support. R.S.O. 1990, c. F.3, s. 33 (1).

[302] Subsection (8) sets out the purposes of an order for spousal support:

(8) An order for the support of a spouse should,

(a) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;

(b) share the economic burden of child support equitably;

(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and

(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home). R.S.O. 1990, c. F.3, s. 33 (8); 1999, c. 6, s. 25 (5); 2005, c. 5, s. 27 (9).

[303] In determining the amount of spousal support, the Family Law Act states in subsection (9):

(9) In determining the amount and duration, if any, of support for a spouse or parent in relation to need, the court shall consider all the circumstances of the parties, including,

(a) the dependant’s and respondent’s current assets and means;

(b) the assets and means that the dependant and respondent are likely to have in the future;

(c) the dependant’s capacity to contribute to his or her own support;

(d) the respondent’s capacity to provide support;

(e) the dependant’s and respondent’s age and physical and mental health;

(f) the dependant’s needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;

(g) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;

(h) any legal obligation of the respondent or dependant to provide support for another person;

(i) the desirability of the dependant or respondent remaining at home to care for a child;

(j) a contribution by the dependant to the realization of the respondent’s career potential;

(k) Repealed: 1997, c. 20, s. 3 (3).

(l) if the dependant is a spouse,

(i) the length of time the dependant and respondent cohabited,

(ii) the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation,

(iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,

(iv) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,

(v) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family’s support,

(v.1) Repealed: 2005, c. 5, s. 27 (12).

(vi) the effect on the spouse’s earnings and career development of the responsibility of caring for a child; and

(m) any other legal right of the dependant to support, other than out of public money. R.S.O. 1990, c. F.3, s. 33 (9); 1997, c. 20, s. 3 (2, 3); 1999, c. 6, s. 25 (6-9); 2005, c. 5, s. 27 (10-13).

[304] The Court must consider the economic circumstances of each spouse’s role during the marriage in determining support.

[305] The decisions of Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813, and Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420 set out the following examples of compensatory support:

a) a spouse's education, career development or earning potential have been impeded as a result of the marriage because, for example:

• a spouse has withdrawn from the workforce, delays entry into the workforce, or otherwise defers pursuing a career or economic independence to provide care for children and/or spouse;

• a spouse's education or career development has been negatively affected by frequent moves to permit the other spouse to pursue these opportunities;

• a spouse has an actual loss of seniority, promotion, training or pension benefits resulting from absence from the workforce for family reasons; and

b) a spouse has contributed financially either directly or indirectly to assist the other spouse in his or her education or career development.

[306] The SSAG’s set out the following examples of economic disadvantage:

1. home with children full-time or part-time;

2. secondary earner;

3. primary caregiver of the children after separation;

4. moving for payor’s career;

5. support for payor’s education or training; and

6. working in family business.

[307] The same test for imputing income in child support cases (Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (C.A.)) applies in spousal support cases. Rilli v. Rilli, [2006] O.J. No. 2142 (S.C.); Perino v. Perino (2007), 2007 CanLII 46919 (ON SC), 46 R.F.L. (6th) 448) (Ont. S.C.).

[308] Imputing income to support recipients is fair. See: Elmgreen v. Elmgreen, 2016 ONCA 849.

[309] “Means” refers to available money and includes "all pecuniary resources, capital assets, income from employment or earning capacity, and any other source from which gains or benefits are received, together with, in certain circumstances, money that a person does not have in his/her possession but that is available to such person": Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920, at para. 29, quoting J.D. Payne & M.A. Payne, Canadian Family Law (Toronto: Irwin Law, 2001), at p. 195, and Berger v. Berger, 2016 ONCA 884, 85 R.F.L. (7th) 259.

[310] Regarding retroactive claim for spousal support, In Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, the Supreme Court sets out following principles for retroactive spousal support:

1. DBS factors apply as modified for spousal support;

2. Presumptively, the date of the claim being issued is the start date for support, unless there is a reason to order otherwise.

3. The failure to bring a temporary motion should not be penalized as we should be encouraging people to avoid the cost of bringing temporary motions.

4. Spousal support has a different legal foundation than child support. Unlike child support, there is no presumptive entitlement to spousal support and, unlike child support, the spouse is, in general, not under any legal obligation to look out for the separated spouse’s legal interests. Thus, concerns about notice, delay and misconduct generally carry more weight in relation to claims for spousal support.

5. D.B.S. emphasized the need for flexibility and a holistic view of each matter on its own merits; the same flexibility is appropriate when dealing with “retroactive” spousal support.

Analysis

[311] This was a very short relationship of two years, but, after the separation, the mother had the primary care of two young children arising out of the relationship. The father’s time with the children was limited and hence, the lion’s share of caregiving fell on the mother.

[312] As previously stated, the mother was not able to return to pharmaceuticals after having suffered severe post traumatic symptoms and therapy sessions as a result of the robbery at the pharmacy she was working at. She was also entitled to a victim allowance from the Quebec government. No medical evidence was led on this issue with respect to her inability to return to a lucrative position but certainly there is other evidence that she suffered post-traumatic stress disorder that resulted in her receiving disability payments and not being in a position to return to her previous career.

[313] When the parties operated the lab equipment business which will be discussed in further detail below, the father was away from the home eight days per month.

[314] At the time of the separation, L.M. was two years old and the second child C.M.-S. was born one month later. She was responsible for the children and cared for them on a full-time basis subject to the father’s eight-hour access per week.

[315] The Court finds that the child rearing responsibilities her role during the relationship and post-separation impacted on her career and her job choices.

[316] The mother is entitled to spousal support on a compensatory basis due to the economic impact her household responsibility and taking care of the children before and after separation has had on her career opportunities.

[317] In addition, since separation, the father has earned substantially more than the mother, and her income below indicates that her support is also needs based.

[318] They had attempted to commence a business together and she assisted in the purchase of items for sale via E-Bay and other sites. She was at another economic disadvantage at the separation by virtue of the fact that the father had control of the inventory. The mother submits the following retroactive spousal support owing:

Year Father’s Income Mother’s Income Monthly amount – mid range -SSAG

2013 $125,236,97 $51,173.41 $1,653 x 2 = $3,306.00

2014 $114,884.16 $34,539.00 $1,510 x 12= $18,120.00

2015 $114,884.16 $32,620.00 $1,571 x 12= $18,852.00

2016 $114,884.16 $13,732.00 $1,838.x12 = $22,056.00

2017 $114,884.16 $20,374.00 $1,845 x12 = $22,140.00

2018 $114,884.16* $12,000.00 $1,829 x12 = $21,948.00

2019 $114,884.16** $12,000.00 $1,829 x12 = $21,948.00

• it is clear that father reports a higher income for 2018 due to the receipt of back pay

** the mother assumes that this will be his salary this year.

[319] In determining whether the Court will award retroactive spousal support the Court has considered the following:

1. Notice

The mother provided legal notice of her claim for spousal support when she commenced her action in 2014. The failure to bring an interim motion for spousal support does not abrogate her right to claim support.

2. Conduct of the payor

The payor did not offer to financially assist the mother in any of her living expenses but it should be noted that neither did she bring a motion or a request for interim spousal support. The parties were focussed on the custody/access litigation.

3. Circumstances of the mother

The Court questions how the mother is able to afford the expenses for the children on the income that she earned in some of the years of only $20,000. The Court notes that there was evidence that she is a 50% shareholder of N S. LLC but she did not provide the corporate income statements to show income earned by the corporation and monies (either in salary, dividends or covering of expenses) paid to the mother as a shareholder.

There was evidence from the maternal grandmother and the mother that the mother’s name was placed on the corporate documents as an estate planning procedure to avoid the substantial estate taxes upon the grandmother’s demise. They indicated that the mother does not have extensive involvement in this company but did help in some renovations on one occasion. The company owns two condominiums that were purchased years ago. The evidence is that the mother is not involved in the revenue and expenses of the business.

The mother stated that she did not have access to the corporate tax documents. The lack of disclosure is concerning as financial disclosure is the hallmark of family law litigation which is set out in the Family Law Rules, O. Reg 114/99, and in Roberts v. Roberts, 2015 ONCA 450, 65 R.F.L. (7th) 6.

The Court does not consider the maternal grandmother having approximately $19 million in property holdings as relieving the father from a financial obligation to the mother. But certainly, there is evidence that the maternal grandmother has assisted in the children’s activities, bought a condo in Montreal for them and frequents Ottawa regularly to visit them.

As stated above, the balance owing on the mother’s credit card debt is $3,826 at the date of statement (September 11, 2017) but she did not give evidence as to the reason for this balance. There is no balance at the date of separation as this is not required from her as the parties were not married and values at the date of separation are not relevant to property. However, there is no measuring stick as to whether her debts have increased since separation as a result of taking over all of the children’s s.7 expenses.

4. Hardship

I find a retroactive award of $100,000 would impose a financial hardship to the father. The issue of retroactive support does take into consideration the fact that normally individuals plan their finances based on known facts. Consequently, if a person is aware that there are other financial commitments, then they would likely have taken other alternative arrangements in planning their financial future. A payment of over $100,000 (which would have been tax deductible on his part) would result in the father having to sell his Orleans home where the children visit with him.

On the other hand, the father’s income during the period up to trial indicates an ability to pay spousal support at a level to alleviate the mother’s needs. Therefore, some amount of lump sum spousal support payable to the mother is warranted.

[320] The Court is directed after the discussion of the above principles, to need for flexibility and a holistic view of each matter on its own merits; the same flexibility is appropriate when dealing with “retroactive” spousal support.

[321] I have not been provided the net cost and net benefit of spousal support for the years 2014, 2015, 2016, and 2017 which are the years that there would not be tax treatment.

[322] In addition, I have not been provided with guidance as to whether a lump sum retroctive spousal support payment would be tax deductible on the part of the father although there is some tax law that suggests that it is. See: Charron v. Carriere, 2016 ONSC 7523, 86 R.F.L. (7th) 108.

[323] I reject the father’s claim that the mother’s income should be imputed to the mother because:

• He has not tendered evidence with respect to the income he claims should be imputed to her;

• The mother suffered traumatic effects after the robbery while she was a pharmacist; and

• She has been able to earn some income while working as a translator.

[324] Therefore based on the above, the mother is entitled to retroactive spousal support by way of lump sum of $10,000.00. This is a tax-free sum which represents a payment to her that will reduce her small debt accumulated and meet any economic needs that were not met after separation.

Is the father entitled to the return of his personal belongings in the matrimonial home?

[325] The father indicates that Kershman J.’s endorsement dated April 27, 2015, indicated that he was entitled to retrieve his belongings from the mother’s home. He arranged the moving company as per the Endorsement but she refused to cooperate.

[326] He states that the failure to retrieve his personal property and effects contributed to the failure of the business as he required his Canadian citizenship certificate to renew his passport which was required for the laboratory equipment business.

[327] The court declines to deal with this issue. The father had an order that permitted him to pick up his items, he delayed the pickup and has not made any further efforts until the trial to address this issue. In addition, the Court does not have evidence of the exact items that are claimed, what currently exists and no details of what values are placed on the items for which he is asking for compensation if they no longer exist.

Is the mother entitled to $60,000.00 from the father for her financial contribution to the parties’ laboratory equipment operated by the parties?

[328] The father joined the mother in a business that she owned prior to their relationship. The business involved the process where the parties would buy equipment financed by the mother. Given that the mother was no longer eligible for working visas in the United States and that the father was also an American citizen, he could travel to the United States to repair the equipment and assist in selling the equipment on the internet.

[329] They would buy used laboratory equipment, it would be photographed, cleaned and repaired and then sold on E-Bay. It would be sent out by UPS or FedEx and annual sales were $40,000.00. Any profit was used to purchase more equipment. She states that in one year she noted on his iPad that they sold over $107,000.00 US. (See exhibit C, Tab 18, page 4).

[330] The mother’s claim for $60,000.00 is for:

• reimbursement from the inventory from the business;

• payment for his car and boat; and

• expenses paid for the business from her bank account and credit cards as shown in the exhibits filed.

[331] In her financial statement she indicates that the father owes her the expenses of $25,000 US in inventory for the business plus two loans of $700.00 which were advanced to the father in 2012 when his bank account was frozen by the HST office.

[332] The father’s position is that he had expenses that he paid including rent and labour and that at best he would owe her $2,000.00 to $4,000.00.

Analysis

[333] The mother had bought lab equipment in the past and agreed that she would allow the father to buy into the business with a payment of $25,000 and payment would be made on a monthly basis. No agreement was signed.

[334] She previously had one or two employees and had bought the lab equipment.

[335] The document dated October 3, 2012, found at exhibit C, Tab 18, page 4, shows that 107,293.50 US was earned from 212 transactions.

[336] See also Volume 4, Tabs 7 A and B, for her credit card statements, Tab 9 for expenses – for equipment and travel, and storage fees of $113.00. She is not claiming the Florida trip in April 2012.

[337] He had no resources, only a $500.00 limit on his credit card. She even bought plane tickets for him and his brother to travel when his brother won the lottery.

[338] Briefly, the business was located in the US with two employees and most of the work was through correspondence and then she was corresponding with them and eventually she was permitted to attend there with an American visa. As the father was American born, he would not have issues going there. He was also adept in mechanical issues, and manual labour. When she became pregnant with L.M., she thought it made sense to transfer the business to him. They had an informal agreement that they would split the business and share profits which was never reduced to writing.

[339] She bought and financed the equipment, and she worked in the business. They had agreed that she had entered their business relationship with $25,000.00 of inventory.

[340] She financed expenses through her credit card and bank account and if he paid for something on her credit card, he was supposed to reimburse her.

[341] At the time of the separation, he kept the inventory and after selling it, she said he kept the proceeds and never reimbursed her for the payment of the equipment.

[342] The Court finds that there is not a proper evidentiary basis before it to determine what quantum is owed by the father to the mother with respect to this business because:

• The parties did not file a formal agreement regarding the transfer of the business to the father;

• No financial statements were filed; and,

• There was no bookkeeper for the business who would provide a comprehensive accounting regarding purchases, of equipment, costs of repairs, labour, rental costs and other associated expenses for the business. The parties filed credit card statements, bank account statements, invoices, etc. but a proper accounting with credits / debits over the period of time in question was not presented to the Court which would enable it to make the appropriate findings regarding income and expenses.

[343] The mother is not entitled to a repayment for inventory without some accounting for expenses incurred for the business by the father.

[344] The parties filed documentation without a proper analysis that could assist the Court.

[345] The father admits that he did not pay the mother the last instalment that he owed her because she had withheld his personal belongings.

[346] There is some dispute as to whether the payment of $500.00 per month made by the father to the mother’s bank account was a repayment of the loan to purchase the business or as the father states, for him to assist in the household expenses.

[347] The father admits that he had some inventory at the time of the separation. However, after separation he had ongoing expenses such as the lease payments and paying his father for work performed. As well, the landlord repossessed some inventory for nonpayment of rent.

[348] For the Court to rule on this issue, a proper accounting would be required and although the Court has considered referring this matter to a reference pursuant to Rule 54.02 of the Rules of Civil Procedure, it will not do so when the consent of the parties has not been canvassed. I am also mindful of the principle set out in Ford Motor Co. of Canada, Ltd. v. Ontario Municipal Employees Retirement Board (2006), 2006 CanLII 15 (ON CA), 79 O.R. (3d) 81 (C.A.), leave to appeal to S.C.C. refused, which states that the power to direct a reference and bifurcate the trial in the absence of consent of the parties is a narrowly circumscribed power that is to be exercised only in the clearest of cases. The Court held that it should not allow a party the opportunity after the trial to prove a fundamental element of their case.

[349] Therefore, since the mother has failed to provide a proper evidentiary basis to prove her claim, the mother’s claim is dismissed.

Final Conclusion

[350] The mother will have sole custody of the children. She will be permitted to move to Montreal with the children as of August 26, 2019.

[351] The father will have the right to be consulted on all major decisions regarding academic, dental, medical or religion. The mother will be required to provide him reasonable notice for him to be advised of a major decision so that he can provide his input.

[352] The mother will have final decision-making power.

[353] The father will have a right to direct access to all of the children’s records, including academic, health, dental, counselling, children’s activities or any other record held by a third party regarding the children.

[354] The children’s health cards will be kept current and copies of the cards will travel with the children during their parenting time.

[355] Each party will notify the other parent of medical/dental appointments or attendance for emergency care and the other parent may attend that appointment or attendance.

[356] Unless noted to the contrary below, the father’s access will take place in Ottawa with the mother bringing the children to Ottawa:

• Commencing August 3, 2019, he will have access every Saturday from 9:00 A.M.. to 7:00 P.M. and every Sunday from 9:00 A.M.to 7:00 P.M.;

• He will have access on Monday August 5, 2019 (civic holiday) from 9:00 A.M. to 7:00 P.M.

• In addition, he will have access on Wednesdays from 5:00 P.M. to 8:00 P.M.

• After the mother moves to Montreal as of August 26, 2019, the father’s access will change as follows:

• Commencing, August 30, 2019, every second weekend commencing Saturday at 9:00 A.M. to 7:00 P.M. and Sunday 9:00 A.M. to 5:00 P.M. to be exercised in Ottawa whereby the mother will come to Ottawa with the children;

• He may have one weekday visit from 5:00 P.M. to 8:00 P.M. in Montreal every week provided that he provides two weeks’ written notice to the mother;

• The father will have access on Christmas Day from Noon to 7:00 P.M. in 2019;

• Commencing February 8, 2020, the father’s weekend access will increase to every second weekend from Saturday at 9:00 A.M. to Sunday at 5:00 P.M.; (if Monday is a civic holiday, Professional Development Day or a statutory holiday in Quebec),then the father will have the children until Monday at 5:00 P.M.;

• During the summer 2020, the father’s time with the children will include at least one week with the children and he will provide notice to the mother by May 1^st which week he wishes;

• The mother will also have the right to have one week with the children uninterrupted by the father’s access and she will provide notice to the father by May 15 of each year which week she prefers;

• Commencing at Christmas 2020, on even numbered years, the parties will equally share the two-week Christmas break with the mother having the first week of the break beginning on the Saturday after the last day of school for one full week and the father will have the second week;

• In odd numbered years, the break will be reversed with the father having the first week and the mother will have the second week;

• The father may have Skype, Facetime or phone calls with the children two evenings per week, i.e. Tuesdays and Thursdays at 7:30 P.M. or before bedtime (if they are attending an activity);

• The parties can arrange other access times as agreed between them; this includes special occasions such as anniversaries, family reunions, special birthdays, etc.

[357] The parties are to arrange that access exchanges will be conducted through an access exchange center if possible for the times of access. If times are not available in accordance with my order, then access exchange will continue at the Tim Horton’s on Watters Street in Orleans.

[358] Commencing July 1, 2019, the father will pay child support for two children in the amount of $1,947.00 based on his 2018 annual income of $139,770.00 per year.

[359] Commencing June 1, 2019, the parties will exchange their most recent income tax return along will all schedules and attachments and notices of assessment. Child support will be adjusted in accordance with the Guidelines effective July 1^st of each year.

[360] The first adjustment will occur July 1, 2019 after the parties have exchanged their most recent 2018 tax return and notices of assessment.

[361] The father shall contribute his proportionate share of s. 7 special and extraordinary expenses provided that the mother consults with him and that the father consents which consent must not be unreasonably withheld. Those expenses will be shared in proportion to the parties’ respective incomes.

[362] The father shall designate the children as beneficiaries of his health and dental insurance plans and the mother will be permitted to make independent claims on behalf of the children so long as they are eligible.

[363] The father will provide proof of this designation within 30 days from the date of this decision and will provide proof on an annual basis.

[364] If the mother obtains employment with an extended health plan, then she will name the children as beneficiaries as well. She will immediately advise the father.

[365] Any expenses not covered by the plan(s) will be shared by the parties in proportion to their respective incomes.

[366] The father shall designate the mother as irrevocable beneficiary of his life insurance policy with the face amount of $200,000.00 to be held in trust for the children.

[367] The father will pay his proportionate share of medical expenses of $1737.27 (net of tax credits).

[368] The father will pay the mother retroactive spousal support by way of lump sum of $10,000.00 within 12 months.

[369] In regard to travel, the mother will be permitted to travel with the children to the U.S. without the father’s written consent.

[370] In allowing the mother to travel to the U.S. without his consent, the Court orders that:

1. The Mother will provide 45 days’ written notice to the father;

2. She will provide a full itinerary, travel arrangements and contact number;

3. This travel will not interfere with the father’s time with the children unless he provides his consent; and

4. The father will be entitled to make up time if he misses his time with the children due to this travel.

[371] I would encourage the parties to agree on the issue of costs. If they are unable to do so, the mother may file her three page costs submissions by August 9, 2019 (along with any offers to settle and bill of costs), the father may file his three page costs submissions by August 30, 2019 (along with any offers to settle and bill of costs) and the mother file her one-page reply by September 9, 2019.

Justice A. Doyle

Released: 2019/07/18