COURT FILE NO.: 7/18

DATE: 20190815

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Nancy Barbara Topp

Applicant

– and –

Jacob Johnathan Bradnam

Respondent

J. Cooper/L. Bazoian, for the Applicant

B. A. Macdonald, for the Respondent

HEARD: July 29, August 1, 2, 6 - 9, 2019

The honourable justice m. j. donohue

REASONS FOR JUDGMENT

I. ISSUES

[1] The parties resolved all corollary issues for divorce except primary residence and decision-making responsibilities for their young daughter, A.B. The parties seek the court’s assistance in resolving the two remaining issues.

[2] The parties indicated that following a determination by the court on primary residence and decision-making responsibilities for their daughter, they could resolve issues of holiday timesharing, child support and life insurance. Further, in the event that they are unable to reach an agreement on those issues, they have agreed to file written submissions with the court.

[3] Ms. Topp seeks an order for the child’s primary residence and school to be in the Ancaster/Hamilton area where Ms. Topp’s boyfriend, Mr. McCallum, resides.

[4] Mr. Bradnam seeks an order for the child’s primary residence and school to be in St. Catharines.

II. BACKGROUND

[5] Ms. Topp, the applicant mother, is 46 and was raised in Smithville. Mr. Bradnam, the respondent father, is 45 and was raised primarily in St. Catharines.

[6] Mr. Bradnam graduated from the University of Western Ontario with a degree in engineering. He took further courses at Niagara College and there met Ms. Topp in 2001 when she too was a student.

[7] In 2003, they purchased a home at 12 Greenleaf Court (the “Greenleaf Court home”) in St. Catharines. They have resided there for 16 years. The property issues resolved in the last few weeks with Mr. Bradnam purchasing Ms. Topp’s interest so that he could remain in the home.

[8] The parties married in 2006 and had one child, A.B., born in February 2011. The child is now eight and a half years old.

(i) Work

[9] Mr. Bradnam has worked almost 20 years at Dofasco in Hamilton. He has a daily commute of 35 minutes to work. His work allows flexibility with start and end times, and generous vacation time of six weeks. He has a six-figure income with this job.

[10] Ms. Topp has worked 14 years at Continuous Colour Coat Ltd. in Etobicoke. She has a daily commute of an hour and twenty minutes. At times it can take up to two hours. Her work, too, allows her to adjust her start and end times, and some days she may work from home. She also has a six-figure income, about $50,000 greater than Mr. Bradnam’s.

(ii) Relationships

[11] The parties have long been in an unhappy marriage. There was an unsuccessful attempt at marriage counselling in 2011 after A.B.’s birth.

[12] Although residing under the same roof and presenting themselves as a couple to the community, they lived “emotionally separated” lives, as Mr. Bradnam described it.

[13] Similarly, Ms. Topp stated the marriage broke down in 2011 and although they shared a bedroom until 2014, they were not intimate.

[14] Ms. Topp met Mr. McCallum in 2005 as they work at the same company. Mr. McCallum lost his wife to cancer in 2006, when his son and daughter were aged 11 and 7. For years, Ms. Topp regularly did activities with Mr. McCallum and his children. The McCallum family have known the child A.B. since her birth.

[15] In 2014, Ms. Topp and Mr. McCallum’s relationship became a romantic one and in 2016 they chose a house in Ancaster where they planned to live together with A.B. Mr. McCallum’s children are now adults and no longer live at home. His daughter, Sarah, is a full-time student in Kingston entering her third year.

[16] Mr. Bradnam has been in a relationship with Ms. Dell since 2017. Upon the recommendation of a s. 30 assessor, Cynthia Katz, he began to introduce Ms. Dell to the child. Mr. Bradnam, Ms. Dell and A.B. have done activities and travelled together over the last year. Ms. Dell owns a home in Beamsville, but plans to live in St. Catharines if she and Mr. Bradnam cohabit.

III. PROPOSED PLANS

(i) Ms. Topp

[17] Ms. Topp wishes the court to order the child’s primary residence to be in Ancaster at the home Ms. Topp shares with Mr. McCallum. She proposes that the child attend at a private school, Hillfield Strathallan College (“Hillfield”), in Hamilton, which she will fund without assistance from Mr. Bradnam.

[18] She seeks final decision-making on education, medical and dental decisions and joint decision-making for extracurricular activities. The extracurricular activities are to be within 40 kilometres of the Ancaster residence.

[19] Access is suggested on Tuesday and Thursday from after school to 7:00 p.m. and alternate weekends. She is open to add a midweek overnight as well.

(ii) Mr. Bradnam

[20] Mr. Bradnam wishes the court to order the child’s primary residence to be in St. Catharines at the Greenleaf Court home with her school remaining as Prince Philip Public School (“Prince Philip”).

[21] He seeks joint decision-making for all decisions.

[22] Access is suggested as two evenings including one midweek overnight visit and alternate weekends.

(iii) Both Parties

[23] Each proposed a 2:2:3 shared parental access if the other parent established a residence near their own.

IV. SHARED PARENTING TO DATE

[24] There is no dispute that parenting has been shared to date.

[25] Ms. Topp took a one-year maternity leave and was home with the child. Mr. Bradnam testified that he was involved in the evening care and food preparation.

[26] The child was in daycare in Vineland Station from 2012 until school began in September 2015. Ms. Topp would drop her daughter off and Mr. Bradnam would pick her up.

V. MS. KATZ’ FIRST S. 30 ASSESSMENT

[27] Before litigation commenced, a s. 30 assessment was jointly arranged with Ms. Cynthia Katz. She disclosed her findings in January 2017.

[28] After a thorough assessment, her conclusion was as follows:

Notwithstanding the stress and discomfort for Ms. Topp and Mr. Bradnam, this writer found that they were effectively co-parenting A.B. There was no evidence to suggest that one party’s parenting skills or level of responsibility far outweighed the other, such that one should obviously be considered the primary parent. Although A.B. expressed some preference for her mother, her attachment to both parents is strong and both parents were attuned to A.B.’s day-to-day needs. To that end, this writer proposed that any future parenting plan should see Ms. Topp and Mr. Bradman continuing to share parenting to the greatest extent possible.

The viability of effectively co-parenting with Ms. Topp in Ancaster and Mr. Bradnam in St. Catharines is essentially impossible and should be disregarded. The distance would create a significant burden for A.B. as she travelled back and forth between her parents’ homes. Moreover, there is no way to create a parenting plan that does not designate one parent as the residential parent and the other as the non-residential parent. Midweek access would be seriously impacted and the risk of disrupting A.B.’s relationship with the non-residential parent is high and contra-indicated.

Consequently, the more appropriate plan would require Ms. Topp and Mr. Bradnam to reside geographically close enough to each other to co-parent. Thus, Ms. Topp would need to remain in St. Catharines or Mr. Bradnam would need to move to Ancaster/Hamilton. They wish to do neither.

The court cannot compel a parent to move or stay. The court can only indicate whether A.B. should move or not.

[29] Ms. Katz had two meetings with A.B. in 2016 when the child was five and a half years old. For the court to decide whether A.B. should move or not Ms. Katz stated that the court might consider A.B.’s views and preferences in addition to A.B.’s best interests. Ms. Katz stated:

A.B.’s views and preferences should be considered cautiously. Notwithstanding that A.B. was described as a child who is able to articulate her feelings, she demonstrated some anxiety with respect to the idea of living in two homes. Moreover, A.B. has never experienced living in two separate homes and at her age, it is unlikely she could understand the impact of same. On one hand, while A.B. sometimes said she wanted to live with her mother, she also said she wanted to see her father every day.

[30] In conclusion, Ms. Katz testified that it was not clear to her in 2017 what her recommendation would be between St. Catharines and Ancaster. She recommended they both live geographically close. She thought it was likely A.B. would thrive in either community. She stated that A.B. was adored and well cared for by both parents.

VI. INCREASED HOSTILITY IN THE HOME

[31] Following the disclosure of Ms. Katz’ assessment in January 2017, the hostilities between the parties increased markedly.

[32] Their intransigent positions, that Ms. Topp sought to move A.B. to Ancaster to reside with Mr. McCallum versus Mr. Bradnam’s demand that the child remain in St. Catharines, coloured much of their future communications and actions.

[33] Ms. Topp described her life as feeling she was held “hostage” in the home and she acknowledged that both parents said inappropriate things to one another.

[34] Mr. Bradnam began to journal daily about what was happening in the home and tape record things said using his phone.

[35] By the summer of 2018, on her second assessment, it was clear to Ms. Katz that the child was exposed to the “hostility, mistrust and frustration” of both parents in the home. A.B. stated, “I see them getting into a fight and I have to yell STOP all the time.”

VII. A.B.’s SLEEPING ARRANGEMENTS

[36] For the first six years of her life, the child slept in the master bedroom. She was with both parents until she was three and a half when Ms. Topp moved out to sleep on the couch or in the child’s bedroom. A.B. stayed with her dad in the master bedroom for the next three and a half years.

[37] Just before her seventh birthday, the parents began to have a bedtime routine for her to sleep in her own bedroom.

[38] In March 2018, Ms. Topp purchased a king-sized bed for herself to make a bedroom in the basement. The child began to sleep with her in the basement. In the fall of 2018, Scott, J. ordered a nesting arrangement. During the nesting arrangement, Mr. Bradnam had her sleep in her own bedroom when under his care. When in Ancaster on alternate weekends, A.B. slept in her own bedroom.

VIII. EXTRACURRICULAR ACTIVITIES

[39] Ms. Topp has always paid the extracurricular expenses and daycare.

[40] Mr. Bradnam testified that this was how they arranged their finances, with him paying other household expenses such as the mortgage.

[41] A.B. has been involved in lots of activities. From the time A.B. was two-and-a-half through to the age of five (2013 to 2016), she attended private swimming lessons with her mother on Saturdays in Dundas.

[42] In 2014, at the age of three she began cheerleading practices and competitions in Beamsville.

[43] In 2016, at the age of five, A.B. did four months of gymnastics in St. Catharines and continued cheerleading in Beamsville at another facility. She also began skating in St. Catharines that fall. Her summer camps in 2016 were located in Beamsville, St. Catharines, Smithville arena (with her grandmother Topp), Stoney Creek and Jordan arena.

[44] In 2017, when A.B. was six years old, she did cheerleading for part of the year in Beamsville and then switched to the “Tigers” Cheer in St. Catharines in May of that year. Her summer camps were in Beamsville, St. Catharines and Jordan arena. She began novice hockey that fall in St. Catharines. She also regularly attended St. Catharines’ Skyzone Trampoline Park, mostly with her father.

[45] In 2018, at the age of seven, she continued with the Tigers cheerleading team and hockey, both in St. Catharines. Her summer camps were located in Hamilton and Beamsville. A.B. continued to go to the Skyzone once or twice a week, mostly with her father.

[46] In 2019, at the age of eight, A.B. continues to compete with the St. Catharines Tigers cheerleading and the Brock Badgers hockey team in St. Catharines. In May, she qualified for the REP hockey team set for the fall of 2019, however that depends on her future residency. Her summer camps were in Hamilton, St. Catharines and Beamsville. Her Skyzone activities with her father continued.

(i) Disputes Over Extracurricular Activities

[47] Ms. Topp expressed anger when Mr. Bradnam signed A.B. up for skating in September 2016. She said there was no discussion first. She considered that his timing of doing it, after their four-way meeting that day, was a litigation strategy to bolster the child’s connection to St. Catharines.

[48] At trial, Mr. Bradnam provided his text from that day which stated that sign-up for skating was “that night” and therefore that was the night to do it. He stated that they had previously discussed enrolling A.B. in skating and Ms. Topp had bought a helmet and skates for A.B.

[49] Ms. Topp nonetheless supported her daughter skating and attended the lessons.

[50] Regarding cheerleading, when Beamsville Cheer closed in 2017, Ms. Topp had proposed that A.B. attend “Sharks” Cheer in Ancaster. She testified that Mr. Bradnam insisted on the St. Catharines Cheer group, “Tigers”. Again, notwithstanding, Ms. Topp has been supportive and involved with the Tigers Cheer.

[51] Ms. Topp testified that Mr. Bradnam signed the child up for hockey and Rep hockey in 2018 and 2019, without discussion or her consent. She specifically asked him not to do further signups until the trial decision.

[52] Mr. Bradnam replied that at this point in the litigation, Ms. Topp was refusing to have a discussion and made it clear that she would not consent. His position was that he did not want A.B. to miss out on these opportunities pending the trial decision.

[53] Ms. Topp testified that she sent a summer day camp schedule to Mr. Bradnam in March 2019 with the camps she proposed for the summer. The only proposal she received in reply was to share week-about schedules. Ms. Topp did not want to go a full week without seeing her daughter.

[54] Mr. Bradnam testified that he did not object to A.B. attending Hamilton/Ancaster camps in principle. As this was during the nesting order, his concern was that it was hard for the child to be travelling every day to these summer camps out of town. He arranged for a YMCA day camp in St. Catharines. The parties then essentially had a tug-of-war over A.B.’s attendance. She was switched camps each day for a week.

[55] Ultimately a summer camp motion was brought, and the parties reached a consent order.

(ii) Future Extracurricular Plans

[56] Mr. Bradnam explained the respective advantages the cheerleading team and the hockey team had for A.B.’s life. Cheerleading fostered memorizing routines and hockey encouraged focus and quick decision-making.

[57] Ms. Topp and Mr. McCallum have been supportive of both cheer and hockey, helping with driving, attending practices and games and going to cheer competitions. Ms. Dell has also gone to A.B.’s hockey games.

[58] Both couples attended A.B.’s last cheer competition in the United States.

[59] Ms. Topp is concerned about the scheduling of both activities for the fall. Mr. Bradnam explained that he is aware there could be overlap and a need to compromise. He recognized that A.B. could not miss cheer events because her team position could not otherwise be filled, whereas in hockey, another player could be asked to play twice.

[60] Mr. Bradnam and his friend, Mr. Bell, testified to how much A.B. enjoys hockey. Mr. Bradnam said A.B. has a grin from ear to ear when she is on the ice. Nevertheless, he noted that she may like cheer more.

IX. ORGANIZATION OF A.B.’s LIFE

[61] There is no dispute that Ms. Topp has always handled the administrative details for the child’s life.

▪ She documented in the baby book all of the child’s doctor appointments and milestones.

▪ She did the paperwork to get A.B.’s SIN card, birth certificate, passport and Nexus card (although both parents attended the interview).

▪ She faithfully checked the school agenda each night and communicated with and contacted the teachers on a regular basis.

▪ She kept a Mom’s calendar on the fridge and a homework folder on top of the microwave.

▪ She scheduled all medical/dental appointments.

▪ She was the primary contact for the school.

▪ She signed all report cards and the Individualized Educational Plan (“IEP”).

▪ She registered and organized most summer camps (Mr. Bradnam registered for the camp he proposed for the summer 2019).

▪ She took care of Valentines and teacher’s gifts.

▪ She was the email contact for all A.B.’s extracurricular activities.

▪ She arranged for the teacher to write a letter to set out the school’s concerns of A.B.’s lack of focus in class as requested by the family doctor.

▪ She asked for additional work for A.B. when they were going on holidays.

[62] Mr. Bradnam had no criticism with her assuming that role. He recognized that she liked doing it and he did not wish to interfere with it “just to prove he was an able parent.”

X. A.B.’s PERSONALITY

[63] All evidence is that A.B. is a very social child, she integrates easily, and makes friends easily. The range of friends she has is remarkable for an eight-year-old. Her mother’s evidence of going to 50 birthday parties in a year is not an exaggeration.

[64] Ms. Katz quoted A.B.’s senior kindergarten teacher as saying, “A.B. is a child who quietly makes herself known rather than sit back and wait for others to approach her.”

[65] Witnesses described A.B. as energetic and very competitive.

[66] Mr. Bradnam felt that the success of winning the cheer competition in Chicago was one of the greatest experiences of the child’s life. He also described her happiness at making the try-outs and getting on the Rep hockey team.

XI. A.B.’s HEALTH

[67] As noted above, Ms. Topp scheduled most of the child’s medical and dental appointments and arranged for follow-up. She acknowledged that Mr. Bradnam came to most of the important medical appointments.

[68] A.B. is generally a healthy child and has not required much specialized care.

[69] In grade one, A.B.’s teacher raised a concern about A.B.’s lack of focus and inability to follow multi-task instructions. The teacher recommended a hearing test, which Ms. Topp arranged, and followed up with the family doctor requesting a referral to a specialist. The family doctor requested a letter from the school detailing the concerns. Ms. Topp arranged for this with the school. The child was therefore assessed by her paediatrician, Dr. Nwebube.

[70] Mr. Bradnam and Ms. Topp attended two appointments in March/April 2018 with Dr. Nwebube.

[71] The paediatrician considered that A.B.’s blood work was “unremarkable”. “However [she] did have some features of attention deficit and hyperactivity disorder [ADHD].”

[72] The doctor discussed medication side effects but recommended holding treatment to when there is a period of stability, noting that the parents were going through a divorce.

(i) Independent Medical Action by Each Parent

[73] For her assessment, the paediatrician had asked for the parents and school to complete “SNAP” forms which asked a series of questions relating to the possible ADHD issues.

[74] Ms. Topp did not include Mr. Bradnam when filling out the SNAP forms, rather she asked Mr. McCallum to assist her. She testified that Mr. Bradnam “was out golfing and I wanted them done, to be resolved.” She said she asked Mr. Bradnam to assist but he “chose to go out.”

[75] Mr. Bradnam testified that the first time he saw the forms was in the doctor’s office, and they had already been completed and he had not been asked to participate.

[76] On this point, I find that Ms. Topp chose not to involve Mr. Bradnam. I prefer his evidence as it is consistent with his genuine concern over these issues involving their daughter and Ms. Topp’s super-efficient manner of dealing with paperwork.

[77] Although no treatment was to start just then, Ms. Topp researched the medications and side effects which Dr. Nwebube had discussed at the appointment. Mr. Bradnam did as well and was concerned about proceeding with the medication route. On April 27, 2018, he asked to meet privately with the paediatrician to query whether the focus concerns were related to excessive iPad use (while in Ms. Topp’s care) and behavioural issues.

[78] In response, Dr. Nwebube sent a referral to the school for psycho-educational testing. The referral was sent about 10 days after the appointment. Mr. Bradnam understood that the doctor’s office would advise Ms. Topp of this recommendation so he would not end up in an argument with her.

[79] It appears that Ms. Topp was left in the dark for over three weeks. Not surprisingly, she was upset when she discovered that Mr. Bradnam had seen the paediatrician without her. The school called her around May 22, 2018, advising her that psycho-educational testing was not done on students until the end of grade three.

[80] Mr. Bradnam now acknowledges that the testing is not available until grade three but at the time he was angered by what he mistakenly understood was Ms. Topp’s “cancellation” of the testing.

[81] Later that year, Mr. Bradnam made inquiries into a Reading Gym which he thought would assist A.B.’s reading skills. He began taking her in December 2018 and believed it helped her.

[82] Ms. Topp did not like the Reading Gym program as she felt the words were too simple for A.B.’s actual reading level. She preferred to continue with chapter books.

(ii) Current Health

[83] Sixteen months have passed since the paediatrician’s discussion of ADHD. No medication has been prescribed nor further testing done. A.B.’s grade two report card showed that she was progressing well with the mild accommodations provided for in her IEP.

XII. SCHOOL AND HOMEWORK

[84] Both parents have been involved in A.B.’s homework, reading with her and doing math work on the iPad.

[85] As noted above, Ms. Topp has been the more involved parent with handling the agenda, signing report cards, getting extra homework for vacation time and contributing to classroom projects. Nonetheless, Mr. Bradnam has also been involved by regular checks on the school website, personal talks with the teachers, attending parent/teacher interviews, concerts and school events. He too has volunteered at the school.

[86] Mr. Bradnam’s proposal is that A.B. continue her primary school education at Prince Philip, located just over a kilometre from the Greenleaf Court home. He outlined that A.B. has a group of best friends there as well as friends in the surrounding neighbourhood who all attend Prince Philip.

[87] Mr. Bradnam understands that she will be placed in either a straight grade 3 class or a grade three/four split class and her IEP will continue. There is before and after school daycare at Prince Philip which A.B. has attended for the last four years.

[88] Mr. Bradnam was himself a child of divorce. His mother’s subsequent moves and relationships resulting in his attending six different primary schools. He experienced the damage that occurs with these dramatic changes and seeks to protect A.B. from the disruption he experienced.

[89] Ms. Topp’s proposal is to enrol A.B. at Hillfield, a private school in Hamilton, which she will fund. The advantages are smaller classes and individualized programs for each student which best meet their needs. A.B. would be in a straight grade three class which would lessen the distractions she has had in a split class.

[90] Hillfield has before and after daycare and can bus children to and from school, as far as Grimsby.

[91] The location of the school is roughly 20 minutes’ drive west of Mr. Bradnam’s workplace which would facilitate after school access.

[92] There are three children on their street in Ancaster with whom A.B. plays who already attend Hillfield.

[93] The school provides primary school as well as secondary education to grade 12.

[94] Mr. Bradnam looked into Hillfield. He has no specific objection to the school itself. He questions the need or value of a private school in the primary grades when A.B. is seen to be progressing well in the public system. He was willing to consider Ridley private school, locally, if Ms. Topp felt a genuine need for private education. His primary objection to Hillfield is the distance and the significant change it would bring to the shared parenting regime and the child’s life.

[95] Ms. Katz, in her second assessment, considered both Hillfield and Prince Phillip schools. In her testimony, she did not prefer one school over another, such that her recommendation was neutral on this point.

XIII. SENSE OF HOME

(i) The Ancaster Home

[96] When Ms. Katz did her second assessment last summer she noted that A.B. now had had the opportunity of experiencing some overnights at the Ancaster home and what that would be like. She observed A.B.’s interactions with Mr. McCallum and saw it as a loving and healthy relationship.

[97] Mr. McCallum testified that he feels like A.B. is a daughter to him. They play board games and cards, go for bike rides and even weed the garden together.

[98] Ms. Topp testified that A.B. has several close friends on the street and she can walk right into their homes as if they were her own. The neighbour children are often over to play or swim in their pool.

(ii) The Greenleaf Court Home

[99] Mr. Bradnam’s testimony was also descriptive of a good sense of home. They do crafts together, play board games and card games. They play a made-up game called “Hot Lava” where they have stuff on the floor and have to jump from one spot to another. Outside they play basketball or A.B. plays with her school friend on the court. At times, Mr. Bradnam and A.B. bike ride around the neighbourhood to check which of her school friends are playing outside.

XIV. SUPPORT SYSTEM

[100] One of Ms. Topp’s concerns was that there was no family support in St. Catharines whereas there was lots of family in the Hamilton area, specifically one of her sisters and Mr. Bradnam’s mother. Both live less than 10 kilometers away from the Ancaster home. She notes that Mr. Bradnam is estranged from his family and she has been the connection to his mother. Mr. McCallum has been a support to the child in St. Catharines and he would continue to be so in Ancaster.

[101] Both Ms. Topp and Mr. Bradnam have cited the emergency support of Mrs. Topp, Ms. Topp’s mother. She has been able to assist in the past. She lives in Smithville, a 40-minute drive from both the Ancaster home and the Greenleaf Court home.

[102] Ms. Topp’s friend, Ms. Starfield, has long provided extra care to A.B. She lives 20 minutes from St. Catharines and considers A.B. to be a part of her family. She is very willing to help care for the child when needed, even if A.B. is resident with Mr. Bradnam.

[103] Mr. Bradnam listed multiple friends who are willing to assist in an emergency. His girlfriend, Ms. Dell, who has developed a friendship with A.B. over the last year, testified to her willingness to help in an emergency.

[104] Ms. Topp expressed her anxiety of working in Etobicoke and trying to reach her daughter in an emergency. Her commute however to Ancaster is only marginally shorter and is still over an hour.

[105] Ms. Topp’s concern over Mr. Bradnam’s estrangement from his family was addressed in his evidence. He explained that his parents separated when he was seven months old. His sister went with his father and he went with his mother. His mother remarried but divorced again and then had a third spouse. This resulted in his attending six primary schools and his ill-feelings towards his mother. He does not see Ms. Topp’s encouragement of his mother’s relationship with A.B. as necessarily a positive because he believes that his mother does not speak well of him. He is also suspicious that Ms. Topp has fostered this relationship largely to gain an Ancaster connection for this litigation.

XV. MR. BRADNAM’S INVOLVEMENT IN GOLF AND HOCKEY

[106] Mr. Bradnam has played Friday night hockey in winter and Wednesday golf in summer with the same group of friends for years. Afterward, they go for a beer.

[107] Ms. Topp considered that Mr. Bradnam valued his friends over his family.

[108] Mr. Bradnam testified that he was willing to join other leagues if his sports night conflicted with his care of A.B. He confirmed that for the last ten months of the nesting arrangement he has simply missed his weekly sports night when he was caring for A.B.

XVI. “NEGATIVE SPEAK”

[109] As noted above, the hostilities between the parents intensified after the 2017 disclosure by Ms. Katz, and further worsened after the litigation papers were served in early 2018.

[110] Mr. Bradnam began to journal conversations when Ms. Topp spoke offensively of him in the child’s presence and instances when she would ask the child who she wanted to live with. He said she would say to him, in front of the child, “No one wants to live with you” and “A.B. wants to live with me.”

[111] Ms. Topp acknowledged that both of them said things they should not have. When questioned on specific statements she was alleged to have said, Ms. Topp agreed such statements would be harmful to a child but she either denied the statements or said “she did not recall” making such a statement.

[112] Mr. Bradnam’s evidence was specific to dates, locations and details of the statements and was very persuasive.

[113] In the face of Ms. Topp’s denials, the court admitted a short audio tape of Ms. Topp’s words said in the presence of the child. The context of her statement was confusion over the dates of a two-night vacation with A.B. which Mr. Bradnam had pre-arranged. Ms. Topp was angry as one of the nights conflicted with plans she had arranged. The tape reveals her to say to A.B., “Come give me a hug. Daddy is taking you away from me…” and then to Mr. Bradnam, “You are cruel and disgusting.”

[114] I consider this evidence below when assessing the views of the child.

XVII. MS. KATZ’ SECOND S. 30 ASSESSMENT

[115] Ms. Katz did a second assessment in the summer of 2018 and this time recommended Ms. Topp’s plan and the Ancaster home.

[116] She fully acknowledged that “this arrangement reduces Mr. Bradnam’s weekday parenting time, precludes weekday overnights and is less comfortable than having a home to go to in the afternoon/evening.”

[117] Her conclusion is in sharp contrast to her earlier statement that neither parent was a “primary parent”, both parents were “attuned to her needs”, and any future parenting plan should see them continuing to “share parenting to the greatest extent possible.”

[118] Ms. Katz rejected Mr. Bradnam’s plan as it would necessitate a third home for Ms. Topp in St. Catharines. She testified that this was impractical as it was pulling everyone away from their work which she felt minimized time with A.B.

[119] Part of Ms. Katz’ reasoning to support the Ancaster home was that it would allow A.B. to experience a happy home with her mother and Mr. McCallum. This is a fair comment noting that A.B. had been living in the Greenleaf Court home for a three-year period with warring parents. However, since her assessment, the nesting arrangement has separated the two parents. A.B. has now met Mr. Bradnam’s new partner and seen him happy with her. The three of them have developed a relationship as well. In light of these changes, I find this reasoning carries less weight.

[120] Another part of Ms. Katz’ reasoning to support the Ancaster home is her assessment of the positive relationship A.B. has with Mr. McCallum’s daughter, Sarah. However, as Sarah lives away and is only home on holidays and summers, this is not a significant positive to make the Ancaster home the primary residence.

[121] Ms. Katz’ recommendation of the Ancaster home rested heavily on the views expressed by seven-year-old A.B. at that time. Ms. Katz noted that at this point A.B. had had “meaningful experience” of a life in Ancaster and expressed her legitimate wish to live there and change schools.

[122] Ms. Katz did acknowledge that caution must be taken in accepting a child’s views when they have been exposed to conflict. She could not say whether she reviewed the multiple statements which Mr. Bradnam provided where he showed Ms. Topp putting the child in the middle of the controversy.

XVIII. THE CHILD’S VIEWS AND PREFERENCES

[123] Ms. Katz testified that A.B. saw Ms. Topp as the “primary parent” who organizes her life and she preferred to live in Ancaster with her mother and Mr. McCallum.

[124] I find the statements the child made to Ms. Katz about her father appear to mimic her mother’s remarks, showing her mother’s influence;

▪ he leaves and doesn’t care

▪ in the evening, he goes out with his friends

▪ she lives downstairs with her mother ‘cause “girls rule”

▪ there is a better school in Ancaster where she can choose what she wants to learn

[125] These harsh statements of heavily preferring her mother over her father are in sharp contrast to all who observed the strong relationship A.B. has with her father; Ms. Katz, Ms. Starfield, Mr. Bell, Ms. Dell. His good parenting was acknowledged by all, including Mr. McCallum.

[126] A year has gone by since that interview and a number of changes have occurred which one would expect would alter that view.

[127] With the nesting arrangement, Mr. Bradnam assumed an equal share of the weekday morning organizational tasks. A.B. no longer sleeps with her mother, rather she is in her own bedroom either in St. Catharines or in Ancaster. She is no longer living in an atmosphere of daily conflict. She also has begun to experience her father having a happy, friendly relationship with Ms. Dell.

[128] A.B.’s views, as expressed a year ago, are acknowledged by the court but taken cautiously for the reasons noted above.

XIX. FOSTERING POSITIVE RELATIONSHIPS

[129] Section 16(10) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) sets out the principle of maximum contact.

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

[130] The child’s view, which seems to parrot Ms. Topp’s negative comments about Mr. Bradnam, give the court concern that she has not been supportive of their relationship. This is a serious consideration when the proposal for the Ancaster home markedly decreases Mr. Bradnam’s parenting time.

XX. MS. TOPP’S RESIDENCE

[131] Ms. Topp’s counsel pointed to the concerns of the court that a parent not be asked whether they would move without the child if the move was prohibited, and conversely, whether the parent would stay if the move was prohibited.

[132] The evidence offered here is that Ms. Topp has moved to Ancaster and gone on title with Mr. McCallum. Mr. Bradnam has purchased the matrimonial home at Greenleaf Court and made it clear he intends to stay.

[133] Ms. Topp quite reasonably wishes to reside with her new partner, Mr. McCallum. It was not, however, a move of necessity. It does not significantly reduce her commuting time. It does not significantly increase the child’s support system compared to what she has in St. Catharines. There are no special needs that require a private school education.

[134] Ms. Topp testified that she tried to think of many options of how to make the care of the child work between herself and Mr. Bradnam. She denies ever looking for another home in St. Catharines.

[135] Mr. Bradnam gave a very detailed recounting of Ms. Topp looking at other properties to buy in St. Catharines; specifically, close to the current school. He said she discussed houses on Trinidad, Butler, Lakeshore, Bayshore and then later, houses in Grimsby.

[136] Ms. Topp said she was only looking for prices to put in a value on her 13.1 Financial Statement for the house. However, Mr. Bradnam described these conversations occurring in 2017, before litigation, and I do not accept that Ms. Topp was attempting to assess the value of the Greenleaf Court home simply by looking at the cost of other houses.

[137] I accept Mr. Bradnam’s evidence that at one time Ms. Topp considered buying a home in St. Catharines. He produced text messages from 2017 where Ms. Topp wrote about her “price range”; a house on Butler coming up for sale; and the price coming down on the website.

[138] This is not a case where financially Ms. Topp would be unable to obtain a residence in St. Catharines in which to co-parent her daughter. There was no evidence of that kind. Notably, if St. Catharines was A.B.’s home, the private school costs would be saved.

XXI. DECISION-MAKING

[139] Ms. Topp is seeking sole decision-making authority in matters of education and medical/dental. Mr. Bradnam seeks joint custody.

[140] Both parties were guided by the same principles set out in the jurisprudence.

[141] Are the parties able to communicate and compromise, putting their child’s interests first, such that major decisions affecting their child’s life can be reached? If not, then sole decision-making by one parent may best serve the child’s interests.

[142] The parties agree that the best interests of the child govern this issue.

[143] The ability of the parents to communicate is vital if the court is going to make an order for joint custody. The Court of Appeal stated in Kaplanis v. Kaplanis (2005), 2005 CanLII 1625 (ON CA), 249 D.L.R. (4th) 620 (Ont. C.A.), 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.

[144] As noted by Chappel J. in Khairzad v. McFarlane, 2015 ONSC 7148, 72 RFL (7th) 436, at para. 29,

While some measure of communication and cooperation between the parties is necessary to support a joint custody order, the court is not required to apply a standard of perfection in assessing the parents’ ability to work together. As Quinn, J. remarked in Brook v. Brook, “the cooperation needed is workable, not blissful; adequate, not perfect. [Citation omitted].

[145] The evidence supports that these parents have always co-parented this child despite living “emotionally separated”. They have cooperated with one another on educational and medical decisions. Both are involved parents.

[146] Neither testified to any bad decision-making in connection with the child, rather they did not always agree with the other’s approach. Ms. Topp was upset by Mr. Bradnam’s signing the child up for activities without her agreement but she was not critical of the actual activity. She was upset that he saw a medical specialist without her but was not critical of the reasons for which he went.

[147] Despite their hostility and anger over the child’s proposed residence, they have jointly attended medical appointments, cheer competitions and hockey games. They have been able to maintain their civility. At times, they have even driven to events together.

[148] The parties ultimately resolved all the litigation issues between them but for primary residence and custody. This speaks to their ability to compromise.

[149] The conflict in the last two years reflects the suspicion of motives by the other party to establish connection with a particular community in support of their respective litigation strategies.

[150] I am confident that after this primary residence is decided the parties will maturely, and responsibly, revert to focusing on the child and cooperating with each other as they have in the past.

[151] In this case, there is a solid evidentiary base to support an order for joint decision making on the basis that the parties communicate and work out decisions.

XXII. DISPUTE RESOLUTION

[152] In the event of an impasse, Mr. Bradnam’s draft order proposed a dispute resolution process, which is reasonable. Accordingly, I order the process as follows:

If the Applicant and Respondent disagree about a reviewable or variable term of this order, they shall first try to resolve the dispute through negotiation, either between themselves or with their respective counsel, on the following terms:

a) The party seeking a change in a reviewable section of the order shall make the request for review or variation by giving the other, in writing:

1. Notice of the proposed change;

2. Evidence supporting the proposed change; and

3. Any requests for information from the other necessary to determine the issue.

b) A request under subsection (a) above will be answered within ten days.

c) After exchanging any information required by this order, the Applicant and Respondent shall meet personally or through their personal representatives to resolve the issues in dispute. If they come to an agreement, the Applicant and Respondent shall sign and date an amending agreement before witnesses.

d) If the Applicant and Respondent are unable to resolve the dispute through negotiation within 10 days of the request for review or variation, they will mediate the issue. The parties will share the cost of mediation equally.

e) If the Applicant and Respondent are unable to resolve the dispute through negotiation and/or mediation within 20 days of the commencement of mediation, either party may bring an application to the court to resolve the dispute.

f) Except in the case of an emergency, the party making an application to the court will give the other party not less than 10 days’ notice of the application.

XXIII. LAW ON PRIMARY RESIDENCE

[153] The decision of primary residence is a determination of what it is in the best interests of the child.

[154] The parties agree that although the Divorce Act is the governing legislation for these proceedings, the court should consider the criteria set out in s. 24(2) and (3) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, when assessing the best interests of the child.

[155] Section 24(2) and (3) read as follows:

(2) The court shall consider all the child’s needs and circumstances, including,

a) the love, affection and emotional ties between the child and,

i) each person including a parent or grandparent 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) any familial relationship between the child and each person who is a party to the application.

(3) A person’s past conduct shall be considered only,

a) in accordance with subsection (4); or

b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.

[156] Although this is not a relocation case varying a prior custody order, the court is obliged to consider the factors set out by the Supreme Court of Canada in Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, at para. 49:

a) The existing custody arrangement and relationship between the child and the custodial parent;

b) the existing access arrangement and the relationship between the child and the access parent;

c) the desirability of maximizing contact between the child and both parents;

d) the views of the child;

e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;

f) disruption to the child of a change in custody;

g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

XXIV. ANALYSIS OF PRIMARY RESIDENCE

[157] The choices are between two loving and stable homes. A third alternative has been mentioned for Ms. Topp to arrange for a residence in St. Catharines.

[158] The parties agree the child needs stability in her life. They disagree on how best to achieve that stability.

[159] The section 24 analysis is as follows:

[160] I am satisfied that A.B. is surrounded by love in both homes and her best interests are met with as much daily contact and affection as possible.

[161] I consider the child’s views as expressed a year ago in favour of the Ancaster home with great caution. Circumstances have changed and I expect her views have altered as well. I found that Ms. Topp has inappropriately influenced the child and promoted negative attitudes toward Mr. Bradnam. This makes me further question her parenting and the child’s expressed views from last summer.

[162] The length of time the child has lived in a stable home environment speaks to the Greenleaf Court home and neighbourhood which has been familiar to her. It is the only residence she has ever had in her eight years of life. She has had all four year of schooling as well as after hour daycare at the Prince Philip school nearby. Her classmates are all in the neighbourhood. In contrast, the Ancaster home has been experienced for about a year on weekends and vacations, albeit positively.

[163] Both parents have been shown to be capable and willing and actively involved in all facets of the child’s life. Both are able to act as a parent.

[164] I now consider the care plan proposed by each parent. If each parent remains in their city of choice they propose similar plans; alternate weekends, two evenings and a midweek overnight. If one parent is prepared to move, they each propose a 2:2:3 shared residency.

[165] The permanence and stability of the family unit is established for both homes. Mr. Bradnam has purchased the Greenleaf Court home and expects to remain there. If they co-habit, Ms. Dell intends to move to the Greenleaf Court home. Ms. Topp and Mr. McCallum have long been committed to one another. Ms. Topp is now on title to the Ancaster home. Both homes present as stable.

[166] The Gordon v. Goertz analysis is as follows:

[167] There is no existing custody order, but to date they have co-parented the child and largely made joint decisions. The child has had daily contact with each parent apart from vacations and alternate weekends. Ms. Katz’ original conclusion was that the parents should continue to share parenting to the greatest extent possible.

[168] The existing access has been equal time with each parent.

[169] The desirability of maximizing contact between the child and both parents and the ability of one parent to facilitate contact with the other parent is a serious concern here. Ms. Topp’s negative behaviour has served to diminish Mr. Bradnam in the child’s eyes. This calls into question how supportive she would be if hers was the primary residence and Mr. Bradnam’s time with the child was significantly reduced.

[170] The views of the child are recognized but viewed with caution as noted above.

[171] The reason for moving the child to Ancaster was not to meet the child’s needs and so is not otherwise considered.

[172] The disruption to the child of a change in custody is not material here in light of my decision to order joint decision-making.

[173] The disruption to the child consequent on removal from family, schools and the community she has come to know is the final factor which weighs heavily in this case in favour of the Greenleaf Court home.

[174] The move to Ancaster would change her neighbourhood, her school, her friendship group, her after school care, her cheer team and her hockey team.

[175] I am satisfied here that stability for A.B. will be best achieved by continuity in the same home, same school, same teams and same neighbourhood.

[176] In this case, Ms. Topp is able to obtain a residence in St. Catharines to continue her close relationship with her daughter.

[177] On balance, there are not such benefits to the Ancaster home that would make the significant disruption in the child’s life worth suffering.

[178] I find the best interests of the child are best served by establishing primary residence in St. Catharines with Mr. Bradnam.

XXV. MEDICAL DENTAL

[179] On consent, the child shall continue to be a patient of the following medical practitioners:

Paediatrician: Dr. A Nwebube

Family physician: Dr. T. Aliu

Dentist: Dr. Pannozzo

XXVI. HOLIDAY TIMESHARING SCHEDULE

[180] The parties advised at the close of trial that they were close to resolution on the holiday timesharing schedule. Within seven days of the release of this decision they are to provide their consent order or further submissions on this issue.

XXVII. CHILD SUPPORT AND LIFE INSURANCE

[181] The parties advised at the close of trial that they were close to resolution on the child support and life insurance issues. Within seven days of the release of this decision they are to provide their consent order or further submissions on these issues.

XXVIII. OTHER ISSUES

[182] If there are other provisions in the final order which the parties require then further submission may be made within seven days of this order. Further time may be requested by either party.

XXIX. COSTS

[183] If further submissions are to be made on holiday timesharing, child support, life insurance or other issues, then costs submissions are deferred until after those decisions are made by the court.

[184] Otherwise, if the parties are unable to resolve costs, Mr. Bradnam may file written submissions on costs within 21 days. Ms. Topp may file responding written submissions within 14 days thereafter. Submissions are not to exceed three pages, plus costs outlines, case law and any applicable offers.

[185] Such written submissions are to be forwarded to my chambers in St. Catharines.

[186] Failing receipt of costs submissions within 40 days of this judgment, the issue of costs will be considered settled and the file closed.

M. J. Donohue J.

Released: August 15, 2019