Superior Court of Justice – Ontario

ORILLIA COURT FILE NO.: FC-12-243-00

DATE: 2019-12-05

BETWEEN:

MELISSA DAWN HUTCHINSON Applicant

– and –

JUSTON WAYNE DERUITER Respondent

COUNSEL: B. Kinnear, for the Applicant C. Severn, for the Respondent

HEARD: November 18, 20, 22, 25, 2019

REASONS FOR DECISION

EBERHARD J.:

[1] Juston Jr. John DeRuiter, born September 4, 2010, is 9 years old in a modified grade 4 program.

[2] His well-being came before me by way of a trial of the Applicant Mother’s Motion to Change filed November 28, 2017. There was a final order of Wood J. dated August 30, 2013, which also made final the interim orders of February 2013 and July 24, 2013 as to child support, access and mobility.

[3] The temporary order of February 20, 2013 set child support at $192 a month based on income of $24,000 a year and set arrears at $192 x 6 = $1,152 payable in the amount of $192 a month commencing March 1, 2013.

[4] The temporary order of July 24, 2013 granted the parents joint custody with primary residence with the Applicant Mother. Access was set from Friday to Sunday every second weekend including PD days, plus every Wednesday either overnight or for dinner, depending on whether there was weekend access that week.

[5] The Final order of August 30, 2013 changed that access to Thursday at 4:00 p.m. until Monday at 8:30 a.m. every second weekend plus Wednesday access either overnight or for dinner depending on whether there was weekend access that week.

[6] On their own, the parents agreed to forego the Wednesday dinner visit as too inconvenient for transportation or perhaps in exchange for an extra weekend.

[7] Holiday access and other incidents of access set out in the orders are not in dispute.

[8] The access schedule was honoured until early in 2018 when the Applicant Mother felt something was not right since Juston Jr. had two incidents of peeing himself at school in grade two which he had not done since JK. The Applicant Mother filed her Motion to Change and shortly thereafter the child witnessed the Respondent Father assaulting his partner, Kim Lipskie.

[9] The Applicant Mother withheld Juston Jr. from access until it was ordered based on Minutes of Settlement to resume on a day basis supervised by the paternal Grandma from April 25, 2018: to Saturday 10:00 a.m. to Sunday at 6:00 p.m. with the Respondent Father providing urinalysis on the Monday following, by order dated June 20, 2018, based on Minutes of Settlement.

[10] That schedule has continued with modest expansions to September 11, 2019 when Wood J. extended access from Friday after school to Sunday at 6:00 p.m.

[11] In his response filed May 18, 2018, the Respondent Father seeks equal share of holidays and to gradually increase parenting time to a schedule of Wednesday 3:30 p.m. to Monday drop off at school. At trial he was requesting gradual expansion to Tuesday after school to Monday drop off at school.

[12] In her testimony the Applicant Mother describes her effort to co-parent without communication or any payment of child support.

[13] She describes two injuries Juston Jr. experienced that are consistent with lack of supervision while in the Respondent Father’s care and, more notable, that the Respondent Father did not seek medical attention for a burn to Juston Jr.’s hand. There was another occasion when Juston Jr. wandered off to a neighbour’s property where there is a pond.

[14] She describes her concern about regression at school in the peeing incidents, days missed when the Respondent Father flat out refused to take the child to school, that the child was not ready for school from his access overnights, that homework was not addressed and he was anxious in the rush of getting to school. She described that the Respondent Father had lost his driver’s licence due to an old conviction for impaired driving and suspension by FRO for non-payment of child support for his first child and for Juston Jr. The Respondent Father has resided in Coldwater from 2013, then Severn River till January 2018 with Kim Lipskie and now in Waubashene with his mother. The transportation for school up to January 2018 was done by his partner Kim who generally dropped Juston Jr. at his mother’s house before school hours and picked him up there.

[15] It was Kim who informed the Applicant Mother of the assault charges. Kim is no longer available to facilitate the driving.

[16] The Applicant Mother asserts the child has improved at school since school night access was curtailed. Although the improvement is not dramatic according to report cards, I find it is there. Furthermore, the child is now on an IEP designed to meet his extra needs.

[17] My impression of the Applicant Mother is that her concern is genuine. She is not free from animus towards the Respondent Father and his treatment of her resulting in separation nor his apparent encouragement of Juston Jr.’s disrespectful conduct towards her reminiscent of the father’s own vocabulary. However, I do not find her motivated by that animus but rather by her concerns for her son.

[18] Although she was not led through her efforts as a parent, I found in her testimony sufficient to reveal that she takes parenting seriously, knows her child’s needs, knows her child’s school and health environment, advocates for her child and is fit to parent. No witness besides the Respondent Father was critical of her parenting and he gave no concrete examples.

[19] The Applicant Mother is on ODSP for mental health difficulties which she explains challenge her to regulate her emotions. As she works through a long series of psychiatric, and abuse counselling support to recover from a series of difficult life events, she has recently begun part time work for a house cleaning business now that her younger child is in school. I conclude she is motivated to continue to improve her circumstances and is trying her best to meet her children’s needs.

[20] Called to support the Applicant Mother’s case was her own mother. I was not assisted by her testimony. She has firm opinions, all based on what the Applicant Mother has told her. She had no other examples of the deficits of the Respondent Father except the same ones already reported to the court by the Applicant Mother.

[21] Friends and extended family can be part of the problem or part of the solution in family dispute. I am confident the maternal grandmother would help out the Applicant Mother on practical matters where needed, but her strong animus towards the Respondent Father, based entirely on second hand information, prevents her from being part of the solution to the child’s main problem, which is of course, the bitter dispute between his parents.

[22] Sandi Defalco, with whom the Applicant Mother and her children lived for a time, supported that Juston Jr. has demonstrated anxiety and reluctance about visiting his dad and that when confronted about aggression towards the dog cited his dad as a model.

[23] I heard testimony from Jerry Anderchuk who is a counsellor with Victims’ services. He met with Juston Jr. 8 times in 2018. Although in his role he got the presenting information from the Applicant Mother, I was impressed with his described process developing relationship with the child which ultimately resulted in spontaneous disclosures that caused the therapist to report concerns, of the Respondent Father yelling and pushing Juston Jr., to Simcoe Muskoka Child, Youth and Family Services. I am satisfied these utterances disclose some distress the child was experiencing in relation to his dad and reject as absurd the Respondent Father’s notion that he was referring to the Applicant Mother’s then husband.

[24] Ken Dube, a protection worker with Simcoe Muskoka Child, Youth and Family Services has opened files in January 2018 when emotional harm from Juston Jr. witnessing partner abuse was verified but risk of physical harm was not; then in in May 2018 as a result of the referral from Jerry Anderchuk when risk of physical harm was not verified because although the child was consistent he could provide no context; then in July 2019 when the child reported the father pushed him and another child at the beach which was not verified as Juston Jr. recanted and his report of the father drinking was contested by negative urinalysis screening. However, something is impacting the child’s state of mind as indicated by his repeated assertions.

[25] Intervention by the CAS was not required for the harm of the child witnessing the domestic violence because Juston Jr. was in the care of his mother and she was assessed to be protective.

[26] Mr. Dube reported a current Bracebridge CAS investigation of sexual assault and sexual interference alleged to have occurred to a known female in 2013. Charges have been laid but this has not caused the CAS to take steps on the father’s access to Juston Jr. which is the subject of this trial.

[27] Kim Lipskie, the partner of the Applicant Father between 2013 and his assault on her in January 2018, was a helpful and credible witness called by the Applicant Father. She is an elementary school teacher who demonstrated insight into children and a fair-minded opinion that children should have the opportunity for relationship with both their parents.

[28] This attitude caused her to be, on the analysis I mentioned earlier that family can be part of the problem or part of the solution, a very clear part of the solution while she was with the Respondent Father. She reported positively on the household activities and the Respondent Father’s focus on Juston Jr. while he was visiting. She provided all the necessary transportation for pick up and drop offs and she maintained a good and open relationship with the Applicant Mother. Her evidence was the best support of the Applicant Father’s ability to provide positive day to day parenting. By the same token, her honest account of their difficulties assisted me to know much more about the Respondent Father.

[29] Mary DeRuiter, the Respondent Father’s mother, also testified and has clearly been part of the practical solutions for Juston Jr. She has provided supervision and housing for the Respondent Father which allowed for the resumption and expansion of parenting times. She too reported positive activities while the Respondent Father has his parenting time and gave context that assisted me to assess the evidence of the Respondent Father.

[30] Before commenting on the Respondent Father’s testimony, I wish to put it into the perspective of this Motion to Change which has required 4 days of trial time. The Applicant Mother began it in 2017 by seeking to reduce the parenting time somewhat to avoid what she saw as problems Juston Jr. was having at school. It escalated by the event of partner assault witnessed by the child, a hiatus in access, the Respondent Father pursuing the counselling and abstinence imposed by the family court and the criminal court, evidence of his compliance with those initiatives and with the Respondent Father seeking a gradual expansion of parenting time to Tuesday after school until Monday return to school in alternate weeks.

[31] An immediate practical impediment arises in that the Respondent Father resides in Waubashene and the child attends school in Orillia. I heard no evidence on how the Respondent Father proposed to get the child to school since he has no licence to drive. The problem was never addressed whatsoever.

[32] The Applicant Mother does not move to change joint custody nor to disturb a general pattern of equal sharing of holidays arising from prior orders but in her testimony she did state that she had tried hard but after 4 years of trying to co-parent and talk about it, there was just no communication, no working together.

[33] The Respondent Father seeks his arrears of child support to be fixed at $0 and ongoing child support set at $0.

[34] The trial was mainly about whether the parenting schedule should be in the nature of primary care to the Applicant Mother during the school year with alternate weekend access or change to shared custody with the child residing six of fourteen days with the Respondent Father and eight of fourteen with the Respondent Mother.

[35] The trial did not turn on the concerns that the child was injured or unsupervised in his father’s care. While those events are to be avoided, I am not persuaded that they occurred because of a pattern of poor supervision. Most parents have some experience of imperfect supervision which we regret but that does not suggest lack of fitness to parent.

[36] I am more persuaded that Juston Jr. needs support to succeed in his schooling that should not include late nights or hurried mornings. The practicality of getting him to school from Waubashene is complicated and overnights before a school day should not be implemented unless the Respondent Father moves his residence within walking distance of the child’s school.

[37] Counsel for the Respondent Father wisely proposed a gradual expansion of access in accordance with the court’s usual efforts to promote trust building necessary for positive co-parenting. In his testimony the Respondent Father disagreed and could see no reason the plan should not be implemented immediately. He stated, “He’s ready to come back into my life right now...He constantly wants to be around…He needs to know who is dad is…He’s my son and I deserve to have him half the time that’s all there is to it.”

[38] Regrettably for the Respondent Father’s view, parenting schedules are not determined on the basis that a biological parent has a right to equal time. I recognize that maximum contact is often in a child’s best interests, but it is unimpressive to speak of it, as the Respondent Father did, like a right to property.

[39] Counsel for the Respondent Father also wisely understood that to persuade me that a change to shared custody was in the child’s best interests he must draw out testimony from the Respondent Father demonstrating a rich and textured parent/child relationship. This was very effective in that I learned about much that was positive in the child’s activities in his father’s household.

[40] But the inevitable risk of that approach is that the broad and descriptive narrative gave me plenty of opportunity to assess the man himself.

[41] In sum, I find that many aspects of the Respondent Father’s parenting are quite positive, but the man himself is quite a problem.

[42] As I began to listen to the Respondent Father’s smooth presentation of his ideal parenting I was repeatedly discomforted by the contrast between his narrative and the details of the evidence. For instance, he asserted he remained involved with Juston Jr.’s school by calling the teacher but then complained was he unaware until court that Juston Jr. has an IEP.

[43] I was frankly troubled by his enthusiastic descriptions of activities with Juston Jr. biking, dirt biking, tobogganing, vegetable gardening, cooking, building, inventing; also his work in his taxidermy shop and his handyman work around the house while residing with Kim; yet he remains curiously unable to work citing physical injuries and pain from a 2017 ATV accident, while presenting in the courtroom without any sign of physical stress.

[44] While it was his smoothness that first bothered me, his affect altered when he referred to the Applicant Mother or when challenged. I was shown a text message to her of vulgar threat to use the court documents for Juston Jr.’s reading practice to “expose her as the type of person his mother is”. His denial that he followed through on the threat is unconvincing.

[45] Ultimately, I judged him to exhibit traits consistent with a personality that is fundamentally antisocial. I am not a psychologist and I also recognise that many successful individuals demonstrate similar personality traits. However, in the present case I find the Applicant Father’s personality, demonstrated in his testimony, will contribute to ongoing difficulties both in maintaining stability and certainly in the challenges of shared parenting. He can talk the talk but he cannot walk the walk.

[46] The following themes in the evidence appear to demonstrate such a personality.

[47] Because it precipitated a hiatus in access in January 2018 which resulted in repeated court interventions and conditions for the resumption and expansion of access, the Applicant Father’s assault on his then partner Kim Lipskie was explored in the evidence.

[48] The Respondent Father described a scenario provoked by Kim’s interference with his decision to allow Juston Jr. to cuddle and watch a movie after bedtime hours causing him to think Juston Jr. was scared and “to protect my child I slammed the door in her face”. He claimed that he pled guilty immediately to get the charge out of the way of his efforts to resume full access to Juston Jr. In his account, the potential effect on Juston Jr. witnessing the event was not mentioned.

[49] The CAS verified that Juston Jr. “was at risk of emotional harm due to partner assault”. The criminal court imposed 18 months probation which is a significant response inconsistent with a mere slammed door.

[50] Kim Lipskie acknowledged her irritation at not being able to sleep at midnight on a school night for both her and Juston Jr. when she went to the Applicant Father’s room a second time to complain about the noise and late hour for the child. She described an argument in which he told her to “stay the fuck out of his life” he could “deal with my son as I see fit”. She described an assault of considerably more substance. I accept her account as credible.

[51] The Respondent Father’s response was to assert that Juston Jr. would not have been affected because he had a pillow over his head.

[52] The Respondent Father’s testimony on this subject contributed to my impression that he lacks empathy for the feelings of Juston Jr., and callous attitude to those he has harmed. There was not a breath of remorse. The incident is an example of manipulation, exploitation, and abuse of others in interpersonal relationships.

[53] So too is the testimony of Kim that in a prior disagreement, knowing she was particularly sensitive on the issue of suicide he threatened “you wanna find me hanging from the ceiling fan when I come home” When she charged at him intending to slap him she stated “He stopped my hand, put his other hand around my throat and pushed me against the wall saying ‘don’t ever touch me’.” I find this evidence credible and consistent with unexplored complaints of the Applicant Mother of abuse during her cohabitation with the Respondent Father.

[54] It is also a fact that the Respondent Father had been drinking on the day of the assault. He testifies that he has not had any alcohol since. He has provided a series of urinalysis results showing no alcohol detected. He is to be commended for that achievement and it will permit me to remove the requirement for screening. The term about abstention while in a caregiving role will remain.

[55] There is no doubt that the Respondent Father is prone to substance abuse and addiction. In fact, he described that he met the Applicant Mother in hospital where had admitted himself for addiction issues.

[56] The Respondent Father uses marijuana every day currently. As he pointed out, it is legal to do so. I mention it here only to reinforce evidence of a personality prone to addiction. I must comment however that this all arose in response to a question whether he uses any drug. He first denied that marijuana is a drug. Then he added that he has a prescription for medical marijuana sufficient to allow him to cultivate way more than he could use, well… did have a medical prescription but it has lapsed, but Trudeau has made it possible to use it without that and he doesn’t have to pay anything because his friend supplies him. The whole exchange was a farcical example of his superficial charm giving way to temper when challenged.

[57] A second topic explored was the failure of the Respondent Father to pay child support, ever.

[58] When questioned about the child support order made in February 2013 for $192/month he first demurred that there was an order, then when presented with details answered, “If that’s what it says”. He testified it was his view that his access was close to split custody with the Applicant Mother having “only two more days, for that $190 was a lot of money” and “If I paid, I can’t afford to have Juston Jr.”. He stated he had not asked his 2013 counsel, Mr. Winnitoy, for an explanation “because the $20,000 he paid him in legal fees ruined his planned venture in buying, renovating and flipping houses for profit. He stated he didn’t ignore the court order, he chose not to pay because it should be even. He believes that he should support Juston Jr. when Juston Jr. is with him – when he is with his mother that’s her job. She chose to be a single mother.”

[59] In all my years on the bench this is the most flagrant statement made in the presence of the court by a reluctant payor I have experienced. It demonstrated a pervasive and persistent disregard for social norms. It displayed arrogance. It was a beacon of irresponsibility and failure to fulfill social and financial obligation, and, considering that he made the statement in the face of the court it was impulsive and reckless. It was an aggressive and hostile response to a question by counsel for the Applicant Mother whom he referred to derisively as “Brian”.

[60] This exchange followed on another common theme that everything was someone else’s fault.

[61] The issue of the Respondent Father’s employability was explored. The letter he presents as to his physical condition from the incomplete investigations being done by Dr. Parna with a view to an Application for ODSP states that “Although at this time he is unable to perform his previous occupation or other work, prognosis for return to full time work is good, timing to be determined”.

[62] Although he gave no sign whatsoever of physical discomfort in his courtroom attendance, I will accept that taxidermy on larger animals may be difficult for him. But his grandiose attitudes and plans that spilled out of his mouth too rapidly to record have an air of unreality predicting a prolonged future without reported income.

[63] He stated, “I want to work…I’m a worker...I don’t like sitting around,” but when asked what efforts he made to find work he declared “I don’t work for people. I work for myself. I’ll never work for anyone again. Then he stated to the effect that “I have so many ideas: If I want to build a house and open trucking and car repair but that’s very expensive to open so I’ll keep taxidermy. I’d like to buy and sell houses, not as a real estate agent – privately but with my mother’s credit. She would buy, I would renovate and flip it and we split the profit.” He spoke of “building tiny homes in Cochrane” and that “Juston Jr. likes that I could give him that business.” However, he states “I’m not in a big rush because of my back. Maybe I’ll be the boss. I’ll get the orders and hire people to do the work.”

[64] When his mother testified, she did say that with her 23 years as a nurse in Barrie she has saved to buy a modest house in Orillia. She agreed her son could live there with her if he wants. She gave no notion of any plan to buy and flip homes with her money.

[65] Such plans, however, apparently shared with Juston Jr., show a narcissistic arrogance and a manipulation of his son. He blames others for his failure to get going on these plans: Mr Winnitoy’s legal fees; the Applicant Mother changing the child’s school for one month until she could find housing in the catchment area so he cancelled plans to move to Orillia; his neighbour’s negligence in causing the accident affecting his back in 2017; and now certainly his mother for failing to recall any plan to flip houses. All these speak of failure to accept responsibility.

[66] And, his parasitic lifestyle. He lives with his mother. He began living with Kim when, after an altercation with his last employer Jeff caused him to terminate his employment where he had also resided, she allowed him to stay at her residence until he could find an apartment, but he didn't look for an apartment and just never moved out.

[67] I find these personality traits would continue to make it difficult to provide stability for Juston Jr. Things just keep happening to him and they are always somebody else’s fault.

[68] Furthermore, this personality would make communication and joint decision-making in the context of shared custody impossible, as it already has been impossible.

[69] So, where does that leave us?

[70] On August 29, 2018 Wood made a temporary order to expand access:

[1] The clauses that follow are a temporary and without prejudice resolution of the access issues in this case. For the purposes of this section, the “visiting parent” shall refer to the respondent father. The visiting parent shall have parenting time with the child, Juston Jr. John DeRuiter, born September 4, 2010, in accordance with the schedule set out in the paragraphs that follow:

a) Except as otherwise provided a weekend visit from Saturday at 10 a.m. until Saturday at 4 p.m., which shall occur every second weekend starting on September 8, 2018;

b) The Visiting Parent to have access from 10 a.m. to Saturday to 6 p.m. Sunday, to begin after he arranges for urinalysis tests for alcohol consumption on the Monday after access and provides documentation to counsel for the Applicant mother confirming this and that the test results will be provided to counsel for the Applicant mother;

c) Such further another access his parties may agree upon from time to time;

d) Access exchanges shall take place at the home of the parent with primary care;

e) The Visiting Parent shall be responsible for all of the transportation of the child for access;

f) The Visiting Parent’s mother, Mary DeRuiter, to be present during access visits;

g) The Visiting Parent shall not consume alcohol and/or illegal drugs during or 12 hours prior to all access visits;

h) Applicant may communicate with Mary DeRuiter regarding access issues.

[71] By an Endorsement on September 11, 2019 access was extended as follows:

2. Access to commence Friday to Sunday every second weekend providing a clean urine sample is provided on the Monday following access.

[72] Although the Respondent Father says that is not enough time, I find it is plenty, particularly in light of the holiday schedule the parties agree to follow, for him to build and maintain relationship with Juston Jr. The principal of maximum contact does not mean equal contact. It means the maximum that can be achieved in the best interests of the child.

[73] Here, the practical impediments have not been addressed by the Respondent Father.

[74] I find that the child has demonstrated the stress of the conflict by his conduct and utterances showing his state of mind.

[75] Most importantly, I have found that the Respondent Father does not have a personality capable of succeeding in the imperatives of a shared custody schedule.

[76] Therefore, my order, a combination of new terms and previous terms, as agreed or found by me to be necessary, is as follows.

[77] I fix a parenting schedule during the school year for the Respondent Father as follows

1. Every second Friday after school (or Thursday if Friday is a PD day) to Sunday at 6:00 p.m.

2. Pick up at school on Friday (or Thursday before a PD day) by the paternal grandmother (the respondent’s mother). (or another licenced driver agreed by the parents in advance in writing with the agreement filed with the school principal). Drop off is at the residence of the Applicant Mother.

3. Access to occur primarily at the paternal grandmother’s home and Juston Jr. to sleep at that location until such time as the Respondent Father provides proof of a new residence with safety check as to the premises and other people residing there.

4. The Respondent Father shall be responsible for all of the transportation for the child for access.

5. The Respondent Father shall not consume alcohol and/or illegal drugs during or 12 hours prior to all access visits.

6. The Applicant Mother may communicate with Mary DeRuiter regarding access issues (or such other third party agreed by the parents in advance in writing) Additionally, the parties have agreed to communicate by a dedicated email address (addresses to be exchanged through counsel within 10 days) just for communication only about the child and civil at all times. In emergencies only, the parties may use text message to communicate.

7. Before filing any further Motion to Change to claim overnight access on a school night, the Respondent Father must show he has commenced to reside in a residence within walking distance for the child of his school. That fact alone is not determinative of the issue.

[78] The parties agreed to continue the following terms of the August 2013 final order as part of my new final order with a view to having all the terms still in force in one place. Order to issue on consent continuing the agreed terms except where I have rejected the agreement and replaced the term or deleted it as being obsolete: the bolded terms are those which I am NOT including in my order or amending as set forth in italics:

1. The following clauses are a final resolution of the custody issues in this case.

2. The Applicant, Melissa Dawn Hutchinson and the Respondent, Juston Wayne DeRuiter, shall have joint custody of the child Juston Jr. John DeRuiter born September 4, 2010.

3. The primary residence of the child shall be with the applicant.

4. The parties shall consult each other prior to making major decisions relating to the child’s health, education and general welfare.

(a) For clarity I am adding the following terms:

Major decisions shall include only such issues as may raise a significant ongoing impact on the child’s life and well being such as:

Health: elective surgery, controversial medical intervention or medication, extraordinary dental care, controversial mental health intervention or therapies.

Education: school or school board placement; extraordinary educational programming such as an IEP

General welfare: relocation of the child’s residence outside the catchment area of his current school or the high schools into which it feeds

5. Both parties shall have the right to consult with and obtain information directly from the child’s teachers, doctors or other professionals about the health, education and welfare of the child.

6. Both parties shall keep the other informed about any significant issues relating to the child that arise during their time with the child.

7. If the parties cannot agree regarding major decisions for the child they will first attempt to mediate and if mediation is not successful, either may bring a motion to the court on notice for determination.

(b) The clause is replaced by the following:

If the parties cannot agree regarding major decisions for the child after 60 notice in writing of the decision being considered, the mother shall have the final decision unless, before the expiry of 60 days, the father has sought leave to bring an urgent motion, on notice, asking the court to make the final decision.

8. The applicant shall register Juston Jr. in school in the jurisdiction of her residence.

9. The respondent shall be allowed to enroll Juston Jr. in daycare for Fridays until he commences school and he shall be responsible for full payment of same and for transportation to and from on his Fridays. This must be a registered daycare program and not a private daycare.

(c) This clause is deleted as obsolete.

17. The parties shall equally share and alternate all holidays as arranged in advance between them, with consideration given to their work schedules and holiday traditions. The parties shall use their best efforts to mutually agree on the details of this no later than 10 days prior to any given holiday, but if no agreement can be reached the parties shall refer this matter to the court for judicial determination.

(d) The following terms are added to this clause:

Attached to this order is Schedule A setting forth the holiday access for 2019 remaining, 2020 and 2021 which constitutes the parties’ agreement for those years.

There is to be no change to this schedule without agreement in advance in writing between the parents or subsequent court order.

18. All access described below in this section shall have priority over the regular weekend and midweek arrangements.

19. Summer: once Juston Jr. commences school, the parties shall share the holiday time equally. This shall commence in 2014.

20. Christmas (odd numbered years): December 24 at 4 p.m. until December 25 at noon.

21. Christmas (even numbered years): December 25 at noon until December 26 at 4 p.m.

22. Christmas (other): Balance of two weeks around Christmas or school Christmas break to be shared equally, as agreed.

23. Half of every March Break, with the parties to work out the details.

24. Every Mother’s Day/Father’s Day regardless of the weekend access schedule. The other party shall have the same rights in relation to her day.

25. Once Juston Jr. commences school the balance of Christmas vacation not dealt with herein to be divided equally between the parties, such time to be determined between the parties.

Access – Transportation exchanges

26. The Respondent will ensure that Juston Jr. is returned from overnight access times dressed and fed and we will be returned with his asthma inhaler and shall ensure he takes the medication when needed when he has him for access.

Self-Employed Individuals

27. Business records for all businesses owned are controlled by the support payor annually, on or before June 1st each year from 2012 as long as he is self-employed what shall include the following documents:

(a) Statements of income and expenses;

(b) Profit and loss statements;

(c) A statement showing breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, the support payor and any person or corporation that the support payor does not deal with at arms length;

(d) Copies of all corporate tax returns with all schedules attachments and information steps filed by the corporation in the relevant time period.

28. The respondent shall provide his tax returns every year for as long as the child support is applicable, commencing May 30, 2014 and his tax assessment each year when available.

[79] By order dated February 20, 2013, the Respondent Father was ordered to pay child support as follows:

4. On a without prejudice basis, the Respondent shall pay to the Applicant, interim child support in the amount of $192.00 based upon an income of $24,000 per year, commencing September 1, 2012.

5. Arrears are set at $192.00 x 6 = $1,152.00 payable in the amount of $192.00 per month commencing March 1, 2013.

[80] This order was continued in the final order of Wood J. dated August 30, 2013 at paragraph 29.

[81] The Applicant Mother did not provide an FRO printout of arrears owing but the evidence is that the Respondent Father has never paid any support, so there are arrears.

[82] Evidence of the Respondent Father’s income is at tab 10 of the Trial Record. In 2009 he showed taxable income of $23,914 when he subcontracted and his income from self-employment was the same as he was paid by his employer with no expenses deducted. In 2012 it was $24,038. In 2012 he terminated that employment and received some social assistance for income of $14,757.01.

[83] Orders imputing income are assumed correct unless proven wrong. So, no argument is made that the 2013 order was incorrect though in 2013 his income was shown from social assistance only at $7,302.

[84] Thereafter the Respondent Father declined to file tax returns and yet he testified of his many activities and his prediction that 2017 would have been his best taxidermy year ever but for the ATV accident.

[85] His inability to work since 2017 is poorly documented too. His prognosis to return to some work is good according to his doctor’s letter but investigations are incomplete. He certainly has not proven that he can not ever pay arrears so the right of his child to support arrears should not be rescinded.

[86] Giving him the benefit of the doubt, I find his 2017 injuries would have had some effect on his ability to earn so I will reduce arrears generated in 2018 and 2019 by $2000 in each year for a total reduction of arrears of $4000, whatever the total amount owing may be. Support Deduction Order to issue.

[87] I dismiss his claim to rescind other arrears and to reduce the ongoing support as unsubstantiated. Moreover, I direct that no further Motion to Change is to be received by the court unless tax returns for all years since 2013 are attached as well as a final medical report, and Application for ODSP and any acceptance or ruling by ODSP.

[88] In paragraph 29 of the August 30, 2013 final order, the terms of the temporary order from July 24, 2013 relating to child support, access and mobility were also continued. This order was not argued before me and the parenting schedule therein was replaced by the final order.

[89] However, several terms are now repeated into my final order because they are not documented elsewhere:

2. (h) Both parents will have reasonable telephone access to the child while the child is in the care of the other parent;

(i) Neither parent shall speak negatively about the other party in the child’s presence, and both shall make the best efforts to prevent other parties from doing so as well. Furthermore, neither party shall discuss this court case, and other adult issues involving the parties with the child.

3. The parties shall keep each other informed as to their residential address and telephone number, and notify the other whenever this information changes.

4. Neither party shall consume alcohol to excess while in the caregiving role in relation to the child.

5. Both parties may attend the child’s activities with the respective families, and neither parent will interfere with the other parent having some time with the child at the event.

6. The visiting parent shall maintain a bed and a child gate for access to continue. The visiting parent must continue to have a car seat if transporting the child.

This term is deleted as no longer relevant due to the child’s age.

7. The applicant shall be required to provide the other party with at least 60 days advance written notice of a planned change of residence outside Simcoe County. The parties may apply to the court for judicial to determination if they’re unable to agree on whether the residence of the child should change.

This term has been replaced by my own term dealing with mobility as a major decision (paragraph 77).

8. Neither party shall take the child out of the province of Ontario without a prior written consent of the other, which shall not be reasonable unreasonably withheld.

9. If the Respondent Father is taking the child outside of his (the Respondent’s) regular residence for overnight periods during his parenting time he must inform the applicant and provide contact information.

[90] The parties may address the issue of costs in writing of no more than two pages together with any offers and Bill of Costs directed electronically to the judicial secretary in Barrie at Kim.Fleet@ontario.ca as follows: The Applicant Mother’s submissions are due by January 6, 2020, followed by the Respondent Father’s submissions by January 13, 2020. Reply from Applicant Mother is due by January 15, 2020.

EBERHARD J.

Released: December 5, 2019