COURT FILE NO.: FO-17-413

DATE: 2019/12/24

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Joshua J. Anderson

Applicant

– and –

Susan Frances Haywood

Respondent

Diana Tomazin, Counsel for the Applicant

Natasha D. Pappin, Counsel for the Respondent

HEARD: September 23, 24, 25, 26 and 27, 2019

REASONS FOR JUDGMENT

Justice Engelking

[1]

Overview

This proceeding started with an Application brought by Mr. Anderson in or about July of 2017, in which he was seeking an order for a post-natal test to determine the paternity of his then unborn child, and to be named as the child’s biological father on his or her birth certificate, in the event that such test identified him as the father.

2Atticus Kai William Haywood was born on October 4, 2017, and subsequent testing of Ms. Haywood, Atticus and Mr. Anderson confirmed that Mr. Anderson is his biological father. Mr. Anderson’s original application indicated that if that was found to be the case, he would file a parenting plan in support of his application for custody and access to the child, and his application purported to make a claim for custody and access pursuant to the Children’s Law Reform Act¹, although no child was yet born at that time.

3Ms. Haywood filed an Answer with respect to the request for paternity testing and filed a Supplementary Answer in which she made a claim for custody, child support and section 7 or extraordinary expenses for Atticus. In her Supplementary Answer, Ms. Haywood sought an order that all access by Mr. Anderson to Atticus be supervised at a supervised access centre for small amounts of time.

4The trial, however, proceeded on an Amended Application filed by Mr. Anderson pursuant to the order of Justice James dated September 20, 2019. In his Amended Application, Mr. Anderson is content for Atticus’ “primary care” to be with Ms. Haywood, but he seeks an order of joint custody and “reasonable and generous parenting time” which is to increase over time. He also seeks to be consulted on major decisions for Atticus, with final decision making to rest with Ms. Haywood in the event they are unable to agree, and with the caveat that if he strongly disagrees with a decision, he may return the matter to court. In Ms. Haywood’s Answer, she seeks limited and supervised access by Mr. Anderson to Atticus. At trial, however, she was accepting that Mr. Anderson have unsupervised access, but sought to limit it to daytime access every second weekend with increasing occurring much later in Atticus’ life.

5Therefore, the most significant issues in this case are custody (joint vs. sole to Ms. Haywood) and Mr. Anderson’s parenting time. Ancillary issues include child support, section 7 or extraordinary expenses and Ms. Haywood’s request to be able to travel with Atticus without Mr. Anderson’s consent.

6For the reasons that follow, there will be an order of joint custody, with Atticus to reside primarily with Ms. Haywood. The parents shall consult on all major decisions for Atticus; if they are unable to agree on a decision, Ms. Haywood shall have the final decision-making authority. For so long as Mr. Anderson remains in Pembroke, he will have parenting time with Atticus every second weekend in Pembroke from Saturday at 10:00 a.m. to until Sunday at 3:00 p.m. Such overnight access will commence on the first weekend that he is already scheduled to see Atticus in Pembroke according to the current schedule. Mr. Anderson will also have parenting time on the alternating Saturday from 10:00 a.m. to 3:00 p.m. in Kingston. Ms. Haywood shall provide the transportation for the Pembroke visit, or the parties may arrange to meet half way between Kingston and Pembroke to do the exchange. Mr. Anderson shall be responsible for his own travel for the Kingston visits. At such time as Mr. Anderson relocates to Kingston, his parenting time with Atticus shall be every second weekend from Saturday at 9:00 a.m. to Sunday at 5:00 p.m. for a period of six months, after which it shall increase to every second weekend from Friday after daycare to Sunday at 5:00 p.m. Once he is resident in Kingston, Mr. Anderson shall also have Atticus in his care every Wednesday from after daycare to Thursday morning at daycare. If Mr. Anderson does not relocate to Kingston within six months of this order, his access will revert to every second weekend in Pembroke from Saturday at 10:00 a.m. to Sunday at 3:00 p.m., and commencing October 1, 2020, Mr. Anderson’s access shall increase every second weekend from Friday after daycare to Sunday at 3:00 p.m. Neither parent shall travel with Atticus outside of Canada without the consent of the other or a court order.

Background Facts

[7]

Background Facts

The parties met at the end of October of 2016. Mr. Anderson lived in Baysville, Ontario, while Ms. Haywood lived in Pembroke, Ontario. They had a short-lived relationship of approximately two and a half months. Ms. Haywood broke up with Mr. Anderson, on January 27, 2017. She informed Mr. Anderson that she was pregnant on February 4, 2017; Ms. Haywood both spoke to Mr. Anderson by telephone and sent him a picture of her ultrasound by text².

8The parties provided differing evidence with respect to the nature of the relationship. Mr. Anderson’s evidence was that it was a romantic relationship which he believed was progressing, until such time as Ms. Haywood called it off. Ms. Haywood’s evidence was that she essentially engaged Mr. Anderson, who works in construction, to oversee some renovations that were being done on her home, and to conceive a child.

9Regardless of who’s evidence is more believable in this regard, the parties agree that from the time that they met, Ms. Haywood was intent on having a child. It was, in fact, for this reason that she was renovating her home – she intended to adopt if she was not able to biologically have a child. Either shortly before or around the time they met, Ms. Haywood was referred to a fertility clinic, and had an appointment scheduled for January 19, 2017. She and Mr. Anderson had many discussions about her intention to have a child, and she informed him early on in their contact of the appointment she had scheduled at the clinic in January.

10Mr. Anderson’s evidence was that he believed the project became one of them having a child together, and he indicated that he was interested in donating his sperm to the clinic to impregnate Ms. Haywood, if they could conceive naturally. Ms. Haywood’s evidence was that Mr. Anderson advised her he did not want to be responsible for a child, financially or otherwise, and she was prepared to have an agreement drafted absolving him of any responsibility. They never, however, entered into any such agreement.

11On February 4, 2017, Ms. Haywood advised Mr. Anderson by telephone that she was expecting a child. She also sent him a photograph of her pregnancy test result by text on that date.

12After conception, the parties continued to be in some contact, either via text messaging or telephone. Ms. Haywood advised Mr. Anderson of one appointment she had with her obstetrician, but it was not with enough notice such that he could attend. Mr. Anderson then asked Ms. Haywood if she could try to schedule her appointments in a manner which would permit him to participate, but that was neither easy to do nor was she particularly interested in so doing.

13Mr. Anderson continued to make inquiries as to Ms. Haywood and the baby’s health, and to want to talk about custody and access issues with her. On March 3, 2017, the parties had a text message exchange³ wherein Ms. Haywood was advising Mr. Anderson to speak to her counsel, who also happened to be her neighbour, Mr. J.P. Quintal. The exchange went as follows:

12:44 PM – Ms. Haywood to Mr. Anderson:

I’ll book an appointment with him and ask him to get in touch with your counsel.

12:52 PM – Mr. Anderson to Ms. Haywood:

It’s recommended that we try and figure this out between ourselves first in a reasonable manner. I don’t understand how we are 180 degrees apart.

12:56 PM – Ms. Haywood to Mr. Anderson:

I’m not answering you again. I have repeatedly told you I am stressed because I am in contractor hell. I have no heat have had to get emergency engineering support to stop my house from falling down, have water pouring in my windows and have spent 10s of thousands of dollars to fix things that you either lied to me about knowing about or failed to tell me. I don’t trust you and don’t want to deal with you. I need to reduce the stress in my life and handling the negotiation of custody arrangements off to someone else is a good way to do that. I will not reply again.

14Mr. Anderson thereafter contacted Mr. Quintal, and according to his evidence was advised by him that “paternity was not yet established”. In response to this information, Mr. Anderson wrote a letter to Ms. Haywood dated May 3, 2017, in which he requested that she provide an affidavit naming him as the biological father of the child, that she name his as the biological father on the birth certificate, and that the baby’s due date be medically established (and presumably provided to him)⁴.

15Ms. Haywood’s only response to Mr. Anderson’s letter was by text on June 2, 2017. It said: “I disagree with the contents of your letter. The flowers to me/note to my neighbours pissed me off beyond belief. If you want to continue to threaten or try to embarrass me you’ll need to go through the courts. If you want to behave like an adult I am willing to talk.” Ms. Haywood did not explain, either at the time or at trial, what Mr. Anderson did to “threaten” her. With respect to the flowers, Mr. Anderson testified that he sent her flowers for Mother’s Day, which were delivered, and that he had no idea the delivery person would leave them with a neighbour when she was not found at home. He, thus, had no intention to embarrass her.

16After Ms. Haywood’s June 2, 2017 text message, the parties had no direct contact prior to Atticus’ birth. Mr. Anderson filed his above referenced application and the matter was first in court on August 24, 2017. On that date, Mr. Quintal appeared as Friend of the Court for Ms. Haywood and Mr. Anderson appeared in person. Although I am uncertain on what authority, given there was not yet a child, an order was made for “DNA testing”. Although Ms. Haywood’s Answer indicated at paragraph 2 on page 2: “Susan will consent to a paternity test at Joshua’s cost”, it is incomprehensible to me why she did not simply acknowledge paternity of the child. This would have saved them both a lot of trouble and reduced the spectre of rising animosity.

17Mr. Anderson then heard nothing more from Ms. Haywood directly until he received a text on or about October 27, 2017, asking if he wanted to meet “Atticus”. Mr. Anderson stated that he didn’t even know who Atticus was. (He had only learned of the child’s name and date of birth from the application form for paternity testing which he attended on October 24, 2017). Mr. Anderson was bothered by the fact that he had not been invited to the birth, had not been given any choice in the child’s name and was not named on his statement of live birth.

18Mr. Anderson had his first visit with Atticus on Sunday, October 29, 2017, for an hour and a half. Both he and Ms. Haywood had a third-party present and the visit took place in a restaurant. Mr. Anderson testified that they had no agreement on when the next visit would be, but a few more visits did take place at Kelsey’s and Tim Horton’s restaurants pending his regular visits starting in January of 2018.

19On November 30, 2017, at what had been scheduled as an access motion, Justice Selkirk made an interim without prejudice order granting Mr. Anderson supervised access to Atticus a minimum of twice weekly at the Supervised Access and Exchange Centre (“SAEC”) for a minimum of one and a half hours each. Justice Selkirk also ordered that Ms. Haywood was allowed to travel with Atticus from February 21 to 26, 2018, with Mr. Anderson signing any necessary paperwork for a passport, and that commencing December 1, 2017, Mr. Anderson was to pay $266 per month in child support based on an annual income of $28,000 per year.

20In January of 2018, Mr. Anderson moved to Pembroke from Baysville, Ontario, where he was from, to be close to Atticus. His visits with Atticus at the SAEC commenced on January 29, 2018. Although there were some minor changes to it, Mr. Anderson’s access to Atticus remained supervised at the centre until it was changed by order of Justice Selkirk dated March 25, 2019. On April 5, 2018, Justice Selkirk indicated that a limit of one or two people from the paternal family could attend Mr. Anderson’s visits. On May 7, 2018, Justice Selkirk varied the November 30, 2017 order to make it a minimum of three times per week rather than two. He also ordered that an assessment “re: parental access” was to be conducted by Lynn Lavery.

21Although Justice Selkirk had increased the access to three times per week as of May 7, 2018, Mr. Anderson indicated that it only happened three times every other week based on the availability at the centre. On the alternate weeks, it remained at twice per week.

22The parties filed volumes of access observation notes from the SAEC, as well as volumes of notes from their communication book, some of which were in hand writing and some of which occurred via email from Ms. Haywood. Ms. Haywood took great issue with three specific incidents from Mr. Anderson’s supervised access at the centre and appeared to rely on them to justify her position that access needed to be supervised. They were:

• April 5, 2018, when Mr. Anderson’s mother permitted Atticus to taste a smoothie Mr. Anderson was drinking off the tip of her finger;

• March 11, 2018, when Atticus bumped his head on a glass window while being held by Mr. Anderson; and,

• January 13, 2019, when Atticus fell forward and bumped his forehead on the floor.

23Ms. Lavery was retained in June of 2018, to do the assessment ordered by the court on April 5, 2018. Atticus was approximately nine months old at the time of the assessment. Mr. Anderson’s access was still supervised at the center, but Ms. Lavery arranged to have an observation visit at his home during the assessment. Ms. Lavery provided a report dated October 6, 2018. In in, she recommended that Ms. Haywood be granted sole custody of Atticus, and that Mr. Anderson’s access be increased on a progressive schedule. She noted at page11 of the report that she did not “see a reason for his access to continue to be supervised.”⁵

24As I have indicated above, Mr. Anderson’s access to Atticus continued to be supervised until it was varied on motion on March 25, 2019. Mr Anderson testified that he tried to move it from the Centre by making several suggestions to Ms. Haywood. Subsequent to Ms. Lavery’s report, he suggested in three different communications⁶ that he have Atticus at a program called “Play and Learn”. Ms. Haywood did not communicate any agreement with these proposals to Mr. Anderson.

25Prior to the report, Mr. Anderson had proffered several third parties to play a role in supervising or being present for his access. These included his parents, Elisabeth Anderson and Ken Anderson, both of whom had previously had Vulnerable Sector records checks done for their respective employment.⁷ He has also suggested an older couple whom he’s known for many years, Neil and Bugit Corriveau, as well as his cousin’s wife, Stacey Solmon, who is Detective Constable with the Ontario Provincial Police. All were refused by Ms. Haywood. Finally, Mr. Anderson proposed his neighbour, who was a high school teacher, Jonathan Hammel. Mr. Hammel provided two references, one from the Principal of Valour JK-12 School⁸ and the other from the Superintendent of the Renfrew County District School Board⁹. He also agreed to meet with Ms. Haywood in advance. Only after all of these steps were completed and Ms. Haywood was, by her investigation, able to confirm Mr. Hammel’s employment as a teacher, did she agree that he could act as a supervisor for Mr. Anderson’s access. Unfortunately, by the time Ms. Haywood provided her approval, Mr. Hammel’s schedule no longer permitted him to do so. Mr. Anderson’s visits, therefore, remained at the SAEC until they became unsupervised by order of the court.

26Mr. Anderson testified that he had a criminal record for one conviction of failure to provide a breath sample from November 20, 1997¹⁰, which he had disclosed in his Form 35.1 sworn on October 13, 2017 (though he thought it was an impaired driving charge). He also had been arrested in the State of Florida on December 21, 1993 and was charged for possession of a forged document¹¹, which he indicated was a fake ID to buy beer. He would have been approximately 18 years old at the time.

27Mr. Anderson testified that he completed a “Triple P” parenting course prior to Atticus’ birth, and that he later completed a St. John Ambulance CPR course¹², of which Ms. Haywood approved, in November of 2018 and a New Parent Workshop in January of 2019¹³.

28While I recognize that temporary orders for supervised access have been made along the way, they were done so on a without prejudice basis. I can state that over five days of trial, I heard absolutely no evidence that would lead me to conclude that Mr. Anderson’s access to Atticus required supervision, ever. Nor did I hear any evidence which would lead me to believe that Mr. Anderson presented any kind of threat to Ms. Haywood. Mr. Anderson was simply a new dad who, to his credit, wanted to be involved in the life of his son. Ironically, Mr. Anderson probably had more experience with children, generally speaking, prior to the birth of Atticus than did Ms. Haywood. However, notwithstanding his clear disagreement with her perception of Mr. Anderson as nothing more than a sperm donor, Ms. Haywood simply “took possession” of Atticus from the moment of his birth, and tightly controlled every aspect of Mr. Anderson’s contact with the child, including whether his family members could be present at access, whether Mr. Anderson could feed Atticus at access and in what activities he was allowed (going outdoors) or not allowed (carving a pumpkin) to participate.

29I find the use of the SAEC for well over a year of Mr. Anderson’s visits with Atticus to be very disturbing, indeed abusive. That is a service that is required for cases in which there exist serious concerns around violence, substance abuse and/or mental health issues. That a space was taken up for this family means that another which truly needed its services was deprived. To me, that is one of the inexcusable and tragic outcomes of this case. Another is that Mr. Anderson and Atticus have been deprived of what ought to have been a typical, healthy and highly promoted father-son relationship. Not only has their relationship been affected, but so too has that of Atticus with his paternal family members, including his grandparents, aunts, uncles and cousins, as well as with the extended family to whom Mr. Anderson is close, such as his cousins and their children. Unfortunately, as a result of the very strict and limited access Mr. Anderson had during the early part of his life, Atticus was not permitted to develop “the love, affection and emotional ties” referred to in Section 24(3) of the Children’s Law Reform Act with any of these individuals in a natural and meaningful way.

30Subsequent to the March 25, 2019 order of the court, Mr. Anderson’s unsupervised access to Atticus was on Tuesdays’ and Fridays from 3:00 p.m. to 6:00 p.m. and Saturdays and Sundays from 9:00 a.m. to 1:30 p.m. The exchanges for access took place either through the SAEC access exchange program (again, unnecessarily, in my view) or in the parking lot of the No Frills grocery store. This regime continued until it was altered, again by court order effective August 15, 2019, to be on Saturdays from 10:00 a.m. to 4:00 p.m. and Sundays from 9:00 a.m. to 3:00 p.m. in Pembroke on one weekend and Saturday from 10:00 a.m. to 2:00 p.m. in Kingston on the alternating week. The reason for this change is that Ms. Haywood, without consultation with Mr. Anderson decided to move to Kingston, Ontario. Ultimately, Mr. Anderson agreed with Ms. Haywood’s move. His evidence was that it is his intention to also move to Kingston to be close to Atticus (as he had done from Baysville to Pembroke). At the time of the trial, Mr. Anderson’s home in Pembroke was listed for sale, and he had secured tentative employment in Kingston, however, he had not yet moved and was not able to say definitively when that would occur.

31Ms. Haywood sought and received Mr. Anderson’s agreement for Atticus to receive speech therapy, and she unilaterally placed Atticus in daycare at Queen’s University, where she is teaching (as well as at St. Lawrence College). Although Mr. Anderson testified that he would have liked to have some say in the daycare issue, these are both section 7 or extraordinary expenses to which he is prepared to contribute.

[32]

Custody and Access Analysis

Ms. Lavery came to testify and was qualified by the court to give an expert opinion on the issues of custody and access. Ms. Lavery met with both parties independently to receive their respective histories. She observed Atticus with both and reviewed collateral materials, including the SAEC visit observation reports, and/or spoke to collateral witnesses, such as Atticus’ Nurse Practitioner, Sharon Rowan, who also testified. With respect to the visit reports, Ms. Lavery indicated that “there were no glaring issues identified in them”. Ms. Lavery found Atticus to be a very engaging little guy with a nice temperament, whom she saw was “strongly bonded” with mom, but very comfortable in each parent’s care.

33Ms. Lavery saw that there was a lack of trust in the relationship between the parents. She stated: “To say it was acrimonious would be gentle”. I concur but based on the facts of the case as they were presented to me, I have difficulty determining the reasons for such acrimony. These are two well-established, well-educated and mature adults who should be able to communicate relatively seamlessly around the needs of Atticus. Ms. Lavery recommended sole custody to Ms. Haywood, largely on the basis that she did not see the parties being able to communicate effectively. However, the evidence was replete with examples of them being able to do so. Mr. Anderson, and indeed, Ms. Haywood testified that communication has improved in more recent months, especially when compared to the early days after Atticus conception and then birth. Ms. Haywood admitted to being very angry with Mr. Anderson and stated that it was for this reason that she did not name him on the birth certificate. She has since done so, albeit pretty belatedly relative to when it was first requested.

34Ms. Haywood presented as “bothered” by Mr. Anderson, so much so that she only wishes to bother with him on her terms. There is no doubt that he was bothersome at times, particularly when he wanted to talk about custody and access and she did not. He was, however, clearly motivated by his desire to be present and involved in his son’s life, as he is entitled by section 20 of the CLRA to be. But for her treatment of Mr. Anderson, Ms. Haywood has otherwise been a stellar parent to Atticus. As Ms. Lavery noted in paragraph 4 on page 10 of her report, Ms. Haywood “has provided Atticus with a secure, stable and consistent environment”.¹⁴ Further, at paragraph 6 on page 10, Ms. Lavery noted: “As Atticus continues to grow and recognizing that Ms. Haywood has done an excellent job in establishing a secure attachment with Atticus, this will permit him to develop healthy attachments with more people, and specifically his father.”¹⁵ Bothered or not, Ms. Haywood had a child with Mr. Anderson, a child for whom they will both be responsible for many years to come. Given Ms. Haywood’s actions to date, I am of the view that a joint custody order is required to preserve a meaningful role for Mr. Anderson in the life of Atticus, not just a role which Ms. Haywood wants or will permit him to have.

35With respect to the issue of Mr. Anderson’s access or parenting time with Atticus, Ms. Lavery saw it as very limited; she wanted to see it expand and for him to have increasingly take on more of a caregiving role. In her report, Ms. Lavery recommended that Mr. Anderson’s access increase as follows:

• in November and December of 2018 to two-hour visits as per the existing schedule on alternate weekends, as well as for Mr. Anderson to be able to attend at monthly “Dad & Me” programs, which she described as being offered at the EarlyON Family Centre in Pembroke for fathers of children age 0 to 6 with the goal “to promote positive father involvement and to strengthen the father-child relationship”;

• From January 2019 to June 2019 to three-hour visit in addition to Dad &Me;

• From June 2019 to September of 2019 to four-hour visits in addition to Dad & Me;

• From September to December 2019 to six-hour visits in addition to Dad & Me;

• As of January 2020 to eight-hour visits in addition to Dad & Me; and,

• Overnights to be incorporated at age three.

36Ms. Lavery testified that with respect to overnight access, she deferred to what she called the “Australian Association” model’s recommendations and rationale. Ms. Lavery had previously explained in an email to the parties that toddlers do well with predictable schedules and routines, and that they will miss the parent they are not with.¹⁶ Ms. Lavery testified, however, that the recommendation of not starting overnight visits until three was guide, and that it likely required flexibility. Ms. Lavery indicated that she also made that recommendation in the context of the other incremental increases she was recommending. Ms. Lavery testified that she was looking “to get dad into a position of providing care”, which he has now been doing for quite some time. Ms. Lavery indicated that she had had no contact with the parties since the report was done, and particularly since Atticus was spending significant parts of the days on Saturdays and Sundays with Mr. Anderson. Ms. Lavery’s view of when one would move to overnight access is when Atticus is ready for it. The keys for her would be how Atticus is managing time away from his primary caregiver and whether dad is providing a safe environment for him and capably meeting his needs.

37The evidence before me is that Atticus is managing his time away from Ms. Haywood well. She had an initial concern after unsupervised access was commenced that Atticus’ weight gain was being affected, but she later came to understand that was not the case. Certainly, Nurse Rowan, who also testified, had no extraordinary concerns for Atticus’ health. Additionally, Mr. Anderson reports that all is well during his visits with Atticus, and that if any issue arose of concern, he would consult with Ms. Haywood in any event. This statement seems to be supported by the communication book with travels between the parties. Mr. Anderson has been more than willing to receive suggestions or follow directions, be it about dietary issues, the application of sunscreen, the use of shampoos or any other matter. Given that Atticus is currently with Mr. Anderson every other weekend from Saturday morning to essentially Sunday afternoon, I am of the view that the addition of one overnight on those weekends would be seamless and natural and I am prepared to order same to commence immediately.

38If Mr. Anderson moves to Kingston to be closer to Atticus, then his access should revert to every second weekend so that Ms. Haywood can also have some uninterrupted weekend time with the child. Mr. Anderson shall commence with every second weekend in Kingston from Saturday morning until Sunday afternoon, just as he will have been doing in Pembroke (except that it will be extended to 5:00 p.m. on Sunday in Kingston), to provide Atticus with consistency of those visits. However, one overnight visit will also be added from the end of daycare on Wednesday to the return at daycare Thursday morning. Additionally, after Mr. Anderson has exercised access to Atticus every other weekend from Saturday to Sunday for six months, a second overnight visit will be added such that Mr. Anderson will have him from Friday after daycare to Sunday at 5:00 p.m.

39Ms. Haywood is seeking to be able to travel outside of Canada with Atticus without having to obtain the consent of Mr. Anderson. She does so on the basis that on the two occasions she has sought to travel to the United States with Atticus for a course, Mr. Anderson has made it difficult. On the first occasion, in November of 2017 (for February 2018 travel), Mr. Anderson ended up consenting to her travel, though it was after she had to prepare a motion. Mr. Anderson testified that he was not trying to be difficult but that there were no orders in place at the time, he was not listed as Atticus’ father on his statement of live birth or birth certificate and he was not certain Ms. Haywood would return from the United States. On the second occasion in January of 2019 (for travel in February of 2019), Mr. Anderson was insistent on receiving medical confirmation that Atticus was cleared to travel before consenting to same. The reason for this was that Ms. Haywood’s position was that Atticus had suffered a concussion as a result of hitting his head on the floor of the SAEC centre at a visit with Mr. Anderson on January 13, 2019. If that was the case, Mr. Anderson only wanted assurance that it was ok for Atticus to fly, which he belatedly received from Ms. Haywood. I find that it was perfectly reasonable for Mr. Anderson to have that concern, given that Ms. Haywood’s attendance at the Emergency department of the Pembroke Hospital on January 13, 2019 and the diagnosis of a possible concussion. Based on this evidence, and the fact that on both occasions in question, Mr. Anderson did consent to Ms. Haywood’s travel with Atticus, I can find no basis to remove the requirement that he consent in the future.

[40]

Child Support

With respect to the issue of child support, Ms. Haywood argues that income should be imputed to Mr. Anderson on two accounts: 1) he should be capable of making $60,000 per year, and 2) some of his business expenses are not deductible for support purposes. Mr. Anderson argues, on the other hand, that income should be imputed to Ms. Haywood on the basis that she has made significant deductions for her business expenses that are not permissible for support purposes.

41The onus of establishing that income should be imputed, of course, lies with the party seeking to impute it. I find, in this case, that both parties have failed to meet that onus, at least to the degree sought. First, Mr. Anderson’s evidence was that his personal renovation/construction business, “Straight and Level Contracting”, by which he made income additional to any employment he had, was much better known in Baysville. He was able to generate work by word of mouth and was able to make more money prior to his move to Pembroke. Mr. Anderson moved to Pembroke in January of 2018 and has worked at various jobs since his move. However, he has not been able to generate much income from his renovation business because he is not well known in Pembroke, and he has not been able to become well established. The same will be true if and when Mr. Anderson moves to Kingston, again to be close to Atticus and involved in his life.

42Ms. Haywood unilaterally decided to move to Kingston, partly for her own financial opportunity, stability and well-being. Her doing so, however, has impacted or will impact Mr. Anderson’s financial situation. He will, once again, be required to start over if wants to be close to Atticus. To suggest that the court can impute an income to Mr. Anderson of $60,000 per year when his circumstances are unknown is not realistic.

43Mr. Anderson’s Line 150 income in 2017 was $39,521.20. It consisted of a combination of employment income, which he appears to have always been able to obtain, and some contract work with Straight and Level Contracting. This is a more realistic figure at which to suggest Mr. Anderson is consistently capable of earning. In 2018, Mr. Anderson’s Line 150 income was $32,908.11, which was again a combination of employment income and contract work, although the latter was much lower in 2018 than it had been in 2017. With respect to the issue of expenses deducted for income tax purposes, Mr. Anderson’s income from his own business was so limited in 2018 and 2019 that its impact on child support payable would be negligible (his gross business income in 2018, for example, was only $4,850 and his net business income was -$2494.80). There undoubtedly were, nevertheless, some minimal expenses that could be added back into his income for support purposes. I am prepared to impute income to Mr. Anderson of $40,000. Child support and Mr. Anderson’s proportional contribution to section 7 expenses shall be based on an imputed income of $40,000 for 2017 and 2018 and shall be based on the higher of $40,000 or his actual income for 2019 and going forward.

44Mr. Anderson has also suggested that Ms. Haywood should have income imputed to her from deductions from her company, “Human Resource Blueprints Ltd” for office expenses and travel expenses. Although he has made this submission in his closing arguments, Mr. Anderson provided no breakdown, in an evidentiary way, as to what proportion of what expenses for what years he is seeking to add back in for the purposes of imputing income. I consequently decline to impute income to Ms. Haywood.

45Finally, Mr. Anderson testified that he has a life insurance policy, one which he has had for many years, and he would take no issue with irrevocably designating Atticus as its beneficiary.

Order

46Pursuant to sections 20, 24 and 28 of the Children’s Law Reform Act, and sections 31 and 33 of the Family Law Act, I find that it is in the best interests of Atticus that there be a final order as follows:

1. The Applicant father and the Respondent mother shall share joint custody of the child, Atticus Kai Haywood, born October 4, 2017;

2. Atticus shall reside primarily with the Respondent mother;

3. Atticus’ primary residence shall not be relocated outside of the jurisdiction of Kingston, Ontario without the prior consent of the Applicant father or a court order obtained on notice;

4. The Applicant father and the Respondent mother shall consult with one another on all major decisions affecting Atticus. If they are unable to agree on the decision, the Respondent mother shall have the final decision-making authority;

5. For so long as the Applicant father remains in Pembroke, he will have parenting time with Atticus every second weekend in Pembroke from Saturday at 10:00 a.m. to Sunday at 3:00 p.m. Such overnight access will commence on the first weekend that he is already scheduled to see Atticus in Pembroke according to the current schedule;

6. The Applicant father will also have parenting time on the alternating Saturday from 10:00 am to 3:00 p.m. in Kingston;

7. The Respondent mother shall provide the transportation for the Pembroke visit, or the parties may arrange to meet half way between Kingston and Pembroke to do the exchange;

8. The Applicant father shall be responsible for his own travel for the Kingston visits;

9. At such time as Applicant father relocates to Kingston, his parenting time with Atticus shall be every second weekend from Saturday at 9:00 a.m. to Sunday at 5:00 p.m. for a period of six months, after which it shall increase to every second weekend from Friday after daycare to Sunday at 5:00 p.m.;

10. Once the Applicant father is resident in Kingston, he shall also have Atticus in his care every Wednesday from after daycare to Thursday morning at daycare;

11. If the Applicant father does not relocate to Kingston within six months of this order, his access will revert to every second weekend in Pembroke from Saturday at 10:00 a.m. to Sunday at 3:00 p.m.;

12. Commencing October 1, 2020, the Applicant father’s access in Pembroke shall increase to every second weekend from Friday after daycare to Sunday at 3:00 p.m. The parties shall arrange to meet half way between Kingston and Pembroke to do the exchange for these visits, or alternate with the parent in whose care the child will be picking him up from the other parent or daycare;

13. Once Atticus starts school, the Applicant father’s every second weekend access shall be extended to Monday at 5:00 p.m. if the Applicant father lives in Kingston or at 3:00 p.m. if the Applicant father lives in Pembroke and Monday is a holiday or PD day;

14. Atticus shall spend Mother’s Day with the Respondent mother, regardless of the regular access schedule;

15. Atticus shall spend Father’s Day with the Applicant father, regardless of the regular access schedule;

16. The parties shall share Christmas, Easter and Thanksgiving weekends equally, either by alternating them yearly or dividing them each year;

17. Once Atticus starts school, the parties shall share his March break equally, either by alternating them yearly or dividing them each year;

18. During the summer of 2021, the Applicant father shall have one long weekend (Friday to Monday) with Atticus in July and one long weekend (Friday to Monday) with Atticus in August, the specific weekend to be agreed upon by the parties;

19. During the summer of 2022, the Applicant father shall have one week with Atticus in July and one week with Atticus in August, the specific week to be agreed upon by the parties;

20. Commencing in the summer of 2023, the parties shall have Atticus for alternating weeks in July and August;

21. All access exchanges for Atticus shall occur at his daycare or school, where possible, or where not possible, at a mutually agreeable public location;

22. Both parents shall be entitled to obtain information directly from Atticus’ doctors, daycare providers, teachers or any other service provider with whom he is involved;

23. Both parents are entitled to attend medical appointments, parent-teacher interviews, daycare/school activities and extra-curricular activities for Atticus;

24. Each parent shall obtain his or her own school calendar and school notices and each party shall arrange for their own parent-teacher meetings with the school;

25. In the event that either party travels outside of Ontario with Atticus, they shall advise the other party and provide contact information for where they can be reached during travel;

26. Neither parent shall obtain travel documents for or travel with Atticus outside of Canada without the consent of the other or a court order;

27. If Atticus requires emergency medical care while with one parent, that parent shall promptly notify the other of the emergency by way of a telephone call;

28. Commencing January 1, 2018, the Applicant father shall pay to the Respondent mother child support for Atticus of $359 per month, being the Federal Child Support Guideline table amount for one child on an imputed annual income of $40,000;

29. Commencing January 1, 2019, the Applicant father shall pay to the Respondent mother monthly child support for Atticus of the FCSG table amount for one child based on the higher of an imputed annual income of $40,000 or his actual income for 2019;

30. Commencing January 1, 2018, the Applicant father and the Respondent mother shall contribute towards the section 7 expenses of Atticus in an amount that is proportionate to their respective incomes/deemed incomes. Section 7 expenses shall include the portion of daycare expenses beyond any subsidized amount to which the Respondent mother is entitled to receive and medical and dental expenses not covered by either party’s insurance benefits;

31. Prior to incurring additional section 7 expenses not contemplated within paragraph 26 above, the parent seeking to incur the expense shall obtain the written consent of the other parent if he or she is to contribute. Consent shall not be unreasonably withheld;

32. Both parties shall maintain health and dental insurance coverage for Atticus if such benefits are available to them via their employment. Upon obtaining said coverage, the other party shall be immediately notified. In the event that one party pays for an expense that is eligible for insurance reimbursement, the other shall cooperate with submitting the claim in a timely fashion and transferring the amount reimbursed by the insurance company immediately upon receipt; and,

33. The Applicant Father shall maintain a policy of life insurance with a minimum payout of $150,000 which amount is sufficient to cover his child support and section 7 expense obligations inclusive of post-secondary education expenses, and shall name Atticus as the irrevocable beneficiary, in trust. Confirmation of the policy and beneficiary designation shall be provided to the Respondent mother by February 1, 2020 and thereafter on an annual basis.

Costs

[47]

Costs

Mr. Anderson has been the more successful party at trial, and pursuant to Rule 24 (1) of the Family Law Rules is presumptively entitled to costs. If the parties are unable to reach an agreement as to the liability or quantum by February 1, 2020, the parties will make written submissions of no more than three pages, along with copies of their bills of costs and offers to settle, to me at intervals of 10 days from that date and I will make an order.

Footnotes

1. 1R.S.O. 1990, c. C.12, as am
2. 2Trial Exhibit #17
3. 3Trial Exhibit #21
4. 4Attached to Mr. Anderson’s Application dated July 17, 2017, Trial Record, Tab 1
5. 5Assessment Report of Lynn Lavery dated October 6, 2018, page 11, Tab 13 of the Trial Record
6. 6On November 26, 2018, February 1, 2019 and February 8, 2019
7. 7Vulnerable Sector record check for Elisabeth Anderson dated February 9, 2015, Trial Exhibit #26; Vulnerable Sector record check for Kenneth Anderson dated March 6, 2013, Trial Exhibit #27
8. 8Undated Letter from B. Baird, Trial Exhibit #104
9. 9Letter dated October 5, 2018 from Jacqueline Poirier, Trial Exhibit #105
10. 10OPP Criminal Record Check dated March 22, 2019, Trial Exhibit #22
11. 11US Department of Justice, Criminal Justice Information Services search dated July 19, 2019, Trial Exhibit #25
12. 12St. John Ambulance Certificate dated November 24, 2018, Trial Exhibit #24
13. 13St. John Ambulance Certificate for “New Parent Workshop”
14. 14Report of Lynn Lavery dated October 6, 2018, Tab 13 of the Trial Record
15. 15Ditto
16. 16Email from Lynn Lavery dated October 9, 2018, Tab 17 of the Trial Record