Court File and Parties

COURT FILE NO.: FS-17-416887 DATE: 20200219

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Przemyslaw Rafal Posylek Applicant

• and - Grazielli Nardes Respondent

Counsel: Jessica Freedman, for the Applicant Barry Nussbaum, for the Respondent

HEARD: January 13-17, 2020

STEVENSON J.

REASONS FOR DECISION

Introduction

[1] The Applicant, Przemyslaw Rafal Posylek ("Mr. Posylek"), seeks joint custody of the parties’ child, Cecilia Nardes-Posylek (“Cecilia”), born December 19, 2015. In the event of disagreement between the parties, Mr. Posylek seeks an order that he have final say with respect to any issues regarding Cecilia’s education, and that the Respondent, Grazielli Nardes (“Ms. Nardes”), have final say on any issues pertaining to Cecilia’s health and dental. For all other issues, the parties would follow the recommendations of the qualified professional providing services to Cecilia. If they are unable to agree, Mr. Posylek would have the right to make the final decision.

[2] Further, Mr. Posylek seeks a gradual increase in the amount of parenting time that he now shares with Cecilia culminating in Cecilia alternating weeks with her parents, commencing March 30, 2020. Mr. Posylek also seeks an order that he and Ms. Nardes share holiday time equally with Cecilia. In the alternative, Mr. Posylek seeks an order of joint custody with Cecilia’s primary residence with him. In the further alternative, he seeks sole custody of Cecilia with access to Ms. Nardes.

[3] There are many other provisions set out in Mr. Posylek’s detailed parenting plan dealing with communication, decision-making, parenting time, changes to the schedule, telephone and video calls, travel, change in residence, and extracurricular activities that he asks the Court to incorporate into a final order. Mr. Posylek also asks the Court for an order that Ms. Nardes not remove Cecilia from the province of Ontario without his consent or court order. He further asks that all of Cecilia’s legal documents, including but not limited to her birth certificate, passport and health card, not be obtained or renewed without both parties’ written consent or court order.

[4] Additionally, Mr. Posylek requests that there be no child support payable by either party to the other based on both parties’ current incomes and equal timesharing with Cecilia. He asks the Court for an order fixing his overpayment of child support for the period August 1, 2018 to January 31, 2020 in the amount of $576 with that amount to be payable by Ms. Nardes within 30 days. In closing submissions, counsel for Mr. Posylek clarified that if Ms. Nardes is not seeking any retroactive adjustment with respect to table child support and section 7 expenses, Mr. Posylek will forgo his claim to an overpayment of child support. With respect to ongoing section 7 expenses, Mr. Posylek seeks that the parties contribute equally to those expenses. Mr. Posylek also seeks costs.

[5] Ms. Nardes seeks an order that she be granted sole custody and primary residence of Cecilia. She is willing to canvass and discuss with Mr. Posylek all major decisions regarding Cecilia. However, in the event of a disagreement between the parties, Ms. Nardes would have final decision-making authority.

[6] Ms. Nardes also seeks an order that she be allowed to travel with Cecilia outside of Ontario without Mr. Posylek’s consent. She agrees to Mr. Posylek being able to travel with Cecilia outside of Ontario if certain terms are followed.

[7] Contained within Ms. Nardes’ draft order provided at trial, is also a provision that she be responsible for obtaining and renewing all government issued identification for Cecilia from both Canada and Brazil without Mr. Posylek’s signature. She also seeks an order that the parties continue to communicate through the program, “Our Family Wizard”.

[8] With respect to parenting time, Ms. Nardes proposes that Mr. Posylek’s parenting time with Cecilia be on Thursdays from after school through to Saturday at 7:00 p.m. Once Mr. Posylek returns to work, Ms. Nardes proposes that he have parenting time with Cecilia from Thursday at 7:50 a.m. to Saturday at 7:00 p.m. Ms. Nardes seeks an order that the parties share time with Cecilia equally at Easter and during the Christmas holiday period including New Years.

[9] Further, Ms. Nardes seeks an order that Mr. Posylek pay $459.24 per month for table child support for Cecilia until August 2020 when his child support would increase to $678.66 per month. She further seeks an order that the parties share equally any section 7 expenses of Cecilia. Ms. Nardes also seeks costs.

Background

[10] Mr. Posylek is 39 years-old. He was born in Poland and came to Canada in 1987. Mr. Posylek’s parents currently reside nearby in the Greater Toronto area. He is an only child.

[11] Ms. Nardes is 37 years-old. She first came to Canada from Brazil in 2009. Her sister followed her to Canada shortly thereafter. All her other extended family members, including her parents and other siblings reside in Brazil.

[12] The parties first met in approximately February 2009. They were married on March 19, 2010. Cecilia was born on December 19, 2015.

[13] Both parties agree that shortly after Cecilia’s birth, Ms. Nardes travelled with Cecilia to Brazil for approximately three months without Mr. Posylek to visit Ms. Nardes’ family. Upon her return from Brazil, Ms. Nardes and Cecilia resided for approximately six weeks with Mr. Posylek’s parents until Ms. Nardes and Cecilia returned to reside with Mr. Posylek in the matrimonial home. This was a point of contention between the parties.

[14] Both parties testified as to difficulties during their marriage which appear to have become more pronounced after Cecilia’s birth. Both also gave evidence as to alleged physical and verbal abuse against the other.

[15] The parties separated on December 24, 2016 after Mr. Posylek was charged with assault of Ms. Nardes. He was also charged with mischief for allegedly damaging Ms. Nardes’ cell phone, storage of a firearm without reasonable precautions, and unlawful storage of firearms and restricted weapons. Eventually, all the charges were withdrawn except for the charge of storage of a firearm without reasonable precautions. Mr. Posylek pled guilty to that charge and was given a conditional discharge. He was also placed on probation and paid a fine. The probation order commenced June 7, 2017 and was for a one-year duration.

[16] Included in the terms of the probation order was a condition that Mr. Posylek not contact nor communicate in any way, either directly or indirectly, by any physical, electronic or other means, with Ms. Nardes. The exception to this was that Mr. Posylek could communicate with Ms. Nardes with her prior written consent which could be cancelled by her at any time. Further, for the purposes of access to Cecilia, access could be arranged through a mutually agreed upon third party or family court order.

[17] Mr. Posylek was subsequently charged with another offence. There was no evidence that this charge related to Ms. Nardes. It was withdrawn on November 16, 2017.

[18] The parties separated when Cecilia was one year of age. On April 27, 2017, Mr. Posylek commenced his Application in this Court. Ms. Nardes responded with her Answer and Claim dated June 9, 2017.

[19] Pursuant to the consent order of Wilson J. dated July 26, 2017, inter alia on a without prejudice basis, Mr. Posylek was granted unsupervised access to Cecilia every Friday from 2:15 p.m. to 6:30 p.m. and every Saturday from 2:15 p.m. to 6:30 p.m. Mr. Posylek’s parents were responsible for picking up and dropping off Cecilia. Mr. Posylek was to refrain from using marijuana 48 hours prior to and during the access periods.

[20] Pursuant to the consent order of Mesbur J. dated October 29, 2018, the parties resolved the issue of retroactive child support to August 1, 2018 and they resolved equalization on a final basis including the transfer of the matrimonial home to Mr. Posylek. On a temporary basis, Mr. Posylek was ordered to pay table child support for Cecilia in the amount of $666 per month based on his 2017 gross annual income of $71,300.

[21] The parties were unable to resolve the issue of increased parenting time to Mr. Posylek. As such, a motion was brought by Mr. Posylek and a subsequent order was made by Diamond J. Pursuant to that order, dated January 3, 2019, Mr. Posylek was granted increased parenting time with Cecilia including every Thursday and Friday from 2:30 p.m. to 7:00 p.m.; and every Saturday from 9:00 a.m. to 7:00 p.m. Mr. Posylek was allowed to pick up and drop off Cecilia. Additionally, the parties were to communicate through Our Family Wizard. If the parties were unable to agree on issues relating to Ms. Nardes’ proposed travel with Cecilia or overnight access to Mr. Posylek, they were to return before Justice Diamond.

[22] The parties attended at a subsequent motion before Moore J. wherein a consent was reached regarding Cecilia’s Brazilian passport. However, the parties were unable to resolve the issue of overnight parenting time and they attended again on a motion before Justice Diamond. An order was made by Diamond J., dated March 28, 2019, wherein Mr. Posylek was granted overnight parenting time with Cecilia every Thursday from 2:30 p.m. overnight to Friday at 7:00 p.m.; and every Saturday from 9:00 a.m. to 7:00 p.m. Commencing May 6, 2019, Mr. Posylek’s parenting time was expanded to include every Thursday from 2:30 p.m. to Saturday at 7:00 p.m. This is the current parenting schedule in place.

[23] Mr. Posylek has a diploma in mechanical engineering technology. He is presently employed as a production technologist. In Mr. Posylek’s last position held with his employer, his regular work days were Saturday through to Wednesday from 6:00 a.m. to 2:00 p.m. Mr. Posylek has Thursdays and Fridays off each week.

[24] However, Mr. Posylek has been off work due to depression since approximately July 2019. He is currently in receipt of long-term disability benefits in the amount of approximately $49,823 gross per year. There is no date scheduled yet for his return to work. Ms. Nardes did not become aware of Mr. Posylek’s receipt of long-term disability payments, and the fact that he was off work, until December 11, 2019 when this information was disclosed on Mr. Posylek’s sworn Financial Statement filed for trial.

[25] Ms. Nardes is presently employed by the Toronto District Catholic School Board as an Early Childhood Educator. Ms. Nardes’ gross annual income from her employment, coupled with Employment Insurance benefits received by her during the summer months, totals $43,630.

[26] Cecilia is four years-old. She is in kindergarten which she attends daily during the school week for the full day. Cecilia attends the same school where Ms. Nardes works. Cecilia also attends the before and after school program at the same school.

Issues

[27] The issues for determination are as follows:

i) What type of custodial arrangement is in the best interests of Cecilia? What residency arrangement is in the best interests of Cecilia?

ii) What are the incomes of the parties for support purposes? What is the proper amount of table child support payable and by whom?

iii) What are the current section 7 expenses of Cecilia and how should those costs be shared now and in the future?

Issue #1

What type of custodial arrangement is in the best interests of Cecilia? What residency arrangement is in the best interests of Cecilia?

Mr. Posylek’s Evidence

[28] Mr. Posylek testified that there were some issues in the marriage prior to Cecilia’s birth. At one point, Ms. Nardes’ sister resided with them. Mr. Posylek felt that the addition of Ms. Nardes’ sister placed more pressure on the marriage.

[29] Mr. Posylek described his marriage as being one where there was much micromanaging by Ms. Nardes and a lack of appreciation of him. He stated that when the parties argued, Ms. Nardes would often “knuckle punch” him in the chest, arm, and shoulder, leaving small bruises. He never reported these incidents to the police as he was afraid that Ms. Nardes would be in trouble.

[30] The marriage did not improve after the parties purchased the matrimonial home in August 2013. However, when Mr. Posylek learned of Ms. Nardes’ pregnancy, he was very excited about becoming a father. Both he and Ms. Nardes were happy. He denies that there was ever a conversation suggesting that he was unhappy with the pregnancy and the prospect of becoming a father. He would attend medical appointments with Ms. Nardes during her pregnancy when he was not at work or his mother would assist Ms. Nardes.

[31] Mr. Posylek was present for Cecilia’s birth. He described that after Cecilia was born his active involvement in Cecilia’s care included feedings, baths, bedtime routine, and looking after Cecilia’s day to day needs. When the parties returned to work, Ms. Nardes would work in the mornings and Mr. Posylek would work in the afternoons. They were both involved in the care of Cecilia.

[32] Mr. Posylek testified that his relationship with Ms. Nardes after Cecilia’s birth involved a gradual increase in fighting and there was lots of pressure. He consented to Ms. Nardes travelling to Brazil with Cecilia for three months. He felt it was important for Cecilia to meet her maternal grandparents. Mr. Posylek was not able to travel to Brazil as he could not take the time off work. It is his position that he tried to communicate daily with Ms. Nardes and was minimally kept up-to-date on Cecilia’s growth and development during her time in Brazil.

[33] Upon Ms. Nardes’ return to Canada with Cecilia, Ms. Nardes took Cecilia with her to reside at Mr. Posylek’s parents’ home. This was upsetting to Mr. Posylek. Mr. Posylek stated that he would try every moment of the day outside his working hours to see Cecilia. Eventually, Ms. Nardes and Cecilia returned to live in the matrimonial home in approximately September 2016, but difficulties continued.

[34] Mr. Posylek felt that he was being completely cut out of Cecilia’s life and left out of any decision-making regarding Cecilia. He described his relationship with Ms. Nardes as being argumentative. Mr. Posylek testified that Ms. Nardes regularly verbally abused him, calling him “useless and lazy”.

[35] The parties separated after Mr. Posylek’s arrest on December 24, 2016 and his removal from the matrimonial home by the police. Mr. Posylek indicated that his arrest was the first time he learned of allegations of abuse by Ms. Nardes. He denies those allegations and, as indicated, testified that he was hit by Ms. Nardes and verbally abused by her.

[36] Mr. Posylek stated that he currently does not own any firearms and that he has not owned any since December 2016. Previously, he owned firearms because he was involved in target shooting and he belonged to a gun club. Mr. Posylek was in the military in army reconnaissance from 1999 to 2006-2007. Mr. Posylek testified that on the day of his arrest, he was cleaning and repairing a firearm in the basement in a separate room. He further outlined that he always kept his firearms locked in a safe in the basement.

[37] After his arrest, Mr. Posylek admits that he was initially uncooperative with the Catholic Children’s Aid Society of Toronto (the “CCAS”). He did not understand who the CCAS was at the time and he regrets his initial behaviour. He has cooperated with the CCAS since that time.

[38] Mr. Posylek stated that he attempted to be involved in decision-making regarding Cecilia, however, there were not too many discussions. Ms. Nardes always had the final say. He wanted more input in Cecilia’s life, but he did not want to carry on with conflict.

[39] It is Mr. Posylek’s evidence that he selected Cecilia’s pediatrician. Prior to separation, both parents scheduled pediatrician appointments for Cecilia, and both took her to appointments. Mr. Posylek is content that Cecilia remain under the care of her current pediatrician. He is unaware as to whether Cecilia has seen a dentist as this information has not been provided to him.

[40] After separation, Mr. Posylek stated that Ms. Nardes did not canvass any appointment dates with him and did not provide any updates regarding Cecilia’s health care. As of the date of trial, he still had not been provided with a copy of Cecilia’s health card, despite several requests. He acknowledged that he was provided with a number on a sticky note which Ms. Nardes stated was the health card number for Cecilia. He indicated that Ms. Nardes always had conditions before she would provide information to him or she would fail to provide any information to him.

[41] Mr. Posylek also testified that Ms. Nardes did not consult with him about choosing Cecilia’s daycare (two different ones), but he did sign the necessary forms allowing Cecilia to be enrolled at the daycare centres. He has an excellent relationship with the current childcare centre which Cecilia attends before and after school. He had no contact with the previous daycare centre because of the peace bond that was in effect at the time and his concern that he may encounter Ms. Nardes at the centre in violation of the peace bond. Mr. Posylek stated that the first time he saw Cecilia’s progress reports from her daycare providers was when he received Ms. Nardes’ exhibit book prepared for trial. None of this information was shared with him previously before trial.

[42] Mr. Posylek was also not consulted by Ms. Nardes regarding the selection of Cecilia’s current school. He felt completely left out of the decision-making process. However, he did not raise any concerns in order to avoid conflict. Mr. Posylek did his own research and he believes that the school is a good school. He indicated that his relationship with the teacher and the administration of the school is excellent. He communicates regularly and directly with Cecilia’s teacher and school officials. He attends parent-teacher meetings and ensures that Cecilia’s homework is completed. Mr. Posylek has registered with the “class dojo” which allows him to obtain messages from the school. He reads the messages and responds to them when necessary.

[43] Both Ms. Nardes and her sister work at Cecilia’s school. He feels that they may continue to interfere at the school. He points to an incident in September 2019 when Ms. Nardes removed Cecilia from his arms when Cecilia was upset at the school. Additionally, at first Mr. Posylek was listed as the third guardian for Cecilia at the school and not as her father. This has since been rectified by school staff.

[44] Mr. Posylek does not foresee any difficulties with respect to Cecilia’s religion. Both parties are Roman Catholic and they agree that Cecilia be raised in the Catholic faith and attend a Catholic school. He is not opposed to Ms. Nardes taking Cecilia to her church when Cecilia is in her mother’s care and he will take Cecilia to his church when Cecilia is in his care.

[45] With respect to Cecilia’s extracurricular activities, Mr. Posylek only recently found out that Cecilia is enrolled in ballet and swimming lessons. Ms. Nardes did not canvass these activities with him prior to registration. He has not registered Cecilia for any extracurricular activities because he feels that he does not have Cecilia for a long enough period of time. He wants to be able to put her in art classes and summer camp. He would also like to be able to attend Cecilia’s current activities. It is Mr. Posylek’s intention to communicate with Ms. Nardes regarding Cecilia’s activities to ensure that everything is agreeable prior to him registering Cecilia. It is also his intention to avoid conflict.

[46] Mr. Posylek is agreeable to both parties being able to travel with Cecilia, including Ms. Nardes taking Cecilia to Brazil again and Mr. Posylek being able to take Cecilia to Poland. He testified that he has always consented to Ms. Nardes travelling with Cecilia, including travelling to places other than Brazil.

[47] Mr. Posylek acknowledged that there were some difficulties with respect to Ms. Nardes travelling to Brazil in the past. He testified that Ms. Nardes did not canvass dates with him prior to booking a trip to Brazil and she did not apprise him as to when Cecilia obtained Brazilian citizenship. His evidence is that he was not initially given the information but that when he was, he signed the necessary forms. It is Mr. Posylek’s position that when Ms. Nardes travelled to Brazil in August 2019, Ms. Nardes did not facilitate contact between Mr. Posylek and Cecilia, despite his requests. Mr. Posylek also testified that despite his attempts, he did not receive any make-up time for access lost during the two weeks that Cecilia was in Brazil with Ms. Nardes.

[48] It is Mr. Posylek’s evidence that despite several attempts made by him through his counsel, there was no parenting schedule in place from the date of separation to June 2017. The only time that Mr. Posylek saw Cecilia during this period was for approximately one hour on Father’s Day at the daycare. It is Mr. Posylek’s position that Ms. Nardes did not agree to him sharing time with Cecilia until June 27, 2017 which was approximately six months after their separation. Even then, Ms. Nardes would only agree if his time was spent with Cecilia at a public place and if his parents supervised.

[49] After the order of Wilson J. dated July 26, 2017, there were no changes in the parenting schedule until January 2019. Mr. Posylek made requests to increase his time with Cecilia; however, he could not afford to pursue the matter in court. Mr. Posylek filed as evidence several letters from his lawyer, written in 2018, wherein he sought additional time with Cecilia. His request was not agreed to by Ms. Nardes.

[50] Mr. Posylek stated that his time with Cecilia was increased in January 2019 and March 2019 only as a result of two motions determined by Justice Diamond.

[51] Mr. Posylek indicated that currently the timesharing is going well but there have been no changes to the schedule. The exchanges of Cecilia are also going fairly well but he fears that Cecilia is being asked too many questions when she is returned to Ms. Nardes’ care. There is no direct communication between he and Ms. Nardes during exchanges.

[52] The parties now communicate through Our Family Wizard. At first all communications were through his mother. Mr. Posylek feels that he responds to the many allegations of Ms. Nardes, but she does not respond to his concerns regarding Cecilia. If he receives a message from Ms. Nardes which has a negative tone, he takes time to respond so that the response is appropriate. He would like to be able to communicate with Ms. Nardes in the future by way of email.

[53] It is Mr. Posylek’s evidence that he had no time with Cecilia during Christmas 2016 and 2017. In his examination-in-chief, Mr. Posylek testified that he had two to three hours including travel time with Cecilia during Christmas 2018. However, in re-examination and in answering a question from the Court, Mr. Posylek indicated that he had no time with Cecilia during Christmas 2018. In 2019, Mr. Posylek was able to spend some time with Cecilia during the Christmas vacation period pursuant to a court order. He also stated that he has shared no holiday time with Cecilia during Easter, Thanksgiving, or other holidays since separation. He has only been able to share Cecilia’s birthday with her once since separation because her last birthday fell on his time with her.

[54] Mr. Posylek was diagnosed with depression during the marriage and prescribed medication. He stated that Ms. Nardes was aware of his diagnosis and his medication. Despite Mr. Posylek’s diagnosis of depression, he still cared for Cecilia with Ms. Nardes’ consent prior to separation. Mr. Posylek also suffers from hypothyroidism. He has had this condition since his twenties. Mr. Posylek stated that his hypothyroidism causes his low mood, lack of concentration, and fatigue.

[55] Mr. Posylek indicated that his depression is related to his ongoing marital problems. This greatly affects his employment as the depression affects his ability to concentrate and his memory recall. He has been on long-term disability benefits since October 2019 and he was previously on short-term disability benefits commencing in July 2019. Mr. Posylek does not feel that his depression has any effect on his parenting. He finds that when he spends time with Cecilia, he is extremely happy. His time with Cecilia is helpful and therapeutic to him. Mr. Posylek presently receives assistance with his depression through psychotherapy as well as medication. He follows up with his doctor regularly and he exercises three times a week.

[56] Mr. Posylek’s evidence is that he rarely used marijuana during the marriage and “almost never” used it since separation. He has never used marijuana while Cecilia is in his care.

[57] Mr. Posylek is seeking a gradual increase in his time with Cecilia such that he will eventually have a week about schedule with her. He is agreeable to a gradual increase to allow Cecilia to get used to the schedule. He would like exchanges to be at school as much as possible in order to avoid conflict. During the summer months, he is agreeable to having the exchanges take place at Ms. Nardes’ residence. He would like to share all holidays equally with Ms. Nardes.

Ms. Nardes’ Evidence

[58] Ms. Nardes is seeking sole custody of Cecilia and that the current time-sharing schedule remain in place. Once Mr. Posylek returns to work, she is agreeable to increasing his time with Cecilia such that he spends from 7:50 a.m. on Thursday to Saturday at 7:00 p.m. each week with Cecilia.

[59] Ms. Nardes does not agree that joint custody would be in Cecilia’s best interests as she feels that there has been much conflict between the parties and the parties have an inability to communicate and cooperate.

[60] It is Ms. Nardes’ evidence that everything was fine before the parties got married. She felt that Mr. Posylek was the “perfect man” and that his family was perfect too. She stated that Mr. Posylek’s parents treated her as a daughter.

[61] Ms. Nardes explained that on the parties’ wedding day, Mr. Posylek gave her a gift of a gun. She was sad and surprised by this event. Ms. Nardes indicated that Mr. Posylek bought guns during the marriage and she told him to sell his guns. She found that Mr. Posylek was very immature when it came to responsibility. It is Ms. Nardes’ evidence that Mr. Posylek handled the guns on many occasions, including putting them under the bed. She also stated that he would pretend to fire the gun but without bullets.

[62] The parties were having more problems and she tried to help Mr. Posylek. She found that he was drinking with friends after work and smoking marijuana. He would mix his medications for anxiety with alcohol. She requested that he stop drinking and using marijuana. Mr. Posylek promised her that he would do so, but he did not. She contends that he used marijuana after Cecilia was born. Ms. Nardes smelled it on Cecilia’s diaper after Mr. Posylek had cared for Cecilia.

[63] Ms. Nardes testified that Mr. Posylek was always having difficulties with anxiety. She never heard of him being diagnosed with depression. She stated that Mr. Posylek would become aggressive with his words when he was speaking with her. The problems increased when they purchased the matrimonial home in August 2013. She contends that Mr. Posylek became more verbally abusive during this time.

[64] Ms. Nardes testified as to the events that occurred at the date of separation. She contends that she was physically abused by Mr. Posylek. During one incident, he restrained her in bed for over an hour. Mr. Posylek covered her mouth and broke her cell phone so that she could not call the police. She thought that she “wouldn’t be alive”. Additionally, a year prior he carried her down to the basement, opened the door on a cold day, and would not let her go until she told him where she hid his marijuana. She felt this was “torture”. Ms. Nardes is afraid of Mr. Posylek due to the incident that occurred in December 2016 and previously during the marriage. Ms. Nardes denies that she has ever physically assaulted Mr. Posylek as alleged by him.

[65] When Ms. Nardes became pregnant with Cecilia, she testified that Mr. Posylek became very upset and accused her of destroying his life. He did not want her to put his name on the birth certificate and he did not want to pay child support. Ms. Nardes acknowledged that sometimes Mr. Posylek would accompany her to her doctor’s appointments during her pregnancy or his mother would accompany her.

[66] Ms. Nardes testified that once Cecilia was born, she was responsible for taking care of Cecilia. Mr. Posylek had no experience with the baby. She testified that he would refuse to listen to her. She found that Mr. Posylek did not have an awareness of Cecilia’s needs. Ms. Nardes pointed to examples of Mr. Posylek’s inability to care for Cecilia when she was an infant, including allowing Cecilia to get diaper rash rather than change her in the middle of the night. Additionally, Ms. Nardes stated that on one occasion Mr. Posylek told her that he left Cecilia in the car when he had to go use the washroom.

[67] It is Ms. Nardes’ position that she has much experience with children and child development. She testified that she has 15 years of experience working with children and she has a degree in pedagogy from Brazil. Her specialty is working with children from infancy to 6 years of age and children in grades 1 to 4.

[68] Ms. Nardes registered Cecilia at the two daycare centres after the date of separation. She contends that there were no restrictions preventing Mr. Posylek from coming to the daycare to see Cecilia. Ms. Nardes also chose Cecilia’s current school. She currently works at the same school that Cecilia attends. She does not interact with Cecilia all the time at the school, only at recess. She does not interfere with Cecilia’s teacher. Cecilia’s school is a five-minute drive from her home and a 20-minute walk. In contrast, Mr. Posylek’s home is 15 to 20 minutes away from the school by car and during rush hour it is 40 to 50 minutes away.

[69] On occasion, Ms. Nardes has witnessed Mr. Posylek with Cecilia at the school. During the first week of access there were problems. She described an incident at the school where Mr. Posylek was late dropping off Cecilia. Cecilia was crying loudly. Cecilia ran to her and was really upset. Mr. Posylek left the school. Ms. Nardes feels that Mr. Posylek is too permissive with Cecilia and he lets her do whatever she wants. She contends that Cecilia’s behaviour at home and her behaviour at school changes every time she spends time with Mr. Posylek.

[70] It is Ms. Nardes’ position that the parties are unable to communicate. Ms. Nardes feels that Mr. Posylek always argues and will not listen to her. The last time the parties spoke in person was over three years ago. There have been no telephone calls between the parties, and they do not speak to one another other than through Our Family Wizard. They only started using Our Family Wizard in January 2019 when it was ordered by Justice Diamond.

[71] Ms. Nardes has many concerns regarding access. She does not feel that Mr. Posylek dresses Cecilia appropriately and a number of times Cecilia has been sick when she is returned to Ms. Nardes’ care. She also had concerns about Mr. Posylek transporting Cecilia back to Ms. Nardes’ home without Cecilia wearing a diaper. On these occasions, she discovered that Cecilia had urinated in her clothes. Ms. Nardes also relayed that Mr. Posylek did not dress Cecilia properly for Christmas activities at the school when she had been in his care. All the children were wearing festive Christmas clothing except Cecilia. Ms. Nardes ensured that she brought a Christmas sweater to school for Cecilia so that Cecilia did not feel left out.

[72] Ms. Nardes also gave evidence regarding several incidents where she alleged that Cecilia had scratches, bruises, bloodshot eyes, a sunburn, and an injury to her foot after visits with Mr. Posylek. She stated that Mr. Posylek refused to communicate with her regarding these incidents. Ms. Nardes must bathe Cecilia when she is returned from access visits as she indicated that Mr. Posylek does not bathe Cecilia. She sees the scratches and bruises when she bathes Cecilia. Ms. Nardes presented as evidence numerous photographs that she has taken of Cecilia with bruises, scratches, a sunburn, and swelling on her foot that she stated occurred after access with Mr. Posylek.

[73] Ms. Nardes is also concerned that Mr. Posylek is not feeding Cecilia proper foods. Despite requests, she testified that Mr. Posylek never provided her with a feeding schedule as was regularly provided at the daycare. Ms. Nardes put forth as evidence a photograph she took of Cecilia’s vomit after an access visit with Mr. Posylek. She testified that the picture evidences that Mr. Posylek is not providing Cecilia with proper foods as she was unable to digest her food.

[74] Ms. Nardes stated that when Cecilia is returned to her care from access visits, she has an odour and she is wearing dirty clothes. She also finds that Cecilia is at times very tired and unhappy. She feels that Mr. Posylek does not discipline Cecilia and Ms. Nardes must adjust some of Cecilia’s behaviours. She described that on one occasion Cecilia got upset and threw everything from the table. Ms. Nardes testified that Mr. Posylek is not patient, and she is seeing similar behaviour in Cecilia when Cecilia is returned from Mr. Posylek’s care.

[75] Ms. Nardes listed many other concerns about Mr. Posylek’s parenting. She failed to understand why Mr. Posylek did not take Cecilia to the doctor when she had a fever but rather, he chose to medicate her on his own. She is concerned that Cecilia tells her that she is brushing her own teeth. Ms. Nardes feels that Mr. Posylek should be helping Cecilia so that it is done properly. Further, Ms. Nardes is concerned about Mr. Posylek’s mental health. She stated that she was unaware that Mr. Posylek was diagnosed with depression. She does not know the “side effects” of the depression and the psychological impacts on Cecilia.

[76] It is Ms. Nardes’ evidence that she asked to take Cecilia to Brazil for a second time through Mr. Posylek’s mother in August of 2018. She provided Mr. Posylek’s mother with forms for Mr. Posylek to complete. She had hoped to travel in December, but he did not agree. She later purchased tickets for March 2019, but Mr. Posylek had still not signed the documents. She had to re-book her trip as she had already purchased tickets.

[77] Ms. Nardes indicated that she was forced to bring a motion with respect to travel. Mr. Posylek wanted make-up access time. He was seeking time on Sundays which is her only free day with Cecilia and when she takes Cecilia to church.

[78] Ms. Nardes strongly feels that Cecilia is doing well in school and overall. She believes that Cecilia has improved because of Cecilia’s time with her. She is not against access and believes that both parents should have time with Cecilia. She believes that this is important for Cecilia’s well-being and development. However, Ms. Nardes is not agreeable to joint custody or week about timesharing. Ms. Nardes testified that she is willing to talk and listen to what Mr. Posylek has to say but she will make the decisions. She believes that Mr. Posylek has never been there to support Cecilia.

[79] It is Ms. Nardes’ belief that if Cecilia is not in her care for a week, Cecilia’s behaviour will be negatively impacted and she will be away from her primary caregiver. She stated that Cecilia’s behaviour is already changing negatively. She also believes that Cecilia’s academic progress will be affected. She pointed to incidents where Mr. Posylek forgot to do homework with Cecilia. Ms. Nardes believes that she must fight for Cecilia’s rights.

The Law

[80] This is an application under the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) (the “Divorce Act”) and the provisions of section 16 of the Divorce Act apply. Section 16(1) provides that a court may make an order respecting custody of or access to the child of the marriage on application by a spouse or by any other person. As per s. 16(4), the court may make an order granting custody of a child to any one or more persons.

[81] The only factor that a court shall take into consideration when making an order under section 16, as set out in s. 16(8), is the best interests of the child as determined by the conditions, means, needs, and other circumstances of the child. Pursuant to s. 16(6), the court may make an order for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.

[82] Under s. 16(9) of the Act, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child. Further, under s. 16(10), the court shall give effect to the principle that a child should have as much contact with each spouse as is consistent with the best interests of the child and, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[83] Courts in Ontario have consistently referred to s. 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (the “CLRA”) as a guide when considering the best interests analysis in deciding cases under the Divorce Act. Section 24 sets out the following requirements which I have also considered in determining what is in the best interests of Cecilia:

Merits of application for custody or access

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

Best interests of child

(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 entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

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

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

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

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

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

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

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10.

Past conduct

(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. 2006, c. 1, s. 3 (1).

Violence and abuse

(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person’s household; or

(d) any child. 2006, c. 1, s. 3 (1).

Same

(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse. 2006, c. 1, s. 3 (1).

[84] I have also reviewed the case law provided by both parties regarding custody and parallel parenting. Many of the facts in the decisions provided by the parties differ from the case before me as is common with cases involving parenting issues.

[85] As indicated, Mr. Posylek seeks joint custody while Ms. Nardes seeks sole custody. The Ontario Court of Appeal decision of Kaplanis v. Kaplanis, 2005 ONCA 1625, 2005 CarswellOnt 266 dealt with the issue of when it is appropriate to order joint custody. As stated by Weiler J.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.

[86] Laskin J.A., writing for the Court of Appeal in the decision of Ursic v. Ursic, 2006 ONCA 18340, addressed the issue of parallel parenting orders at para. 26 as follows:

Many trial courts have recognized that joint custody under a parallel parenting regime may be suitable where both parents love the child and should play an active role in the child’s life, yet have difficulty communicating or reaching a consensus on the child’s upbringing. See T.J.M. v. P.G.M. (2002), 2002 ONSC 49550, 25 R.F.L. (5th) 78 (Ont. Sup. Ct. J.), and Mol v. Mol, [1997] O.J. No. 4060 (Sup. Ct. J.).

Custody and Decision-Making

[87] For the reasons that follow, I find that it is in the best interests of Cecilia that joint custody be ordered. While there has been some conflict in the parties’ relationship, the parties have at times been able to communicate and cooperate in discussing Cecilia’s needs. Their ability to communicate has improved since the parties began using Our Family Wizard over a year ago. Ms. Nardes recognized this in her testimony, although she attributed the change to a trial date being set in May 2019 and Mr. Posylek having to behave properly for trial. I do not agree with Ms. Nardes’ position. The evidence supports that Mr. Posylek has been trying for the last three years to have a meaningful relationship with Cecilia. I accept his evidence that he has been cut out of meaningful involvement with Cecilia and decision-making by the actions of Ms. Nardes.

[88] I am also concerned that given Ms. Nardes’ inability to recognize the importance of Cecilia having a meaningful relationship with Mr. Posylek, and the benefits that he brings to Cecilia, if sole custody is granted to her she will attempt to deny Mr. Posylek any input into decisions and withhold information from him. Taking into consideration s. 16(10) of the Divorce Act, I also do not find that Ms. Nardes has shown a willingness to facilitate and maximize contact between Mr. Posylek and Cecilia.

[89] Although in her evidence Ms. Nardes stated that she would “talk” to Mr. Posylek and “listen to what he has to say”, she was also clear that she will make the decisions. This will lead to more conflict and will prevent Mr. Posylek from being involved in Cecilia’s life which is not in Cecilia’s best interests. I also recognize that Ms. Nardes has been the primary caregiver of Cecilia and has at times made appropriate decisions for Cecilia, although mostly without input from Mr. Posylek. An order of joint custody will enable both parents to be actively involved in Cecilia’s life and in decision-making which is in Cecilia’s best interests.

[90] Both parties gave evidence as to the difficulties they experienced during the marriage. Both gave vastly differing accounts. While I accept that Mr. Posylek used marijuana during the marriage, it is questionable that he used marijuana on a regular basis. Mr. Posylek did not deny the use of marijuana, but he indicated that he used it infrequently. His evidence was corroborated by his close friend Mr. Zielinski. He has been Mr. Posylek’s best friend since approximately 1991. Mr. Zielinski testified that he and Mr. Posylek did use marijuana but only on a handful of occasions and never in front of Cecilia. Mr. Zielinski also indicated that most of the marijuana use was prior to the date of separation and over five to six years ago. I found Mr. Zielinski’s evidence to be forthright and credible even when challenged on cross-examination.

[91] Both Mr. Posylek and Ms. Nardes accuse the other of physical and verbal abuse. After hearing testimony from many witnesses during the trial, including the parties, I find that both parties acted inappropriately at times during the marriage. Neither is without fault.

[92] Mr. Posylek was charged with assault, among other charges, after the events at the date of separation. Ultimately the charge of assault, along with two of the other charges, were withdrawn by the Crown.

[93] Records from the CCAS were filed at trial with the consent of both parties as business records. As per the Trial Scheduling Endorsement Form of Akbarali, J., these records were to be admitted on consent “for proof of truth of CAS observations and actions but not proof of truth/accuracy/correctness of CAS conclusions or truth of what CAS was told by others and recorded in the records”. When questioned by Mr. Posylek’s counsel in cross-examination as to the veracity of some of the statements purportedly made by Ms. Nardes to the CCAS case worker at the time of the assault allegation, Ms. Nardes asserted that parts of the CCAS notes were inaccurate with respect to information that she had relayed to the worker regarding the incident surrounding Mr. Posylek’s arrest.

[94] No CCAS case workers or supervisors were called as witnesses by either party at trial. Ms. Nardes did not accept that the records from CCAS were accurate with respect to statements made by her regarding the incident at separation. This was obviously an issue raised prior to trial and it is concerning that neither party called the CCAS worker to testify.

[95] Despite this, I accept that there was an altercation between Mr. Posylek and Ms. Nardes at the date of separation. This incident led to the involvement of the police. Both Mr. Posylek’s mother, Ms. Krystyna Posylek (“Ms. Posylek”), and Ms. Nardes’ sister, Carolline Nardes, testified as to the incident. Carolline Nardes stated that she had been telephoned by Ms. Nardes who was afraid and crying. She then proceeded to telephone Ms. Posylek and the police. Ms. Nardes testified that she was very fearful of Mr. Posylek, at the time of the incident in December 2016, and she continues to be afraid of him. After hearing Ms. Nardes testify, I accept her evidence that the incident between the parties on that date caused the separation and significantly altered their relationship.

[96] However, I also accept Mr. Posylek’s evidence that there were incidents within the marriage wherein Ms. Nardes became upset with Mr. Posylek and “knuckle punched” him. When questioned on cross-examination as to how many times this occurred, Mr. Posylek testified that it was “too many to remember”. The evidence supports that Ms. Nardes was frustrated by Mr. Posylek’s alleged irresponsibility and inappropriate behaviour at times. I accept Mr. Posylek’s evidence that during some of the parties’ arguments, Ms. Nardes would hit Mr. Posylek.

[97] Ms. Posylek testified that she never saw Mr. Posylek hit Ms. Nardes. Carolline Nardes testified that she witnessed Mr. Posylek verbally abuse Ms. Nardes, but she could not recall if he ever physically abused Ms. Nardes. I found her evidence on this issue suspect. If Carolline Nardes had witnessed Mr. Posylek physically abuse Ms. Nardes, I am confident that she would recall any incident given her close relationship with Ms. Nardes. What was clear from the testimony of these two witnesses, as well as the evidence of both Mr. Posylek and Ms. Nardes, is that there were incidents of verbal abuse by both parties against the other.

[98] Ms. Nardes also raised in her evidence her unease about Mr. Posylek owning firearms and having his firearms unsecured in the home. In addition, she raised concerns about Mr. Posylek’s mental health issues. She testified that she was aware that Mr. Posylek had anxiety issues, but she was unaware that he was diagnosed with depression.

[99] Mr. Posylek pled guilty to the charge of storage of a firearm without reasonable precautions after the incident in December 2016. I accept his evidence that he would occasionally take his firearms out in order to clean them and to attend at a gun club where he participated in target shooting. After the incident in December 2016, Mr. Posylek testified that he no longer owns firearms. There were no allegations by Ms. Nardes that Mr. Posylek threatened her with these firearms. Her evidence that Mr. Posylek gifted her a gun on their wedding night was vehemently denied by Mr. Posylek. I accept her evidence that she was not used to being around firearms and did not like the fact that Mr. Posylek owned firearms. She was also concerned about the amount of money that was being spent on firearms by Mr. Posylek. This was no doubt a contentious issue between the parties.

[100] With respect to concerns about Mr. Posylek’s mental health, there is no evidence before the Court confirming a diagnosis of anxiety. No medical experts were called by either party. Mr. Posylek’s evidence is that he has never been diagnosed with anxiety but that he does suffer from depression. He also indicated that he suffers from hypothyroidism and has done so since his twenties. He confirmed that this condition contributes to his fatigue, low mood, and lack of concentration at times. While Mr. Posylek is presently off work for depression, and this fact should have been disclosed immediately to Ms. Nardes, it is apparent that he is taking appropriate steps to deal with his depression. He regularly attends with this doctor and he is obtaining psychotherapy. Mr. Posylek is also exercising three times a week to assist with his depression. This exercise regime was corroborated by Mr. Zielinski who works out with Mr. Posylek.

[101] There is no evidence to suggest that Mr. Posylek’s depression has affected his parenting. Both Mr. Zielinski and Ms. Posylek confirmed that they are aware of Mr. Posylek’s depression, although Mr. Zielinski was not aware of the depression previously. He did know that Mr. Posylek was off work due to stress and work-related issues. Both Ms. Posylek and Mr. Zielinski have not seen any effects of Mr. Posylek’s depression upon his relationship with Cecilia nor in his ability to parent her in their observations of his time with Cecilia. It is acknowledged that Mr. Zielinski’s time with Mr. Posylek and Cecilia together is somewhat limited. Ms. Nardes raises concerns about Mr. Posylek’s depression. Ms. Nardes states that Mr. Posylek is unstable. She indicated in her evidence that she has many concerns about Mr. Posylek’s ability to parent, his mental health being one of those concerns. However, I cannot conclude, based on the evidence before me, that Mr. Posylek’s depression has affected his parenting of Cecilia. There have been no incidents or concerns to substantiate Ms. Nardes’ fears.

[102] Throughout her evidence, Ms. Nardes focused on her belief that the parties are unable to communicate and that they did not communicate at all from December 2016 until January 2019. She put forward as evidence a number of Our Family Wizard exchanges between the parties. She contends that in many of those exchanges, she asks questions of Mr. Posylek regarding Cecilia and those questions are not answered. She indicated that she had sent more messages to Mr. Posylek than he sent to her. She asserts that these facts demonstrate that the parties cannot communicate now in an appropriate manner. As such, she is not agreeable to joint custody.

[103] Despite her belief that the parties are unable to communicate and that they are unable to make decisions together, Ms. Nardes testified that Mr. Posylek does love Cecilia and that Cecilia loves him. She further indicated that she would not interfere with their relationship. Despite Ms. Nardes’ assurances, I find that interference has already occurred on several occasions.

[104] Ms. Nardes points to decisions made by her that Mr. Posylek has not opposed. She asserts that Cecilia is doing well so there is no need to change the current situation where she is the decision maker. However, there is much evidence to support Mr. Posylek’s concerns that he is being prevented by Ms. Nardes from being involved and from having a meaningful relationship with Cecilia. Some of Ms. Nardes’ behaviour is very concerning. What is also concerning is that Ms. Nardes does not see how her behaviour and actions can negatively affect Cecilia now and in the future. The evidence supports that Ms. Nardes feels that she is the only parent capable of making decisions for Cecilia and that Mr. Posylek is to play a minor role in Cecilia’s life. This is clearly not in Cecilia’s best interests.

[105] When asked as a final question on cross-examination to name something positive that Mr. Posylek brings to Cecilia as her father, Ms. Nardes paused before answering the question. When she did answer the question, the only positive attribute that she could name was that both Mr. Posylek and Cecilia loved sharing food. Ms. Nardes then had the opportunity in re-examination to expand upon whether there were any other attributes that Mr. Posylek provides for Cecilia when he spends time with her. Ms. Nardes replied “no, not really.” The answers to these questions are telling.

[106] Mr. Posylek did not have any contact with Cecilia from the date of separation in December 2016 until June 2017 when he entered into a peace bond. He attempted, on a number of occasions through counsel, to obtain time with Cecilia but was limited by Ms. Nardes to an attendance at the daycare on Father’s Day, or access in a public place accompanied by his parents as supervisors. Ms. Nardes attributed the lack of access to problems with obtaining a third party for access exchanges.

[107] When Mr. Posylek entered into a peace bond, he was not allowed to contact Ms. Nardes directly or indirectly. The order of Wilson J. dated July 26, 2017, provided Mr. Posylek with limited unsupervised access, with Mr. Posylek’s parents being responsible for picking up and dropping off Cecilia.

[108] When the peace bond expired in June 2018, there were still no efforts by Ms. Nardes to communicate with Mr. Posylek regarding Cecilia’s health and welfare. Even though Ms. Nardes had a lawyer shortly after separation, she did not instruct her lawyer to advise Mr. Posylek’s lawyer about her proposed choice of daycare for Cecilia. She did not advise about Cecilia’s health care including vaccinations, appointments, and other wellness checks. Additionally, many letters were sent by Mr. Posylek’s counsel wherein Mr. Posylek sought additional time with Cecilia in 2018. All these requests were denied. There was no agreement by Ms. Nardes to expand access nor to share information.

[109] Throughout her testimony, Ms. Nardes stated that she was and is fearful of Mr. Posylek and she was and is afraid to have face-to-face contact with him. Given this fear, Ms. Nardes testified that for a period of time she would only give any information regarding Cecilia directly to Mr. Posylek’s mother. Mr. Posylek was not seeking face-to-face contact with Ms. Nardes. Despite attempts that were being made by Mr. Posylek through his lawyer to have communication with Ms. Nardes in writing so that the parties could discuss any issues concerning Cecilia, it was not until Mr. Posylek brought a motion which was heard in January 2019 that he was able to communicate in writing with Ms. Nardes through Our Family Wizard. It took a court order before any written communication about Cecilia took place.

[110] There is no question that Ms. Nardes loves Cecilia very much and that she has many positive parenting skills. Both of the witnesses called by Ms. Nardes including Carolline Nardes, and Ms. Nardes’ friend, Ms. Silva, testified as to the close relationship between Ms. Nardes and Cecilia. Ms. Silva outlined positive qualities of Ms. Nardes in how she educates Cecilia and monitors Cecilia’s behaviour. She also described Ms. Nardes as calm and good with young children. Carolline Nardes testified that Ms. Nardes is her best friend and she respects Ms. Nardes. She views Ms. Nardes as a great mother and testified that Ms. Nardes is respected in the community. She spoke of her regular interaction with Ms. Nardes and Cecilia. Carolline Nardes also works at Cecilia’s school and she is Cecilia’s godmother.

[111] Mr. Posylek also testified as to the love between Ms. Nardes and Cecilia and the fact that Ms. Nardes takes care of Cecilia. He recognizes that is it is very important for Cecilia and Ms. Nardes to have each other in their lives. He also recognizes that it is important for Cecilia to have a relationship with her maternal grandparents and extended family members in Brazil. He acknowledges that Ms. Nardes has chosen appropriate daycare centres and a school for Cecilia. His concern lies in the fact that he was not consulted with respect to these decisions. He is concerned that he will continue to be left out of any decision-making.

[112] Ms. Nardes testified that she “must fight for Cecilia’s rights”. However, it is Cecilia’s right to spend time with both of her parents. It is also Cecilia’s right to have both of her parents involved in her life. I find that many of the actions taken by Ms. Nardes have not been in Cecilia’s best interests and are concerning.

[113] Mr. Posylek was forced to bring two motions in order to obtain additional time with Cecilia and to be able to communicate in writing with Ms. Nardes. Ms. Nardes testified that she was prepared to communicate in writing with Mr. Posylek through the use of a diary. This was not a reasonable solution, given her assertion that the parties had conflict within their relationship. Justice Diamond ordered that the parties communicate through Our Family Wizard which is an appropriate communication tool when there are allegations of conflict between parents.

[114] The Our Family Wizard exchanges between the parties are revealing. In many of these exchanges, Ms. Nardes criticizes Mr. Posylek’s parenting and questions his parenting decisions. This was also reflected in the testimony of Ms. Nardes. Ms. Nardes criticized Mr. Posylek for not dressing Cecilia warmly and blamed him for Cecilia getting sick. When he attempted to communicate to Ms. Nardes on one occasion that Cecilia had a fever, he was criticized for providing Cecilia with medicine on his own rather than taking her to the doctor.

[115] Mr. Posylek is routinely questioned after his time with Cecilia. He is accused of being responsible for Cecilia having scratches, bruises, bloodshot eyes, a sunburn, and injuries to her foot. Whenever he tries to provide an explanation, the explanation is never acceptable to Ms. Nardes, and his parenting skills are challenged. It is completely understandable that Mr. Posylek did not always answer Ms. Nardes right away and took time to respond. He was constantly faced with a barrage of accusations about his parenting.

[116] As an example, on April 26, 2019 in an Our Family Wizard communication filed as evidence, Ms. Nardes repeatedly questioned Mr. Posylek. She questioned why Cecilia had bloodshot eyes and repeated things that Cecilia had allegedly told her regarding Cecilia hurting her toe, not brushing her teeth, and falling out of bed. She concludes the communication with: “I am very concerned about Cecilia well being when she is in your care. It is clear that during the time Cecilia is with you she is not having a healthy routine/most of her needs are not being met.” There are other examples of the constant questioning of Mr. Posylek’s parenting in correspondence in Our Family Wizard and through correspondence between counsel entered as exhibits at trial.

[117] I note that counsel for Mr. Posylek cross-examined Ms. Nardes on the daycare incident reports (provided to Mr. Posylek by Ms. Nardes for the first time just prior to trial in her exhibit brief) which contained numerous comments about Cecilia having a scratch, a bruise, bumps on her head, and other minor injuries at the daycare. Ms. Nardes testified that she was aware of these incidents and signed off on the incident reports. It does not appear that she challenged the daycare providers when Cecilia experienced these injuries as she does Mr. Posylek. Mr. Posylek is held to a much higher standard.

[118] Of particular concern is that when Cecilia returns to Ms. Nardes’ care, Cecilia is questioned as to how she incurred any scratches, bumps or bruises. Photographs are then taken by Ms. Nardes of Cecilia which she presented as evidence at trial. I am concerned about the message that these actions taken by Ms. Nardes sends to young Cecilia. By Ms. Nardes questioning and photographing Cecilia, Cecilia is being instilled with the belief that Mr. Posylek is doing something wrong when she is in his care. She is also being thrust directly in the middle of the conflict. This is completely inappropriate. These scratches and bruises (similar to those that occurred at the daycare when photographs were not taken by Ms. Nardes) are minor in nature and ones that most parents would expect a young child to experience, given a young child’s developing coordination and the way young children run and play.

[119] Ms. Nardes also testified that Mr. Posylek is not feeding Cecilia proper foods. She indicated that despite requests, she was not provided with a feeding schedule from Mr. Posylek as had been provided previously by the daycare centres. Ms. Nardes does not agree with some of the foods that have been given to Cecilia by Mr. Posylek. The only way she would know about this is from questioning Cecilia as to what she ate at Mr. Posylek’s home. Most concerning, as part of her evidence, Ms. Nardes presented a photograph that she had taken of Cecilia’s vomit in order to demonstrate that Mr. Posylek was not feeding Cecilia proper foods and he was feeding Cecilia foods that she could not digest. There was no evidence from a medical doctor to suggest that this is why Cecilia was sick and there was no evidence to conclusively prove that this photograph was taken after Cecilia’s return from Mr. Posylek’s care. Again, the Court’s concern is the message that this sends to Cecilia when a parent is taking photographs for this purpose.

[120] If the Court were to accept all of Ms. Nardes’ evidence regarding Mr. Posylek’s parenting skills as accurate, Mr. Posylek would be deemed to have no parenting skills whatsoever. Ms. Nardes complained in her testimony that Cecilia’s behaviour changes every time Mr. Posylek shares time with her. Mr. Posylek was criticized for being too permissive with Cecilia. Ms. Nardes testified that when Cecilia threw objects from the table when she was upset, it was Mr. Posylek’s fault because he is not patient and Cecilia is learning this behaviour from him. Ms. Nardes takes no responsibility for her role in any of Cecilia’s inappropriate behaviour which occurs sometimes.

[121] Ms. Nardes also testified that if Mr. Posylek were to share additional time with Cecilia, Cecilia’s behaviour would continue to be negatively affected as she contends that it has been affected already. Ms. Nardes further believes that Cecilia’s academic progress would be affected. She was clear in her evidence that Mr. Posylek has never been there to support Cecilia and she is the primary caregiver. On two occasions during her evidence, Ms. Nardes testified that she is “the greatest mother ever”. I fear that Mr. Posylek will never be able to live up to the standards of Ms. Nardes.

[122] Mr. Posylek is criticized further for his care of Cecilia. Ms. Nardes complains that when Cecilia is returned to her she has an odour and she is wearing dirty clothes. Her evidence is that Mr. Posylek does not bathe Cecilia. She criticizes Mr. Posylek for letting Cecilia attempt to brush her teeth on her own. She states that many times Cecilia is very tired and unhappy upon her return from her father.

[123] Ms. Nardes also criticized Mr. Posylek for not dressing Cecilia in Christmas festive wear when Cecilia was in his care. Ms. Nardes testified that the school newsletter advised parents of this event. Mr. Posylek’s evidence is that he did not have any festive wear. Ms. Nardes had a Christmas sweater ready for Cecilia at the school which Cecilia ended up wearing. This is yet another example of Ms. Nardes’ inability to communicate her concerns in advance and perhaps coordinate with Mr. Posylek. Instead, Cecilia went to school without the proper attire and Ms. Nardes’ evidence is that Cecilia felt left out. This could have been avoided had she offered to give Mr. Posylek the sweater rather than set him up to fail. Cecilia is the one who ends up being upset and in the middle of the conflict.

[124] Further, Ms. Nardes enrolled Cecilia in ballet and swimming lessons. Mr. Posylek was unaware of these registrations. No schedule was provided to him. Ms. Nardes’ response to questions in cross-examination on these activities is that Mr. Posylek never asked about extracurricular activities for Cecilia and that if he wants to participate, he should communicate. She repeated that Mr. Posylek has not been there for Cecilia. This is despite the fact that Mr. Posylek did not know of these activities. Ms. Nardes was unsure of what would happen in the future should Mr. Posylek want to attend ballet recitals. She would not talk about the future. She believes that Mr. Posylek has the opportunity to take Cecilia to extracurricular activities on his own time, but that he chooses not to.

[125] There are more examples of Ms. Nardes not sharing information with Mr. Posylek and not appreciating how important it is for Cecilia to have Mr. Posylek in her life. As of the date of trial, despite repeated requests as shown by the evidence, Mr. Posylek still did not have a copy of Cecilia’s health card. In correspondence between counsel, Ms. Nardes outlined several conditions she had before she would provide a copy of Cecilia’s health card. Mr. Nardes testified that she is concerned Mr. Posylek will take Cecilia to someone other than her pediatrician or The Hospital for Sick Children and that he will not let her know. These concerns are unfounded.

[126] On cross-examination, Ms. Nardes was questioned as to whether it is better for Cecilia to spend time with her father or at the before or after school care program. Ms. Nardes stated that it is better for Cecilia to attend at the before or after school care program. She indicated that at the program, Cecilia is with other children and educators. She is learning. Again, Ms. Nardes fails to see the benefits of Mr. Posylek spending time with Cecilia and learning from him.

[127] The CCAS records filed at trial reflect that Ms. Nardes telephoned CCAS. This was not denied by her. Her evidence is that she telephoned CCAS five or six times. The records also reflect that in March 2019, Ms. Nardes called to ask the CCAS case worker to stop any chance of Mr. Posylek obtaining overnight access. When questioned on cross-examination about this call, the call was not denied by Ms. Nardes. However, she indicated that she had not used the same words as put down by the CCAS case worker. She did admit discussing that she was opposed to overnights because she was worried about Mr. Posylek’s anxiety.

[128] Ms. Nardes and the two witnesses called by her, including Carolline Nardes and Ms. Silva, had very few kind words to say about Mr. Posylek. Their evidence focused more on their concerns about Mr. Posylek rather than the positive attributes of Ms. Nardes as a parent. The only positive attribute of Mr. Posylek that both Carolline Nardes and Ms. Silva stated is that he is smart. Ms. Silva testified that Mr. Posylek is not secure in what he does and that he needs guidance. On cross-examination, Carolline Nardes testified that she believes Mr. Posylek is not a good father. She witnessed one access exchange when Cecilia was crying because Mr. Posylek had pressed Cecilia’s foot as told to her by Cecilia. She answered, “I’m not sure” when questioned as to whether Mr. Posylek’s relationship is important to Cecilia.

[129] Neither witness has spent time with Mr. Posylek and Cecilia since the date of separation in 2016 except for Ms. Silva, who supervised Mr. Posylek’s access with Cecilia on one occasion. I found their evidence regarding Mr. Posylek to be very much aligned with that of Ms. Nardes. Most of the incidents they had not witnessed first-hand and it was evident that they had been relayed information from Ms. Nardes. For these reasons, I did not find much of their evidence regarding Mr. Posylek credible.

[130] I found Mr. Posylek’s testimony overall to be credible. Much of his evidence was corroborated by his witnesses and the documentary evidence filed. He was largely unchallenged on cross-examination.

[131] Mr. Posylek testified that he loves Cecilia very much. Cecilia “is everything” to him. He described his routine with Cecilia which includes getting her up in the morning, having breakfast together, preparing her lunch, helping her get dressed in her school uniform, and driving her to and from school. Mr. Posylek also described cooking for Cecilia, bathing her, helping her brush her teeth, reading stories to her, and helping her with her bedtime routine.

[132] Mr. Posylek described how Cecilia likes to play, paint and draw and that he has an abundance of educational toys available for her. He further outlined how he and Cecilia go for walks and go to the park or the playground. He gave evidence of trips to petting zoos, the Science Centre, and the aquarium. Mr. Posylek also provided as evidence numerous photographs of he and Cecilia enjoying time together and partaking in various activities.

[133] Mr. Posylek testified that he has never physically hurt Cecilia, nor raised his voice to her. He has never been verbally abusive to Cecilia. He stated that if he needs to discipline Cecilia, he gets her to calm down and he lovingly explains to her what she has done that is inappropriate.

[134] I do not find Ms. Nardes’ evidence credible at all regarding Mr. Posylek’s parenting. I do not accept Ms. Nardes’ evidence that Mr. Posylek is failing to provide proper care for Cecilia and that he is irresponsible with Cecilia. Nor do I accept her evidence that Cecilia is unhappy at times when returning from Mr. Posylek’s care. Many photographs were presented as evidence by Mr. Posylek of Cecilia when she is in his care. Cecilia is happy, smiling, and affectionate with her father and grandparents. From hearing the evidence of Mr. Posylek, Ms. Posylek, and Mr. Zielinski, it is apparent that Cecilia is much loved by Mr. Posylek and his parents and she thoroughly enjoys her time with her father and grandparents. Cecilia is cared for appropriately when she is in Mr. Posylek’s care.

[135] Part of Cecilia’s time spent with Mr. Posylek involves spending time with her grandparents. Mr. Posylek testified as to the love that his parents have for Cecilia and Cecilia’s love of her grandparents. He described their relationship as “beautiful”. Mr. Posylek indicated that his own mother is his role model and he admires her for the “unconditional love” that she provides. It is Mr. Posylek’s evidence that his parents treated Ms. Nardes as if she were their own daughter. Mr. Posylek stated that despite Ms. Nardes’ concerns, his parents only come to visit. They are not responsible for doing laundry or cooking meals. Those tasks are his responsibility. He acknowledges that at times his mother does cook for the family.

[136] Cecilia’s maternal grandmother, Ms. Posylek, is a retired high school math teacher. Ms. Posylek testified as to the love she has for her son, Mr. Posylek, and the love that she has for Cecilia. She also spoke of the close relationship that Cecilia has with her maternal grandfather. It was clear from her evidence that prior to the date of separation, the parties enjoyed a wonderful relationship with both Ms. Posylek and Mr. Posylek’s father who unfortunately suffered a stroke in September 2018.

[137] Ms. Posylek testified that she observed Ms. Nardes complaining about minor things in her relationship with Mr. Posylek. She spoke about Mr. Posylek’s happiness in learning that he was going to be a father and his involvement in Ms. Nardes’ pregnancy. She also testified as to Mr. Posylek’s involvement with Cecilia after she was born. It was her observation that Mr. Posylek was very tender and gentle with Cecilia as an infant. She was surprised at how good he was with Cecilia because Mr. Posylek never had any siblings.

[138] She also observed that Ms. Nardes was very nervous, and she overreacted. Ms. Nardes would take Cecilia to the Emergency Department at the hospital frequently. She indicated that Ms. Nardes would complain, become angry, and yell. When she looked after Cecilia after the parties separated, Ms. Posylek testified that Ms. Nardes had rules for Cecilia’s care and only certain times that she could take Cecilia outside.

[139] When Ms. Posylek was responsible for assisting with access exchanges, she testified that she was never informed by Ms. Nardes as to what Cecilia had eaten despite her requests. She found that when Cecilia was returned to Ms. Nardes’ care, she was repeatedly questioned as to what Cecilia had eaten. She indicated that Ms. Nardes would check Cecilia’s teeth “like a horse” and poke Cecilia. She was uncertain as to why Ms. Nardes would do this to Cecilia. She stated that Ms. Nardes was usually with her sister and they both interrogated Ms. Posylek. She felt it was a “nightmare” because there was always a problem. There were allegations of scratches, Cecilia had eaten too much, she had dirty shoes, etc. Ms. Posylek testified that she would try to give an answer, but Ms. Nardes refused to listen.

[140] Ms. Posylek corroborated Mr. Posylek’s evidence with respect to his role with Cecilia. She testified that Mr. Posylek has never deferred parenting responsibility to her and that he is responsible for taking care of Cecilia. She views Mr. Posylek and Cecilia as a team. Ms. Posylek acknowledged that she has, on occasion, looked after Cecilia when Mr. Posylek has had an appointment. She further acknowledged that sometimes she assists Mr. Posylek with preparing food.

[141] I found Ms. Posylek’s evidence to be forthright and credible. She is a loving grandmother who has a wonderful relationship with her family. She adores Cecilia and has been a great support to both Ms. Nardes and Mr. Posylek. She spends much time with Cecilia and Mr. Posylek. It is obvious that she cares deeply for Mr. Posylek and Cecilia. Her concerns about Ms. Nardes corroborates the evidence of Mr. Posylek. She, too, has directly experienced Ms. Nardes’ questioning of Cecilia’s care at access exchanges. As indicated, this evidence of questioning is also corroborated by the Our Family Wizard exchanges between the parties and correspondence between counsel.

[142] Mr. Posylek is not without fault for some of the conflict that has ensued between the parties since the date of separation, as set out above in these Reasons. Additionally, there was much evidence about Ms. Nardes’ second trip to Brazil. Ultimately, Ms. Nardes did travel to Brazil with Cecilia; however, it took seven months to resolve the issue. I find that both parties were responsible at times for the delay surrounding the travel issue.

[143] Despite the conflict between the parties at times, communication has improved, and Cecilia is doing well. Even though choices were not communicated to Mr. Posylek, he did his own research regarding the daycare centres and school chosen by Ms. Nardes. He did not challenge those decisions made by her. Additionally, he did not challenge the choice of dentist for Cecilia, despite not being consulted. He consented to two trips to Brazil despite the fact that no make-up time was provided, and no efforts were made by Ms. Nardes to facilitate contact between Cecilia and Mr. Posylek during Cecilia’s absence.

[144] The parties have been able to communicate on issues involving Cecilia’s care. There are a number of examples in Our Family Wizard communications filed as evidence where the parties provide information to the other regarding Cecilia’s health concerns in an appropriate and positive manner. There are examples of the parties sharing information regarding medicine for Cecilia and issues regarding illness, injury, etc. that are very civilized exchanges. Ms. Nardes agreed that the communication has improved since May of 2019. This is a credit to both parties and there is no reason to believe this cannot continue.

[145] Joint custody is in the best interests of Cecilia and appropriate for all the reasons set out above. I have considered the provisions of s. 16 of the Divorce Act and s. 24 of the Children’s Law Reform Act, as set out in paragraph 83 above, regarding the best interests of Cecilia in reaching this conclusion. However, I was not able to ascertain the views and preferences of Cecilia given Cecilia’s young age, and the fact that there was no involvement of the Office of the Children’s Lawyer nor a section 30 assessment under the CLRA in this matter.

[146] Although I am prepared to order joint custody, I am concerned that if the parties are unable to reach a decision after consulting with one another, appropriate provisions be placed into the court order to ensure that decisions are made in a timely fashion which is also in Cecilia’s best interests. The parties shall consult with one another on all major decisions. If they cannot reach an agreement, Ms. Nardes will have final say regarding matters of medical care and dental care. Mr. Posylek will have final say regarding matters of education and religion. However, so as to ensure stability for Cecilia and recognizing that she is doing very well at present, Cecilia’s current pediatrician, dentist, and school shall not be changed unless the parties agree or pursuant to a court order. Details regarding decision-making are set out in the order below.

Parenting Schedule

[147] As indicated, Mr. Posylek seeks a gradual increase in the time he spends with Cecilia culminating in a week about time sharing schedule as of March 30, 2020. Ms. Nardes would like the present time sharing to remain but agrees to change the time that Mr. Posylek spends with Cecilia on Thursdays to 7:50 a.m. when he returns to work.

[148] I am not prepared to order week about time sharing at this time. While Mr. Posylek is presently off work, and as of the date of trial no return date was scheduled, the hope is that he will return to work. Mr. Posylek testified that he will assume the same schedule when he returns to work. Mr. Posylek’s work schedule is unique in that he has Thursday and Friday as his weekend. His hours of work when Cecilia is in school would mean that Cecilia’s schedule would be significantly changed as Mr. Posylek starts work at 6:00 a.m. No evidence was provided as to what arrangements would be made for Cecilia on those mornings when she would be in Mr. Posylek’s care and she needs to get up and ready for school. Mr. Posylek would already be at work well before school starts. In my view, this is too much change for Cecilia at present.

[149] Most importantly, Cecilia is doing well. To change her schedule in a significant manner, such that she will not see either parent for a week at a time would not be in her best interests. Cecilia needs stability and the ability to see both of her parents frequently. At the young age of four, it may present too much of a change for her to move to a week about schedule and be away from each parent for a significant period of time.

[150] I do find, however, that it is in Cecilia’s best interests to spend some additional time with Mr. Posylek. Mr. Posylek finishes work at approximately 2:00 p.m. on Wednesdays. He shall have Cecilia in his care each week from after school on Wednesday to Saturday at 7:00 p.m. This schedule affords Cecilia an additional overnight through the week with her father while ensuring that Cecilia still has weekend time with both parents. As time progresses, and if Mr. Posylek’s work schedule changes, this schedule may need to be adjusted to afford Cecilia the opportunity to spend alternating full weekends with each parent while also spending significant time with each parent during the week.

[151] This current change will provide Cecilia with much time with both of her parents during the week. It will allow Cecilia additional time to develop her relationship with her father and to experience extracurricular activities with him which is in her best interests. It will maintain her close and existing bond with her mother which is also essential and in Cecilia’s best interests. There shall also be an equal sharing of holidays in accordance with the order set out below. Cecilia should have the opportunity to spend special holiday periods with both parents. Thus far, she has been unable to do so. Additionally, Cecilia needs to be able to have summer holiday time with each parent. This is also addressed in the order below.

Issue #2

What are the incomes of the parties for support purposes? What is the proper amount of table child support payable and by whom?

[152] There is no dispute between the parties as to their current incomes. As stated above, Mr. Posylek’s current income is $49,823 gross per year from his long-term disability benefits. His gross annual income prior to receipt of long-term disability benefits was approximately $72,725.

[153] Ms. Nardes’ current income is approximately $43,630 gross per year. This consists of her employment income as well as Employment Insurance benefits which she receives during the summer months.

[154] Given the order made, Mr. Posylek has Cecilia in his care over 40% of the time over the course of the entire year. As such, the provisions with respect to shared custody as set out in the Federal Child Support Guidelines, SOR/97-175, (the “Guidelines”) at section 9 are relevant to the determination of child support. The relevant provisions are as follows:

Shared custody

9. Where a parent or spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the order for the support of a child must be determined by taking into account

(a) the amounts set out in the applicable tables for each of the parents or spouses;

(b) the increased costs of shared custody arrangements; and

(c) the condition, means, needs and other circumstances of each parent or spouse and of any child for whom support is sought.

[155] The Supreme Court of Canada, in Contino v. Leonelli-Contino, 2005 SCC 63, [2005] 3 S.C.R. 217, at para. 37 (“Contino”), outlined that the framework of section 9 requires a two‑part determination. A 40% threshold must first be met; and where it has been met, the appropriate amount of support must be determined in accordance with the three listed factors set out in section 9.

[156] The Court further stated at para. 39:

…The specific language of s. 9 warrants emphasis on flexibility and fairness. The discretion bestowed on courts to determine the child support amount in shared custody arrangement calls for the acknowledgement of the overall situation of the parents (condition and means) and the needs of the children. The weight of each factor under s. 9 will vary according to the particular facts of each case.

[157] As the 40% threshold is met, the analysis turns to the three listed factors set out in section 9.

[158] The first factor in section 9 requires that the Court take into account the amounts set out in the applicable tables for each of the parents. As stated by the Court in Contino, at para. 49:

...the simple set-off serves as the starting point, but it cannot be the end of the inquiry. It has no presumptive value. Its true value is in bringing the court to focus first on the fact that both parents must make a contribution and that fixed and variable costs of each of them have to be measured before making adjustments to take into account increased costs attributable to joint custody and further adjustments needed to ensure that the final outcome is fair in light of the conditions, means, needs and other circumstances of each spouse and child for whom support is sought. Full consideration must be given to these last two factors (see Payne, at p. 263) [J. D. Payne and M. A. Payne, Child Support Guidelines in Canada 2004 (2004)]. The cliff effect is only resolved if the court covers and regards the other criteria set out in paras. (b) and (c) as equally important elements to determine the child support. [Emphasis in original.]

[159] The Court went on to further state, at para. 51:

…The court retains the discretion to modify the set-off amount where, considering the financial realities of the parents, it would lead to a significant variation in the standard of living experienced by the children as they move from one household to another, something which Parliament did not intend. As I said in Francis v. Baker, 1999 SCC 659, [1999] 3 S.C.R. 250, one of the overall objectives of the Guidelines is, to the extent possible, to avoid great disparities between households. It is also necessary to compare the situation of the parents while living under one roof with the situation that avails for each of them when the order pursuant to s. 9 is sought. As far as possible, the child should not suffer a noticeable decline in his or her standard of living. Still, it is not a discretion that is meant to set aside all rules and predictability. The court must not return to a time when there was no real method for determining child support. (Paras v. Paras, 1970 ONCA 370, [1971] 1 O.R. 130 (C.A.))

[160] Mr. Posylek’s current income for support purposes is $49,823 gross per year and Ms. Nardes’ income for support purposes is $43,630 gross. The monthly child support table amount payable by Mr. Posylek to Ms. Nardes is $459. The monthly child support table amount payable by Ms. Nardes to Mr. Posylek is $402. If a set-off approach is used, this would result in Mr. Posylek paying the difference between the two sums to Ms. Nardes in the amount of $57 per month. This results in a monthly net disposable income for Ms. Nardes of $3,501 and $3,637 for Mr. Posylek. This also results in Ms. Nardes receiving 49.1% of the parties’ net disposable incomes and 50.9% for Mr. Posylek.

[161] As the Supreme Court of Canada outlined in Contino, a simple set-off has no presumptive value.

[162] The second factor to be considered includes the increased costs of shared custody arrangements. As set out by the Court in Contino, when considering this factor, the Court needs to examine financial statements and/or child expense budgets to determine whether the shared custody arrangements have resulted in an increase in the total costs of providing for the children because of the duplication of fixed costs in providing two homes for the children. As also stated by the Court, this section also recognizes that the costs of raising a child in a shared custody arrangement may be higher than in a primary residence situation.

[163] The parties have not prepared child expense budgets. Each party filed sworn Financial Statements. In reviewing the Financial Statements of each party and on hearing the evidence from them regarding expenses, I accept that both parties have contributed to the costs associated with Cecilia. Both gave evidence as to child care costs covered by each party. Ms. Nardes gave evidence of extracurricular expenses.

[164] The third factor to consider encompasses the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

[165] At present, the parties have relatively equal incomes. They each will be sharing much time with Cecilia both during the week and over the course of the entire year although Ms. Nardes will still have Cecilia in her care for more overnights. Both have considerable housing and other costs as well as costs associated with the care of Cecilia. Cecilia’s costs are not substantial at present and she has no special needs.

[166] Taking all of the factors into consideration, I find that it is appropriate to order child support in the amount of $125 per month to be paid by Mr. Posylek to Ms. Nardes each month. This results in equal monthly net disposable incomes for Ms. Nardes of $3,569 and $3,569 for Mr. Posylek. It also allows for Cecilia’s standard of living to remain consistent in each household.

[167] However, once Mr. Posylek returns to his employment his income will substantially increase if he earns the income he earned from his employment prior to the receipt of disability benefits. Upon his return to employment, there will need to be an immediate adjustment of child support to reflect Mr. Posylek’s increase in income, if any.

Issue #3

What are the current section 7 expenses of Cecilia and how should those costs be shared now and in the future?

[168] Ms. Nardes gave evidence as to Cecilia’s current section 7 expenses sought by her under the Guidelines. She testified that these expenses include before and after school care (child care expenses) and extracurricular activities of ballet and swimming. Mr. Posylek has also incurred child care expenses since May 2019.

[169] Ms. Nardes testified at trial that she is not seeking any retroactive adjustment to either table child support or section 7 expenses. On a go-forward basis, she seeks that the parties share equally Cecilia’s section 7 expenses. Mr. Posylek acknowledged through counsel and in his draft order, that he is agreeable to sharing section 7 expenses equally. When the question was raised by the Court as to whether there was an issue regarding the current extracurricular activities of Cecilia being “extraordinary” or not in nature as set out in section 7 of the Guidelines, Mr. Posylek confirmed that he would contribute to ballet and swimming lessons and he did not take issue with those expenses.

[170] Given the agreement of the parties, I am prepared to order that the parties share section 7 expenses on an equal basis after taking into account any available subsidies, benefits or income tax deductions or credits relating to the expense and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense. Neither party shall incur any section 7 expense for Cecilia without first obtaining the written consent of the other party. Receipts shall be provided to the other party as the agreed upon expense is incurred.

[171] If Mr. Posylek returns to his previous employment, Ms. Nardes may seek an adjustment of the proportionate sharing of section 7 expenses based on Mr. Posylek’s increased income, if any.

Order

[172] This Court orders as follows:

i) the parties shall have joint custody of the child, Cecilia Nardes-Posylek, born December 19, 2015;

ii) the parties shall consult with one another on all major decisions regarding Cecilia’s health, dental care, education, religion and welfare. If they cannot reach an agreement, Ms. Nardes will have final say regarding any matters of Cecilia’s medical and dental care. Mr. Posylek will have final say regarding any matters of Cecilia’s education and religion. However, Cecilia’s current pediatrician, dentist and school shall not be changed unless the parties agree or pursuant to a court order;

iii) for all other major issues, the parties shall follow the recommendations of the qualified professional providing the service to Cecilia. If they are still unable to agree, Ms. Nardes shall provide written notice to Mr. Posylek of the decision she intends to make. If Mr. Posylek does not agree with Ms. Nardes’ pending decision, he shall provide formal written notice to Ms. Nardes of his disagreement and he shall have 20 days from the date Ms. Nardes provided formal written notice of her pending decision, to serve any necessary motion or application materials. If Mr. Posylek does not do so within the 20-day period, then Ms. Nardes shall make the final decision. If Mr. Posylek does do so within the 20-day period, then no decision shall be made by Ms. Nardes except by written agreement of the parties or court order;

iv) Cecilia shall share time with her parents (including holiday time) as follows:

a) with Mr. Posylek, each week on Wednesday from after school (or 2:30 p.m. if Cecilia is not in school) to Saturday at 7:00 p.m.;

b) with Ms. Nardes, each week from Saturday at 7:00 p.m. to Wednesday at the end of the school day (or 2:30 p.m. if Cecilia is not in school). End of the school day means the end of Cecilia’s day at her elementary school and does not include after school care;

c) Family Day weekend, August Civic holiday weekend, and Labour Day weekend (including the holiday Monday) shall be alternated between the parties commencing in 2021. The holiday shall commence on Friday after school (or 2:30 p.m.) until return to school on Tuesday morning or 9:00 a.m. if Cecilia is not in school. Ms. Nardes shall have Cecilia with her on Family Day weekend in odd-numbered years and Mr. Posylek shall have Cecilia with him in even-numbered years. Mr. Posylek shall have Cecilia with him on August Civic holiday weekend in odd-numbered years and Ms. Nardes shall have Cecilia with her in even-numbered years. Ms. Nardes shall have Cecilia with her on Labour Day weekend in odd-numbered years and Mr. Posylek shall have Cecilia with him in even-numbered years;

d) Halloween, Canada Day, and Cecilia’s birthday shall all be celebrated in accordance with the regular schedule;

e) for March Break 2020, Cecilia shall share time with her parents in accordance with the regular schedule. Commencing in 2021, Cecilia will reside with Mr. Posylek during March Break in odd-numbered years and with Ms. Nardes in even-numbered years, from the time Cecilia leaves school on the Friday until her return to school on the Monday following March Break;

f) for Easter 2020, Cecilia shall share time with her parents in accordance with the regular schedule. Commencing in 2021, Cecilia will reside with Ms. Nardes for Easter in odd-numbered years and with Mr. Posylek in even numbered years, from the time Cecilia leaves school on the Thursday before Easter weekend until her return to school following Easter weekend;

g) if not already in her care, Cecilia shall reside with Ms. Nardes on Mother’s Day weekend from Saturday at 7:00 p.m. until her return to school on Monday;

h) if not already in his care, Cecilia shall reside with Mr. Posylek on Father’s Day weekend from Saturday at 7:00 p.m. until her return to school on Monday;

i) commencing in 2020, Cecilia shall reside with Mr. Posylek on Thanksgiving weekend in even numbered years and with Ms. Nardes in odd-numbered years, from Cecilia leaving school on the Friday before Thanksgiving until her return to school the following Tuesday;

j) commencing in 2020, Cecilia shall reside with Ms. Nardes in even numbered years from Christmas Eve at 11:30 a.m. to Christmas Day at 2:00 p.m. Cecilia shall reside with Mr. Posylek in odd-numbered years from Christmas Eve at 11:30 a.m. to Christmas Day at 2:00 p.m.;

k) commencing in 2020, Cecilia shall reside with Mr. Posylek in even-numbered years from New Year’s Eve (December 31, 2020) at 11:30 a.m. to New Year’s Day at 2:00 p.m. Cecilia shall reside with Ms. Nardes in odd-numbered years from New Year’s Eve (December 31, 2021) at 11:30 a.m. to New Year’s Day at 2:00 p.m.;

l) commencing in 2020, each party shall have two non-consecutive uninterrupted weeks with Cecilia for the summer. The week shall commence on Friday at 2:30 p.m. and conclude the following Friday at 2:30 p.m. The parties shall notify one another in writing of their desired weeks by April 1st with Ms. Nardes having first choice in odd-numbered years and Mr. Posylek having first choice in even-numbered years;

m) commencing in 2021, either party is be permitted to travel with Cecilia outside the province of Ontario for a vacation for a maximum of 14 consecutive days;

n) the parent proposing the trip must provide no less than 30 days’ notice of the trip with the itinerary for the trip, including but not limited to flight numbers, dates and times of travel, and the contact information for where Cecilia will be staying during the period of travel;

o) the parent planning the trip shall be responsible for the preparation of a Travel Consent for execution by the other parent. Consent shall not be unreasonably withheld for travel;

p) the parent planning the trip shall be responsible for obtaining travel insurance for Cecilia;

q) the parent planning the trip shall arrange and facilitate a minimum of two telephone or video calls between the other party and Cecilia during the trip;

r) the parties may take Cecilia for day trips outside of the province of Ontario prior to 2021 so long as written consent is obtained from the other parent or pursuant to a court order;

v) the parties shall cooperate with obtaining and renewing Cecilia’s Canadian passport. The parties shall sign all documents necessary for obtaining and renewing Cecilia’s Canadian passport. The parties shall share equally the costs of obtaining and renewing Cecilia’s Canadian passport. The passport shall be kept by Mr. Posylek until it is required by Ms. Nardes for purposes of travel. Mr. Posylek shall provide Cecilia’s passport to Ms. Nardes 10 days prior to Ms. Nardes travelling with Cecilia. Cecilia’s Canadian passport shall be returned to Mr. Posylek at the end of the vacation;

vi) the parties shall cooperate in obtaining and renewing Cecilia’s Brazilian passport. The parties shall sign all documents necessary for obtaining and renewing Cecilia’s Brazilian passport. Ms. Nardes shall be responsible for the costs of obtaining and renewing Cecilia’s Brazilian passport. Ms. Nardes shall retain the Brazilian passport in her possession;

vii) the parties shall continue to communicate regularly about Cecilia’s needs and care using Our Family Wizard. Any account fees for this service shall be shared equally by the parties. All communication shall be child-focused and neither parent shall make accusations or derogatory statements;

viii) Ms. Nardes shall be the librarian of Cecilia’s health card. She shall provide a copy of the health card to Mr. Posylek immediately;

ix) both parents shall be entitled to enroll Cecilia in extracurricular activities. The parties shall provide to one another, through Our Family Wizard, all necessary information regarding Cecilia’s activities and lessons regardless of whose time the activity or lesson falls on. The parties shall cooperate to ensure that Cecilia attends all of her activities and lessons regardless of whose time the activity falls on;

x) both parties shall be entitled to attend any extracurricular activities that Cecilia is enrolled in and both parties are entitled to attend at parent-teacher interviews or any special events at Cecilia’s school. Both parties shall be listed as emergency contacts with respect to all extracurricular activities and Cecilia’s school;

xi) all of Cecilia’s legal documents, including but not limited to her birth certificate, Canadian and Brazilian passports, and health card, shall not be obtained or renewed without both parties’ written consent or court order;

xii) Cecilia shall be entitled to have a telephone call or Skype/Facetime/WhatsApp video call with the other parent as she wishes. Both parties shall facilitate requests made by Cecilia to contact the other parent;

xiii) there are no child support arrears or overpayment of support owed by or to either party;

xiv) Mr. Posylek shall pay child support for the child Cecilia Nardes-Posylek, born December 19, 2015, to Ms. Nardes in the amount of $125 per month commencing March 1, 2020 based on his gross annual income of $49,823, Ms. Nardes’ gross annual income of $43,630, and a shared parenting schedule;

xv) upon Mr. Posylek’s return to his employment, there shall be an immediate adjustment of child support to reflect an appropriate amount of child support based on Mr. Posylek’s increase in income, if any;

xvi) the parties shall share section 7 expenses on an equal basis commencing March 1, 2020 after taking into account any available subsidies, benefits or income tax deductions or credits relating to the expense and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense. Neither party shall incur any section 7 expense for Cecilia without first obtaining the written consent of the other parent. Receipts shall be provided to the other parent as the agreed upon expense is incurred;

xvii) if Mr. Posylek returns to his employment, Ms. Nardes may seek an adjustment of the proportionate sharing of section 7 expenses based on Mr. Posylek’s increased income, if any;

xviii) the parties shall provide each other with a copy of his or her Income Tax Return by May 1st of each year and a copy of his or her Notice of Assessment, upon receipt, for the purposes of adjusting child support each year by June 1st;

xix) Support Deduction Order to issue;

xx) Mr. Posylek may proceed to obtain a divorce on an uncontested basis by way of affidavit evidence;

xxi) I encourage the parties to agree on costs; however, if they are unable to do so, any party seeking costs shall serve and file written costs submissions, no longer than three doubled-spaced pages, along with a Bill of Costs and any Offers to Settle by March 6, 2020. Any written responding submissions, no longer than three doubled-spaced pages, along with a Bill of Costs and any Offers to Settle, shall be served and filed by March 20, 2020.

Stevenson J.

Released: February 19, 2020