COURT FILE NO.: 20-20

DATE: 20200309

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

E.D.

Applicant, Self-Represented

• and -

J.S.

Respondent, Self-Represented

HEARD in Cornwall: December 2, 3, 4, 5, 6, 9, 10,11,12,13, 2019; January 2, 3, 8, 13, 14, 17, 20, 24, 27, 30, 2020; February 3,4, and 7, 2020

DECISION

Desormeau, j.

OVERVIEW

[1] After a 13-year turbulent common law relationship, wherein the Applicant Mother (ED) and Respondent Father (JS) had two children, they separated a final time on August 19, 2017. True to the nature of the relationship itself, the conflict escalated as these two parents used all means necessary to bring the other down, ostensibly to best provide for their children. Both parents brought the police, Valoris (Children’s Aid Society of Prescott Russell, “Valoris”), the Children’s Aid Society of Stormont, Dundas and Glengarry (“CAS”), their friends, their family and disappointingly, their children, into the conflict.

THE POSITION OF THE PARTIES

[2] The Mother sought sole custody of the children, J, born […], 2006 and P, born […], 2010. She suggested that the Father should have access every second weekend, from Friday after school to Sunday at 7:00 p.m., and one evening per week. She also requested child support pursuant to the Child Support Guidelines, as of the date of separation.

[3] While initially suggesting during the trial that joint custody was appropriate, by the end of trial the Father sought sole custody of J and P. He also requested a restraining order against the Mother, such that she not be near him or his family, except for pick up and drop off of the children. The Father also requested a restraining order against V, so that she would leave the Mother’s home and leave the kids alone. He advocated for a say with regard to J’s school. Finally, the Father sought child support pursuant to the Child Support Guidelines.

ISSUE 1: CREDIBILITY

[4] As in all cases, credibility is an important consideration, particularly where there are different versions of events advanced by the parties.

[5] I found the Mother’s evidence to be forthright and straightforward. The manner in which she presented the evidence was logical. Overall, I found her to be credible. However, some aspects of her evidence, in the context of the evidence as a whole, were not sufficiently persuasive to permit the court to make findings of facts on a balance of probabilities.

[6] The Father’s evidence was presented with conviction and fervor. On the issues involving the children and how he raises them, I found his evidence compelling. The Father testified that he suffered a great deal in his past, and from his perspective, the Children’s Aid Societies failed to protect him and those he loves. This was part of the history that shaped his inherent mistrust not only of CAS, but possibly the “system” in general. Based on the Father’s past, which I have no reason to disbelieve, the Father feels the need to protect himself and those around him. Generally speaking, I find that this has led him to assert his rights in a forceful manner. It is with this perspective in mind that I have weighed the evidence presented by the Father, some of which I find completely credible, and other aspects which I am not persuaded meet the civil burden for findings of fact.

[7] The Father’s credibility was undermined where his personal opinions were not supported in evidence. For instance, the Father believed that Mr. Chauvin from Valoris had a romantic relationship with the Mother and would have left her home as late as 11:00 p.m. Though the evidence did not support this allegation, and both the Mother and Mr. Chauvin denied same, this did not stop the Father from misstating the evidence to other witnesses. This demonstrated to the court the Father’s singlemindedness on issues which did not necessarily reflect reality and had the effect of undermining the Father’s credibility on such issues. Another example was when the Father questioned Mr. Groulx at length regarding the Father’s email address not being “on file”. The confusion was clarified by Mr. Groulx, who did not deny communicating with the Father in the past via email, explained that the Father’s email had not been manually inputted into the CPIN system, therefore the Father’s email address was “not on file”. This nuance was logical. However, the Father believed this was proof of a scheme against him.

[8] The Father’s comportment in court demonstrated his disdain for a number of the witnesses. He called them outright liars during their testimony, threatened civil actions based on the evidence they provided, and went so far as to leave the courtroom during evidence, stating he could not listen to any further lies. The court permitted his scribe to remain present and relay to him the evidence received during his absences.

[9] I note that both parties submitted throughout the trial the witnesses had colluded or discussed the evidence despite an order excluding witnesses. However, as indicated at trial, I was not persuaded of same.

[10] The collateral witnesses consisted of family, friends, and prior child protection workers who had been involved with the family. Many of the witnesses gave their lay opinions as to what they believed was in the children’s best interests and their perspective of the parties’ parenting abilities. None of the witnesses were qualified as experts, and therefore any opinion evidence is not admissible. However, all of their non-opinion evidence has been considered in this decision.

[11] While some of the witnesses were aligned with one parent or the other, I am not persuaded that any of them were less than truthful with the court. As with any witness, they were all limited by their own personal knowledge, history and views. As a collective, they provided helpful insight regarding the issues that must be decided.

[12] A couple of the witnesses were disrespectful toward the other parent. For instance, the children’s paternal grandfather commented in response to some of the Mother’s question with: “your fantasy is out of line”, “you’re an evil woman ED, what’s wrong with you?”, and “when is this bullshit ever going to end”. The maternal grandmother to the children muttered comments in response to questions asked by the Father, such as “ça ce peux-tu”. Despite this, I found these two witnesses were nevertheless balanced when speaking about the children.

[13] Regarding the Valoris and CAS workers, in general, I found their evidence was presented in a straightforward and neutral manner. The workers were able to recognize and point out the positives about both parents, as well as share the concerns which led to their file openings.

ISSUE 2: HEARSAY EVIDENCE

[14] Both parties and their witnesses provided a plethora of hearsay evidence throughout the trial.

[15] I kept a chart of the hearsay statements made by differing witnesses, given that both parties were self-represented. Upon completion of the evidence, I heard submissions on the statements. Thereafter, I determined which statements met threshold reliability and necessity. The evidence contained in the voir dires relevant to the statements which were admitted form part of the trial proper.

[16] The only statements upon which I place any weight are those admitted for truth, the statements provided by service providers regarding the children’s views and preferences, and the statements by the children regarding the audio recordings under the state of mind exception.

ISSUE 3: CUSTODY AND ACCESS LAW

[17] This is an Application under the Family Law Act (“FLA”) and the Children’s Law Reform Act (“CLRA”).

[18] The starting premise is both parents are equally entitled to custody of a child: s. 20(1) CLRA.

[19] Pursuant to s. 24 CLRA, an order for custody of or access to a child must be made in the “best interests of the child”, as determined by reference to the conditions, means, needs and other circumstances of the child.

[20] Subsections 24(2), (3), (4) CLRA set out the relevant considerations in assessing the best interests of a child. Section 24(2) states:

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

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

(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

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

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

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

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

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

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

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

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

(h) any familial relationship between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10; 2016, c. 23, s. 7 (1, 2); 2016, c. 28, s. 2.

[21] A parent’s past conduct may be considered only to the extent that it relates to their ability to act as a parent. While some actions may reflect poorly on a party as a spouse, this may have not affected the party’s ability to parent: Somerville v. Somerville, [2007] O.J. No. 1079 (Ont. C.A.)

[22] No single factor in the statutory definition of a child’s best interests is given statutory pre-eminence: Wilson v. Wilson, 2015 ONSC 479.

[23] The ability to act like a parent includes being able to support a child’s relationship with the other parent.

[24] The child’s best interests are not merely “paramount”, they are the only consideration in this analysis: Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 at para. 28; Mattina v Mattina, 2018 ONCA 641. Parental preferences and “rights” play no role: Young v. Young, (1993) 1993 CanLII 34 (SCC), 4 S.C.R. 3. The court must ascertain a child’s best interests from the perspective of the child rather than that of the parents: Gordon v. Goertz, supra.

[25] Joint custody requires a willingness by both parents to work together to ensure the success of the arrangement: Kruger v. Kruger, 1979 CanLII 1663 Ont. C.A.; Khaled v. Khaled, 2014 ONSC 2087, at para. 57.

[26] A joint custody order may be appropriate in three main types of cases: (1) where the parties agree to a joint custody order; (2) where there is a positive history of cooperation between the parties; and (3) where it is appropriate to preserve one parent’s relationship with the child: Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA); Ladisa v. Ladisa (2005), 2005 CanLII 1627 (ON CA), 193 O.A.C.; Habel v. Hagedorn, 2005 ONCJ 242, [2005] O.J. No. 3556 (O.C.J.); Patterson v. Patterson, 2006 CanLII 53701 (ON SC), [2006] OJ No. 5454 (S.C.J.).

[27] The court should consider the level of hostility and the extent to which that hostility may undermine the child’s stability: Wilson v. Wilson, supra; also see Levesque v. Windsor, 2020 ONSC 273, at para. 99.

[28] There are occasions where the court grants joint custody where such an order is necessary to preserve the balance of power between the parents, especially where one parent has been primarily responsible for the conflictual relationship: Campbell v. Lapierre, 2017 ONSC 1645, referring to Garrow v. Woycheshen, 2008 ONCJ 686 (Ont. C.J.), Hsiung v. Tsioutsioulas, 2011 ONCJ 517 (Ont. C.J.).

[29] In determining whether a reasonable measure of communication and cooperation is in place and is achievable in the future, the court must consider the source of the conflict, consider whether one parent is creating the conflict and engaging in reasonable conduct, impeding access, marginalizing the other parent or by other means, and then claim sole custody of the basis of lack of cooperation communication: Levesque v. Windsor, supra, citing Khairzad v. Macfarlane, 2015 ONSC 7148.

[30] In C(D) v. C(H), 2014 ONSC 6696, the court was concerned that a sole custody order in favour of one parent would marginalize the other parent in the lives of the children.

[31] Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard of perfection is not required and is obviously not achievable: Levesque v. Windsor, supra, citing Griffiths v. Griffiths, 2005 ONCJ 235, 2005 CarswellOnt 3209.

[32] In K. (V.) v. S. (T.), 2011 ONSC 4305, Chappel J. reviewed the case law regarding parallel parenting. The following factors are particularly relevant in determining whether a parallel parenting regime, rather than sole custody, is appropriate:

a) The strength of the parties’ ties to the child, and the general level of involvement of each parent in the child's parenting and life: Hildinger v. Carroll, 2004 CarswellOnt 444 Ont. C.A.; Moyer v. Douglas, 2006 CarswellOnt 8268 (Ont. S.C.J.); Caufield v. Wong, 2007 ABQB 732 (Alta. Q.B.); Ursic v. Ursic, 2004 CarswellOnt 8728 (Ont. S.C.J.). In almost all cases where parallel parenting has been ordered, both parents have consistently played a significant role in the child's life on all levels.

b) The relative parenting abilities of each parent, and their capacity to make decisions that are in the child's best interests. Where one parent is clearly more competent, responsible and attentive than the other, this may support a sole custody arrangement: Ryan v. Scott, 2011 ONSC 3277, 2011 CarswellOnt 5924 (Ont. S.C.J.). On the other hand, where there is extensive conflict between the parties, but both are equally competent and loving parents and are able at times to focus jointly on the best interests of the child, a parallel parenting regime may be ordered: Moyer v. Douglas, [2006] O.J. No. 5124 (Ont. S.C.J.); Hajkova v. Romany, 2011 ONSC 2850, 2011 CarswellOnt 3237 (Ont. S.C.J.); Scervino v. Scervino, 2011 CarswellOnt 7845 (Ont. S.C.J.).

c) Evidence of alienation by one parent. If the alienating parent is otherwise loving, attentive, involved, competent and very important to the child, a parallel parenting arrangement may be considered appropriate as a means of safeguarding the other party's role in the child's life: Sgroi v. Socci, 2007 CarswellOnt 8526 (Ont. S.C.J.); Gorman v. Gorman, [2008] N.B.J. No. 516 (N.B. Q.B.); L. (A.) v. M. (C.), 2010 CarswellNB 58 (N.B. Q.B.); Hensel v. Hensel, 2007 CarswellOnt 7010 (Ont. S.C.J.). On the other hand, if the level of alienation is so significant that a parallel parenting order will not be effective in achieving a balance of parental involvement and will be contrary to the child's best interests, a sole custody order may be more appropriate.

d) Where both parties have engaged in alienating behaviour, but the evidence indicates that one of them is more likely to foster an ongoing relationship between the child and the other parent, this finding may tip the scale in favour of a sole custody order: Attia v. Garanna, 2010 CarswellOnt 1168 (Ont. S.C.J.).

e) The extent to which each parent is able to place the needs of the child above their own needs and interests. If one of the parties is unable to focus on the child's needs above their own, this may result in a sole custody order, even if that parent is very involved with the child and otherwise able to meet the child's day to day needs: Perron v. Perron, 2010 CarswellOnt 6948 (Ont. S.C.J.).

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

[33] The Ontario Court of Appeal in Rigillo v. Rigillo, 2019 ONCA 548 indicated that decision-making authority assists in ensuring that a parent's relationship with his or her child is not marginalized. In that case, the court determined that given the parties’ history and ongoing conflict, some form of divided parallel decision-making would be appropriate. The court also stated that 14 days was a reasonable period of time to attempt consultation before one party could make a final decision in a parallel parenting scheme.

(A) FINDINGS OF FACT

[34] I am required to make findings of fact and to determine which party’s evidence is more credible and reliable. I can accept part, all or none of a witness’s testimony. Every witnesses’ credibility and evidence must be considered in the context of the evidence as a whole: R. v. Jaura, [2006] O.J. No. 4157, at para. 13.

[35] Given the number witnesses called, while I have considered each of their individual testimonies, their evidence is predominantly addressed collectively.

[36] Having considered the totality of the evidence over this 23-day trial, the following are my findings of fact.

[37] ED and JS were in a common law relationship from 2004 to August 19, 2017, which entailed two separations prior to their final separation in 2017. From their union, they had two children, their daughter J, who is 13 years old, and their son P, who is 9 years old.

[38] I am not persuaded that the Mother was removed from the home by police at separation. I accept the Mother’s evidence that the police asked if she had another place to go that night, which she did, so she left. I accept that the Father had plans to go with the children to the Calypso water park the following day. I also accept that the Mother called the police once the day after separation, not eleven times as alleged by the Father.

[39] I find as a fact that the parties’ relationship was toxic. This was a recurring description used by numerous witnesses, including the parties. Witnesses also described the paternal grandfather visiting the family almost every weekend, and the Mother frequently having friends over. This fueled some of the conflict between the parents. It was established that when conflict arose and the Father no longer wished to participate, he would often walk away and call his father. Occasionally, the Mother would follow him to continue with the conflict. There were frequent power struggles over either parent being able to leave with the child(ren) following an argument, particularly when the parties briefly separated during their relationship.

[40] Since August 2017, the parents have had to deal with numerous collaterals involved in their family, including but not limited to: Valoris, CAS, the Ontario Provincial Police (“OPP”) and other police agencies. These collaterals have, on occasion, further involved the children in the dispute between the parents.

[41] The parties first attendance at court was for an emergency motion on September 25, 2017. Charbonneau J., made a temporary order whereby the parents would have joint custody of the children, the children would reside with their Mother from Sunday at 12:30 p.m. to Thursday at 3:30 p.m., and with their Father from Thursday afterschool at 3:30 p.m. to Sunday at 12:30 p.m.

[42] A child protection application was commenced on December 1, 2017. On December 22, 2017, the family court proceedings were suspended while the child protection proceedings took place. On December 27, 2017, following a temporary care and custody hearing, Pelletier J. varied the Father’s access to Friday after school until Monday mornings, every second weekend. On February 7, 2018, Charbonneau J. ordered, on a without prejudice basis, supervised access to the Father. The Father did not see the children again until June 20, 2018.

[43] When access between the children and the Father resumed, it was supervised for a short duration by CAS. The visits were positive according to the children, who were happy to see their Father. The visits increased, and by September 5, 2018, access included regular sleepovers. By mid-October 2018, the Father’s access was every second weekend from Thursday after school to Saturday afternoon, and every other weekend, from Thursday after school to Monday morning at school. The child protection proceedings terminated on or about April or May 2019.

[44] On May 24, 2019, Kane J. made a temporary order whereby the children would be with their Father from Thursday after school until early Saturday afternoon in week 1, and Thursday after school until their return to school on Monday morning in week 2. Kane J. also ordered that for the summer, the children would have week-about access with their parents, with each parent having a two-week consecutive holiday period.

[45] Historically speaking, after a lengthy fight against CAS, the parties cared for Alex, the Father’s oldest son, on and off for a couple of years, starting around 2008 or 2009, when Alex was approximately 11 years old. Alex had numerous special needs due to the trauma he experienced prior to residing with his Father and ED. Due to his special needs and behavioural issues, both the Father and ED exercised a level of force to ensure he did not hurt himself or others. I am persuaded that neither ED nor the Father used more force than was necessary in the circumstances. Ultimately, Alex left the Father’s home and returned to foster care. There was a breakdown in the relationship, and Alex did not see his Father from about August 2013 to December 2016. Alex was called as a witness by ED. At trial, Alex presented with a great deal of insight and regret for having put the Father and ED through a rough time when he resided with them. He admitted he was not the greatest kid, and even when he was called out as being a liar and a thief by his Father, he calmly responded that he had been in the past, but was now doing better. His evidence was that there were positive arguments that support both the Father and ED having care of J and P, but he ultimately favoured ED being the primary parent.

[46] There was also a breakdown in the relationship with Aiden, one of the Father’s older daughters. Aiden received venomous messages from the Father, which were reproduced as exhibits at trial.

[47] The Father maintained a good relationship with his daughter S., who testified on his behalf.

[48] In September 2019, J went to reside with the Father on a full-time basis. From that point until approximately December 3, 2019, J spent very little time with her Mother. One reason for same was confusion as to the terms of Roger J.’s order, dated September 26, 2019, which stated “Subject to Valoris and request to [J], [J] shall have access to the Applicant every Saturday and Sunday from 2:00 p.m. to 6:00 p.m. until further ordered by court. This varies order of Honourable Justice Kane of May 24, 2019.” The Father believed this meant J could see her Mother four hours, twice per week, at her discretion. The Mother believed that the order meant the access was subject to J’s wishes and could be whatever J wanted. There were nevertheless a few occasions when the Father allowed for an extension of the access time with the Mother.

[49] While it is open to me to determine that parental alienation has occurred in this matter without the requirement of any expert evidence[^1], I am not prepared to make that finding.

[50] However, I find as a fact that both parents involved the children in the conflict and in adult discussions, as evidenced in the plethora of highly inappropriate messages sent to the children which were filed as exhibits to the trial. J was clearly caught in the middle of the conflict. J texted her Mother “.. thanks for using everything I told you at our visit in court..That was supposed to [b]e fun, not to use it against dad”. Two other examples were from the Father messaging J, at Exhibit 15: “Thank you [J] daddy’s getting arrested again this time because of you thank you”, and “Police are going to be at Dad’s in 10 minutes Dad is charging mom for try-ing to set up Daddy on a breach now it’s mommy’s turn to going to find out what it’s like to be in handcuffs and Mommy giving Daddy to death threat on the 4th October is being reviewed daddy fears for his life mommy may be charged for that too”.

[51] The Mother’s partner also made an inappropriate comment to P, telling him to “stop lying like his Father”. While unfortunate, I find that the Mother took the proper steps to terminate the inappropriate and disparaging comments about the Father by Alain.

[52] The Mother and her partner have resided together since approximately December 2018. Alain presented as forthcoming. He admitted to personal flaws. He apologized for his inappropriate comments made to P. He explained his contribution to the Mother’s household included helping out the family and paying his own bills and personal items. He maintained that his official place of residence was the lot where his house was torn down, which he plans to rebuild.

[53] The Father and his wife became a couple on or about December 4, 2017 and were married February 23, 2018. A. was insightful in her evidence. She recognized that the children were playing both sides, and presented as a strong support for the Father.

[54] From approximately October 7, 2019, except for three days in November, J stopped attending school. Both parties asserted different interpretations of Kane J.’s order of May 24, 2019 regarding the whether or not the child’s school could be changed. That order stated, at paragraph 13, that the children shall continue to attend their present schools until trial. It took until the trial commenced for the parents to reach a mutual decision about where J should attend school. They are commended for making this decision together. It was however unfortunate that J went so long without going to school before this decision was reached. The court understood that J made very serious threats of self-harm which the Mother felt were motivated by J’s self-interest; whereby the Father felt the need to take the threat seriously. Based on the contradictory nature of the evidence, the court cannot determine what motivated J’s threats of self-harm. However, from now on, the parents need to be able to put aside their differences and ensure that J continues to receive the proper services for threats of this nature, and ensure her regular attendance at school.

[55] Regarding J’s mental health issues, I am aware that the Father took those concerns very seriously. When J was experiencing mental health issues while residing in the shared custody of the parents, the Mother attended to those needs. However, when J went to reside full time with her Father, the Mother questioned J’s motives underlying her threats of self-harm.

[56] The evidence established without a doubt that both parents were verbally abusive toward the other, regardless if the children were present. This included very disparaging name calling.

[57] As the evidence before me was extremely contradictory, I am unable to conclude that there was physical abuse between the parents, apart from the Mother admittedly grabbing the Father’s shirt.

[58] I find, on a balance of probabilities, that J had been “tapped”, not “slapped” in the mouth in the past, and that the Mother had used a drop of tabasco sauce in the children’s mouths to correct bad behaviour. Historically, the Mother also put J on her knees as a form of discipline, likely with blankets under her knees. However, I am not persuaded that any such physical abuse has occurred since separation.

[59] It was uncontested that the Mother made use of resources offered to her through Valoris, such as having an assigned worker to assist her to ameliorate her parenting skills, and to address adequate consequences and structure for the children. The Father however questioned whether or not the Mother learned from these resources. I find that she did.

[60] It was not contested that J did not attend to see a dentist until after separation, at which time she had several cavities. While concerning, the reality was that both parents condoned this until separation.

[61] It was uncontested that the Mother did not file her taxes for approximately 11 years, which affected the Father’s ability to file his taxes, and which affected any receipt of baby bonus or child tax credits.

[62] The evidence showed that the Father is not permitted at the Valoris office nor on the school property at P’s school. I find this makes it more difficult for the Father to work cooperatively with Valoris and the school. However, he cannot attend either location due to his own inappropriate behaviours involving the agency and the school.

[63] Through Valoris, the Mother presented a plan to be V’s kin caregiver when V’s Father was alleged to have sexually assaulted her. It appears as though the Father was not on the paperwork regarding this kin placement. I am not prepared to conclude that this was a failure of Valoris. V went to reside with the Mother and Father when she was approximately 15 years old. V was a troubled child, who self-mutilated, and burned pictures of her Father in a bedroom. While I find that both the Mother and Father were appropriate in providing a home for V and tending to her needs when they were together, following the breakdown of the relationship between the Mother and Father, V received numerous hateful and troubling messages from the Father.

[64] Based on the evidence, I find it is more probable than not that the Father encouraged the children to embellish about their Mother. I make this finding principally based on the evidence provided by Ms. Baron from Valoris, who presented as neutral toward both parents and the investigation.

[65] The Father had inappropriate conversations with J by telling her that the Mother killed J’s cat and exposing her to the adult conflict by telling her the Mother was going to be charged criminally.

[66] Neither parent should have involved the children in criminal allegations about the other parent.

[67] I find as a fact that the parents continuously attempting to have the other parent charged criminally is detrimental to the emotional and mental wellbeing of the children. More often than not, the children are either brought into the discord, or suffer the repercussions from new criminal charges. Should this behaviour continue, then the court may have to find more intrusive measures to protect the children.

[68] The evidence supports a finding that the children were being recorded by both parents, which is inappropriate.

[69] I find that the Father cancelled J’s grade 6 confirmation. I am however not persuaded the Mother caused a scene at the church, as alleged by the Father.

[70] The Father unilaterally changed J’s doctor and psychotherapist, and tried to change the children’s school, without the Mother’s consent. These actions were not appropriate.

[71] The Mother acted inappropriately when she tried to take J’s card with the Valoris contact information away from her when she tried report a crisis situation at the home.

[72] The Mother should not have put J in the difficult position of having to choose between horseback riding and going to A.’s baby shower.

[73] While the Father has reading issues, he has the ability to rely on A. to assist him, like he did during trial. Despite this, the Father refused to sign J’s Individualized Education Plan form, stating it was his right to refuse to sign it. He testified he did not want his wife to read it to him. I find that he chose not to care for J’s special schooling needs. Ms. Hoffman from Valoris had to intervene on this issue to ensure J’s schooling needs were met.

[74] The evidence supports a finding that both parents have made comments in the past which led the other, and potentially the children, to believe the parent wished to harm themselves. For instance, the Mother admitted to taking a knife in the woods with her but denied threatening self-harm through pills. The Father admitted to telling the police “you may as well shoot me in the back of the head” but stated that was not the same as him threatening to kill himself. While there may be other questionable incidents, I am primarily concerned that continued exposure to these types of assertions or allegations put the children’s emotional health at risk.

[75] Based on the evidence, I find that when the Father does not get his way, he escalates. He has made complaints about numerous individuals and agencies, including Valoris workers, Police Officers, Lawyers from the Office of the Children’s Lawyer, and Judges. These complaints are well within the Father’s rights. However, the evidence shows that several complaints were unfounded, which begs the question as to the appropriateness to threaten complaints, and whether they are rights based or merely a control strategy. What is most unfortunate is some of the complaints raised by the Father were unnecessarily shared with the children. However unfortunate these decisions were, and what the basis was for same, at this stage, I am not persuaded this behaviour negates the Father’s parenting skills.

[76] I find that both parents lacked the necessary communication skills to advise the other about important decisions about the children, including J’s medical appointments, and reasons for the request for both J and P to change schools. The parents need to be more appreciative of the others’ role in the children’s lives, rather than trying to control the situation. This is equally true for the spouses or partners involved with the parents.

[77] Despite some negative findings set out above, there is no doubt in my mind that both the parents love the children. They only want what is best for the children. Their animosity toward the other parent unfortunately often clouds their judgment, and they fail to recognize that exposing the children to negative comments about the other parent sends the message that half of their own being is worthless.

[78] I am persuaded that both parents were involved in the raising of the children. As in many relationships, there was some give and take in who was caring for the children. There were times when each of them was the children’s primary caregiver, such as when the Father was caring for J shortly after her birth while he was off from work, and the Mother caring for P following her caesarian.

[79] Both parents made efforts to take the children to fun activities, such as the zoo and Calypso.

(B) NO FINDINGS OF FACT MADE

[80] I do not find it is necessary, nor am I prepared to make any findings around the following issues presented at trial:

a. Whether or not JS is the biological father to Jennifer’s child.

b. Whether or not either party had any affairs during the course of their relationship, and whether or not the Mother had a relationship with Shawn following separation. While I note the Father admitted to an affair with Raquel, I do not find this to be relevant to the ultimate determination of what is in the children’s best interest.

[81] I am not prepared to make any finding regarding the Father’s criminal allegations for which he was acquitted. I recognize the higher threshold in criminal law of “beyond a reasonable doubt” as opposed to family law which is “on a balance of probabilities”.

[82] I am not persuaded that the Father married A. to show the court that he was more stable.

[83] I am not persuaded that the Father has no discipline in his home, though he is less strict than the Mother regarding some rules.

[84] I am unable to conclude that the Father’s pattern with his older children is determinative of what the future holds for J and P.

[85] I am not persuaded that the Mother waited days before J was taken to the hospital for her foot injury.

[86] I am unable to conclude that the Father alienated all of the Mother’s friends and family, as alleged by her. The evidence showed that the Mother had a number of friends with whom she communicated regularly and who supported her.

[87] Despite the assertions by the Father, I am unable to find that all of the Mother’s female friends are man-haters.

[88] On a balance, I am not convinced that following separation the Mother frequently went out or went to bars.

[89] I am unable to conclude, on a balance, that V is a bad influence on J or P.

[90] I am not persuaded that the Father bribes the children. The evidence supported that both parents have made fun and lasting memories with the children in taking them to activities such as the wave pool, the zoo, family events, etc.

[91] I am left with insufficient details to determine whether or not J had been thrown on the ground by her Mother as alleged by the Father. I also find that I have insufficient evidence to conclude that the Mother “slammed” either child outside, which allegedly occurred in September 2017. Given the conflicting evidence, I am unable to conclude, on a balance of probabilities, that the alleged abuse by the Mother toward the children occurred. I am equally not persuaded that Valoris failed to investigate the concerns raised by the Father. The evidence demonstrated that the allegations of abuse post-separation were not verified by Valoris, and that the concerns pre-separation were investigated by Valoris and addressed by the Mother, mitigating any ongoing concerns.

[92] I am not persuaded that when the Mother does not get her way, she uses physical violence to control the person or the situation. Due to the contradictory nature of the evidence, I am not persuaded that the Mother slammed P on the wall during the bathroom incident.

[93] Due to the contradictory nature of the evidence, I am unable to find as a fact what actually occurred on August 10, 2018 regarding the throwing or placing of either a water bottle or hairspray bottle, where J was hit with either a cap or a pin. I am not prepared to find that J being hit with the flying object was intentional. I am also not persuaded that the Mother used force in placing her hands on V’s face. However, I do find that the children were unnecessarily exposed to the conflict between the Mother and V.

[94] I am left with too much contradictory evidence to determine whether it was more probable than not that the Mother hit the Father during the “wave pool” incident.

[95] Due to the contradictory nature of the evidence, I cannot determine whether or not the Father pretended to be a co-worker alleging to have found the Father having hung himself.

[96] I am not prepared to make any findings about the Valoris file open date as the evidence supported there may have been clerical errors.

[97] I am not persuaded that Valoris told the police how to do their job, contrary to the Father’s contention. Further, I am not persuaded that Valoris restricted the police in conducting interviews with the children. However, I do find that Valoris requested that the children be interviewed by both the police and Valoris at the same time to minimize the number of interviews the children had to go through.

[98] As stated throughout the trial, I am not persuaded that there was any collusion between the witnesses or communications regarding the evidence in the face of the order excluding witnesses. I am however mindful that the Father’s wife was present throughout most of the trial to provide him assistance due to his learning disabilities and have considered that when assessing the weight to give to her evidence.

[99] While there was evidence that the Mother may have had clients who worked for Valoris, the schools, or the police, the evidence did not support the Father’s assertion that the Mother had prior friendships or relationships of a sufficient nature to create a conflict with the assigned Valoris workers, with the school staff, or with the police investigators. Moreover, I am not persuaded that Valoris only advocates for women, or that the Mother was running an illegal business and got away with it because she was cutting the by-law officer’s hair. I am not persuaded that the Mother gets away with everything because she knows everyone in the community.

[100] I am not persuaded that either the Mother or her boyfriend Alain have issues with alcohol. I am equally not persuaded that Alain served alcohol to J and her friend, despite the Father’s assertion.

[101] Despite the number of online posts which V obtained from the Father’s online activities, I am not persuaded based on the evidence before me that V was, or is, stalking the Father. I am equally not persuaded that V has an unhealthy attachment to the Mother.

[102] Based on the contrary nature of the evidence and the Father’s credibility issue on this subject, I am not prepared to find that Ms. Hoffman behaved in a sexual manner toward him. I am equally unable to determine whether or not Ms. Hoffman wiped blood from the Father’s face.

[103] I do not find that Mr. Chauvin had an intimate relationship with the Mother, notwithstanding the Father’s allegations.

[104] I am not persuaded that Valoris took sides between the parents.

S. 24 CLRA

[105] To determine what is in the children’s best interest, I have considered the evidence all of the witnesses, as well as the children’s views and preferences as ascertained in two judicial interviews. Below the evidence is applied to s.24(2), 24(3) and 24(4) CLRA.

The love, affection and emotional ties between the child and, each person, including a parent or grandparent, entitled to or claiming custody of or access to the child, other members of the child’s family who reside with the child, and persons involved in the child’s care and upbringing.

[106] Both parents love the children and have a bond with the children. The children also love their parents. They both benefit from the love of the parent’s partners, extended family, and their Father’s other children.

[107] In the Father’s home, J and P have the support of the Father’s wife A., who has one child from a previous relationship, and who has borne a child with the Father. The older child attends the same school as J, and the evidence supports that this child, though not blood related, is treated by J and P like a sister and vice versa.

[108] In the Mother’s home, J and P have the support of the Mother’s partner Alain, who has resided in the home since approximately December 2018, and occasionally V. The evidence supports that the children have a good relationship with V.

The child’s views and preferences, if they can reasonably be ascertained.

[109] Two judicial interviews were conducted with the children. Their views and preferences were also obtained through a number of witnesses, including the parents, Valoris and CAS. The children’s views and preferences were found to be state of mind exceptions to the hearsay rule and were admitted at trial subject to what weight I would give them.

[110] There is no doubt that the children love both their Mother and Father. They also have strong connections to the parent’s partners, and the other children in the Father’s home.

[111] The children have expressed not only to the collaterals but also to the parents their desire to continue to see both parents. The theme expressed regarding J was that she wished to reside with her Father and spend quality time with her Mother. As for P, he is 9 years of age, and his views and preferences vacillated frequently, which was not unusual for his age. Through some witnesses, he expressed a desire for more time with the Father, and with other witnesses a desire for less time.

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

[112] Since separation, apart from five months when the children did not see their Father, both parents were involved in their lives.

[113] From September 2017 to December 27, 2017, the parents had shared time with the children, with the Father having them from Thursday after school until Sunday afternoon. From December 2017 to February 7, 2018, the Father had access every second weekend. He then went until June 20, 2018 with no access. Once access resumed, there was a gradual reintegration, and by mid-October 2018, the Father’s access was Thursday after school until Saturday afternoon on week one, and Thursday after school to Monday morning on week two, which was essentially shared time with the Mother.

[114] Since approximately September 2019, J has been residing primarily with her Father and his wife, with sporadic access to her Mother. P has continued with the two week access schedule which has essentially been in place since mid-October 2018.

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.

[115] Both parents have demonstrated their abilities to meet the needs of the children. They both work and have the support of their respective partners in caring for the children.

[116] Both J and P have IEP’s at school. These are being managed by the school. While the Father was reluctant to sign any paperwork for J’s IEP, the Mother was nonetheless able to meet this need for J.

[117] I find that both homes are able to provide the children with the guidance, education and necessaries of life.

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

[118] The Mother sought an order for sole custody of both children with access to the Father every second weekend from Friday after school to Sunday at 7:00 p.m., and one evening per week. She suggested that both P and J continue going to their current, but different, schools. She stated that P has attended the same school since the beginning, and he should continue at that school with all of his friends.

[119] The Father also sought an order for sole custody of both children, with Cornwall CAS to spot check the Mother’s access to ensure she has a safe and secure home. He indicated Cornwall CAS can also spot check his home. J would see her Mother as per her wishes, and P would see his Mother a minimum of every second weekend, days of the Mother’s choice, such as Saturday after work to Monday. He also indicated that if P wanted fifty/fifty, he wanted what the kids wanted, so long as it is in their best interest and they are safe. The children would all attend the same school, L’Académie de la Seigneurie school in Casselman. The Father suggested that it would be beneficial for P to attend the same school as J and his stepdaughter. P’s current school is not in either the Mother or Father’s catchment area and as such, school transportation may be an issue.

[120] On the issue of the holidays, both parents made submissions as to their preferences. Some of the suggestions were uncontested. Not all of them are addressed in this section, and I have set out what I find is in the children’s best interest in the disposition section below. However, both parents agreed that they would share March Break; Mother’s Day to the Mother and Father’s Day to the Father; and they would rotate Family Day and Halloween annually.

[121] The evidence supported that the Mother celebrates Christmas with her mother on New Year’s Eve, and the Father does not really celebrate this holiday. The Father celebrates Christmas on Christmas Eve. The Mother suggested sharing Christmas day, and the Father wanted what best suited the children.

[122] The Father wanted the children for Easter as he takes them to see his daughter in Sarnia. The Mother suggested sharing the holiday. Thanksgiving is also a big holiday for the Father, which the Mother suggested should be shared equally. For summer, the Father suggested whatever worked best for the Mother as he is busy with work, but wanted two weeks. The Mother suggested the Father should have two weeks in summer.

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

[123] The Mother has resided in the same home for years in St. Isidore. The Mother’s plan included her partner Alain, with whom she has resided since December 2018. Their relationship appeared stable. Alain came across as sincere when expressing regret in belittling the Father to the children and calling P a liar. He has demonstrated an ability to parent by taking J to the hospital for her foot injury. The evidence supported a mutual bond between Alain and the children. V is also frequently at the Mother’s home.

[124] The Mother also has the support of her mother, who became more involved in caring for the children following separation and has assisted the Mother financially.

[125] The Father’s plan included his wife A., her child from a previous relationship and their newborn. Their relationship appeared stable. They recently moved to St. Isidore from Cornwall. I found A. to be credible and forthcoming. For the most part, I found her to express a desire to remain more neutral when dealing with the children, wanting to keep the peace when possible. A. demonstrated her ability to parent by arranging for J to attend for mental health counselling during the course of the trial. She presented as wanting to provide a loving home for the children, and she cares for the children. It appears this is reciprocal.

[126] The Father also has the support of his father and step-mother, who clearly love the children, and who are able to provide appropriate care for them. The evidence showed that the paternal step-grandmother and P have a special bond.

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

[127] Generally speaking, apart from exposing the children to significant adult conflict, I find both parents are appropriate and able to act as a parent.

[128] While there is evidence of the Father potentially trying to restrict the children’s contact with the Mother, I am unable to find that this was due to anything more than a disagreement regarding the interpretation of Kane J.’s order of May 24, 2019.

[129] I also question whether or not the Father refused to sign the IEP paperwork due to his own power struggles with the school, rather than an inability to meet J’s needs. Mr. Joly, the school principal testified he spoke to the Father to explain the intentions of the IEP. The Father’s evidence in cross-examination was that he refused to sign the paper for the IEP because he was asked to sign it when he cannot read or write. The Father could have had his wife read the paperwork to him, similar to how she assisted him during the trial. I believe the Father would move heaven and earth for his children, however, he needs to make them a priority over any potential future power struggles. The children should not be caught in the crosshairs of any further conflict.

[130] I note that both households have been able to address J’s mental health needs. Until J went to reside full time with her Father, the Mother ensured J had a counsellor she could talk to. The Father believed the counsellor to be aligned with the Mother due to the different amount each parent was charged for the services. J now has regular counselling.

Any familial relationship between the child and each person who is a party to the application.

[131] The parties are both the children’s biological parents.

Past conduct of a person, if relevant to their ability to act as a parent.

[132] I am greatly concerned about the verbal abuse between the parties that was prevalent throughout the relationship, which has not subsided since separation. While the verbal abuse did not appear to have been directed toward the children, their continued exposure to this behaviour can be emotionally damaging.

[133] Also of concern is both parents attempts to manipulate the situation by sometimes unnecessarily involving child protection services or the police. For example, the Mother called the police on the Father when he communicated with J for a receipt for the television; and the Father called the police on the Mother when she communicated with J to find out about P’s skidoo pants.

Violence or abuse against spouse, parent or child or member of the household.

[134] As set out above, allegations of violence or abuse on the children which would have occurred during the relationship have either not been verified by the Valoris, or if verified, have not reoccurred since separation.

[135] I am unable to find that that there has been violence or abuse against the children following separation. I am not persuaded that the Mother would grab the children in any violent or abusive manner. Though the Mother admitted to putting her hands on both sides of the children’s faces to gain their attention, I am not persuaded this was in a violent or abusive manner. Further, the evidence supported that since separation, the Mother stopped using tabasco sauce, putting the children on their knees, and “tapping” the children’s lips as disciplinary measures.

[136] The relationship between the parents was very toxic and included a great deal of verbal abuse. However, the evidence was too contradictory for the court to make any determinations regarding any physical abuse, apart from the Mother admittedly grabbing the Father’s shirt.

ANALYSIS

[137] The major decisions that the parents will still have to make for the children relate to their education, medical care, religion and extracurricular activities.

[138] As set out above, both parents sought orders for sole custody. Both parents indicated that it is impossible for either of them to make decisions together. The evidence demonstrated the level of conflict between them. However, during the trial, the parents had moments when they were able to agree, such as agreeing to change J’s school, and recognized that if they were not on the same page, J would continue to play them against each other. Unfortunately, these moments of insight did not persist throughout the trial as tempers flared and feelings were hurt. There were moments when each parent suggested, or outright accused the other, and some witnesses’ to be liars. By the time closing submissions came around, both parents were steadfastly encamped in their sole custody positions.

[139] The Father has many strengths as a parent, such as his love for and bond with the children, his ability to seek out services and ensuring attendance at appointments for J’s mental health issues, his desire to see the children succeed and grow, and a stable home environment are amongst many positives. He, like everyone else, also has weaknesses, such as his incapacity to shield the children from adult conflict, and his lack of insight as to the effects on the children regarding the exposure to conflict. While he can be a very loud person with a short fuse, and as described by at least one witness, his mouth often gets him into trouble, this does not take away from his ability to love and be a good parent to the children.

[140] The Mother equally has many strengths as a parent, such as her clear love for the children and the bond with them, her ability to provide them with structure, affection, rewards and rules, such as imposing appropriate limits when they are required (i.e.: internet / telephone restrictions), and she too provides them with a stable home environment and has sought out services to address J’s mental health issues. The Mother also has weaknesses, such has her inability to recognize the possibility that J may actually suffer from suicidal ideation, and despite having helped raise V, she needs to prioritize J over her.

[141] I have two equally qualified parents capable to making decisions in the best interest of the children. I am concerned that if one parent was granted sole custody, it would lead to the other parent being excluded from the important decisions involving the children. This has shown true thus far by both parents. An example was when the Father tried to change J’s school despite a court order stating that there would be no change of school, and the Mother refusing to acknowledge that a change of school could be in J’s best interest, at least until the trial commenced. Thus, I find that a final order for joint custody would be in the children’s best interest.

[142] Given the level of conflict between the parents, I find it is in the children’s best interest to have a full parallel parenting regime, which will permit one or the other parent the right to make major decisions respecting the child, as directed below, without the consent of the other parent, 14 days following a proposal being sent to the other parent.

[143] I have considered the evidence provided by various witnesses regarding the children’s views and preferences, including the parent’s positions, what was discussed during their judicial interviews, s.24 CLRA and the relevant case law.

[144] P is 9 years old. The evidence established that he wants things to be equal and wants to see both his Mother and Father. I find that the status quo has been working for P. It is important that P have quality time with both his Mother and his Father. Having considered the evidence as a whole, I find it is in P’s best interest that he reside with his parents on the following parenting regime, on a two week rotation:

a. Week 1: P shall be with his Father from Thursday after school or 3:30 p.m. until Monday before school or at 9:00 a.m. if there is no school. P shall be with his Mother from Monday at 9:00 a.m. to Thursday after school or 3:30 p.m.

b. Week 2: P shall be with his Father from Thursday after school or 3:30 p.m.to Saturday at 12:30 p.m. P shall be with his Mother from Saturday at 12:30 p.m. to Thursday at 3:30 p.m.

c. During the summertime, the parties shall have week-about shared parenting time with P, where the exchanges shall take place on Thursdays at 3:30 p.m.

[145] I am mindful that J is 13 years old and has resided with her Father since approximately September 2019. She has had more sporadic access with her Mother. While J is not old enough to make her own decisions about where she should reside, the reality is that the Father is meeting the child’s needs, just as the Mother was meeting her needs when J was residing with her. Based on all of the evidence, I find it is in J’s best interest to remain in the Father’s primary care. J’s access to her Mother however is not in keeping with the principle of maximum contact. After considering all of the relevant factors, I find it would be in J’s best interest to increase access to her Mother. However, at this point in time, I find it premature to return to a shared parenting regime. The evidence shows that J’s relationship with her Mother is troubled, she felt betrayed by her Mother using her text messages in court and by her Mother questioning J’s mental health issues, specifically any suicidal ideation she expressed. I find that it would be in J’s best interest to spend every second weekend with her Mother, from Thursday after school until Monday morning, to coincide with the week that P is home on Saturday at 12:30. During the summertime, the parties shall have week-about shared parenting time with J. The exchanges shall take place on Thursdays at 3:30 p.m.

[146] As set out above, I have two parents who truly love their children. They have erred in the past by involving them in the conflict which roils between them. They need to invest the energy they previously employed in tearing each other down to now elevate the children above and out of the conflict. The parents have already come to recognize they were being played with the children. They need to put aside their differences and be on the same page regarding discipline, bed times, electronic privileges, school attendance and mental health treatment. They are hereby ordered to comply with all of the following basic parenting rules:

a. Neither parent shall employ any physical or corporal discipline on the children. Repercussions for inappropriate behaviour shall have logical and age appropriate consequences, such as the loss of electronic privileges and/or loss of the ability to hang out with friends.

b. The children shall have a fixed time for homework, which shall be consistently applied, and shall take place before playtime and electronic privileges.

c. Based on their current ages, J shall go to bed on school nights no later than 10:00 p.m., and P shall go to bed no later than 9:00 p.m. Sending the children to bed means that the children are to be sent to their rooms, goodnights are to be exchanged, and all electronic devices (cell phone, tablets, etc.) are to remain with the parents.

d. Neither child shall have more than 1 hour of non-academic screen/gaming/ computer time on school days, and no more than three hours on weekends, unless both parties agree, in writing. Exceptionally, as a reward for good behaviour, one additional hour of screen time may be permitted per day.

e. The children are to have proper alarm clocks, which are not their electronic devices.

f. Both children must attend school. If one child is sick, only that child may be absent from school due to illness.

g. Both parents are to ensure that J’s mental health (suicidal ideation, anxiety, etc.) continues to receive regular attention. The parents are to advise the other when appointments are made. The parents must respect J’s wishes as to who may attend the appointments (for transportation purposes).

[147] It is clear from the evidence that both P and J have some special educational needs. As of December 2019, J attends L’Académie de la Seigneurie school in Casselman.

[148] P attends S[…] school in Casselman. The Father is not permitted on school grounds, and therefore cannot reasonably participate in P’s schooling or activities. The evidence suggested that P is being bullied at school.

[149] While I have considered that P has attended the same school since the beginning, and has had the same friends at the school, I am mindful that his siblings attend L’Académie, which is the public school where he could be bussed from both homes. Further, it appears as though both schools are in a position to meet P’s special needs. L’Académie is also a Kindergarten to grade 12 school, and therefore no further changes of school would be required. As such, I find that these benefits, in these particular circumstances, warrant a change in P’s school, commencing in August 2020. This would provide fresh start to P, where both the Mother and Father are able to participate in school activities, and permit P to be in the same school with his siblings.

[150] On the issue of religion, I find that the Mother has continued to advocate for the children to follow the religious sacraments. As such, I find it appropriate and in the children’s best interest that she be the decision maker on the issues regarding religion. Despite the change in P’s school commencing in the 2020/2021 school year, P shall nevertheless continue to receive his sacraments, such as confirmation. If there are any remaining sacraments for J to receive which she would have ordinarily received through catholic school, she too shall continue to receive those sacraments.

[151] The parents must ensure that J’s mental health needs continue to be met. While both parents have previously engaged in addressing this, the Father shall henceforth be primarily responsible for J’s dental, medical and mental health needs and her schooling. The Mother shall be responsible for P’s schooling, dental, medical and mental health needs. However, apart from what is set out above regarding P’s change of school in the 2020/2021 school year, neither parent is permitted to change the children’s schools without the written consent of the other parent or by order of this court.

[152] The children need stability and predictability in their home environment. To that end, neither party are permitted to move further than 25 kilometers from their current locations in St. Isidore without written consent of the other party, or by court order.

[153] Exchanges shall take place either directly from school when possible, or at the parent’s home whose access is ending. For instance, at the end of P’s access on Saturdays, then the Mother shall attend directly at the Father’s home to pick up P. Should there be a no-contact order in place against either party, the exchanges shall take place at the Value Mart.

[154] Both parents, and their partners, are prohibited from involving the children in adult discussions and in any further custodial or access disputes. Both parents are prohibited from audio or video recording the children for the purpose of any further litigation. Should there be a breach of these terms, either parent may seek leave to bring a motion to vary the current order. In order to seek leave, the evidence demonstrating the alleged breach must be provided to the court to permit a determination by the case management judge, or her designate, as to whether leave will be granted.

[155] I have set out the holiday schedule below, and as well as other terms I find necessary to deal with regarding custody and access.

ISSUE 4: CHILD SUPPORT

[156] The Mother sought child support for the two children back to date of separation. The Father requested that income be imputed to the Mother for the purpose of child support. He also argued that as of the first court order, with the exception of when he did not have access for five months, the parents essentially shared custody of the children. Further, in his Answer dated July 11, 2019, the Father requested child support be paid by the Mother if he were granted custody.

[157] Pursuant to s.33 Family Law Act, the court may order a person to provide support for a dependant. The purpose of support is to recognize that each parent has an obligation to provide support for their child.

[158] The objectives of the Child Support Guidelines (“Guidelines”) are:

(a) to establish a fair standard of support for children that ensures that they benefit from the financial means of their parents and, in the case of divorce, from the financial means of both spouses after separation;

(b) to reduce conflict and tension between parents or spouses by making the calculation of child support more objective;

(c) to improve the efficiency of the legal process by giving courts, and parents and spouses, guidance in setting the levels of child support and encouraging settlement; and

(d) to ensure consistent treatment of parents or spouses and their children who are in similar circumstances.

[159] Section 3 of the Guidelines sets out the presumptive rule:

3. (1) Unless otherwise provided under these guidelines, the amount of an order for the support of a child for children under the age of majority is,

(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the parent or spouse against whom the order is sought; and

(b) the amount, if any, determined under section 7.

[160] Section 7 of the Guidelines addresses Special and Extraordinary expenses and sets out a closed list of what constitutes such expenses. The Guidelines state that the expense is to be shared by the parents in proportion to their respective incomes.

(A) IMPUTATION OF INCOME

[161] The court’s discretion for imputation of income arises from section 19 of the Guidelines, where a non-exhaustive list of circumstances is provided.

[162] Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. Clause 19(1)(a) of the Guidelines is perceived as being a test of reasonableness. See Drygala v. Pauli 2002 CanLII 41868 (ON CA), [2002] O.J. No. 3731(Ont. CA).

[163] At paragraph 23 of Drygala, the Court of Appeal set out a three-part test to determine whether income should be imputed:

1. Is the spouse intentionally under-employed or unemployed?

2. If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs?

3. If the answer to question #2 is negative, what income is appropriately imputed in the circumstances?

First question

[164] The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See: Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552. (Ont. C.A.). However, in Graham v. Bruto, 2008 ONCA 260, the court inferred that the failure of the payor to properly disclose would mitigate the obligation of the recipient to provide an evidentiary basis to impute income.

[165] Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case, the onus shifts to the individual seeking to defend the income position they are taking: Lo v. Lo, 2011 ONSC 7663; Charron v. Carriere, 2016 ONSC 4719.

[166] The court stated in Drygala that there is no need to find a specific intent to evade child support obligations before income is imputed; the payor is intentionally under-employed if he or she chooses to earn less than what he or she is capable of earning. The court must look at whether the act is voluntary and reasonable.

Second question

[167] Once under-employment is established, the onus shifts to the payor to prove one of the exceptions of reasonableness. When an employment decision results in a significant reduction of child support, it needs to be justified in a compelling way: See: Riel v. Holland, 2003 CanLII 3433 (Ont. C.A.), at paragraph 23. It must be reasoned, thoughtful and highly practical: See: Hagner v. Hawkins 2005 CanLII 43294 (ON SC), (Ont. S.C.) at paragraph 19. As a general rule, separated parents have an obligation to financially support their children and they cannot avoid that obligation by a self-induced reduction of income. See: Thompson v. Gilchrist, 2012 ONSC 4137; DePace v. Michienzi, 2000 CanLII 22560 (ON SC), [2000] O.J. No. 453, (Ont. Fam. Ct.).

[168] Where a party chooses to pursue self-employment, the court will examine whether this is a reasonable choice in the circumstances: Smith v. Smith, 2012 ONSC 1116.

[169] The onus is on the payor parent to justify the decision to reduce their income. The payor cannot just present the income they are earning. The payor’s previous income is a rational basis on which to impute income, as it is the amount that the payor would have continued to earn but for their decision to leave their job: Olah v. Olah 2000 CanLII 22590 (ON SC), (2000), 7 R.F.L. (5th) 173 (Ont. S.C.); Weir v. Therrien, 2001 CanLII 28136 (ON SC), [2001] O.J. No. 2612, supra; Vitagliano v. Di Stavolo 2001 CanLII 28202 (ON SC), (2001), 17 R.F.L. (5th) 194 (Ont.S.C.J.); Zagar v. Zagar, 2006 ONCJ 296; Laing v. Mahmoud, 2011 ONSC 4047.

Third question

[170] The third question in Drygala is: “If there is no reasonable excuse for the payor’s under-employment, what income should properly be imputed in the circumstances?” The court must have regard to the payor’s capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living enjoyed during the parties’ relationship. The court looks at the amount of income the party could earn if he or she worked to capacity. See: Lawson v. Lawson, 2006 CanLII 26573 (ON C.A.).

[171] The court is mindful that a person’s lifestyle can provide the basis for imputing income. See: Aitken v. Aitken [2003] O.J. No. 2780 (SCJ); Jonas v. Jonas [2002] O.J. No. 2117 (SCJ); Price v. Reid, 2013 ONCJ 373.

[172] There is a duty on the part of the payor to actively seek out reasonable employment opportunities that will maximize their income potential so as to meet the needs of their children. L.(N.) v. P.(B), 2000 CanLII 22516 (ON SC), [2000] O.J. No. 2574, 2000 CarswellOnt 2487 (Ont. C.J.); Corcios v. Burgos, 2011 ONSC 3326, at para. 40.

[173] The determination to impute income is discretionary, as the court considers appropriate in the circumstances. Therefore, the court may decide not to impute income where the payor establishes the reasonableness of his or her decision or his or her situation. Cole v. Freiwald, 2011 ONCJ 395, at para. 122.

[174] Regardless of the basis upon which income is imputed, the amount of income that the court imputes to a party is a matter of discretion. The only limitation on the discretion of the court in this regard is that there must be some basis in the evidence for the amount that the court has chosen to impute: Thompson v. Thompson, supra, at para 96; Korwin v. Potworowski, 2007 CarswellOnt 6852 (Ont. C.A.), Corcios v. Burgos, supra, at para. 40. The court may decide not to impute income where the payor establishes the reasonableness of his or her decision or his or her situation: Cole v. Freiwald, supra, at para. 122.

ANALYSIS OF IMPUTATION OF INCOME

[175] Based on the evidence at trial, the Mother’s income was:

a. 2016: $30,000.00, based on the Father’s T1 General 2016, when the parties were still together.

b. 2017: no evidence was provided.

c. 2018: $35,318.00, based on “last year, gross income from all sources”, which reflects net business income based on the Income Tax Return inputs.

d. 2019: $36,792.00, based on Financial Statement commissioned July 8, 2019, including commission, tips and bonuses as well as self-employment income, but not including Child Tax Benefits or Tax Rebates.

[176] While there is evidence that income disclosure was provided to the Father (see Exhibit 62), the Mother did not attach her last three years Income Tax Returns or Notices of Assessment to her Financial Statement located in the trial record. She also did not provide sufficient evidence to determine what, if any, legitimate business expenses exist apart from rent, which she testified was $1185.60 per month, or $14,227.20 annually.

[177] The Mother’s viva voce evidence was that she earns $13,000.00 per year, after expenses. This was not supported by the evidence found in her sworn Financial Statement. She does not have receipts to prove her earnings and was always paid in cash at her hair salon. Her viva voce evidence was that she earned on average $30.00 per month in tips, whereas her Financial Statement indicated she earned $150.00 per month in tips.

[178] The Mother is presumed to know the law and know how to complete the forms required by the court. Contrary to what one would expect, there were no additional entries to “monthly amount before expenses” in the self-employment box. This could lead the court to interpret the $2,916.00 per month as either net or gross self-employment income. Taking the form at face value, considering that the Mother had the opportunity to address any evidence she felt necessary during the trial, I find that the Financial Statement as completed indicates that her net self-employment income plus tips is $36,792.00 for 2019. Given this finding, then no further deductions are required to address the rent payable by her business. If one includes the Child Tax Credits and Benefits, the Mother would earn $43,640.00 per year.

[179] The Special or Extraordinary expenses for the children, as set out in her Financial Statement, are $4,600.00 per year for daycare and summer camps, or $383.00 per month. No receipts were provided to substantiate this claim.

[180] The evidence established that the Mother’s partner Alain pays for his own bills and items and does not contribute toward rent.

[181] The Father does not accept the Mother’s contention that her income is $13,000.00 per year. Based on the Mother’s own evidence, she pays $900.00 per month of rent at home, or $10,800.00 annually. This would leave the Mother $2,200.00 per annum for other expenses, or $183.33 per month, not including paying any of the claimed s.7 expenses. The Mother’s evidence was that she bought new (used) equipment for the salon, which the Father stated her income does not support.

[182] Upon further review of her Financial Statement, the Mother’s annual expenses are $45,986.76, and yet her only debts are to TD Bank (automobile) of $15,000.00 and “GST- to be determined” of $28,000.00. There is no evidence that she is going into debt despite her claim of earning $13,000.00 per year and spending $45,986.76 per year. As such, having regard to the totality of the evidence and the Mother’s lifestyle, I find that the Mother’s income to be $36,792.00 for 2019.

[183] The Mother works five days per week and is off Sundays and Mondays. In the past, she had employees who paid her a portion of their revenues. The Father submitted that the Mother could be earning $45,000.00. He also took issue with the Mother’s partner staying at the home rent free despite owning a camper and boat. Apart from establishing that previous employees have moved on, and may have opened their own hair salons, no evidence was provided to establish what a hair stylist could potentially earn, or what work is available for the Mother based on her qualifications.

[184] I have determined that the Mother’s 2019 income is $36,792.00, which I find is reasonable self-employment income in the circumstances. I do not find that the Mother is intentionally underemployed.

[185] As set out in the case law above, the onus is on the Father, who sought to impute income to the Mother, to establish that she is intentionally underemployed. I find that he has not met that onus, and therefore I am not persuaded that income should be imputed to the Mother.

(B) SPLIT AND SHARED CUSTODY

[186] Section 8 of the Guidelines indicates that where each parent has custody of one or more children, the amount of an order for the support of a child is the difference between the amount that each parent would otherwise pay if a child support order were sought against each of the parents.

[187] Section 9 of the Guidelines is applicable in shared custody situations as follows:

Where a 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 child support order must be determined by taking into account:

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

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

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

[188] The leading case on a section 9 argument is Contino v. Leonelli-Contino, 2005 SCC 63, [2005] 3 S.C.R. 217 (S.C.C.). The specific language of s. 9 warrants emphasis on flexibility and fairness to ensure that the economic reality and particular circumstances of each family are properly accounted for: Contino, supra.

[189] The wording of s.9 of the Guidelines is imperative, and where there is a situation where the 40% threshold test is met, then the court must proceed under s.9: Khairzad v. McFarlane, 2015 ONSC 7148; (L. (L.) v. C. (M.), 2013 ONSC 1801 (Ont. S.C.J.). At para. 66 of Khairzad, Chappel J. went on to summarize the findings set out in Contino:

The Supreme Court of Canada addressed the issue of how child support calculations should be approached in shared custody situations in Contino v. Leonelli-Contino, 2005 SCC 63, [2005] 3 S.C.R. 217 (S.C.C.). In that case, the court made the following significant comments regarding the interpretation of section 9 and the manner in which child support calculations should be approached in shared parenting scenarios:

a. In shared parenting arrangements, there is no presumption in favour of the parent who has less time with the child paying the Table amount of child support. Rather, the court must determine the quantum of child support in accordance with the three factors listed in section 9.

b. However, a finding that a shared parenting arrangement exists does not automatically dictate a deviation from the Table amount of child support. In some cases, a careful review of all of the factors set out in section 9 may lead the court to conclude that the Table amount remains the appropriate figure.

c. None of the three factors listed in section 9 prevail over the others. In reaching an appropriate child support figure, the court must consider the overall situation of shared custody, the costs to each parent of the arrangement and the overall needs, resources and situation of each parent. The weight to be accorded to each of the three factors set out in section 9 will vary according to the particular facts of each case.

d. The court emphasized that the purpose of section 9 is to ensure a fair and reasonable amount of child support. It concluded that in adopting section 9 of the Guidelines, Parliament made a clear choice to emphasize the need for fairness, flexibility and the actual condition, means, needs and circumstances of each parent and the child, even if this meant sacrificing to some degree the values of predictability, consistency and efficiency.

e. The calculation of child support pursuant to section 9 involves a two-step process. First, the court must determine whether the 40% threshold has been met. Second, if the threshold has been crossed, the court must consider the factors outlined in section 9 to determine the appropriate quantum of support.

f. With respect to section 9(a), the amounts set out in the applicable Tables for each parent, the court stated that the simple set-off approach outlined in section 8 of the Guidelines may be a useful starting point as a means of bringing consistency and objectivity to the child support determination. This is particularly so in cases where the parties have provided limited information and the incomes of the parties are not widely different. However, the court emphasized that the simple set-off approach has no presumptive value in carrying out the support calculation. It cautioned against a rigid application of the set-off approach, noting that the set-off figure may not be appropriate when a careful examination of the respective financial situations of the parties and their household standards of living raises concerns about the fairness of a drastic reduction in child support to the recipient.

g. The court held that the judge has the discretion to modify the simple 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" (at paragraph 51). It emphasized that the court should insofar as possible strive for a result that avoids the child experiencing a noticeable decline in their standard of living as they move between households.

h. The court highlighted that one consideration in carrying out the section 9 analysis is whether one parent is actually incurring a higher share of the child's costs than the other, such as costs relating to clothing and activities.

i. With respect to subsection 9(b), the court emphasized that this section does not refer only to the increased expenses which the payor parent has assumed as compared to the expenses that they would be incurring if they had the child less than 40% of the time. This subsection recognizes that the total global cost of raising the child in a shared custody arrangement may be higher than in a primary residence arrangement. It requires the court to consider the total additional costs attributable to the situation of shared custody. In carrying out this analysis, evidence of necessary duplication of fixed costs arising due to the shared child care arrangement may be important.

j. The court recognized that not every dollar spent by a parent who has the child over the 40% threshold is a dollar saved by the recipient parent. It stated that in the absence of evidence to the contrary, it is possible to presume that the recipient parent's fixed costs have remained the same, and that their variable costs have only marginally decreased by the other parent's increase in time with the child.

k. Financial statements and/or child expense budgets are necessary in order for the court to properly carry out the child support analysis pursuant to section 9. The judge should not make assumptions regarding additional costs attributable to a shared parenting arrangement in the absence of any evidence relating to this issue.

l. The court's discretion under section 9 is sufficiently broad to bring a parent's claim for section 7 expenses into the analysis under that section, taking into consideration all of the factors outlined in section 9.

[190] There is no universally accepted method of deciding the 40% time period, and that rigid calculations of time are not necessarily appropriate: Froom v. Froom, 2005 CarswellOnt 545, Ontario Court of Appeal.

ANALYSIS OF CHILD SUPPORT PAYABLE

[191] The Father’s income was:

a. 2016: $12,834.00.

b. 2017: $24,571.00.

c. 2018: $26,918.00 based on his Notice of Assessment, or $41,000.00 based on what is stated in the Financial Statement. I will use the amount found in the Notice of Assessment.

d. 2019: estimated to be $62,976.00, based on Financial Statement commissioned July 11, 2019, inclusive of Employment Insurance Benefits and employment through Morduch Construction Inc., not including Child Tax Benefits or Tax Rebates.

[192] It is strange to see in Father’s financial statement that he is receiving both employment income and Employment Insurance income. His Viva Voce evidence was that he is working, but I received no evidence to establish that the Father is no longer in receipt of Employment Insurance income. I must take the sworn Financial Statement as the best evidence available to me.

[193] I reiterate from above; the Mother’s income was:

a. 2016: $30,000.00, based on the Father’s T1 General 2016, when the parties were still together.

b. 2017: no evidence was provided.

c. 2018: $35,318.00, based on “last year, gross income from all sources”, which reflects net business income based on the Income Tax Return inputs.

d. 2019: $36,792.00, as found by the court.

[194] There has been no child support paid by either party since separation.

[195] The evidence supports that from August 19, 2017 until September 25, 2017, the children were in the shared custody of both parents. On September 25, 2017, Charbonneau J. ordered that the children reside with their Mother from Sunday at 12:30 p.m. to Thursday at 3:30 p.m., (99 hours per week, 428 hours per month) and with their Father from Thursday afterschool at 3:30 p.m. to Sunday at 12:30 p.m. (69 hours per week, or 298 hours per month). The Father had the children 41% of the time.

[196] On December 27, 2017, Pelletier J. varied the Father’s access to become Friday after school to Monday mornings, every second weekend. At this point in time, the Father no longer had the children 40% of the time.

[197] On February 7, 2018, Charbonneau J. ordered, on a without prejudice basis, supervised access to the Father. From that point until June 20, 2018, the Father did not see the children.

[198] From June 20, 2018 until approximately mid-October 2018, access between the children and the Father increased, but did not meet the 40% threshold. Effective mid-October 2018, the Father’s access was every second weekend from Thursday after school to Saturday afternoon (45 hours), and every other weekend, from Thursday after school to Monday morning at school (90 hours), being 292 hours per month, or 40% of the time.

[199] Similar to the above, on May 24, 2019, Kane J. ordered the children would be with their Father from Thursday after school until early Saturday afternoon in week 1, and Thursday after school until their return to school on Monday morning in week 2. He also ordered share time in summer, on a week-about basis.

[200] As of September 2019, J has been residing full time with her Father, whereas P has continued with the two week rotation set out in the May 24, 2019 Order.

[201] The Father’s evidence was that he contributed toward some of the children’s school clothing since separation. I am not prepared to find that these should be considered as child support as the evidence did not establish a dollar amount, or specific quantum of clothing. The court notes that the maternal grandmother also contributed toward the children’s expenses.

[202] Given that the claim for support by the Mother was not advanced until October 10, 2017, I have determined it most appropriate to start the calculations as of October 1, 2017. Unfortunately, the Mother failed to provide proof of income for 2017. However, as the parties were together for over half of the year in 2017, I find it proper to use the Mother’s 2016 income for the 2017 calculations.

[203] Based on the above I find that:

a. From October 1, 2017 to December 31, 2017, for 3 months, the Father had the children over 40% of the time. S.9 of the Guidelines therefore apply.

b. From January 1, 2018 until mid-October 2018, for 9.5 months, the Father did not meet the requisite threshold for s.9 to apply. Straight child support is payable from the Father to the Mother.

c. From mid-October 2018 to December 31, 2018, for 2.5 months, the Father met the 40% threshold, and therefore s.9 applies.

d. From January 1, 2019 to September 1, 2019, the Father met the over 40% threshold, and therefore s.9 applies.

e. From September 1, 2019 to March 31, 2020, for seven months, the Father met the over 40% threshold for P, and therefore s.9 applies, as well as having primary care of J since approximately September 1, 2019. The Mother’s time with J does not meet the 40% threshold, but denotes a hybrid split custodial situation.

[204] I start with looking at what the Child Support Guideline tables indicate, using the best evidence of the parent’s income as set out above:

a. For October 1, 2017 to December 31, 2017, based on the Father’s 2017 income of $24,571.00 and the Mother’s 2017 income of $30,000.00, the Father’s obligation for support would be $370.00 per month, and the Mother’s obligation would be $459.00 per month, resulting in the payment by the Mother to the Father of $89.00 per month for three months, or $267.00 in arrears payable by the Mother.

b. From January 1, 2018 until mid-October 2018, based on the Father’s 2018 income of $26,918.00, straight child support is payable by the Father to the Mother, for the benefit of the two children, in the amount of $408.00 per month for 9.5 months, or $3,876.00 in arrears payable by the Father.

c. From mid-October 2018 to December 31, 2018, for 2.5 months, based on the Father’s 2018 income of $26,918.00 and the Mother’s 2018 income of $35,318.00 the Father’s obligation for support would be $408.00 per month, and the Mother’s obligation would be $536.00 per month, resulting in the payment by the Mother to the Father of $128.00 per month for 2.5 months, or $320.00 in arrears payable by the Mother.

d. From January 1, 2019 to August 31, 2019, based on the Father’s 2019 income of $62,976.00 and the Mother’s 2019 income of $36,792.00, the Father’s obligation for support would be $960.00 per month, and the Mother’s obligation would be $556.00 per month, resulting in the payment by the Father to the Mother of $404.00 per month for 9 months, or $3,636.00 in arrears payable by the Father.

e. From September 1, 2019 to March 31, 2020, the Father met the over 40% threshold for P, as well as having primary care of J, creating a hybrid situation. As such, based on the Guideline table amounts and the Father’s 2019 income of $62,976.00 as well as the Mother’s 2019 income of $36,792.00 the Father’s obligation for support for .5 of a child would be $585.00 per month, and the Mother’s obligation would be $556.00 per month for 1.5 children, resulting in the payment by the Father to the Mother of $29.00 per month for 7 months, or $203.00 in arrears payable by the Father.

[205] The arrears from January 1, 2018 to mid-October 2018 are basic table calculations as the Father did not meet the 40% threshold. Those arrears are hereby fixed at $3,876.00 in arrears payable by the Father to the Mother.

[206] Based on a straight set-off calculation where the Father met the 40% threshold, including the period covering the split custody situation, the Father would owe the Mother $3,252.00 in child support arrears. However, s. 9 of the Guidelines dictate that I must take into account not only the applicable tables, but there is a need for the court to emphasize fairness, flexibility and the actual conditions, means, needs and circumstances of each parent and the child even if this means sacrificing to some degree the values of predictability, consistency and efficiency. (See Khairzad, supra, and Contino, supra).

[207] Section 8 of the Guidelines does not lend itself to a more fluid interpretation as found in s. 9. However, as set out in Hauer v. Hauer, there are circumstances when a strict application would result in an inappropriate result. The court in Hauer stated “"Inappropriate" has been defined by the Supreme Court in Francis v. Baker(1999), 1999 CanLII 659 (SCC), 50 R.F.L. (4th) 228 (S.C.C.) to mean "unsuitable" rather than "inadequate", thus providing courts with the discretion to either increase or reduce guidelines support.”: See Hauer v. Hauer, 2001 CarswellOnt 1383 (S.C.J.), affirmed 2001 CanLII 5790 (ON CA), 2001 CarswellOnt 4447, 23 R.F.L. (5th) 174 (C.A.).

[208] Pursuant to s.9 of the Guidelines, straight set-off of child support is a starting point, not a presumption. Here, the parents have provided very limited information regarding their actual incomes. As noted above, the Mother did not provide the court with her last three years Income Tax Returns or Notices of Assessment and they were not attached to her Financial Statement. I also noted the curiousness of the Father’s two principal income sources. Neither parent provided a children’s budget, which is necessary to determine what are, if any, the additional costs to this shared parenting arrangement.

[209] In hybrid situations such as what is found from September 1, 2019 onward where J resides full time with the Father, and P is in the shared custody of both parents, I find it appropriate to look at both s. 8 and s. 9 as well as the full intent of the Guidelines. In this case, the set off support as dictated by the tables indicate that the Father should pay support to the mother despite the .5/1.5 split. Having considered the objectives of the Guidelines, as well as both parties standard of living, I find this amount would be inappropriate.

[210] Based on the principle of fairness as well as what is enunciated above, I find that no arrears are owed for the time period when the children were in the shared or split custody of both parents.

[211] On a going forward basis, considering the children’s needs, the circumstances of both parents including their financial circumstances, the objectives of the Guidelines, and the principle of fairness, I am not persuaded that it is appropriate to order ongoing child support. Even if the Father’s income was only employment income of $48,000.00 (not including employment insurance which is set out in his Financial Statement), I would reach this same conclusion and not order ongoing child support.

[212] On the issue of s.7 expenses, as dictated by the Guidelines, any future s.7 expenses shall be shared proportionally by the parents pursuant to their incomes.

[213] As such, from 2018 when both children were in the sole care of the Mother, the arrears are fixed at $3,876.00, payable by the Father to the Mother, at a rate of $100.00 per month, commencing April 1, 2020 until paid in full.

ISSUE 5: RESTRAINING ORDER

[214] The Father sought a restraining order against the Mother, such that she not be near him or his family, except for pick up and drop off of the children. He also sought a restraining order against V, so that she would leave the Mother’s home and leave the kids alone.

[215] Sections 46 FLA and 35 CLRA both address restraining orders. Though they have very similar language, section 46(2) FLA clarifies against whom a restraining order can be made, which includes a spouse, former spouse, or another person, if the person is cohabiting with the applicant, or has cohabited with the applicant for any period of time.

[216] Section 46(1) FLA and 35(1) CLRA state that on application, the court may make an interim or final restraining order against any person if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.

[217] A restraining order may contain one or more of the following provisions, as the court considers appropriate:

1. Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant’s lawful custody.

2. Restraining the respondent from coming within a specified distance of one or more locations.

3. Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.

4. Any other provision that the court considers appropriate: sections 46(3) FLA and 35(2) CLRA.

[218] The onus is on the person asking for the restraining order on a balance of probabilities to convince the court that an order is required: See Shawyer v. Shawyer, [2016] O.J. No. 707 (S.C.J.) at paragraph 66, citing the decision of Starr J. in D.C. v. M.T.C., 2015 ONCJ 242 (Ont. C.J.); also see Marsden v Marsden, 2020 ONSC 1166, at para. 24.

[219] Restraining orders are serious and should not be ordered unless a clear case has been made out: Ciffolillo v. Niewelglowski, 2007 ONCJ 469.

[220] A restraining order can entail criminal consequences if there is a breach. It will also likely appear if prospective employers conduct a criminal record (CPIC) search. This could adversely affect a person’s ability to work: F.K. v. M.C., 2017 ONCJ 181.

[221] Before the court can grant a restraining order, it must be satisfied that there are “reasonable grounds for the person to fear for his or her own safety or for the safety of their child”: McCall v. Res, 2013 ONCJ 254.

[222] The person’s fear may be entirely subjective so long as it is legitimate: Fuda v. Fuda, 2011 ONSC 154, 2011 CarswellOnt 146 (Ont. SCJ); McCall v. Res, supra. A person’s subjective fear can extend to both the person’s physical safety and psychological safety: Azimi v. Mirzaei, 2010 CarswellOnt 4464 (Ont. S.C.).

[223] It is not necessary for a respondent to have actually committed an act, gesture or words of harassment, to justify a restraining order. It is enough if an applicant has a legitimate fear of such acts being committed. An applicant does not have to have an overwhelming fear that could be understood by almost everyone; the standard for granting an order is not that elevated: Fuda v. Fuda, supra.

[224] A restraining order will be made where a person has demonstrated a lengthy period of harassment or irresponsible, impulsive behaviour with the objective of harassing or distressing a party. There should be some persistence to the conduct complained of and a reasonable expectation that it will continue without court involvement: Purewal v. Purewal, 2004 ONCJ 195.

[225] A restraining order cannot be issued to forestall every perceived fear of insult or possible harm, without compelling facts. There can be fears of a personal or subjective nature, but they must be related to a respondent’s actions or words. A court must be able to connect or associate a respondent’s actions or words with an applicant’s fears: Fuda v. Fuda, supra.

[226] In borderline cases, the court must consider what other protections may be available if a restraining order is not granted: D.C. v. M.T.C., 2015 ONCJ 242. It is appropriate, in borderline cases, to consider the balancing prejudice to the respondent, if the restraining order is granted: D.C. v. M.T.C., supra.

[227] A no-contact or communication order made pursuant to section 28 of the CLRA is not as wide-ranging as a restraining order. It can limit contact and communication between the parties, but it cannot restrain a party from harassing the other party to third parties: F.K. v. M.C., supra.

[228] A restraining order is not a remedy for bad manners, poor communication and suspicion, it is needed where the parties are unable to restrain themselves and require the state to tell them how to behave: Lazier v. Mackey, 2012 ONSC 3812, [2012] O.J. No 3308.

[229] The formalities of a request for a restraining order necessitates a formal notification to the person seeking to be restrained, and the opportunity for that person to respond to the request: S.(C.)v S.(M.), 2007 CanLII 6240 (ON SC), [2007] O.J. No 787 (Ont. S.C.J.), aff’d without referring to this issue 2010 ONCA 196, [2010] O.J. No. 1064 (Ont. C.A.).

ANALYSIS

[230] I first address the restraining order sought against V. V is not a party to the proceedings despite being a support for the Mother. I have no evidence that V was served with any request for such an order. V should have an opportunity to respond to the request. As such, the request for a restraining order against V is dismissed.

[231] The Father also sought a restraining order against the Mother, such that she not be near him or his family, except for pick up and drop off of the children.

[232] I have very little, if any, evidence that the Father fears the Mother, or fears for the safety of the children, which is a necessary prerequisite to issuing a restraining order. I am not persuaded that the Mother has demonstrated a lengthy period of harassment or irresponsible, impulsive behaviour with the objective of harassing or distressing the Father.

[233] As set out in my findings in the custody section above, both parties have not only contacted the police against the other for substantive offences, but also for breaches of release conditions. I am mindful of the seriousness of a restraining order, which holds criminal consequences should there be a breach.

[234] Having considered the evidence as a whole, I am not persuaded the Father has met his onus to establish that a restraining order against the Mother is warranted. Therefore, his request for this restraining order is dismissed.

ISSUE 6: RETURN OF BELONGINGS

[235] While there was very little evidence on this issue, the Father maintained that he has not received all of his personal belongings following the breakdown of the relationship.

[236] The Mother submitted that the Father has received most of his belongings but acknowledged that there are still some of his assets in her home.

[237] Based on the evidence in the trial, I find that the Father has established ownership of the following, and therefore he shall have 30 days to attend and pick up the following assets, failing which the Mother may dispose of them as she sees fit.

a. The Father’s personal court documents;

b. The computer in the Mother’s bedroom;

c. The green quick cut saw; and

d. The scaffold planks.

[238] The Mother is directed to use her best efforts to locate and make available the items listed above, as well as any of the Father’s personal information located in the filing cabinet.

[239] I am not persuaded, on a balance, that any other assets in the Mother’s home belong to the Father.

DISPOSITION

[240] Final Order to go as follows:

1. The Mother and Father shall have joint custody of J and P, with full parallel parenting permitting one or the other parent the right to make major decisions respecting the child, as directed below, without the consent of the other parent, 14 days following a proposal being sent via text or email to the other parent. The Mother shall make the major decisions regarding religion for both children. The Mother shall make the major decisions regarding P’s dental, medical and mental health, and his school. The Father shall make decisions regarding J’s schooling and J’s dental, medical and mental health. However, apart from what is set out below regarding P’s change of school in the 2020/2021 school year, neither parent is permitted to change the children’s schools without the written consent of the other parent or by order of this court.

2. Day-to-day decisions regarding J and P will be made by the parent who has the care of the child(ren) at the relevant time period.

3. The children shall be with their respective parents on the following parenting regime, on a two week rotation:

a. Week 1: P shall be with his Father from Thursday after school or 3:30 p.m. until Monday before school or at 9:00 a.m. if there is no school. P shall be with his Mother from Monday at 9:00 a.m. to Thursday after school or 3:30 p.m. J shall be with her Father during this week.

b. Week 2: P shall be with his Father from Thursday after school or 3:30 p.m.to Saturday at 12:30 p.m. P shall be with his Mother from Saturday at 12:30 p.m. to Thursday at 3:30 p.m. J shall be with her Mother from Thursday after school or 3:30 p.m. to Monday at 9:00 a.m. J shall be with her Father the remainder of this week.

c. Any further access by J to her Mother, as per J’s wishes.

d. During the summertime, the parties shall have week-about shared parenting time with P and J, whereby the exchanges shall take place on Thursdays at 3:30 p.m.

e. Any changes to access as agreed by the parents, in writing.

4. Exchanges shall take place either directly from school when possible, or at the parent’s home whose access is ending. For instance, at the end of P’s access on Saturdays, the Mother shall attend directly at the Father’s home to pick up P. Should there be a no-contact order in place against either party, the exchanges shall take place at the Value Mart.

5. The following holiday schedule shall supersede the regular access regime:

a. Family Day shall be rotated annually, with the children to both be with their Mother from 9:00 a.m. to 5:00 p.m. on odd numbered years, commencing in 2021, and the children shall be with their Father on even numbered years, commencing in 2022.

b. Both parties will share March Break, such that the children shall be with the Father from Thursday after school prior to the March Break until the Wednesday at 3:30 p.m.; and the children shall be with the Mother from Wednesday at 3:30 p.m. to Sunday at 3:30 p.m.

c. The parents shall have the children for the full Easter holiday every second year. The children shall be with the Father from Thursday at 3:30 p.m. until Monday at 4:00 p.m. to permit him to travel with the family to see his daughter in Sarnia, every even numbered year, commencing in 2020. The children shall be with the Mother from Thursday at 3:30 p.m. until Monday at 4:00 p.m. every odd numbered year, commencing in 2021.

d. Both children shall be with the Mother for Mother’s Day from 9:00 a.m. to 5:00 p.m. annually.

e. Both children shall be with the Father for Father’s Day from 9:00 a.m. to 5:00 p.m. annually.

f. For Thanksgiving, in even numbered years, the Mother will have the children from Friday at 3:30 p.m. until Sunday at 2:00 p.m., and the Father shall have the children from Sunday at 2:00 p.m. to Monday at 8:00 p.m., commencing in 2020. In odd numbered years, the Father will have the children from Friday at 3:30 p.m. until Sunday at 2:00 p.m., and the Mother shall have the children from Sunday at 2:00 p.m. to Monday at 8:00 p.m., commencing in 2021.

g. Hallowe’en shall be rotated annually, with both children to be with their Mother from 3:30 p.m. until the following morning at school or 9:00 a.m. on even numbered years, commencing in 2020, and the children shall be with their Father on odd numbered years, commencing in 2021. The parent having care of the children will be responsible for organizing costumes and trick-or-treating.

h. The children shall be with their Father on December 24th, from 10:00 a.m. to December 25th at 10:00 a.m., and the Mother shall have the children from December 25th at 10:00 a.m. to December 26th at 10:00 a.m. on even numbered years, commencing in 2020. In odd numbered years, commencing in 2021, the children shall be with their Father on December 24, from 9:00 a.m. to 9:00 p.m., and the Mother shall have the children from December 24th at 9:00 p.m. to December 25th at 6:00 p.m.

i. Annually, the children shall be with the Mother on New Year’s Eve from 12:00 noon to January 1 at 12:00 noon, and with their Father from January 1 at 12:00 noon until January 2 at 12:00 noon.

j. Both the parents and the children’s birthdays shall be celebrated with the children on the weekend that they are with that parent. Both parents are permitted to call the child(ren) on their respective birthdays.

k. Should there be a snow day, the child(ren) shall remain with the parent who had them the night before.

l. Each parent is entitled to a two consecutive week holiday period with both children. In even numbered years, the Father shall notify the Mother via email of the dates of his two-week holiday by noon on May 15. The Mother shall thereupon be entitled to notify the Father via email by noon on May 30 of the two week holiday period she is taking with the children. In odd numbered years, commencing in 2021, the Mother shall notify the Father via email of the dates of her two-week holiday by noon on May 15. The Father shall thereupon be entitled to notify the Mother via email by noon on May 30 of the two week holiday period he is taking with the children. Failure by either party to deliver notice of the summer holidays by the timelines set out herein dictates that the other parent shall have first choice of the summer holiday schedule.

6. Parenting time shall only be altered on consent of the parties or by further court order.

7. Neither party shall schedule activities or appointments during the other parent’s parenting time.

8. The children shall have free and uninterrupted telephone access to either parent at all reasonable times as per their wishes provided that such communications not interfere or disrupt either parent’s household.

9. The following shall be the basic parenting rules:

a. Neither parent shall employ any physical or corporal discipline on the children. Repercussions for inappropriate behaviour shall be logical and age appropriate consequences, such as the loss of electronic privileges and/or loss of the ability to hang out with friends.

b. The children shall have a fixed time for homework, which shall be consistently applied, and shall take place before playtime and electronic privileges.

c. Based on their current ages, J shall go to bed on school nights no later than 10:00 p.m., and P shall go to bed no later than 9:00 p.m. Sending the children to bed means that the children are to be sent to their rooms, goodnights are to be exchanged, and all electronic devices (cell phone, tablets, etc.) are to remain with the parents.

d. Neither child shall have more than 1 hour of non-academic screen/gaming/ computer time on school days, and no more than three hours on weekends, unless both parties agree, in writing. Exceptionally, as a reward for good behaviour, one additional hour of screen time may be permitted per day.

e. The children are to have proper alarm clocks, which are not their electronic devices.

f. Both children must attend school. If one child is sick, only that child may be absent from school due to illness.

g. Both parents are to ensure that J’s mental health (suicidal ideation, anxiety, etc.) continues to receive regular attention. The parents are to advise the other when appointments are made. The parents must respect J’s wishes as to who may attend the appointments (for transportation purposes).

10. Both P and J shall continue to receive their religious sacraments, such as confirmation. Given that neither P nor J will be attending catholic school, both parents are to ensure that the children attend church as necessary to enable them to receive their religious sacraments. These church attendances shall supersede the regular access schedule if necessary.

11. The children’s OHIP card shall travel with them between households.

12. J shall continue to attend L’Académie de la Seigneurie school in Casselman. Both parents are to be listed as the child’s parent and as the “in case of emergency” parent.

13. As of the start of the 2020 / 2021 school year, P shall be enrolled into, and shall attend L’Académie de la Seigneurie school in Casselman. Both parents are to be listed as the child’s parent and as the “in case of emergency” parent.

14. J shall continue with her therapy with her current counsellor(s). Both children are to continue receiving services from their current doctors and dentists.

15. Both parents shall be named as emergency contact with any organizations or professionals involved with the children.

16. Both parties have the right to communicate directly with and receive information directly from the children’s school, teachers, healthcare professionals, therapists, counsellors, coaches and any other third-party or professionals involved with the child(ren). The parties have 48 hours to provide a list of all service providers for the children, as well as contact information.

17. Each party shall be listed on all documents pertaining to the children and shall be entitled to attend any of their scheduled medical or educational appointments. Both parties are to execute consents or authorizations to all persons, including teachers, doctors, dentists and others involved with the children to speak fully and openly with both parties.

18. Subject to any restrictions imposed by any criminal conditions, both parties shall be entitled to attend the children’s extracurricular activities and school activities.

19. If either child requires emergency medical care while in the care of one parent, that parent will notify the other parent of the emergency as soon as possible.

20. All communications between the Mother and Father shall be in writing, either by email or text messaging, with the exception of emergencies, when the parties may communicate by telephone, subject to both parties consenting to regular telephone communication.

21. The children may be re-enrolled into taekwondo, hockey and/or horseback riding if they so wish to participate in such activities. These expenses are s.7 expenses.

22. Neither party are permitted to move further than 25 kilometers from their current locations in St. Isidore without written consent of the other party, or by court order.

23. Any locks on the inside of the house, which prohibit people from leaving the house without a key, are to be immediately removed, and replaced, as necessary, with door alarms.

24. Neither parent, nor their partners are to post or publish anything online about the other parent or partners, or the children. This includes but is not limited to Facebook posts, YouTube content, Instagram, or any other social media which can be reasonably viewed by the children. While both parents are authorized to view the children’s online activity, both are prohibited from using the accounts for their own personal gain.

25. All of the children’s s.7 expenses shall be shared proportionally by the parents pursuant to their incomes.

26. All arrears are fixed at $3,876.00, payable by the Father to the Mother, at a rate of $100.00 per month, commencing April 1, 2020 until paid in full.

27. At this time, no child support is payable by either parent.

28. Both parties shall exchange their Income Tax Returns and Notices of Assessments by September 1, annually, commencing in 2020.

29. The Father’s requests for restraining orders against the Mother and against V are hereby dismissed.

30. The Father shall have 30 days from today to attend and pick up the following assets, failing which the Mother may dispose of them as she sees fit.

a. The Father’s personal court documents;

b. The computer in the Mother’s bedroom;

c. The green quick cut saw; and

d. The scaffold planks.

The Mother is directed to use her best efforts to locate and make available the items listed above, as well as any of the Father’s personal information located in the filing cabinet.

31. On consent of the parties, the matter was transferred to Stormont, Dundas and Glengarry. As such, any further motions or applications must be brought in the Cornwall jurisdiction and must be brought in front of Desormeau J. as the case management judge, or her designate.

32. Both parents, and their partners, are prohibited from involving the children in adult discussions and in any further custodial or access disputes. Both parents are prohibited from audio or video recording the children for the purpose of any further litigation. Should there be a breach of these terms, either parent may seek leave to bring a motion to vary the current order. In order to seek leave, the evidence demonstrating the alleged breach must be provided to the court to permit a determination by the case management judge, or her designate, as to whether leave will be granted.

33. Neither party may return the matter to family court without first seeking leave of the case management judge, or her designate, on notice to the other party.

[241] After having considered all of the issues as well as the ultimate determinations, I find that success was divided. There were no offers to settle. As such, no costs are ordered.

Justice Hélène C. Desormeau

Released: March 9, 2020

COURT FILE NO.: 20-20

DATE: 20200309

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

E.D.

• and –

J.S.

DECISION

Justice Hélène C. Desormeau

Released: March 9, 2020

[^1]: See A.M. v. C.H., 2019 ONCA 764, at paras. 31 and 32