Court File and Parties

COURT FILE NO.: FC-18-FS442 DATE: 2020-04-06

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

JASON EDWARDS Applicant – and – ALICIA McMAHON Respondent

COUNSEL: G.D. McLeod, for the Applicant B.T. Paquette, for the Respondent

HEARD: November 12-15, 18-20, 2019

The Honourable Madam Justice D. Piccoli

Corrected decision: The corrections were made on April 16, 2020. The reference to “ TOTAL: 3,061 ” in paragraph 123 on page 31, has been corrected to read “ TOTAL: 2,952 ” and the reference to “… translates into 34.94 % … has now been corrected to read “… translates into 33.7 % …

REASONS FOR JUDGMENT

Overview

[1] The Applicant, Jason Edwards (hereinafter “Jason”), and the Respondent, Alicia McMahon (hereinafter “Alicia”), began cohabitating in March 2012 and separated in June 2017. The parties were never married. At the time of trial, Jason was 32 years old and Alicia was 34.

[2] Alicia and Jason have two children, a daughter named Parker and a son named Lincoln. At the time of trial, the children were aged 6 and 3 respectively.

[3] To their credit, the parties were able to resolve several issues amongst themselves: the division of property, holiday periods of care (save and except New Year’s Eve/New Year’s Day and summer holidays), health care benefits, and life insurance. The agreements reached are set out in the “orders made” section at the end of my reasons.

[4] Additionally, during the trial, Alicia advised that she was no longer seeking orders for the imputation of income to Jason, retroactive child support or non-harassment.

[5] The issues I have been asked to decide are as follows:

i. joint or sole decision making with respect to the children; ii. the parenting schedule; iii. child support; and iv. costs.

Background

[6] Following the parties’ separation in June 2017 they lived separate and apart in the home with the children. In July 2017, Jason moved into his parent’s home.

[7] Upon moving from the home, Jason exercised periods of care with the children on alternate weekends from Friday evening to Sunday at 7:00 p.m. It is admitted by Jason that since at least October 2017, Alicia offered him additional periods of care with the children during the week, which he did not accept until July 2018. He did not want to be the children’s chauffeur and only wanted the children during the week if he could have them overnight.

[8] In July 2018 (over a year after the separation), Jason’s periods of care were expanded to include Monday and Wednesday evenings from after school or daycare until 7:00 p.m.

[9] By way of letter dated Monday, January 21, 2019, Jason’s lawyer advised Alicia’s lawyer that he would be keeping the children in his care overnight on the alternate weekends and delivering them to daycare at 7:30 a.m. on Mondays. It is agreed that Jason asked Alicia before this date to expand his periods of care and her response was that “she would take it under advisement”. Her evidence is that she wanted to avoid conflict. Jason admitted in cross-examination that he would have kept the children overnight whether Alicia agreed to it or not.

[10] On Monday, March 18, 2019, Jason’s lawyer sent a letter, advising among other things, that commencing March 27, 2019 Jason would be keeping the children overnight on his Wednesday periods of care. Alicia objected to this by way of letter from her lawyer dated April 24, 2019. Neither party brought the matter to court. Since March 27, 2019 Jason has had the children in his care overnight on Wednesdays from after school or daycare to Thursday mornings at school or daycare.

[11] In addition, Jason continued to have the children in his care on alternate Mondays from after school/daycare to 7:00 p.m.

[12] Accordingly, at the commencement of trial, Jason’s parenting time with the children was as follows:

i. alternate weekends from Friday after school or daycare to Monday at 7:00p.m.; ii. alternate Mondays from after school or daycare to 7:00 p.m.; and iii. each Wednesday from after school or daycare to Thursday morning at school or daycare.

Positions of the Parties

Jason’s Position

[13] Jason’s position at trial was that he has wanted a 50-50 schedule with the children since separation and that he wants the court to order joint custody and a 50-50 parenting schedule. He produced a sample calendar which was made Exhibit “1” in these proceedings, setting out his proposal – it is a 2-2-5-5 residential schedule.

[14] With respect to child support, Jason’s revised position at the end of the trial was that if his proposed schedule is ordered, there should be no child support payable by either party. His position to that point had been that Alicia would owe him set-off child support of $18.00 per month.

[15] In support of his position for joint custody and equal parenting time Jason relies upon the following:

i. he cared for the children during the marriage on an equal basis when the parties were both home; ii. he and Alicia have been able to effectively communicate in respect of the children; iii. he and Alicia have not disagreed with respect to major decisions impacting the children; iv. he loves and has a close bond with the children; v. he is a responsible parent; vi. his proposed schedule creates less “back and forth”; and vii. he has always wanted and continues to want equal time with the children.

Alicia’s Position

[16] Alicia’s position at trial was that she should be awarded sole custody of the children and their primary residence should be with her.

[17] Alicia asks this court to order that Jason’s parenting time with the children be as follows:

i. alternate weekends from after school on Friday to Monday morning return to school or daycare and in the event that Monday is a holiday that period of care would be extended to Tuesday return to school or daycare; ii. alternate Monday evenings from after school/daycare until 7:00 p.m.; iii. each Wednesday evening from after school/daycare to 7:00 p.m.; iv. the children be in her care each New Year’s Eve and Day to allow them to attend her family cottage – something they have done for at least the last two years; v. that during the summer holidays the same schedule be in place, save and except that each parent have the children in his or her care for two non-consecutive weeks; vi. that the children remain in the same school; and vii. that the children be raised in the Catholic faith.

[18] In support of her position for sole custody and the schedule above, Alicia relies upon the following:

i. she has been the children’s primary caregiver since birth; ii. she and Jason are unable to communicate; iii. there is a power imbalance between the parties; iv. Jason has anger issues that prevent him from parenting properly and communicating properly; v. Jason has mental health issues which have contributed to him being suicidal; vi. Jason cannot prioritize the children’s interests over his own interests; vii. Jason has substance abuse problems; viii. Jason subrogates his parenting responsibilities to other family members; and ix. Jason treats her with disrespect.

[19] Alicia’s position is that if her proposed schedule is ordered, Jason should pay Guideline support based on his income.

Part A: Decision Making and Parenting Schedule

The Law: Applicable Statutory Provisions and General Principles

[20] The applicable legislation in this case in regard to the issues of custody, residence and access is the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as amended (the “Act”). Section 20 of the Act stipulates that except as otherwise provided for in Part III, the father and mother of a child are equally entitled to custody of the child. Section 20(2) of the Act provides that the entitlement to “custody” encompasses the rights and responsibilities of a parent in respect of the person of the child. Custody has been described as a “bundle of rights and obligations,” which includes the right to physical care and control of the child, to determine the child’s residence, to discipline the child, and to make decisions about the child’s education, religion, medical care and general health and activities: see Young v. Young, [1993] 4 S.C.R. 3; Chou v. Chou (2005); Harsant v. Portnoi (1990), 74 O.R. (2d) 33 (H.C.).

[21] An award of sole custody to one parent grants decision-making rights to that parent, generally to the exclusion of the other parent to interfere in carrying out those rights and responsibilities: see Kruger v. Kruger (1979), 11 R.F.L. (2d) 117 (Ont. C.A.). The term “joint custody” is used to describe situations where both parents are given full decision-making authority and responsibility in all areas respecting the child. Section 20(3) of the Act provides that where more than one person is entitled to custody of a child, “any one of them may exercise the rights and accept the responsibilities of a parent on behalf of them in respect of the child.”

[22] The entitlement to “access” is defined in s. 20(5) of the Act as including “the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child.”

[23] Section 21 of the Act provides that a parent or any other person may apply for an order respecting custody of or access to a child, or for determining any aspect of the incidents of custody of the child. Section 24(1) directs that the merits of an application dealing with these issues must be determined on the basis of the best interests of the child. The factors which the court is required to consider in carrying out the best interests’ analysis are set out in ss. 24(2) to (4) as follows:

Best interests of child

24(2) The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and, (i) each person entitled to or claiming custody of or access to the child, (ii) other members of the child’s family who reside with the child, and (iii) persons involved in the child’s care and upbringing;

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

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

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

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

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

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

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

Past conduct

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

(a) in accordance with subsection (4); or (b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.

Violence and abuse

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

(a) his or her spouse; (b) a parent of the child to whom the application relates; (c) a member of the person’s household; or (d) any child.

[24] The list of factors set out in ss. 24(2) to (4) is not an exhaustive outline of the relevant considerations in carrying out the analysis of the best interests of the child. The best interests’ determination is based on a multiplicity of factors and must be tailored to the unique facts and dynamics of each case. The court is not required to enumerate and analyze the specific criteria set out in s. 24 of the Act, but rather must consider all of the factors that are relevant in the particular case that it is called upon to decide: Walsh v. Walsh (1998), 39 R.F.L. (4th) 416 (Ont. C.A.). The overarching principle in carrying out the analysis is that the child’s best interests must be ascertained from the perspective of the child rather than the parents; parental preferences and rights do not play a role in the analysis except to the extent that they are necessary to ensure the best interests of the child: Gordon v. Goertz (1996), 19 R.F.L. (4th) 17 (S.C.C.); Young v. Young.

[25] The court may as part of a custody order impose such terms, conditions and restrictions as it considers appropriate and necessary to foster the best interests of the child: Reeves v. Reeves, 2010 NSCA 35, 319 D.L.R. (4th) 284.

Sole Custody vs. Joint Custody

[26] There are a number of Court of Appeal decisions that deal with the issue of sole versus joint custody, including: Kaplanis v. Kaplanis (2005), 249 D.L.R. (4th) 620 (Ont. C.A.); Ladisa v. Ladisa (2005), 11 R.F.L. (6th) 50 (Ont. C.A); Ursic v. Ursic (2006), 32 R.F.L. (6th) 23 (Ont. C.A); and Rigillo v. Rigillo, 2019 ONCA 548, 31 R.F.L. (8th) 356.

[27] In Jackson v. Jackson, 2017 ONSC 1566, [2017] O.J. No. 1997, Chappel J. summarized the law with respect to custody. At para. 65 Her Honour held that the decision as to whether an order for sole custody or joint custody is in a child’s best interests is ultimately a matter of judicial discretion. However, several general principles have emerged from the jurisprudence to assist the court in the decision-making process. These can be summarized as follows:

i. There is no default position in favour of joint custody. Each case is fact-based and discretion-driven. ii. Joint custody should only be considered as an option if both parents are fit parents and able to meet the general needs of the children. This is a threshold issue before the court considers the question of whether the parties are able to effectively communicate on issues relating to the children. iii. The quality of past parenting and decision-making, both during the parties' relationship and post-separation, is a critical factor in determining whether joint custody is appropriate. iv. However, the mere fact that both parents acknowledge that the other is a “fit” parent does not mean that it is in the best interests of the child for a joint custody order to issue. The decision regarding the appropriate decision-making arrangement must take into consideration all factors relevant to the child’s best interests. v. Although some measure of communication and cooperation between the parties is necessary to support a joint custody order, the court is not required to apply a standard of perfection in assessing the parents’ ability to work together. vi. The fact that one party insists that the parties are unable to communicate with each other is not in and of itself sufficient to rule out the possibility of a joint custody order. The question to be determined is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. vii. There must be a clear evidentiary basis for believing that joint custody would be feasible. viii. In cases involving very young children, the court must take into consideration the fact that the child is unable to easily communicate their physical, emotional, developmental and other needs. Accordingly, the need for effective communication between the parties in a joint custodial arrangement will be particularly pressing in such circumstances. ix. The wishes of the child will also be relevant to the decision respecting the appropriate custodial disposition in cases involving older children. x. Evidence as to how an interim custody and access order has worked, and in particular, whether the parties have been able to set aside their personal differences and work together in the best interests of the child, will be highly relevant to the ultimate decision regarding the appropriate custodial regime.

[28] In analyzing the ability of the parties to communicate, the court must delve below the surface and consider the source of the conflict. The Court of Appeal for Ontario has clearly stated that one parent cannot create conflict and problems with the other parent by engaging in unreasonable conduct, impeding access, marginalizing the other parent, or by any other means and then justify a claim for sole custody in their favour on the basis of lack of cooperation and communication: see Ursic; Andrade v. Kennelly (2006), 33 R.F.L. (6th) 125 (Ont. S.C.), aff’d 2007 ONCA 898, 46 R.F.L. (6th) 235.

[29] Although the mere suggestion of ineffective communication cannot by itself rebut joint custody of a child, the inability to communicate for the best interests of the children can: see Lambert v. Peachman, 2016 ONSC 7443, [2016] O.J. No. 6201.

Maximum Contact Principle

[30] In arriving at this decision, I have expressly referred to the maximum contact principle and reviewed the following Court of Appeal decisions: Rigillo; Kagan v. Brown, 2019 ONCA 495, 306 A.C.W.S. (3d) 790 and Bromley v. Bromley, 2009 ONCA 355; and Doncaster v. Field, 2019 NSCA 61, 307 A.C.W.S. (3d) 556. Although these decisions deal with the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), there is a similar provision in the CLRA, namely s. 20. Section 20 states that both parents are equally entitled to custody of a child.

[31] Jason states that the maximum contact principle confirmed by the Court of Appeal in Rigillo v. Rigillo requires that the children be in each parties’ care an equal amount of time.

[32] The maximum contact principle is not absolute. The legislation obliges the judge to respect it to the extent that such contact is consistent with the child’s best interests. If other factors show that it would not be in the child’s best interests, the court can and should restrict contact: see Young, at pp. 117-118.

[33] A young child with attachment to both parents needs sufficient contact with both, without prolonged separation, to maintain a meaningful and close relationship with them: Wilson v. Wilson, 2015 ONSC 479, [2015] O.J. No. 325, para. 63.

[34] A full and loving relationship with each parent is inarguably in the best interests of the children: see Vandersluis v. Perrin, 2017 ONSC 2543, [2017] O.J. No. 2491, at para. 17.

Analysis

[35] It is clear from the evidence in this case that both parties love their children very much. Unfortunately, there has been no formal legal framework in effect to date for decision-making and time-sharing, and this has led to conflict. These children require certainty and clarity so that they can enjoy a sense of peace and stability in their lives.

[36] Jason states he has no concerns about Alicia’s care of the children. He is adamant that he and Alicia have communicated for the best interests of the children in the past and that they will continue to do so.

[37] Alicia’s evidence is that every issue is a battle with Jason. She states that although she does not believe Jason would intentionally hurt the children, his anger clouds his judgment which is “not great at the best of times”. She is adamant that if the court orders joint custody it will be just “more of the same” such that she will have to concede to him on each issue in order to get along as he is unable to compromise.

Past Conduct

[38] Alicia submits that Jason has exhibited suicidal behaviour that impacts his ability to parent. She relies on a 72-hour voluntary hold in his past, a document which was first identified as Exhibit “A” and thereafter filed as Exhibit “9”, as well as statements that he made to the child Parker.

[39] I put no weight on the document purporting to be Jason’s last will and testament filed as Exhibit “9”. None of the witnesses who were asked admitted to writing the document. Jason confirmed that the handwriting was not his and further that it did not look like Alicia’s handwriting.

[40] In terms of the historical 2010 incident which occurred after Jason and his girlfriend broke up, I do not accept this incident as relevant for the purposes of this decision.

[41] Jason admits that he told Parker that she may no longer see him again. This happened shortly after separation when he found nude pictures of Alicia on the computer. Although I believe that Jason was upset at the time, I do not accept that Jason was suicidal. Regardless, making such a statement to a child who was then four, no matter what the circumstances, is indicative of poor judgement and parenting skills.

Allegations of Jason’s Anger and its impact on his ability to parent

[42] Alicia and her sister, Erin, and to a lesser extent the maternal grandmother, Noreen, gave evidence with respect to Jason’s anger and how it impacts his parenting.

[43] Jason denies having issues with anger.

[44] Counsel for Jason agreed that Erin’s evidence was “genuine and clear”. She asked the court to put less weight on Erin’s evidence given that she did not see the family often and that much of Erin’s evidence was based on her conversations with Alicia. I do not agree. The evidence at trial was that during the relevant time period, Erin and Alicia spoke almost daily and saw each other weekly. They would grocery shop together and attend family gatherings. It is clear from the evidence that Alicia and Erin are best friends and confidants.

[45] Where the evidence of Jason (or his family) and Alicia (or her family) differ, I prefer the evidence of Alicia and her family. They were all credible witnesses who gave specific and detailed evidence. Alicia readily admitted mistakes and it is clear to me that she puts her children’s interest first.

[46] The numerous credible examples of Jason’s angry outbursts include:

i. His yelling and screaming at Alicia, both in and out of the presence of the children. Erin corroborated Alicia’s evidence in that she advised that she spoke with Alicia often by phone – almost daily – and she would often hear Jason swearing in the background. ii. His frequent swearing and name calling directed at Alicia, both during the marriage and after separation, as described by Alicia and to some extent Erin. iii. Jason’s own medical notes, Exhibit “8”, p. 8, show that in 2015 he was suspended for three days following an argument with a co-worker on a day when he became upset because of poor concentration. iv. The detailed incident described by Alicia which Jason denies, but which I accept, occurred when Alicia was 7 months pregnant with Parker. The family dog had chewed a window sill – Jason grabbed the dog by the loose part of the chain collar and dragged him upstairs. Despite Alicia screaming for Jason to stop, he did not listen. She expressed that he was in such a rage that she does not believe he even registered her screams. v. Erin’s evidence that she felt Jason was a “ticking time bomb”. As a result, Erin chose to distance herself from the home when he was present. She did go to the home but did not spend long periods of time there – mostly to pick up Alicia and the children. She indicated that Jason raised his voice in her presence many times. She stated there was a high level of stress in the home. vi. Alicia and Erin’s description of an event when Parker was 7 months old: Erin wanted to take Alicia for lunch to thank her for assisting her with hosting craft shows. They chose Swiss Chalet as a location because it was a place that offered a quick meal and Parker had been left in Jason’s care. Alicia fed Parker before they left. Alicia was nervous to leave Parker with Jason – Erin encouraged her to go. As Parker had just been fed and gone to sleep, they thought it would be fine. Erin described how no sooner had she and Alicia sat down that the phone started to ring. Erin could hear that it was Jason calling – he kept calling. They had been there 15 minutes and he called relentlessly for Alicia to return home to watch Parker – they had just gotten their food and had to leave because Jason would not stop calling. They did not have their lunch. vii. Alicia and Erin’s description of an angry outburst when Lincoln was a baby: Erin had attended Alicia and Jason’s home so that Alicia could trim her hair. Erin described that this should only take Alicia a few minutes. Alicia asked Jason to watch the children – not two minutes went by and Parker was already downstairs with Alicia. Jason held Lincoln in his hands by the door and was pacing back and forth very frustrated. He was loudly proclaiming that this was not a good time for Alicia to trim Erin’s hair. Alicia was calm. Jason’s pacing and frustration made Erin nervous and fearful. His level and tone of voice was described by Erin as “very loud and really frustrated”. Erin describes how she left the home concerned for Alicia and the children. Jason contacted Erin thereafter to apologize for his behaviour stating that this is how he gets sometimes, and it was not Erin’s fault. viii. Erin’s evidence of the genuine fear she felt for Alicia’s safety. She described Jason as quick to anger and controlling. ix. Jason’s stepfather Kevin’s testimony that Jason regularly uses the “F” word but not in front of the children. x. Jason’s admission to an FCS worker in early August 2017 that he had gotten angry enough about a phone call Alicia made to his stepfather about a Facebook post that he called Alicia to come and pick up the children from his care (Exhibit “6”, p. 72). The notes reflect that the FCS worker attempted to provide advice as to how to manage his anger. xi. Alicia’s evidence of Jason’s upset with her speaking to his mother at the 2018 school concert. xii. Alicia’s description of two parent teacher interviews made difficult by Jason’s anger – the parent teacher interview in 2017 because he was talking to her about the litigation in the hallway and the November 2019 parent teacher interview when he showed up late and was upset because she was “playing him”.

[47] I do not accept Jason’s submission that if Alicia’s allegations were true, there would be broken furniture, punched walls or police involvement to corroborate her accounts.

[48] Jason’s family members who testified denied that Jason has issues with anger, however, I find that they are either being untruthful or have not experienced his anger first-hand. I find that Jason has a bad temper which impacts his ability to communicate with Alicia and, at times, his ability to properly parent.

Allegations of Mental Health Concerns

[49] Jason advised that he has adult ADHD which led him to see a psychiatrist.

[50] I was told at the commencement of the trial that there was an issue with the production of Jason’s medical file in that Jason had refused to produce it. I was advised that Alicia’s motion with regard to the issue was not reached prior to trial. Alicia had then subpoenaed Dr. Purohit (his psychiatrist) and Jason’s lawyer objected. During the trial, Jason agreed to produce Dr. Purohit’s medical file and it was made Exhibit “8” in this trial. The notes in the file start with an admission to hospital on August 29, 2010 following an overdose and end with notes from an office visit on July 24, 2017. Under the heading Assessment & Plan, the final notes read:

This is a 30-year-old man with ADHD inattentive type, major depression. Current pharmacotherapy is Zoloft 100 mg once daily Concerta 72 mg daily. Follow will be after 3 months. Role of counseling and therapy was explained and he was provided with list of resources in the community for therapy and counseling. He will call my office and book an early appointment if there is any problem with side effects from medications or problem with mood or anxiety.

[51] When I asked his lawyer whether this marked the end of Jason’s meetings with his psychiatrist or just the end of the notes, she could not say for sure but believed that was the end of the meetings.

[52] Although I am not prepared to make a finding that Jason has mental health issues that impact his abilities to parent generally, it is clear that he was deriving a benefit by seeing his psychiatrist and he is encouraged to continue or resume seeing him as the case may be.

Allegations of Substance Abuse

[53] Jason appears to have self diagnosed as an alcoholic when he was younger. There is no indication that he currently consumes alcohol and I do not accept that he currently has an issue with alcohol.

[54] Alicia states that during the marriage Jason abused marijuana, both before and after it was legalized, and before and after he obtained a medical marijuana prescription.

[55] In cross-examination Jason admitted that he smoked marijuana well before he had a prescription to do so.

[56] Jason admitted to growing marijuana in the home. He told the court that he grew it in a tent that was padlocked and for which he had the key. He indicated that although he smokes marijuana, he does not do so in the presence of the children.

[57] Alicia described how she and Jason fought constantly about his drug use, particularly after the children were born; she was concerned the marijuana smoke was seeping through the vents and impacting the children’s health.

[58] Alicia described a house filled with tension. She described how she would make sure the house was in “good shape” and that she would leave Jason alone until he showered and “got high” so that he would be more approachable.

[59] The incident of April 15, 2017 (which will be described below) that precipitated the separation was caused by Jason ingesting “magic mushrooms”.

[60] The evidence clearly bears out that Jason abused substances during the marriage, and I have no difficulty in ordering, as requested by Alicia, that he not consume non-prescription drugs while the children are in his care and that with respect to the prescribed marijuana, he consumes only the amount prescribed. Such an order is clearly in the best interests of the children.

Custody of the Children

[61] Jason admits that Alicia is the parent to take the children to the doctor and the dentist, both during the marriage and after the separation. He has taken the children three times to a walk-in clinic. He agrees that Alicia makes good decisions regarding their health.

[62] Jason states that the record of electronic communications shows normal communication between he and Alicia about school, health, and day to day decisions. He noted that the parties even communicate to co-ordinate Christmas gifts so as to avoid duplicates.

[63] In support of Jason’s contention that the parties are able to communicate, he relied on numerous text messages and some emails between the parties. These text messages were made Exhibits “3”, “4” and “5” and are also found at Tabs 7, 8, and 9 of Exhibit “1” in this trial.

[64] There is no dispute that the parties communicate with respect to day to day issues and check in with each other frequently – the three plus volumes of text messages entered as exhibits bear this out. This does not mean that the parents communicate to the extent that is required to make joint custody workable and in the best interests of the children. My concern is that when it comes to the major issues (health, education, extra-curricular activities), the parents seem unable to properly resolve them. The evidence shows that the only way resolution is reached is if Alicia gives in to Jason’s demands. In any event, the text messages do not tell the whole story.

[65] During the trial it became clear that although Jason says all of the right things, his actions do not bear out his words. He lacks insight into how his behaviour has impacted Alicia and the children. Although I do not doubt that he loves his children and that he is able to meet their needs in a general sense, I do not accept that he and Alicia are able to effectively communicate for the best interests of the children. He has been unable to set aside his personal differences and focus on the children.

[66] There are several incidents that caused me to be concerned about the ability of these parents to jointly make decisions for the children and Jason’s ability to prioritize the children’s best interests. These include:

i. The very serious incident of April 15, 2017 as it pertains to Jason’s ingestion of magic mushrooms and marijuana – the incident itself was explained in detail by both parties and is referenced in detail in the CAS notes. The incident involved the fire department, police and paramedics. While partying with friends/cousin, Jason ingested magic mushrooms and marijuana. Alicia went to retrieve Jason with the children at the request of his cousin. They arrived home and 911 was called as Jason was having health issues. The fire truck arrived first. In his hallucinogenic state, Jason thought the house was on fire and as a result he dragged the children out of bed, hurting Parker’s wrist and almost dropping Lincoln. Jason was in such a state that he had to be tasered and taken to hospital and strapped down. Alicia, the children and a paramedic had to lock themselves inside one of the bedrooms to prevent Jason from trying to remove them from the home. Although I accept that Jason deeply regrets this incident, I believe his regret centres around the fact that this incident resulted in an end to the relationship between he and Alicia. I was deeply concerned with Jason’s statement that he believes that for the most part the children were shielded. He states this because he cannot properly recall the incident and that is what the notes say – what the notes actually say is that Alicia stated she shielded the children as much as possible. It is impossible for this court to accept that the children were shielded from this event given what occurred. Jason’s statement shows me that he does not fully understand the impact of his behaviour on the children. ii. Jason’s threats to post nude pictures of Alicia on the Internet on July 9, 2017. iii. Jason’s removal of the family laptop on July 9, 2017. Initially he told Alicia that he threw it in the Grand River. Approximately two weeks later he admitted that he had taken it to his sister Jennifer’s home and hid it under the couch. Alicia was required to attend Jennifer’s home to retrieve that laptop. Alicia testified that for 1-2 hours she had to listen to Jennifer berate and pressure her to sign an agreement that she and Jason share 50/50 care, and there be no child support. Although Jennifer denies the incident, I accept Alicia’s evidence. Jennifer’s boyfriend intervened and the laptop was eventually returned to her. iv. Jason’s attempt to remove the van being driven by Alicia on the evening of August 16, 2017, without prior notice to Alicia. Jason’s explanation for this is that he was contacted on two separate occasions by the entity financing the van and was advised that the van payments were in default. Alicia denies the payments were in default. She showed the police, who arrived on scene, proof that she was making the payments. What is concerning is that Jason and his sister Jennifer (who was also a witness in these proceedings) took it upon themselves to attend the home where Alicia and the children were residing without any prior notice to Alicia to retrieve the van, which was the only vehicle available to Alicia. Not surprisingly, Alicia became very upset, and called her parents who attended. Eventually the police also attended. Unfortunately, the child Parker witnessed at least part of this incident. Although Jason had called the Waterloo Police force and asked for their assistance with a peaceful retrieval of property, he did not wait for them to attend. I do not accept Jason’s excuse that Alicia did not need the van, as she had full-time use of her own mother’s vehicle, which he stated was in the driveway on the day of the incident. Alicia’s mother denied this and his own sister, Jennifer, does not recall another vehicle in the driveway. After the police arrived and spoke with the parties, the van was not taken by Jason. The fact that he believed this behaviour to be acceptable illustrates his inability to understand the consequences of his actions. v. Jason’s report, shortly following the attempted van retrieval, to the phone company operating the cellphone that Alicia was using, but which was owned by him, that the phone had been stolen – in cross-examination he denied that this report was a lie – he stated that the phone was stolen by Alicia. I accept Alicia’s evidence that she asked him to call the phone company and put the phone into her name. This is further evidence of Jason’s petty behaviour and his inability to place the children’s needs first. As a result of his report to the phone company, Alicia’s cell phone was deactivated. vi. Jason’s insistence in October 2018 that the children be tested for diabetes, when both Alicia and the doctor did not believe such testing to be necessary. His explanation was it would “kill his heart if he found out later the children had diabetes”. When Jason was told the doctor felt the test unnecessary, his response was to request that the doctor sign a waiver and tell Alicia that if the kids die it would be “on her head”. vii. Jason’s failure to advise Alicia of the reason for Lincoln being taken to emergency in December 2018 until she arrived at the hospital. When the children were at the Waterloo Park for the festival of lights with Jason and his extended family, Lincoln fell and hurt his head. This incident was clearly a traumatic one for both parents. Alicia does not blame Jason and in fact praised how he handled the incident, save and except how it was communicated to her. Both Alicia and her sister gave evidence that a call came to Erin’s phone (Alicia’s phone was on silent) while they were at a cookie exchange, it being Jason’s weekend with the children, and were told to bring Lincoln’s health card to the Grand River Hospital – she asked a number of times what happened, and his response was to tell her to get there. She describes her fear of not knowing what had happened. viii. Jason’s refusal to allow the children to attend birthday parties for their friends when they were in his care, until November 2019. On the two occasions thereafter that he did allow the children to attend, Alicia was required to purchase the birthday gifts. ix. Jason’s refusal to “help out more” when asked by Alicia in May 2018 to empty the children’s lunch bags and look at the mail bag, indicating that he only had the children in his care two nights a week and needed that time to bond and do the other things that “we do”: Exhibit “3”, p. 52. x. The volume of texts in or about January 2019 about a haircut (Exhibit “4”, pp. 10-13) which Parker wanted that would require half of her head to be shaved. xi. Jason’s inability to receive Alicia’s suggestions in the spirit in which they were intended. A text exchange in April 2019 is one example of Jason’s inability to do this: Alicia: Hey are you taking the kids overnight again tonight? Jason: Yes Alicia: Okay well last week they had a really hard time catching up on sleep. Lincoln not so much cause he naps but definitely Parker so can you put them to bed earlier. They should get at least 10 hours sleep. So Parker should be asleep (not just in bed) by 8pm if they wake at 6. I already told her this as well and she said it’s ok cause she didn’t like being grumpy or ‘having hard days’ either. Alicia: Also I left a case of cookies with daycare again they are in the staff room. Jason: Earlier than 8? Alicia: No like sleeping by 8 so in bed by 730 Jason: Alicia I know what you’re trying to do and that’s fine you’re entitled to feel the way you’re feeling. But at least act like I’m a responsible parent and stop treating me like I am not. Alicia: Jason I’m not trying to do anything at all Alicia: I’m trying to make this work Jason: Yes you are you are asking me to put them to bed earlier implying that I’m putting them to bed at a later time. Jason: I think the appropriate thing would be to do is ask what time I’m putting them to bed instead of implying that I’m not putting the too bad before 8. Jason: Sorry after 8. xii. Jason’s refusal to advise Alicia when he and the children were leaving for the campground in August 2019 (see Exhibit “4”, p. 73) – Jason’s explanation being that he was told in the communication course that he attended that he did not need to explain himself to Alicia, because he wanted to set up boundaries – it was not his problem to deal with Alicia’s anxiety. Given the volume of texts on day to day issues, this behaviour by Jason indicates his inability to communicate for the best interests of the children. It furthermore shows a lack of insight into how his behaviour impacts the parties’ inability to communicate. xiii. Jason’s overholding of the children in 2019. Although I agree with counsel for Jason that both parents are equally entitled to care of their children, this was a situation where Alicia had de facto primary care since birth. Jason engaged in self help tactics when, without consent or a court order, and in the face of a status quo which had been in place for approximately 1.5 years post-separation, he made this unilateral decision. Rifai v. Green, 2014 ONSC 1377, 44 R.F.L. (7th) 113. It is the children who are impacted when this happens – they had no notice that they were not going “home” to their mother’s (as described by Jason). Jason’s unilateral actions in this regard only served to inflame the situation. This again raises serious questions about Jason’s parenting skills and judgment: see McPhail v. McPhail, 2018 ONSC 735, [2018] O.J. No. 468. xiv. Jason’s refusal to take the children to activities on his days such that the children are now not involved in any activities. His explanation being that he would take the children if he had more time with them. xv. Jason’s refusal to accept Alicia’s concern that Parker’s car seat was no longer appropriate for her given her growth and that a new car seat was required as she had reached 40 lbs. In the end this issue was resolved by Alicia purchasing and installing the car seat for Jason.

[67] Jason admits that he wanted Parker, at age 6, to have a cell phone. He also admits that to “an extent” he feels corporal punishment is okay – referring to tapping the children’s bums – and states that “Alicia has a different way of raising the children”.

[68] This is not a situation where Alicia is marginalizing Jason. Early in the separation she offered him weekends and he declined; she continued to offer additional time during the week and explained her concerns regarding overnights.

[69] Although Jason acknowledged his failings and states that he is now a wiser person, the evidence does not support this contention. I accept Alicia’s evidence that Jason is aggressively controlling and even when he gets his own way he is not satisfied. I do not doubt that Jason loves his children deeply and passionately. I do doubt that he is always able to put their interests first and foremost.

[70] This level of conflict is not reasonable. Furthermore, it continued to trial. These parents are not able to communicate appropriately or in the best interests of the children.

[71] In all of the circumstances, I order that Alicia have sole custody of the children.

Parenting Schedule

[72] Alicia took a twelve-month maternity leave with Parker from May 1, 2013 to May 1, 2014 and with Lincoln from January 11, 2016 to January 11, 2017. The parties separated six months after Lincoln’s first birthday.

[73] Jason describes that when both parties were home, he cared for the children on an equal basis. He states that he was left alone with the children prior to separation to allow Alicia to shop on Saturdays and grocery shop on Sundays. He gave evidence that he fed the children, changed the children, got up through the night with the children, and played games with the children.

[74] Alicia describes that the children were rarely left in Jason’s care – she states that she even took them grocery shopping with her when Jason was home unless they were sleeping, in which case there was a “count down” and she would have to hurry as Jason did not want to care for the children on his own. She described her grocery shopping without the children as anxiety filled as she would get texts and phone calls from Jason the minute a child woke up.

[75] Erin advises that she and Alicia have always lived no more than 20 minutes away from each other. She confirmed that most of the time she spent with Alicia, Jason and the children were outside of Alicia and Jason’s home.

[76] Erin gave evidence that she spoke on the phone with Alicia “all of the time” and advised that she and Alicia knew each other’s schedules. She said that although she did not witness Alicia and Jason’s daily interactions with the children, she knew, based on the conversations and interactions, that Alicia was the primary caregiver attending to the children’s needs. During family events and when at the family cottage, even if Jason was present, Alicia was the primary caregiver.

[77] Erin described that every Sunday she and Alicia would go grocery shopping – Erin accompanied Alicia in part to assist her with the grocery shopping. Erin stated that this was always a stressful experience because Alicia either had to wait for one of the children to wake up, or if a child was asleep, Alicia would have to ask Jason to watch the child or children. In the latter case, assuming Jason agreed, Alicia would have to leave items in her cart and return home to get the child or quickly finish the shopping and only check out items that were necessary.

[78] Erin described how prior to separation Jason did not attend the children’s activities.

[79] I accept the evidence of Alicia and Erin that Alicia was the primary, and often sole, caregiver to the children prior to the separation. This continued post-separation.

[80] Jason attempted to enter as evidence letters that were clearly settlement discussions which he stated showed that the parties agreed they would share periods of care on an equal basis. A voir dire was held, and I deemed the letters inadmissible. Alicia agreed that Jason has wanted a 50/50 schedule since separation.

[81] Alicia has expressed a concern that the children remain in her care overnight on weekdays during the school year. She believes that they will be less tired and more settled. A review of the texts found at p. 14 of Exhibit “3” confirms her concern regarding overnights during the school year as early as October 2017.

[82] Much was said about the “lates” on Parker’s report card. Alicia admitted that most, if not all, of the lates occurred on the days she was bringing Parker to school. Both parents blamed the other for the children’s tiredness and lateness: Alicia saying the overnights with Jason during the school week together with the fact that he was taking the children to daycare early each morning were causing the children to be tired and Jason saying that Alicia always had difficulty in the mornings with the children. I cautioned the parties that no matter what I ordered, it was important, given the young ages of the children, that the parents attempt to have them follow a similar routine on issues like wake-up time, what time they go to school or daycare, meal time and bed time.

[83] Alicia admitted in cross-examination that Parker is thriving in school despite the overnights in Jason’s care.

[84] While I do not condone Jason’s self-help remedies in keeping the children overnight despite an established status quo, I am not prepared to reduce Jason’s periods of care with the children from what is currently the norm. There is no evidence to indicate the current schedule is negatively impacting the children. Parker is doing well in school. I was not provided with any evidence from the daycare as to how, if at all, the new schedule is impacting Lincoln. Jason must ensure that the child(ren)’s school work is completed while in his care.

[85] Both parents have sought the assistance of their respective mothers from time to time and I make no negative findings in that regard.

[86] The maternal grandmother gave evidence in these proceedings. It is clear that she is very close with the children. During the parties’ marriage, she would pick up the children every day from daycare. Jason would arrive home first but had to have a shower and she would leave after he finished his shower. She was the person who took the children to the doctor if Alicia could not.

[87] Jason’s mother Dawn gave evidence in these proceedings. She assists with picking up the children from daycare on the days he has them, and she would “for sure” babysit the grandchildren if Alicia asked her to as well.

[88] It is clear from the evidence given by both grandmothers that the children have a strong bond with their grandmothers. In particular, the maternal grandmother has been involved in their lives on a regular basis.

[89] Alicia describes her family of origin as close knit and indicated that they spend a lot of time together. This is borne out by the evidence of her sister Erin.

[90] Alicia’s current home is one block from her parents and her sister, with a park, library and community centre. The children are two minutes from school, daycare and their friends. If the children are ill, the school calls her and then Jason. Either she or her mother take time off if a child is ill.

[91] It is clear to me that Parker and Lincoln are close with their paternal Aunt Jennifer and her children and that the summer is a time where they have enjoyed family camping trips.

[92] Alicia’s hours of work in 2018 were from 8:30 a.m. to 5:00 p.m. In April 2019 she switched her hours from 9:00 a.m. to 5:00 p.m. She takes the children to school or daycare when they are in her care and either she or her mother pick up the children when they are in her care.

[93] Jason gave evidence of the flexibility of his work schedule. At p. 165 of his Document Brief is a letter from his employer confirming the employer’s commitment to work with him. He assures this court that he can get the children to daycare at a more reasonable hour and I order that when the children are in his care on school mornings, he is to ensure that they arrive at the daycare at a similar hour as when Alicia takes them to daycare. He assured the court that he could and would do that.

[94] The parties both agreed that save and except as it pertains to New Year’s Day/New Year’s Eve, they can arrange holiday times as between themselves. Alicia would like to have the children in her care on New Year’s Eve and Day each year and Jason would like to alternate.

[95] Jason seeks equal care in the summer or at least two weeks in July and two weeks in August. Alicia seeks to continue with the schedule she is proposing and that each have two consecutive weeks in the summer.

[96] The children’s views and preferences were not before the court, however, there is no doubt in my mind that the children love and are bonded to both parents.

[97] I do not agree that the maximum contact principle requires the children to be in each parties’ care on an equal basis. If this were the case, then separated spouses would never require the assistance of the court.

[98] The court must ensure that the children’s best interests remain paramount. In this case, Alicia has been the primary caregiver since birth, she has been responsible for doctors, dentist, school and extracurricular activities. Instead of respecting her knowledge and asking for advice Jason becomes petty. He takes what are bona fide attempts to make things workable and throws them back in Alicia’s face. Why he does this is irrelevant at this point. His lawyer’s assertions that his behaviour just after separation should be excused because tensions were high are not accepted. He has continued to be stubborn and demeaning and a 50/50 schedule will not work.

School Year

[99] During the school year I find that it is in the children’s best interests that the current schedule remains in place.

Summer

[100] In summer 2018, by agreement of both parties, Lincoln did not spend any extended time with Jason. Parker spent one week with Jason.

[101] In summer 2019, both children spent one week with Jason.

[102] The children have never been out of their mother’s care for more than seven days.

[103] I see no reason why in summer 2020 the children cannot spend two weeks (non-consecutive) with Jason.

[104] Beginning summer 2021 and thereafter, I see no reason why the children cannot spend three weeks (non-consecutive with each parent).

[105] Jason will have his choice of weeks in even numbered years and Alicia odd numbered years. The parent whose choice it is will advise the other by May 1st of each year with the other parent to advise by June 1st. These dates can be moved up if they are too late to enroll the children in summer camps.

[106] As the children get older, an equal summer period of care may be appropriate if that corresponds with the views and preferences of the children and their best interests.

New Year’s Eve / New Year’s Day

[107] Very little evidence was led with respect to this issue.

[108] Alicia stated that she would like to have the children in her care each year in order to attend the family cottage – something she has been doing for two years post separation. Jason stated that he would like to share these major holidays.

[109] These children should be able to share holidays with their parents and without any evidence to the contrary that is what I am ordering namely that New Years Eve/New Years day be alternated.

[110] In summary, the children will remain in Alicia’s primary care and the schedule in place at the time of trial will remain, as it appears to be in the children’s interests. Given that Alicia has the authority to make decisions, I expect that tension will be reduced. I have ordered that the children not be brought to school or daycare before 8:00 a.m., without Alicia’s written consent. Jason needs to work on synching the children’s schedule while they are in his care. I agree with Jason that New Year’s Eve/New Year’s Day be alternated.

Part B: Child Support

The Law: Applicable Statutory Provisions and General Principles

[111] The applicable legislation in regard to the issue of child support in this case is the Family Law Act, R.S.O. 1990, c. F.3, as amended (the “FLA”).

[112] The starting point for the determination of the amount of child support is s. 3 of the Child Support Guidelines, O. Reg. 391/97 (the “Guidelines”), which establishes the following presumptive rules respecting support for a child under the age of majority:

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.

[113] Sections 4 to 10 of the Guidelines address a number of circumstances in which the presumptive rules delineated in s. 3 do not apply and outline the applicable principles regarding the calculation of child support in those situations.

[114] Jason submits he currently has shared custody of the children and, as such, this situation is one where the presumptive rule does not apply.

[115] The phrase “shared custody” encompasses situations where a spouse has a right of access to, or has physical custody of, the child for not less than 40 percent of the time over the course of a year. With respect to shared custody situations, s. 9 provides as follows:

Shared custody

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

(a) the amounts set out in the applicable tables for each of the parents or spouses; (b) the increased costs of shared custody arrangements; and (c) the condition, means, needs and other circumstances of each parent or spouse and of any child for whom support is sought.

[116] The wording of s. 9 is imperative. Accordingly, where the 40% threshold is met, the court must proceed under s. 9 in calculating child support: L.L. v. M.C., 2013 ONSC 1801, 28 R.F.L. (7th) 217. 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.

[117] In Khairzad v. McFarlane, 2015 ONSC 7148, 72 R.F.L. (7th) 436, at para. 66, Chappel J. succinctly summarized the significant comments made by the court in Contino regarding the interpretation of s. 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.

[118] The onus is on the parent who is relying on s. 9 of the Guidelines to establish that the 40% threshold has been met: Meloche v. Kales (1997), 35 R.F.L. (4th) 297 (Ont. C.J. (Gen. Div.)); Huntley v. Huntley, 2009 BCSC 1020, [2009] B.C.J. No. 1509; L.L. v. M.C., supra. The analysis should assume that the custodial parent starts with 100% of the time: Froom v. Froom, [2004] O.J. No. 5361 (S.C.), aff’d , 11 R.F.L. (6th) 254 (C.A.). As the court noted in L.L. v. M.C., the 40% threshold is the minimum period of time for triggering the operation of s. 9, and therefore the court should not round up or round down the figure reached.

[119] In Contino, the Supreme Court of Canada was not required to address the issue of how the 40% threshold referred to in s. 9 of the Guidelines should be calculated. In Froom, the Court of Appeal for Ontario held that there is no universally accepted method of deciding the 40% time period, and that rigid calculations of time are not necessarily appropriate. The court endorsed the comments of the trial judge in that case that the court should focus on determining whether physical custody is truly shared by the parents. Cases decided since Froom have highlighted that the method chosen for calculating the 40% threshold is often critical to the outcome of the support analysis in shared parenting situations. In L.L. v. M.C., the court concluded that in light of the importance of this issue, it is desirable to be as precise as possible when carrying out the calculation. It noted that the overwhelming weight of authority in Ontario and the other provinces supports calculating the 40% threshold on an hourly basis. When calculating time in hours, the 40% threshold is met if the parent has the child in their care for 3,504 hours per year: Claxton v. Jones, [1999] B.C.J. No. 3086 (Prov. Ct.); L.L. v. M.C., at para. 37.

[120] The relevant period for the calculation of time under s. 9 is the amount of time that the child is in the general care and control of the parent, and not the time that the parent is physically present with the child: L.C. v. M.C., at para. 38. The time attributed to a parent includes all time during which the parent is the one who is responsible for their well-being: Sirdevan v. Sirdevan, 2010 ONSC 2375, 99 O.R. (3d) 424. In Maultsaid v. Blair, 2009 BCCA 102, 78 R.F.L. (6th) 45, the British Columbia Court of Appeal provided guidance on how the issue of time calculation should be addressed in cases where the parent exercises mid-week overnight access. The court concluded that school time in these situations should not be credited to the parent relying on s. 9 unless the parent has the child both before and after school on a particular day.

[121] The issue to be determined in this case is whether the parenting schedule arrangements that I have ordered meet the 40% threshold so as to bring the child support analysis within the ambit of s. 9 of the Guidelines.

[122] The schedule I have ordered is the one that was in place at the time of trial. Additionally, I have ordered that Jason have the children in his care for two non-consecutive weeks of holidays in the summer of 2020, three non-consecutive weeks in the summer of 2021 and thereafter, until the children reach an age that their views and preferences independently expressed will determine if they wish to share the summer periods of care with each parent.

[123] The schedule I order is as follows:

i. alternate weekends from Friday after school or daycare (4:15p.m.) to Monday at 7:00 p.m.; ii. alternate Mondays from after school or daycare to 7:00 p.m.; and iii. each Wednesday from after school or daycare to Thursday morning at school or daycare.

The pickup from daycare on Jason’s days is done by his mother. Her evidence was that she picks up the children between 4:15 – 4:30 p.m. each day.

Jason will additionally have the children in his care for two weeks this summer.

There are 8,760 hours in a year, i.e.: 365 days x 24 hours.

The schedule I have ordered broken down into hours is:

Alternate weekend (Friday 4:15 p.m. to Monday at 7:00 p.m.) is 74.75 hours One Monday is 2.75 hours Two Wednesdays is 15.75 hours x 2 is 31.5 hours Total for two week period: 109 hours (x 25 weeks) = 2,725 hours Two week summer holidays = 336 hours

TOTAL: 2,952

Which translates into 33.7 % of the time.

[124] I have used the hours approach in carrying out the time calculations.

[125] Even considering the holiday schedule, Jason does not have the children in his care 40% or more of the time.

[126] Next year, when an additional summer week is added (but a weekday period is taken away), he will still not have the children in his care 40% of the time.

[127] The parties agree that for child support purposes, Jason’s income is $43,680 and Alicia’s income is $57,193. Accordingly, Jason will pay to Alicia the sum of $650 per month in Guideline support based on his agreed upon annual income of $43,680 and his proportionate share of the s.7 expenses.

[128] There are currently no section 7 expenses, but my order will incorporate that they be shared in proportion to income.

[129] Accordingly, I make the following orders:

1. Alicia shall have custody of the children, Parker Patricia Rose Edwards, born May 1, 2013 (“Parker”), and Lincoln Lawrence Gary Edwards, born January 11, 2016 (“Lincoln”).

2. Jason shall have access to the children as follows: (a) alternate weekends, from Friday after school to Monday at 7:00p.m. with return to school/daycare on Tuesday morning but no earlier than 8:00 a.m. unless Alicia agrees in case of a holiday on Monday; (b) alternate Monday evenings, from after school/daycare until 7:00 p.m.; and; (c) each Wednesday evening from after school/daycare until Thursday at school or daycare, but no earlier than 8:00 a.m. unless Alicia agrees;

3. Holiday Periods of Care (all on consent except Summer and New Year’s Eve/New Year’s Day) (a) Christmas: (i) the children shall be with Jason on December 24 from 12:00 p.m. to 8:00 p.m. each year; (ii) the children shall be with Alicia on December 25 from 12:00 p.m. to 8:00 p.m. each year; (iii) in even numbered years, commencing in 2020, the children shall be with Jason from December 24 at 8:00 p.m. to December 25 at 12:00 p.m.; (iv) in odd numbered years, commencing in 2021, the children shall be with Alicia from December 24 at 8:00 p.m. to December 25 at 12:00 p.m.; (v) in odd numbered years, commencing in 2021, the children shall be with Jason on December 26 at 10:00 a.m. to 8:00 p.m., unless otherwise agreed; and (vi) in even numbered years, commencing in 2020, the children shall be with Jason on December 26 from 10:00 a.m. to 8:00 p.m., unless otherwise agreed.

Unless Otherwise Mutually Agreed in Writing:

(b) March Break: the parties shall adhere to the regular residential schedule during March. (c) Easter: (i) in even numbered years commencing 2020, the children shall be with Jason from their last day of school prior to Easter weekend, until Saturday at 7:30 p.m., and shall be with Alicia from Saturday at 7:30 p.m., until their return to school on Tuesday morning; and (ii) in odd numbered years commencing 2021, the children shall be with Alicia from their last day of school prior to the Easter weekend, until Saturday at 7:30 p.m., and shall be with Jason from Saturday at 7:30 p.m., until their return to school on Tuesday morning. (d) Thanksgiving: (i) in odd numbered years commencing 2021, the children shall be with Jason from Friday at 3:30 p.m. until Sunday at 9:00 a.m., and the children shall be with Alicia from Sunday at 9:00 a.m. until their return to school on Tuesday morning; and (ii) in even numbered years commencing 2020, the children shall be with Alicia from Friday at 3:30 p.m. until Sunday at 9:00 a.m., and the children shall be with Jason from Sunday at 9:00 a.m. until their return to school on Tuesday morning. (e) Mother’s Day / Father’s Day: (i) the children shall be with Alicia each Mother’s Day from 10:00 a.m. until 6:00 p.m.; and (ii) the children shall be with Jason each Father’s Day from 10:00 a.m. until 6:00 p.m. (f) New Year’s Eve / New Year’s Day: alternate each year with Jason to have the children in his care New Year’s Eve 2020 and New Year’s Day 2021 and Alicia to have the children in her care New Year’s Eve 2021 and New Year’s Day 2022 and this is to alternate each year. (g) Summer: In summer 2020 the children will be in each parent’s care for two weeks (non-consecutive). In summer 2021 and thereafter, the children will be in each parent’s care for three weeks (non-consecutive). Jason will have first choice of weeks in even numbered years and Alicia odd numbered years. The parent whose choice it is to choose first will advise the other by May 1st of each year with the other parent to advise by June 1st. These dates can be moved up if they are too late to enroll children in summer camps. As the children get older, an equal summer period of care may be appropriate if that corresponds with the views and preferences of the children and their best interests.

4. Alicia and Jason may make inquiries and be given information by the children’s teachers, school officials, doctors, dentists, health care providers summer camp counsellors, or others involved with the children. This clause provides each parent with access to any information or documentation to which a parent of a child would otherwise have a right of access. If, for whatever reason, this clause itself is not sufficient (although both parties intend it to be sufficient authority for either of them), the parties will cooperate and execute any required authorization or direction necessary to enforce the intent of this clause.

5. Day to day decisions with respect to the children shall be made by the parent with whom the children are residing at that time.

6. Jason shall not consume non-prescription drugs when the children are in his care and with respect to the prescribed marijuana, he will only consume the amount prescribed when the children are in his care.

7. In the event that a child experiences a medical emergency, the parent with the child will notify the other parent of the emergency immediately.

8. Both parties shall be named as emergency contacts with the children’s school(s), or with any other organizations involved with the children.

9. The parties shall keep each other apprised of their current addresses and telephone numbers at all times.

10. The parties shall abide by the following principles in their relationship with each other and their contact with the children: (a) They shall refrain absolutely from denigrating each other in the presence or within earshot of the children. (b) They shall refrain absolutely from engaging in any disputes with each other in the presence of or within earshot of the children, and from involving the children in any manner in conflicts which may arise between the parties. (c) They shall not use the children to pass messages or documentation on to each other. (d) They shall encourage the children to have a strong and positive relationship with both parents and shall use all reasonable efforts to foster a meaningful relationship between the children and extended family members.

11. The children’s passport, birth certificate, social insurance card and other legal documents shall remain in Alicia’s possession. Alicia shall provide Jason with the passport if he requires it for travel.

12. Alicia shall provide Jason with a notarized copy of the children’s health cards within ten days from the date of this order if she has not already done so.

13. Alicia shall not move the children’s residence from the Region of Waterloo without first providing 60 days written notice to Jason and either obtaining Jason’s written consent or a court order.

14. Jason and Alicia shall be permitted to travel internationally with the children with one another’s consent (consent for which shall not be unreasonably withheld) or by virtue of a court order.

15. Commencing on December 1, 2019 and on the first of each and every month thereafter Jason shall pay to Alicia for the support of the two children the sum of $650 per month.

16. Special and extraordinary expenses shall be shared pursuant to s. 7 of the Child Support Guidelines in proportion to income. Other than medical, dental, or daycare expenses for the children, such expenses shall be agreed upon in advance, agreement not to be unreasonably withheld.

17. Each party shall provide to the children his/her extended health care benefits available or to become available through his/her employment, for so long as the children so qualify.

18. Each party shall designate the children as beneficiary of his and her existing polices of life insurance, with the other party as trustee.

COSTS

[130] If either party wishes to pursue a claim for costs in connection with this matter, they shall serve and submit to the court written submissions (not to exceed 4 pages in length), relevant case-law, a detailed Bill of Costs and copies of any Offers to Settle within 21 days. Any responding submissions shall be served and submitted to the court 14 days thereafter. Reply submissions if any, shall be served and submitted to the court 7 days thereafter. There shall be no extensions to these deadlines. If a party does not submit submissions respecting costs in accordance with these deadlines, there shall be no costs payable to that party, although costs may still be awarded against that party. As a result of Covid 19 these submissions are to be directed to the following legal assistants: Mona.Goodwin@ontario.ca and Lori.Rebelo@ontario.ca as well as Kitchener.Superior.Court@ontario.ca. It is imperative that counsel indicate in the subject line that these are costs submissions’, and for which judge they are intended. When normal court operations resume the parties shall ensure their costs submissions are filed.

D. Piccoli, J

Released: April 6, 2020

COURT FILE NO.: FC-18-FS442 DATE: 2020-04-06 ONTARIO SUPERIOR COURT OF JUSTICE JASON EDWARDS Applicant – and – ALICIA McMAHON Respondent REASONS FOR JUDGMENT D. Piccoli, J Released: April 6, 2020