ONTARIO SUPERIOR COURT OF JUSTICE

NAPANEE COURT FILE NO.: 197/16 DATE: 20200415

BETWEEN:

Brittany Michelle Saunders Applicant

• and -

Daniel Geerte Ormsbee-Posthumus Respondent

COUNSEL: Lucienne MacLauchlan, for the Applicant Christina Rorabeck and Beth Ambury, for the Respondent

HEARD: February 26, 27 and 28, 2020

REASONS FOR JUDGMENT

TROUSDALE J.

[1] This was a Motion to Change by the Applicant and a Cross Motion to Change by the Respondent which were heard by me at a two and a half day trial. The Applicant (herein “the mother”) and the Respondent (herein “the father”) are each seeking changes to the Final Order of Justice Minnema made on consent of the parties on September 25, 2017. These changes relate to custody and parenting time of their son who is now 4 ½ years old and who started Junior Kindergarten in the fall of 2019. There are also issues regarding child support, section 7 expenses, extended health and dental benefits and other matters concerning the child.

Background

[2] The Applicant and the Respondent started dating in mid-2014 and started residing together shortly after that.

[3] The parties have a son born of their relationship in September, 2015.

[4] The parties separated in or about December 2015 when the child was just three months old. The child resided primarily with the mother eventually moving to alternate weekend parenting time with the father and every alternate Wednesday from 10:00 a.m. to 4:00 p.m. pursuant to a consent order made on November 14, 2016.

[5] On September 25, 2017, Justice Minnema made a Final Order on consent of the parties. The provisions of the order included the following terms:

(1) The parties have joint custody of the child. In the event they are unable to agree on a decision, the parties shall seek the assistance of a mediator prior to commencing a court proceeding.

(2) The father has access every alternating weekend from Friday at 10:00 a.m. to Sunday at 4:00 p.m. and all day Wednesday from 10:00 a.m. to 4:00 p.m. during the week after his weekend access, and all day Monday from 10:00 a.m. to 4:00 p.m. during the week after the mother’s weekend with the child plus such further and other access as agreed upon by the parties.

(3) There was a prescribed holiday and vacation schedule.

(4) The exchanges were to take place at a gas station in Odessa, Ontario.

(5) The father is to pay Child Support Guideline support to the Applicant for the child in the sum of $350.00 per month based on his annual income of $39,171.00 commencing May 1, 2017.

(6) Based on the father’s income and the mother’s income of $20,382.08, the father shall pay his proportionate share of Section 7 expenses for the child at 65.75 % of the expense.

(7) The father shall provide to the mother his personal and business annual income information, including his T4 slips, Income Tax Returns and Notices of Assessment and Reassessment by June 1 of each year.

[6] The father works for a security company and is placed as a security guard at a local hospital. The father has re-partnered and he and his spouse have two children together, being a two year old son and a newborn son. The father works on a continental shift schedule which involves day shifts and overnight shifts on a regular repeating schedule. The father can also sometimes trade shifts with other people at work.

[7] The mother is a college student and is competing her last semester this spring towards becoming a Registered Practical Nurse. She will be doing consolidation work and a placement this summer and expects to be writing her licensing exams in September, 2020. She works on shift work.

[8] The mother commenced her Motion to Change on October 26, 2018 seeking a number of changes including a change in the Final Order to grant her sole custody of the child as well as a change in the father’s access to every other weekend from Friday at 6:00 p.m. to Sunday at 6:00 p.m. as the child was to commence school in September, 2019 and would no longer be available for access with the father during the day on the alternate Wednesdays and alternate Mondays.

[9] The father filed a Response to Motion to Change in which he disputed all of the mother’s claims and made a number of claims himself, including a graduated increase in his parenting time resulting in shared 50/50 parenting, and an order providing greater detail and clarity to the holiday access schedule.

[10] On January 7, 2019, a temporary order was made on consent of the parties which included a change in child support that based on the father’s gross annual income of $45,039.59 for 2018, the father shall pay child support to the mother in the sum of $418.35 per month commencing January 1, 2019.

[11] In September, 2019 the child was commencing Junior Kindergarten and would no longer be available for midweek daytime parenting time with the father. On September 3, 2019 a further temporary order was made on consent of the parties which included provisions varying the father’s parenting time with the child to:

(1) Alternating weekends from Friday pick-up at school to Sunday at 6:00 p.m. If there were a PA day on the Friday, the father’s access would commence Thursday after school. If there were a holiday Monday, the father’s access would include the holiday Monday overnight to Tuesday morning at school.

(2) Every second Wednesday (following the father’s weekend) from pick-up after school to drop-off at school on Thursday morning.

(3) Every second Monday (following the mother’s weekend) from pick-up at school to drop-off at school on Tuesday morning.

(4) Such further and other times as agreed between the parties.

Issues

[12] The issues before me are as follows:

(1) What, if any, change should be made to the joint custody order now in place?

(2) What, if any, changes should be made to the parenting schedule?

(3) What, if any, changes should be made to other parenting issues including holidays, exchange location, and communication between the parties?

(4) What, if any, changes should be made to the child support?

(5) What, if any, changes should be made to proportionate sharing of Section 7 expenses?

(6) What, if any, arrears are there of child support?

[13] At the opening of the trial each party filed a draft order of what they are seeking. Both parties are in agreement that the Final Order of Justice Minnema made September 25, 2017 should be terminated based on material changes in circumstances. A Final Order shall go terminating the Final Order made by Justice Minnema on September 25, 2017.

Custody and Parenting Time

Positions of the Parties

[14] In her Motion to Change the mother originally sought an order granting her sole custody of the child. At the opening of the trial, the mother’s counsel advised that the mother was no longer seeking sole custody of the child, but rather was seeking an order for joint custody with the father, with the provision that the parties shall consult with each other on all issues related to the child’s education and medical treatment. The mother also seeks an order that in the event the parties cannot agree on any particular issue pertaining to the child’s education and medical treatment, the decision of the mother shall prevail.

[15] Although the mother had originally sought an order in her Motion to Change that the father have parenting time with the child every second weekend commencing September, 2019 when the child started school, the mother is now seeking that the schedule in place now pursuant to the temporary order of September 3, 2019 remain in place. Pursuant to this schedule, the father has the child every second weekend from Friday after school to Sunday evening, and one overnight per week from after school to the following morning at school.

[16] The mother seeks to have the final say on decisions as she alleges that the parties are unable to effectively communicate and make decisions together. She alleges that the father is passive-aggressive in his communication to her. He is constantly critical of her even when he agrees with her decisions. The father blames any issues arising with the child as something for which she and her home are responsible. The father tries to paint himself as the perfect parent. The mother argues that there is no trust between the parties. She alleges that the father and his new spouse are intimidating to her by searching out on social media any information regarding any men with whom she has friendships or relationships.

[17] The mother submits that the father’s proposal for mediation will not work in the situation where there is a power imbalance between the parties. Further, mediation is time-consuming and a decision may be required before mediation could take place. She argues the parties cannot afford the cost of mediation. The existing order provided for mediation in the event the parties could not agree on a decision, but neither party has ever engaged a mediator.

[18] The mother alleges that she and the father have had difficulty in coming to an agreement on in what activities the child should be involved. The mother’s position is that extracurricular activities are not custodial decisions. She is also concerned that the father has in the past wanted to have the child registered in activities in Kingston where he was residing at the time rather than in Napanee where she and the child reside and the child now goes to school.

[19] The mother submits that the parties need to have a way to resolve issues upon which they don’t agree by giving her the final say in the event the parties are unable to agree on a major decision concerning the child.

[20] The father alleges that the mother does not recognize the importance of the father’s role in the child’s life. He points to the mother’s Motion to Change which requested a change to sole custody to the mother and a substantial cut-back of the child’s time with the father to only every second weekend. He believes the mother’s Motion to Change was an attempt to limit his involvement in the child’s life as much as possible.

[21] The father is asking for an order that the parties continue to have joint custody of the child and that the parties shall consult with each other on all issues related to the child’s education and medical treatment. The father asks for an order that if the parties cannot agree, they shall engage in mediation to determine the issue with a third party mediator, with the cost to be shared equally between the parties, prior to bringing the matter before the court.

[22] The father seeks that he have parenting time with the child 50% of the time on a 2-2-3 schedule with exchanges at school where possible, to include every second weekend from Friday to Monday plus two other days including overnights in each week.

[23] The father submits that there should not be an order made that the mother’s decision should be final in the event the parties cannot agree on issues of the child’s education, medical treatment or extracurricular activities. He argues that the effect of this would be a veiled sole custody order to the mother. The father is very concerned that this change to the joint custody order is not in the child’s best interests because the mother would use this authority to exclude him from any future decisions about the child.

[24] The father alleges that even with the current Final Order where the parties have joint custody, the mother has nevertheless excluded the father from some major decisions regarding the child including such as at which school to register the child for Junior Kindergarten, who should be the child’s dentist, and in what sports the child should be registered. The father states the mother would discuss the extracurricular activities with the father after she had already registered the child. In effect, the father argues the mother has often behaved as if she had sole custody in spite of the existing order for joint custody.

[25] The father alleges that the mother has at times not followed the Final Order regarding sharing of holiday times. He states that the mother refused to give him any time at Easter, 2018 or at Thanksgiving, 2019.

[26] The father is very concerned about the mother’s evidence at trial that she might have to move to Ottawa for employment if more local employment were not available and in that case she would intend to move the child’s residence to Ottawa.

[27] On the other hand, the father submits that he and the mother have on many other occasions been able to make joint decisions regarding the child. The father testified that their ability to communicate effectively would be good for a period of time and then it would drop off.

The Child

[28] The child is generally a healthy and happy child. He recently started Junior Kindergarten. He had a couple of minor behavioural issues at school or on the bus but the parents were able to get those issues resolved. The child has over the last few years been involved in swimming lessons, T-ball, soccer and skating lessons.

[29] The child is loved by the mother and by the father and the child loves both his parents. The child has had a lot of contact with his maternal grandparents throughout his life as they have substantially assisted the mother with the care of the child while she has been attending school or working. The child has two half-siblings at his father’s home and the evidence is that he is enjoying his connection with his brothers. The child has a good relationship with the father’s wife. He has more limited but beneficial contact with the paternal grandfather and his wife, the paternal grandmother and the father’s sister.

[30] Shortly before the child’s 3rd Birthday the mother felt that the child was having some difficulties adjusting to going between the two homes. The mother’s evidence was that at times the child did not want to go to the visits and would become upset. She stated that the child would also act out on return from the father’s home, by kicking her and throwing things. The mother wanted the child to go to counselling but the father felt the child was too young and that it was not necessary as he was not observing any acting-out behaviour at his home, other than the child becoming upset when he had to stop doing whatever he was doing when it was time to leave the father’s home. The mother did not take the child to the child’s doctor to discuss this behaviour and whether counselling would be recommended. The father states that he would have been open to counselling if the doctor had recommended it.

[31] In September, 2019, the father brought a temporary motion to change his parenting time as the child was commencing school and the mother wanted to change the father’s time to every second weekend only. The mother at the same time requested an order permitting her to take the child to counselling. Ultimately the parents were able to come to an agreement in September, 2019 on the current parenting schedule and that the child commence counselling. This counselling just started in October, 2019. Both of the parents are involved with the child’s counselling.

[32] The mother’s evidence is that the child has had anxiety issues for some time. She alleges that the child picks his finger nails and toe nails when he is anxious. The father’s evidence is that he has not observed this behaviour during his parenting time with the child.

[33] The evidence of the father was that since many of the exchanges are now taking place at the child’s school, the exchanges are going smoothly. The mother’s evidence confirmed that this is the case.

[34] Both parents had agreed to an order that the Office of the Children’s Lawyer become involved in this matter, but unfortunately the Office of the Children’s Lawyer declined to become involved due to lack of resources.

Analysis re Custody and Parenting Schedule

[35] Pursuant to Section 24(1) of The Children’s Law Reform Act, R.S.O. 1990, c. C. 12. as am., the court is to determine custody and access to a child on the basis of the best interests of the child. Section 24(2) provides that the court shall consider all the child’s needs and circumstances including eight specified factors. My findings regarding those factors are as follows:

(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.

[36] I find that the mother and the father each love the child very much and that the child loves both of his parents.

[37] The child’s maternal grandparents have also had a great deal of involvement with the child since his birth as the mother and the child lived with them for the first three weeks after his birth as the father had to go to work and the mother had had an emergency c-section. After the separation of the parties, the mother and the child lived with the maternal grandparents for a period of time. To this date, the maternal grandparents continue to be greatly involved in the child’s life. Prior to the child commencing school, the maternal grandparents provided child care for the mother for a considerable period of time when she was at school or at work. They helped with getting the child to activities. The child takes the school bus to and from the maternal grandparents’ home when he is with the mother as she is going to school and working shift work.

[38] The child has a good relationship with the father’s spouse and with his two half-siblings. The child has not had as much time with the father’s relatives, but the child appears to have some relationship with the father’s mother, the father’s father and stepmother, and the father’s sister.

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

[39] The child loves both his parents and enjoys spending time with each of them. He is too young to ascertain his preferences.

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

[40] The child was an infant when the parties separated and lived primarily with the mother for the first years of his life with gradually expanding time with the father over time. In recent years before the child started school, the father has been having the child with him every second weekend and one day each week on his day off from work.

[41] The mother has been a student for some of that time, as well as working shift work which makes things more difficult for her. The mother stated that it is likely she will be working 8 or 12 hour shifts when she graduates and obtains full-time employment. She has provided a stable home for the child with assistance from her parents.

[42] Unfortunately, there has been some instability in some of the mother’s relationships since the separation of the parties which has been of concern to the father. The mother has had one live-in relationship since separation where unknown to her prior to cohabitation the partner had a criminal record, mental health issues and substance abuse issues. The mother has had as well other shorter relationships where the child was introduced to the person and in some cases their child or children. When these relationships ended, it was confusing and a loss for the child as to where these persons and their children had gone. It would be preferable for the mother to wait a while before introducing a new relationship to the child.

[43] The father has a stable relationship with his spouse and they have two young children. The father also works shift work on 12 hour shifts including overnight shift work which makes things more difficult for him. However, the father has been able to provide a stable home for the child during his parenting time with the assistance of his spouse.

(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;

[44] Both parents acknowledge that the other is a good parent to the child. I find that each of the parents is a good parent and each of them is well able to provide for the needs of the child. Both parties have been involved in the child’s medical and educational needs. The mother has ensured that the child has had extracurricular activities available, although the father wishes to have consultation and discussion regarding activities prior to the child being registered. At this point, the child does not appear to have any special needs other than he is engaged in counselling.

[45] The father has paid the child support ordered by the court. However, although the father maintains that he has followed the Final Order “to a T” while the mother has not regarding his parenting time and consultation regarding major issues, the father did not provide his 2017 income tax return to the mother as required by the Final Order dated September 25, 2017 until January, 2019 even though the mother had requested it from him. This resulted in the father paying less child support to the mother than he should have for a period of some months.

[46] Although not required by the Final Order, the father did not provide the mother with his benefits information from his employment so that she could use it for the child’s health and dental needs even when she requested this information. I find that this reflected a certain element of control by the father regarding these benefits.

[47] The parties also had significant conflict regarding daycare expenses and the availability or not of a subsidy which resulted in the child being withdrawn from daycare. The mother did not comply with a court order to produce documentation regarding her application for a subsidy.

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

[48] The mother wishes to maintain the current schedule and the current joint custody with the proviso that she should have the final say on major health care decisions and education decisions if the parties cannot agree.

[49] The father wishes to maintain the current joint custody order with the parties to go to mediation if they are unable to agree. The father also wishes to expand his parenting time with the child to a 50/50 time share. If the court finds that the 50/50 time share should be implemented more gradually, the father requests that he have the alternate Sunday overnight added now to his alternate weekends and that the 50/50 time share commence in the summer of 2020.

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

[50] The mother is living with the child on her own in rental accommodation. She has the assistance of her parents who are well-known to the child for assistance when she is at school or working.

[51] The father is living in rental accommodation with his spouse and their two young children as well as the child in this case during his parenting time. The father and his spouse recently moved from Kingston to be closer to the child’s school. The father and his spouse appear to have a stable permanent relationship. The father’s spouse is on maternity leave and is able to care for the child and drop off or pick up the child from school if the father is working. The father also has support from paternal relatives for transportation to and from school if required.

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

[52] I find that these parents are both good parents. At times they get along quite well and are able to make reasonable decisions about the child. I find, however, that at other times they each in their own way show a lack of respect for the other parent and the important role that each of them plays in the life of the child. At times the parties have little or no trust between them and this litigation has probably not helped that situation.

[53] I find that despite the existing joint custody order, the mother has made important decisions without discussing them with the father. The mother chose the dentist for the child with no prior discussion. I find the mother has made decisions about extracurricular activities for the child and registered the child before discussing the activity with the father. The father alleges that the mother applied to register the child at his current school before she discussed that school with him. On a careful reading of the texts, it appears that the mother had in fact raised the possibility of that school with the father in a prior discussion about various schools, but I find the mother did go ahead to make the application without getting the father’s consent to do so.

[54] The father has not been unhappy with many of the decisions that the mother has made without his consent, but he reasonably wishes to be consulted first and to be in a position to discuss the issue and give his consent if he agrees.

[55] The mother was reluctant to have the child receive the flu shot in early 2020. The father wanted the child to receive the flu shot for the child’s own protection, and also for the protection of his pregnant spouse who has a weaker immune system, and for the protection of the new infant about to arrive in their household. The mother consented at first, then changed her mind and then refused to consent to the child having the flu shot. The father referred the mother to the nurse practitioner to discuss it. The mother subsequently consented. The father did not go ahead until the mother consented. As this was the child’s first flu shot it was recommended that he also have a booster. The mother then refused to consent to the booster and the father did not proceed with it although he would have liked to do so. In texts between the parties at that time when the father was trying to understand why the mother did not wish the child to have the booster shot, the mother said she did not have to have reasoning for her choices and opinions.

[56] When asked at the trial about her refusal to consent to the booster shot, the mother acknowledged that the doctor’s office recommended it but had said it was the parent’s preference. The mother stated that it was her opinion the child should not have the booster but even when asked why that was her opinion, she did not express any reason as to why that was her opinion. There is no evidence that the father has ever gone ahead with any major decision to which the mother has not consented.

[57] Although denied by the father, I find that the father earlier in the child’s life resisted the child being baptized Catholic. As a result, the mother did not proceed to have the child baptized even though she would have liked to.

[58] I find that the mother has sometimes not complied with court orders regarding parenting time such as at Easter, 2018 and Thanksgiving, 2019. Similarly, the father did not comply with the court order regarding annual financial disclosure in 2018. Both parties are required to comply with court orders.

[59] I find that the father is sometimes quite critical of the mother in his communications with her, even though on the surface he communicates in a fairly polite way. However, the father is indignant when the mother makes a critical comment about him or raises an issue about the child which at all suggests that there is a problem at his home. He will immediately imply that it is due to some problem at the mother’s home rather than trying to solve the problem together with the mother.

[60] The father and his spouse research on Facebook and on the internet and other social media sites any male person who is at all involved in the life of the mother, whether as a friend or otherwise. This is overbearing and demonstrates a lack of trust in the mother’s judgment.

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

[61] Both the mother and the father are a biological parent of the child.

Conclusion on Custody

[62] I find that it is in the best interests of the child that the parties continue to have joint custody of the child. The parents are both good parents and each has a lot to offer to the child. Both of these parents want the best for their child and they both have similar values and views on that.

[63] The issue is whether or not the mother should have the final decision in the event the parties cannot agree, or whether the parties should attend mediation in the event the parties cannot agree.

[64] I note that the parties have been able to agree on a number of major decisions regarding the child and those decisions are already in place:

(a) The child is now enrolled and settled in school and both parents seem satisfied with that school.

(b) Although I find that the father resisted the child being baptized in the Catholic Church after separation, both parties now agree that the child may be baptized in the Catholic Church. The father’s spouse is Catholic and their first-born son has been baptized Catholic.

(c) The parties have ultimately been able to agree on the child having counselling and both parents are engaged in the counselling.

(d) The child has a doctor.

[65] I find that it is not in the best interest of the child that the mother have the final decision in the event the parties cannot agree. In the past the mother has made decisions without consulting the father and/or without obtaining his consent. Understandably, the father fears that giving the mother the final say will result in him being cut out of any effective input into major decisions regarding the child. I find that giving the mother the final say would marginalize the father’s role in the life of the child.

[66] On the other hand, although the Final Order made on consent provided for mediation in the event the parties could not agree on a major issue, neither party has ever engaged in mediation. There is a cost factor, and a time and delay factor which make mediation an ineffective resolution mechanism for these particular parties.

[67] If the parties are having difficulty in agreeing on health and educational issues regarding the child, the parties should jointly consult the professionals involved so they can both ask any questions they may have and so they both hear the same information from the professionals at the same time. This should assist the parties in coming to a joint decision.

[68] I do generally consider involvement in extracurricular activities to be a custodial decision as it usually affects the parenting time of each parent unless the activity is one that can be done solely on the time of the parent who wishes the child to participate, and it is not otherwise an activity that for some reason, health-wise or otherwise, is not in the best interests of the child.

[69] Both parties appear to wish the child to participate in activities. It is more a question of each party being involved in the decision. The parties should start talking about the issue well before each season starts. As registration for activities often comes up quickly and the available spots fill up fast, each party must respond to the other in a timely manner regarding these issues or the child will miss out on opportunities. This result would not be in the best interest of the child. As the child gets older, his interests and his wish to play with his friends or continue on the same team he has played on before will also need to be taken into account by the parents in coming to a decision.

[70] There shall be an order that:

(1) The mother and the father shall have joint custody of the child.

(2) The parties shall consult with each other on all issues related to the child’s health, his medical and dental treatment, education, religion, extra-curricular activities, and the general well-being of the child and they shall make joint decisions regarding these matters after consultation between them regarding these issues.

(3) If the parties are unable to agree on any issues regarding the child’s medical or dental treatment, the parties shall jointly consult any doctor(s), dentists, or other professionals involved with the child’s treatment in attempting to reach a joint decision.

(4) If the parties are unable to agree on any issues regarding the child’s education, the parties shall jointly consult with the child’s teacher, principal, or others involved with the child’s education in attempting to reach a joint decision.

(5) Neither party shall change the child’s school from Southview Public School in Napanee, Ontario without the prior written consent of the other.

(6) The parties shall keep each other fully informed in a timely manner regarding the child’s health, his medical and dental treatment, education, religion, extra-curricular activities, and general well-being of the child.

(7) Each party shall be entitled to attend all appointments and activities for the child, regardless of the parenting schedule. Each party shall use her and his best efforts to schedule the appointment when the other party is available provided that it does not interfere with timely treatment. If the other party is not available to attend the appointment, the party attending with the child shall send the other a written communication of the outcome of the appointment within 24 hours of the appointment as to how the appointment went.

(8) Should the child be admitted into hospital, both parties shall have unrestricted access to him.

Parenting Schedule

Positions of the parties

[71] The mother argues that the father is seeking too many changes in the parenting schedule all at once when the child has already had a number of recent changes. The child started a new schedule with the father in September, 2019 which included for the first time one overnight during the week each week, as well as the child started school in September, 2019. She argues that the Parenting Plan Guide prepared by the Ontario Chapter of the Association of Family & Conciliation Courts (AFCC-O) recommends that for preschoolers age 3 to 5 years, one needs to consider what the parenting situation was prior to separation and when the child was younger, and to maintain the primary residence during this period of development with a possible step-up plan of care to increase the involvement of the other parent over time. The mother argues that she has done this by increasing the father’s parenting time and that she will consider increased involvement of the father at the next stage of development being 6 to 9 years according to the AFCC-O Parenting Guide.

[72] The father argues that the child has adjusted very well to the new schedule and that the child has also adjusted well to school. The father submits that the child is ready to increase to a shared 50/50 parenting at this time. The 2-2-3 schedule would mean the child would not be away from either parent for a lengthy time. He submits that the increase he is requesting is in accordance with the principle of maximum contact between a parent and the child as is consistent with his best interests. However, if the court finds that the increase should be more gradual he is willing that implementation of the 2-2-3 schedule be delayed to the summer of 2020.

[73] I note that the AFCC-O Parenting Guide is not binding on the court. However, it does provide a great deal of very helpful information to the court, which would also be of assistance to the parties in this case now and in the future.

Conclusion regarding Parenting Schedule

[74] On the evidence before me, I find that the child has had a number of recent changes in his life to which he has had to adjust in a relatively short period of time. The child has had a change in his parenting schedule in September, 2019 where he is now spending 4 overnights every two weeks at the father’s home rather than 2 overnights every two weeks. The child started school for the first time in September, 2019. School is full days, five days per week which is a significant and tiring change for young children.

[75] Since the trial, the child has also had the Covid-19 virus interruption of his school year which has resulted in a further major change in his weekly routine as all Ontario schools have been closed since March 14, 2020. Schools will only be re-opened at the earliest on May 4, 2020 subject to the potential of a further extension of the closure.

[76] According to the mother’s evidence the child has anxiety issues. The father does not agree. The child just commenced counselling in October, 2019 and had had only about 4 sessions by the time of trial in late February, 2020. It is quite likely that the counselling has not continued during the Covid-19 pandemic and will have to re-start at a later time once it is safe to do so.

[77] Having found that the parents are both good, loving and involved parents, I find that it is in the best interests of the child that the parties move over time towards equal parenting time with the child. However, taking into account the above circumstances, I find that it is in the best interests of the child that the current parenting schedule should continue as it is at the present time subject to one modification that on the father’s alternate weekends he shall have the child overnight on Sunday overnight. Advantages of this change are that it slightly increases the father’s time with the child, and the exchange on Monday morning will take place at the child’s school which has proven to have gone smoothly for the child.

[78] I find on the evidence that with all the changes for the child this school year and the disruptions in the routine of this school year due to Covid-19, it is not in the best interests of this child that the parenting schedule be increased to a 2-2-3 schedule now or in the summer of 2020. I do find however, that the father’s time with the child should be increased for the summer of 2020 to include Wednesday during the day after his weekend and Monday during the day after the mother’s weekend except where the Monday is a holiday Monday in which case the father’s time shall commence at 4:00 p.m. so that the mother gets the benefit of the holiday falling on her weekend. I understand from the evidence that this coincides with the father’s days off.

[79] Once the child has completed Senior Kindergarten in June, 2021 he will be within two and a half months of his 6th Birthday which is another point of development at which the AFCC-O Parenting Guide suggests is an appropriate time to review the Parenting Plan. I find that the child’s Regular Parenting Schedule should be adjusted to equal parenting time in the summer before Grade 1 so that the child can adjust to the new schedule before he starts school again in September, 2021.

Regular Parenting Schedule

[80] An order shall go commencing immediately, that subject to the Holiday Parenting Schedule hereinafter set out, the child shall be in the care of the father as follows:

(a) Every second weekend from Friday pick-up from school to Monday at drop-off at school. In the event the father’s weekend is preceded by a PA Day or a strike day or a snow day his weekend shall commence on Thursday after school. In the event the father’s weekend is followed by a statutory holiday on the Monday, his weekend shall be extended to Tuesday at drop-off at school.

(b) Alternating Wednesdays (following the father’s weekend) from pick-up after school to drop-off at school Thursday morning.

(c) Alternating Mondays (following the mother’s weekend) from pick-up after school to drop-off at school Tuesday morning.

(d) Any further and other time as is mutually agreed upon by the parties in writing.

[81] The child shall be in the care of the mother at all other times except as otherwise expressly set out herein. The parties may adjust the Regular Parenting Schedule if both parties agree in writing. This Regular Parenting Schedule shall continue to and including the last school day of the 2020/2021 school year (“last day” shall be the last day the child is supposed to attend school and shall not include any PA days after the last day the child is supposed to attend school) at which time this schedule shall terminate and be replaced by the following Regular Parenting Schedule.

Regular Parenting Schedule (as of last school day of 2020/2021 school year)

[82] Commencing on the first day after the last school day of the 2020/2021 school year, subject to the Holiday Parenting schedule hereinafter set out, the child shall be in the care of the mother and of the father on the following 2-2-3 parenting schedule, with the parties to start this Regular Parenting Schedule at the appropriate numbered Week below to maintain the usual flow of weekends from the prior Regular Parenting Schedule:

(a) Week 1

The child shall be in the care of the mother from Monday at 9:00 a.m. to Wednesday at 9:00 a.m., then in the care of the father from Wednesday at 9:00 a.m. until Friday at 9:00 a.m., then in the care of the mother from Friday at 9:00 a.m. until Monday at 9:00 a.m.

(b) Week 2

The child shall be in the care of the father from Monday at 9:00 a.m. to Wednesday at 9:00 a.m., then in the care of the mother from Wednesday at 9:00 a.m. until Friday at 9:00 a.m., then in the care of the father from Friday at 9:00 a.m. until Monday at 9:00 a.m.

[83] The parties may adjust the Regular Parenting Schedule only if both parties agree in writing.

[84] For clarity, the party caring for the child according to the schedule above shall be the parent responsible for the child during that time, and should be the party notified by the school or other third party childcare provider if the child is ill or needs to leave school early for any other reason.

Holiday Parenting Schedule

[85] On the evidence at the trial, I find that the parties have had some difficulties regarding the sharing of holidays and the interpretation of the existing Final Order made on September 25, 2017.

[86] In my view, the Holiday Parenting Schedule for these parents needs to be as specific as possible. Court orders need to be complied with by both parties. I have reviewed the draft orders put forward by each party at the opening of the hearing. In some cases, the parties were able to agree how certain holidays should be treated. In other cases they were not and I have determined those issues based on the evidence and on the best interests of the child.

[87] There shall be a Final Order that the Holiday Parenting Schedule shall be as follows:

Holiday Parenting Schedule

The child shall be in the care of each party on the following Holiday Parenting Schedule, which supersedes the Regular Parenting Schedule:

(1) March Break

(a) The parties shall share the March Break equally. The child shall be in the care of the person whose regular weekend is at the beginning of March Break until Wednesday at 12:00 noon on the Wednesday of March Break. The child shall be in the care of the person whose regular weekend is at the end of March Break from Wednesday of March Break at 12:00 noon to Monday at school.

(2) Easter Weekend

(a) In even numbered years, no matter whose weekend it is according to the Regular Parenting Schedule, the child shall be in the father’s care from Friday at 9:00 a.m. to Sunday at 9:00 a.m. and in the mother’s care from Sunday at 9:00 a.m. to Tuesday at school.

(b) In odd numbered years, no matter whose regularly scheduled weekend it is according to the Regular Parenting Schedule, the child shall be in the mother’s care from Friday at 9:00 a.m. to Sunday at 9:00 a.m. and in the father’s care from Sunday at 9:00 a.m. to Tuesday at school.

(c) On the weekend following the Easter weekend, the child will be in the care of the parent who had the care of the child on the weekend prior to the Easter weekend so the regular alternate weekend schedule shall continue in the normal course.

(3) Mother’s Day

(a) If in any year the father’s weekend according to the Regular Parenting Schedule includes Mother’s Day, the child shall be in the care of the mother on Mother’s Day from 10:00 a.m. to Monday at school.

(4) Father’s Day

(a) If in any year the mother’s weekend according to the Regular Parenting Schedule includes Father’s Day, the father shall have the child with him on Father’s Day from 10:00 a.m. to Monday at school.

(5) Summer School Vacation

(a) In each year, the mother and the father shall each have the child for one period of 7 consecutive uninterrupted days to take place in either July or August which shall include that parent’s weekend according to the Regular Parenting Schedule as part of the total 7 days. Parenting time for the non-holiday parent according to the Regular Parenting Schedule shall not take place during that 7 day period.

(b) In odd numbered years, the father shall have first choice of vacation week and shall notify the mother in writing of his choice of vacation week by May 1. The mother shall notify the father in writing of her choice of vacation week by May 10.

(c) In even numbered years, the mother shall have first choice of vacation week and shall notify the father in writing of her choice of vacation week by May 1. The father shall notify the mother of his choice of vacation week by May 10.

(d) Except for each party’s uninterrupted vacation week as set out above, the Regular Parenting Schedule in effect at the time shall be followed during the Summer School Vacation with the following modification for the summer of 2020:

(i) During summer school vacation of 2020, the father’s alternate Wednesdays with the child (after the father’s weekend) shall be from Wednesday at 9:00 a.m. to Thursday at 9:00 a.m., even if the Wednesday is a holiday, and the father’s alternate Mondays with the child (after the mother’s weekend) shall be from Monday at 9:00 a.m. to Tuesday at 9:00 a.m. except if the Monday is a holiday Monday in which case the child shall come into the father’s care on Monday at 4:00 p.m. to Tuesday at 9:00 a.m.

(6) Thanksgiving

(a) In odd numbered years, no matter whose weekend it is according to the Regular Parenting Schedule, the child shall be in the mother’s care from Friday after school to Sunday at 12:00 noon and in the father’s care from Sunday at 12:00 noon to Tuesday at school.

(b) In even numbered years, no matter whose weekend it is according to the Regular Parenting Schedule, the child shall be in the father’s care from Friday after school to Sunday at 12:00 noon and in the mother’s care from Sunday at 12:00 noon to Tuesday at school.

(c) On the weekend following the Thanksgiving weekend, the child shall be with the parent who had the care of the child on the weekend prior to the Thanksgiving weekend so that the regular alternate weekend schedule shall continue in the normal course.

(7) Christmas School Vacation

(a) The Christmas School Vacation shall start from the time the child gets out of school for the holidays and continue until the child returns to school.

(b) In odd numbered years, the father’s parenting time shall include Christmas Eve Day at 10:00 a.m. to Christmas Day at 12:00 noon, and the mother’s parenting time shall include Christmas Day at 12:00 noon to Boxing Day at 4:00 p.m.

(c) In even numbered years, the mother’s parenting time shall include Christmas Eve Day at 10:00 a.m. to Christmas Day at 12:00 noon, and the father’s parenting time shall include Christmas Day at 12:00 noon to Boxing Day at 4:00 p.m.

(d) The balance of time during the Christmas School Vacation shall be equally divided between the mother and the father, with the parties to mutually agree upon the division by November 15 in each year. If the parties are unable to agree, the mother shall have the first choice of one half of the balance of the Christmas school vacation in odd numbered years and the father shall have the first choice of one half of the balance of the Christmas school vacation in even numbered years.

(8) Changes may be made to the Holiday Parenting Schedule only if mutually agreed upon by the parties in writing.

Condition re Respondent’s brother

[88] In early October, 2018, the father’s brother (the child’s uncle) was criminally charged with some offences involving child pornography.

[89] The release conditions of the father’s brother provide he is not to be in the presence of anyone under the age of 18 years. The mother is concerned that the father has put the child at risk as she believes the father has allowed the child to see his uncle since the charges were laid based on the child telling the mother he saw his uncle around Thanksgiving.

[90] The mother seeks an order that the Respondent shall not permit any contact between the child and the father’s brother during the father’s parenting time.

[91] The father is also concerned about his brother’s criminal charges for child pornography and agrees that the child should not have any contact with the father’s brother at this time while charges are still pending against the father’s brother. He adamantly denies that the child has had any contact with the father’s brother since the charges were laid. Both the father’s spouse and the paternal grandfather also testified that there has been no contact between the child and the father’s brother since the charges were laid.

[92] I find on the evidence that since the charges were laid, the father has not permitted any contact between the child and the father’s brother.

[93] The father consents to an order being made that he shall not permit any contact between the child and the father’s brother while the child pornography charges are still pending against the father’s brother but is not prepared to agree to an order that the child can never see the father’s brother ever again when the charges have not yet been dealt with.

[94] I find that the child should be protected from risk of harm from contact with the father’s brother. There shall be a Final Order that during the father’s parenting time, the father shall not permit nor allow anyone else to permit any contact between the child and the father’s brother (the name of the father’s brother shall be set out in the Final Order but not in the published version of these Reasons for Judgment) without further order of this Court.

Exchanges

[95] The parties were close to agreement on the exchange location clause. There shall be an Order that the exchanges of the child shall be at the child’s school when in session. When school is not in session, exchanges shall be at the Mr. Gas Station in Odessa (adjacent to the OPP detachment), unless otherwise agreed upon by the parties in writing. Neither party shall engage in conflict during exchanges.

[96] The father wishes to authorize 8 people including himself to pick-up and drop-off the child at school during his parenting time with the child. The mother is agreeable to each party being able to authorize up to three other people in addition to himself or herself to pick-up or drop-off the child at school during his parenting time.

[97] I find the father’s proposal to be unwieldy and possibly confusing for the school. There shall be an order that the mother may authorize up to 4 people in addition to herself to drop-off and pick-up the child at school during his parenting time and that the Respondent may authorize up to 4 people in addition to himself to pick-up and drop-off the child at school during his parenting time.

Passport and Travel

[98] Both parties have provided suggested paragraphs regarding obtaining a passport for the child and for travel by each party with the child. There were no submissions on these issues.

[99] Having considered these issues, there shall be an order that the mother shall forthwith apply for a passport for the child (subject to unavoidable delay because of Covid-19) and the father shall cooperate with the completion and signing and returning of the form to the mother within 7 days of receiving it. The cost thereof and the cost of any renewal shall be divided between the parties as a Section 7 expense.

[100] The mother shall retain the original passport when issued and any renewal thereof, and shall provide the other father with a copy of the passport. The mother shall provide to the father the original passport on an as needed basis at least 10 days prior to the departure date for the travel. The father shall return the original passport to the mother within 7 days of the date of return from travel unless it is needed earlier by the mother for travel by her with the child. The parties shall cooperate in signing an application for any renewal of the child’s passport.

[101] Regarding travel with the child, there shall be an order that where a party plans a trip with the child outside of the Province of Ontario or Canada, the travelling party shall give the other party at least 14 days prior notice of the trip. Neither party shall unreasonably withhold consent to the travel for the purposes of a reasonable vacation. The travelling party shall provide to the non-travelling party a written itinerary of the trip including the name of the airline and date and flight numbers of each flight, if applicable, and contact information for the travelling party and the child throughout the trip. The non-travelling party shall sign a travel authorization letter consenting to the travel and shall provide that signed letter to the travelling parent at least 10 days in advance of the departure date.

Extended Health and Medical Benefits

[102] There was nothing in the existing Final Order dealing with extended health and medical benefits. The father has extended health benefits but the mother does not at this time. She hopes to obtain employment on completion of her studies later this year.

[103] The mother’s evidence is that she has had difficulty getting information from the father about his health plan number and how to access his health plan for the benefit of the child for dental care and other health and medical benefits.

[104] The father’s evidence is that recently his union changed and there was a period of time during which he did not have that information. He has no objection to maintaining the child under his plan nor in providing the details to the mother. However, he wishes the mother to do the same if she has extended health and medical benefits available to her through her employment.

[105] I find that the father did delay in providing information regarding his plan to the mother and that she had requested it from him without it being provided even up to the time of trial. Some of that delay may have been due to the change in union but the delay also seemed to be the father wanting to keep control over his benefits.

[106] There shall be an order that the mother and the father shall maintain extended health and dental benefits for the child for so long as they are available through his and her employment. Each party shall forthwith provide the particulars to the other of any plan he or she now has or subsequently has available through employment to enable the other to access such benefits on behalf of the child.

Other matters

[107] There shall be an order that neither party shall speak negatively about the other party to the child nor in or the presence or hearing of the child nor allow any other person to speak negatively about the other party to the child nor in the presence or hearing of the child.

[108] There shall be an order that except in an emergency, the parties shall communicate in writing and limit their communication to the subject of the child. The parties shall ensure that all communication between themselves is civil.

[109] There shall be an order that in the event the child requires emergency medical care while in the care of one party, that party shall advise the other party by telephone as soon as is practical.

[110] The father seeks an order that the child’s original OHIP card go back and forth with the child. There is a good possibility that the child’s OHIP card may be lost or go astray where the pick-ups and drop-offs are being done primarily at school. Accordingly, there shall be an order that the mother shall retain the child’s original OHIP card and shall provide a certified copy of the OHIP card to the father within 30 days of the date of this order, and within 10 days of her receipt of any renewal of the card. The mother shall provide the original OHIP card to the father if required by him in order to meet the child’s needs provided that he shall immediately return the OHIP card to the mother at the next exchange.

[111] The father is concerned about the mother’s evidence that she may be seeking employment in the Ottawa area if she is unable to find employment in the Kingston, Napanee, Picton area. He seeks an order that neither party shall move the residence of the child further than 60 kilometres from the other parent’s residence without the other party’s written consent or a court order.

[112] Where both parties are very much involved in this child’s life, I find it reasonable that there be an order that neither party shall move his or her residence more than 60 kilometres from the other party’s residence without the other party’s prior written consent or the order of this court.

Child Support including any arrears of child support

[113] The Final Order of Justice Minnema made September 25, 2017 provided that based on the father’s income of $39,171.00 the father shall pay child support to the mother for the child in the sum of $350.00 per month commencing May 1, 2017. That Final Order also provided that by June 1 in each year, the father shall provide to the mother his personal and business annual income information, including his T4 slips, Income tax Returns and Notices of Assessment and Reassessment.

[114] On reviewing the father’s income tax information attached to the Financial Statements filed by him during the course of this proceeding, I find that the father’s income for the September 25, 2017 order was based on his income for 2016 as per his 2016 income tax return.

[115] Contrary to the existing Final Order, the father failed to provide his 2017 income tax return to the mother by June, 2018 and accordingly, there was no adjustment in child support until a consent temporary order made on January 7, 2019 that based on the Respondent’s gross annual income for 2018 in the sum of $45,039, the Respondent shall pay child support to the Applicant in the sum of $418.35 per month.

[116] I find that the parties’ intention in consenting to the Final Order of Justice Minnema was that the child support would be based each year on the father’s income for child support purposes for the prior taxation year. I find that it was also the intention of the parties that the child support would be adjusted each year based on the prior year’s income of the father. For some reason, in the Final Order the parties picked the date of May 1, 2017 to commence the child support. However, in the draft order put forward at the opening of the trial on behalf of the mother, the date for adjustment is put forward as July 1. As income tax returns do not have to be filed until April 30 in each year, I find it is appropriate that the date for adjustment of child support start on July 1 in each year.

[117] There is a dispute between the parties as to what the father’s income is for child support purposes for 2017. The mother submits that the father’s income is $51,076.00 as per his Notices of Assessment and Reassessment. The father submits that his income for child support purposes is $45,459.00. The father’s evidence is that approximately $5,000.00 of his new spouse’s ODSP was included in his income. I find that the income tax material attached to the father’s Financial Statements filed in this proceeding which includes his spouse’s ODSP statement supports the position put forward by the father. I find that the father’s income for child support purposes in 2017 was $45,459.00 calling for a child support payment of $422.00 per month.

[118] On reviewing the draft order submitted by the mother at the opening of trial, and the opening statement on behalf of the father, the parties agree that the father’s income for 2018 for child support purposes is $44,423.00 calling for a child support payment of $411.00 per month.

[119] There shall be an order that commencing July 1, 2018 to June 1, 2019 inclusive, the father shall pay child support to the mother for the support of the child, in the monthly sum of $422.00 per month in accordance with the Child Support Guidelines (Ontario) based on the father’s income of $45,459.00 for 2017, with credit given to the father for the monthly child support payments which he has made pursuant to the Order of Justice Minnema dated September 25, 2017 for those months.

[120] There shall be an order that commencing July 1, 2019 to June 1, 2020 inclusive, the father shall pay child support to the mother for the support of the child, in the monthly sum of $411.00 per month in accordance with the Child Support Guidelines (Ontario) based on the father’s income of $44,423.00, with credit given to the father for the monthly child support payments which he has made pursuant to the Final Order of Justice Minnema dated September 25, 2017 and the temporary order of Justice Trousdale dated January 7, 2019 for those months.

[121] When the Family Responsibility Office has recalculated the child support payments in accordance with this order and given the Respondent credit for the payments he has made, it appears to me that there will likely be some arrears owing by the father to the mother.

[122] The mother seeks that the father pay the arrears within 30 days of the date of this order. The father seeks that if there are any arrears, they should be set at zero as he alleges that the mother refused to send the child to access visits with proper clothes, outerwear, footwear or winter wear resulting in the father having to expend funds on these items. He also argues he incurred additional costs of transportation as the mother regularly forced him to travel to Napanee to exchange the child rather than at Odessa as provided for in the Final Order.

[123] I am not satisfied on the evidence that the arrears of child support should be set at zero. The father knew that his income had increased from the amount set out in the Final Order, but he failed to provide his income tax return to the mother for 2018 in a timely fashion as required by the Final Order even when it was requested by the mother.

[124] There shall be an order that commencing July 1, 2020, the father shall pay to the mother the sum of $50.00 per month towards any arrears until the arrears are paid in full.

[125] The order shall state that this order will not preclude the Director of the Family Responsibility Office from collecting arrears from any government source, such as HST or income tax returns, or from any lottery or prize winnings of the father.

[126] The order shall state that for so long as the child is entitled to child support, the mother and the father shall provide to the other a complete copy of her and his income tax return including T4s for the prior year by June 1 in each year commencing June 1, 2020, and a copy of her and his Notice of Assessment and any Notice of Reassessment within 15 days of receiving it from Canada Revenue Agency.

[127] The order shall state that when the Regular Parenting Schedule calling for a 2-2-3 schedule is implemented after the last day of school in June 2021, the parties shall review the issue of child support in accordance with Section 9 of the Child Support Guidelines (Ontario).

Section 7 Expenses

[128] At the opening of the trial, the mother advised that she was not seeking any retroactive Section 7 expenses.

[129] I have found the father’s current income for child support purposes is $44,423.00. The mother’s Line 150 income in her 2018 income information from Canada Revenue Agency is $22,938.00. The father seeks to impute income to the mother regarding her OSAP but as I have no information regarding her grant amount, I decline to do so.

[130] With respect to ongoing Section 7 expenses, there shall be an order that the parties shall consult with each other with respect to any special or extraordinary expense for the child and they shall each consent in writing prior to incurring such expense. Neither party shall unreasonably withhold his or her consent. Pursuant to Section 7 of the Child Support Guidelines (Ontario), the parties shall share the child’s special and extraordinary expenses in proportion to their incomes, which on their current incomes of $44,423.00 for the father and $22,938.00 for the mother result in the father being responsible for 66% of the expense and the mother being responsible for 34% of the expense.

[131] The usual Family Responsibility Office clause shall also be included in this order.

[132] There shall be an order that the parties shall immediately notify the other if they have a significant change in income or a significant change in employment, including the name and address of the employer, and the salary and any benefits from that employment.

Costs

[133] If the parties are unable to resolve the issues of costs between them, the Applicant shall serve and file written submissions regarding costs of no more than 3 typewritten pages plus a Bill of Costs and any offers to settle by May 15, 2020. The Respondent shall have 21 days after receipt of the Applicant’s response to serve and file written submissions of no more than 3 typewritten pages plus a Bill of Costs and any offers to settle. The Applicant shall have 10 days after receipt of the Respondent’s submissions to serve and file any reply. If neither party files any submissions within the aforesaid timeframe, there shall be deemed to be no order as to costs.

Order

[134] Final Order to go in accordance with these Reasons for Judgment.

Justice A.C. Trousdale

Released: April 15, 2020

NAPANEE COURT FILE NO.: 197/16 DATE: 20200415 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Brittany Michelle Saunders Applicant

• and - Daniel Geerte Ormsbee-Posthumus Respondent REASONS FOR JUDGMENT Madam Justice A.C. Trousdale Released: April 15, 2020