Mulloy (Marchal) v. Mulloy, 2020 ONSC 3876

Court File and Parties

Court File No.: FC-15-1602-1 Date: 2020-06-22 Ontario Superior Court of Justice

Between: Shannon Kendra Marchal (Poisson/Mulloy), Applicant And: Allan Paul Mulloy, Respondent

Counsel: Maria Ilie-Draga, for the Applicant Self-Represented Respondent

Heard: September 3, 4, 5, 6, 2019; November 12, 13, 14, 2019; and Dec 16, 2019 (Ottawa)

Reasons for Decision

Overview

1The focus of this trial was on two children, Hunter, age 12 and Holly, age seven, and what parenting arrangements would be in their best interests. Other issues included child support, in particular the children’s special and extraordinary expenses, and the extent of the father’s obligation, if any, to repay loans from the mother’s parents.

2The mother requested spousal support in her application but did not pursue the issue at trial; spousal support was not mentioned in the mother’s written or oral submissions or in the draft order she presented at the conclusion of the trial.

3There is tension and distrust between the parents and they have very different views about how the dispute over their children should be resolved. Before the trial, the parents had made 14 visits to the Ottawa court house for hearings, including nine for motions. The application’s continuing record consisted of 11 volumes.

4Based on the evidence that was before me, and for the reasons below, I have concluded that it is in the children’s best interests for each of the parents to have exclusive decision-making authority in certain areas of the children’s lives. I have also concluded that it is in the children’s best interests to increase the time they spend with their father over the course of the summer so that they eventually spend an equal amount of time with each parent, on what is known as a “2-2-5-5” schedule during the school year and on what is known as a “week about” basis during the summer. I have made what is known as a “multi-directional” parenting order that attempts to anticipate some issues that may arise. To fill in the gaps and to assist with communication and solution-finding that is in the children’s best interests, in accordance with a recommendation of a clinical investigator with the Office of the Children’s Lawyer, I have also ordered the appointment of a parenting coordinator.

5With respect to the financial issues, I have ordered the father to pay the mother for his share of accumulated special and extraordinary expenses. I have ordered that once the children start to spend equal time with each parent, child support shall be paid based on a set-off by one parent to the other of their annual incomes and special and extraordinary expenses shall be paid in an amount proportional to the parents’ incomes.

6I have ordered the father to repay loans from the mother’s parents in accordance with the terms of a separation agreement the parents signed in May 2014. I have reduced the amount the father agreed to pay by the amount the mother paid or was to have paid under the same agreement.

Background

7The parents met in 2006 when they were both working at a ski hill near Ottawa.

8The mother was 19 and the father was 22.

9The parents’ relationships was rocky; they broke up and reconciled several times. The mother described it as an “on and off” relationship and said that when she and the father were living together, she moved back to her parents’ home several times. At trial, each parent said the other drank to excess at times.

10In 2007, the mother called the police because of an incident involving a Swiss army knife. The father downplayed the incident, saying he had been “under the influence” and may have threatened to harm himself; the mother said she had told the father she was ending the relationship and the father had responded by threatening to kill himself and to injure her.

11The parents’ son, Hunter, who is now 12, was born in January 2008, when the mother was 21. The mother said she had been diagnosed with cervical cancer and had been told that it might be her only opportunity to have children.

12The parents separated in 2009 but reconciled in the spring of 2010. They were married on September 5, 2010.

13The parties’ daughter, Holly, who is now seven, was born in September 2012.

14The mother has a university degree in health sciences. The mother is a federal public servant. In 2018, she earned $56,793.00.

15The mother remarried in May 2019. Her new husband, Julien Marchal, is from France. He is a permanent resident of Canada. He was a teacher in France and teaches French to federal government employees.

16The father lives with a new partner, Alexandra Reimer, with whom he has a young daughter. The father’s new partner is a registered nurse who works at The Ottawa Hospital. The father has worked in construction and now works for a moving company. In 2018, he earned $43,759.00.

17The two children, Hunter and Holly, attend a French school and do well academically. Both children are active in sports. Hunter plays competitive soccer and hockey and Holly is immersed in gymnastics.

18The parents separated on December 1, 2013 following a domestic dispute and assault. The couple lived in the matrimonial home in Chelsea, Quebec at the time. The mother worked as a bartender in a restaurant in Ottawa’s ByWard Market. The mother arrived home “in the middle of the night,” as she put it. In her examination in chief, she said she was late because there had been a wedding at the restaurant that night. When she was cross-examined by the father the following day, she could not recall whether there had been a wedding or a special event that night. The mother said that she had driven into a ditch on the way home and had telephoned the father “100 times” but he had not answered his phone. She said she eventually telephoned her mother, who talked her through driving the car out of the ditch. The mother said she arrived home to find the father in bed “drunk out of his mind.” She said that the father was on her side of the bed. She said she pushed him and he then grabbed her by the shoulders and threw her against the wall, leaving an imprint of her body in the drywall.

19The father denied that he was drunk. He testified that when the mother woke him up, she was irate. He said he checked his phone when she said she had tried to call him and then showed her that he had not missed any calls. The father said that as the mother got into bed, she pulled the covers off him. He said he pulled the covers back to cover himself and pushed the mother. She then fell backward against the bedroom wall. The father said that the mother’s account of what happened that night was not true, but he admitted that there had been “an element of violence” in his response to the mother.

20The mother called the police. She said she did so in part because she had also witnessed the father assault his own father about 10 days earlier. (When the father’s father testified, he shrugged off the incident.) The father was required to leave the home and was charged. The mother later asked police to drop the charges. She said that she was under family pressure to do so and that she knew the father’s employment prospects, and therefore his ability to pay support, would be negatively affected by a conviction. She said the father also promised that he would take an anger management course, although he never did.

21The mother testified that the father was routinely aggressive and abusive. However, she told the police that the December 1, 2013 assault had been an isolated incident.

22After the father left the matrimonial home on December 1, 2013, the mother and the children continued to live there until the spring of 2014, when the mother and the children moved out and the father moved back in.

23The children have lived with the mother since the parents separated.

24The parties disagree about how often the father saw the children after the couple separated. The mother said the father “disappeared” and frequently could not be reached. She said he would contact her from time to time wanting to see the children but that his visits were inconsistent and that he would frequently make arrangements to see the children and then not show up. The mother said she believed that the father was either drinking heavily or taking drugs at the time. The father said the mother did not permit him to see the children on a regular basis. The father said he would, however, see the children overnights on weekends when it was convenient for the mother, who continued to work in the bar industry.

25The mother’s friend Devon Fraser testified at the trial. Mr. Fraser knew both parents. Although Mr. Fraser was the mother’s close friend and had had little contact with the father after the parents separated and in the years leading up to the trial, I found Mr. Fraser’s testimony to be fair to both parents. Mr. Fraser said that the father had been a caring and involved father before the parties separated. He agreed with the mother that post-separation, the father frequently made arrangements to visit the children but then did not show up. Mr. Fraser described how it was heart-breaking to watch Hunter wait for his father and then for the father not to appear. The mother’s father, Ken Poisson, also testified that, after the parents separated, the father made promises to the children, and Hunter in particular, that he did not keep, in relation to spending time with them and attending their activities.

26I find that the father had a close relationship with the children and shared parenting duties with the mother before the couple separated.

27I find that the father had contact with the children in the 12 to 18 months post-separation but that the contact was sporadic and inconsistent.

28In May 2014, the parties signed a separation agreement. The agreement provided that the mother would have sole custody of the children, that the children would live primarily with the mother and that the father would have access to the children every second weekend from Friday evening to Sunday evening.

29The father argued that he did not receive legal advice before signing the agreement. He said that when he signed it, the mother had assured him that they would continue to make decisions about the children jointly and that he would be able to see the children whenever he wanted. The mother argued that the father had had every opportunity to obtain legal advice before signing the agreement. The agreement in fact states that each party had consulted with “an attorney” regarding their legal rights and the agreement’s terms.

30The father testified that his relationship with the mother remained amicable and cooperative, including in respect of the children, until the summer of 2015 when the mother started this family court application and the children met the father’s new partner, Ms. Reimer, for the first time.

31The father testified and I find that after August 2015, he did not see the children for nine months and that the mother refused to make the children available to him. Correspondence between the parties during this period shows the father making repeated requests to see the children and the mother replying that she would allow him to do so provided the visits took place at a supervised access centre.

32While it is unclear as to precisely when and why the animosity that currently exists between the parents took hold, it has permeated their lives and saturated this litigation.

33The mother began her application in July 2015, seeking orders for sole custody of the children and no regular access to the father.

34On October 15, 2015, Kershman J. ordered the father to pay child support of $596.00/month based on an annual income of $40,000.00.

35On April 15, 2016, Minnema J. made recommendations for access and increased the child support to $730.00/month based on an annual income for the father of $49,741.00.

36Following the appearance before Minnema J., the parties agreed that the father would have access visits with the children. However, the relationship between the parents was going from bad to worse.

37At trial, the mother and her father, Mr. Poisson, were both critical of the father for having promised Hunter, after the parents separated, that he would attend his soccer games and then for having attended only one. However, in May 2016, when the father began to attend Hunter’s games, the mother asked Hunter’s soccer coach to remove the father’s access to Hunter’s on-line soccer schedule. The father contacted the head coach of the club and arranged to have himself reinstated. He then attended Hunter’s soccer games for the remainder of the season.

38Several access visits took place following the parents’ appearance before Minnema J. Mr. Poisson agreed to facilitate the visits by transporting the children between the parents. The visits ended when, on June 2, 2016, the father discovered that Mr. Poisson had been following him. The father testified that Mr. Poisson had waited outside the father’s house early one morning and then followed him to work. The father had realized what was happening when he pulled into a gas station and Mr. Poisson followed him. Mr. Poisson explained that he had overheard the mother say that the father was not paying child support, so he had followed the father to find out if the father was still working.

39The father testified that he was shocked by Mr. Poisson’s conduct, particularly when they had spoken just days earlier. The father obtained a restraining order against Mr. Poisson. When he testified, Mr. Poisson was unapologetic. Mr. Poisson felt that he had been supportive of the father for long enough. Mr. Poisson felt that the father had let his daughter and grandchildren down too many times and that Mr. Poisson’s actions were justified. I find that although Mr. Poisson should be credited for the time he devoted post-separation to helping the father and helping to preserve the father’s relationship with the children, Mr. Poisson’s conduct on June 2, 2016 was unjustified and marked a point of no return in his relationship with the father.

40After the incident of June 2, 2016, the father refused to participate in access that involved Mr. Poisson. Although the father proposed alternative facilitators, the mother did not agree to any of them. The father then brought a motion for court-ordered access to the children.

41The father scheduled the motion for June 14, 2016. The mother’s lawyer was not available but the father proceeded with the motion nonetheless. The motion was adjourned to June 30, 2016, but on June 14, 2016, Beaudoin J. made an interim order for access to the father and ordered that exchanges take place at Family Services Ottawa (“FSO”).

42The mother did not comply with the terms of Beaudoin J.’s order and the access ordered for June 18 and 28, 2016 did not take place.

43On June 30, 2016, MacLeod J. ordered access to the father every second weekend, with exchanges through FSO.

44When the FSO facilities were unavailable, the mother would not agree to alternative arrangements for the father’s access. On at least one occasion in 2016, the mother made other plans for the children on the father’s access weekend and failed to make them available for the father’s scheduled access visit.

45In August 2016, an incident took place between the mother and the father’s mother at one of Hunter’s soccer games. The mother said that the father’s mother had verbally attacked her and told her she was crazy and needed mental help. When she testified, the father’s partner Ms. Reimer agreed that there had been words between the father’s mother and the mother. Ms. Reimer said that she, the father and the father’s parents often attended Hunter’s soccer games. Ms. Reimer said that Holly was at that game and that the father’s family had tried to attract Holly’s attention, but that Holly had ignored them. Ms. Reimer said that the father’s mother “wasn’t too impressed” and went to speak to the mother. The father’s family then watched the game. As they were leaving, Ms. Reimer said, the father shouted “good game” to Hunter and Hunter looked down, looked at his mother and then looked away. The mother looked at Hunter and looked down. Hunter did not respond to the father. The mother later emailed the father about the incident.

46In September 2016, the mother told the father that he was not welcome to attend the children’s sporting activities if she was going to be there and that if he did not comply, she would cancel his access to the children until a December court appearance. In an email, the mother wrote: “If necessary, I will withdraw the children from all activities and they will NOT ATTEND ANYTHING.” In her email, the mother said that her primary objective was the health and welfare of the children.

47An incident which shed a bright light on the conduct and motivations of both parents took place in December 2016. The parents had managed to agree on a Christmas access schedule that would ensure that the children would spend time with both parents and their families. Because the FSO exchange centre was closed, despite the father’s misgivings in the wake of the incident of June 2, 2016, the parents agreed to use Mr. Poisson as their liaison for the exchange of the children. On Christmas Day, the mother informed the father that she would be applying for passports for the children and that his signature would be required immediately. The father heard nothing further on the passport topic until December 30, 2016. The children were to be with the father overnight that night. The father emailed Mr. Poisson that day to confirm the details of the exchange of the children. Mr. Poisson arrived at the designated location for the exchange, but without the children. Mr. Poisson had passport applications for the father to sign. For Christmas, the mother’s parents had given the mother, her new partner, Mr. Marchal, and the children a trip to Disney World in Florida. Mr. Poisson told the father that the children did not want to see him unless he signed the passport applications.

48The overnight access on December 30, 2016, to which the parents had agreed, did not take place. The father refused to sign the passport applications unless the mother agreed to provide him additional access to make up for time he would lose as a result of her travel plans.

49The father eventually grudgingly signed the passport applications, but not before Hunter told the father that he knew that the father would not sign Holly’s passport application and the mother told the father that Hunter hated him and never wanted to see him again. Because of the father’s refusal to sign the applications when they were first presented to him, the mother and Mr. Marchal were forced to cancel their flights to Florida and then drove instead.

50Following the December 30, 2016 passport incident, the father’s partner, Ms. Reimer, made a complaint to the Children’s Aid Society (“CAS”), expressing concern that the children were being harmed emotionally by the dispute between the parents. The CAS investigated and concluded that the conflict surrounding access was having an impact on Hunter. The CAS recommended that the parents reach an agreement with respect to access and that they adhere to it. The CAS also said that the parents should encourage the children to maintain a relationship with each parent.

51While the CAS was investigating Ms. Reimer’s complaint, the mother did not allow the father to see the children in January or the early part of February 2017.

52On February 2, 2017, at the request of the father, Master Champagne, as she then was, made an order in which she strongly recommended that the Office of the Children’s Lawyer (“OCL”) appoint a social worker to prepare a report for the court on the parenting issues in this case.

53The children’s access to the father resumed in late February 2017.

54On March 21, 2017, the father brought a motion before Doyle J. for joint custody and equal time with the children. Doyle J. refused to order joint custody “at this point” but said that the issue would need to be explored by the OCL, further to the February 2, 2017 order of Master Champagne. Doyle J. found that it was in the best interests of the children for them to see their father on a regular basis. Doyle J. ordered access to the father every second weekend and a telephone call every Wednesday afternoon. Doyle J. also ordered the father to pay child support of $725.00 based on his 2016 annual income of $48,790.00, retroactive child support in the amount of $1,429.00 and a 65 per cent share of retroactive and on-going s. 7 expenses. Doyle J. found that the s. 7 expenses incurred by the mother related to activities that were in the best interests of the children.

55Following the parents’ attendance before Doyle J., the children’s access to the father was, with some exceptions, consistent. The mother has not agreed to any additional or alternative access, including over the summer or on Father’s Day. The mother has not consented to any requested changes in access weekends to accommodate get-togethers or events the father would have liked the children to be able to participate in.

56In May 2018, the mother’s partner, Mr. Marchal, reported the father to the CAS for leaving the children in his car without supervision. Mr. Marchal testified that he was particularly concerned because the father and Ms. Reimer’s young child was also in the car; he worried about how Hunter and Holly would have been affected in the long term if anything had happened to the infant. The CAS did not consider the matter to give rise to protection concerns and it closed its file, although the father did assure the CAS that he would not do the same thing again.

57The parents were divorced on July 6, 2018. The mother had been required to postpone a planned wedding with Mr. Marchal because the father had failed to sign a consent to their divorce order in time.

58The trial was scheduled for November 2018. It was adjourned twice, once because the mother had been sexually assaulted at work and the second time because the mother’s father had had a stroke. The trial was scheduled for May 2019 but, unfortunately, was not reached on the trial list.

59In June 2019, the mother complained to the CAS that the father was abusing the children and brought a motion to terminate the father’s access, based on the same allegations.

60The CAS opened an investigation into the mother’s abuse allegations on June 17, 2019. The mother had alleged that the father used physical force against the children, that they were afraid of him and that they sometimes did not want to spend time with him.

61The CAS concluded that it was unable to verify the allegations. In a five-page letter to the father dated July 2, 2019, the CAS informed the father that it found no evidence to suggest that he posed a risk of harm to the children or that he was violent, as he had been described by the mother. The CAS said that it had no concerns about the father’s home environment or his ability to provide care for his children. The CAS said that it had no objections to the father having unsupervised access to the children.

62The CAS also said that it was evident that the mother, who described the father to its investigator as being “a liar” and “the most narcissistic and manipulative person” she knows, continues to harbour great resentment toward the father. In its letter, the CAS stated that it had deemed the children to be at risk of emotional harm if the mother continued to interfere with the father’s access and parenting.

63The CAS encouraged the parents to protect the children from adult issues.

64The parties appeared before Audet J. on July 4, 2019 for the mother’s motion to terminate the father’s access. Audet J. reinstated the father’s access. Audet J. also ordered make-up access for the time with the children the father had had missed. In her reasons for decision, Audet J. had harsh words for the mother.

65The trial proceeded before me beginning in September 2019. It was adjourned to November and then completed in December 2019.

66The mother was represented at trial; the father represented himself.

Issue #1: Custody and Access

The positions of the parties

67The mother requested sole custody of the children and argued that any access to the father should be supervised. The mother argued that joint custody would be inappropriate because of the conflict between the parents and their inability to communicate and cooperate. The mother argued that she has been the primary caregiver to the children since they were born and that it is in the best interests of the children that she continue in that role. The mother argued that the father has anger management issues and is irresponsible and that she has concerns about the children’s safety when they are with him.

68The father requested joint custody based on a parallel parenting arrangement and equal access time. The father argued that the mother has attempted to alienate him from the children and that her conduct in this regard is contrary to the children’s best interests. The father argued that he and his new partner can offer the children a safe, stable and happy home and there is no reason why he should not have equal status with the mother as their parent.

The Pleadings

69In her application dated July 24, 2015, the mother, representing herself at the time, requested sole custody of the children and “no regular access” for the father.

70I note that in his answer dated November 9, 2015, the father did not seek custody of the children. He sought access and indicated that he agreed with the mother’s claim for custody. In June, 2016, however, the father filed a form 35.1 affidavit in support of claims for custody or access in which he requested joint custody.

71As I have already noted, the father brought a motion in March, 2017, in which he requested joint custody and equal parenting time. In her endorsement dated March 21, 2017, Doyle J. observed that the Office of the Children’s Lawyer had been appointed on February 2, 2017 and decided that she would not order joint custody but that joint custody would need to be explored by the OCL.

72I am satisfied that, although the father did not request custody in his original pleading, he was entitled to request joint custody at trial; the mother was on notice of the request, the issue had been argued before Doyle J. and the mother did not take the position at trial that the father was precluded from requesting custody.

The Legislative Framework

73Section 16 of the Divorce Act, R.S.C. 1985, c.3 (2nd Supp) governs the child custody and access orders requested in this case:

Order for custody

16 (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.

Access Joint custody or access

(4) The court may make an order under this section granting custody of, or access to, any or all children of the marriage to any one or more persons.

Access

(5) Unless the court orders otherwise, a spouse who is granted access to a child of the marriage has the right to make inquiries, and to be given information, as to the health, education and welfare of the child.

Terms and conditions

(6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just .

Factors

(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

Past conduct

(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.

Maximum contact

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

74Section 24(1) of Ontario’s Children’s Law Reform Act, R.S.O. 1990, c. C 12 provides that custody and access issues are to be determined on the basis of the best interests of the child; s. 24(2) requires these determinations to be made through a consideration of child’s needs and circumstances, including the following:

(a) the love, affection and emotional ties between the child and, (i) each person entitled to or claiming custody of or access to the child, (ii) other members of the child’s family who reside with the child, and (iii) persons involved in the child’s care and upbringing; (b) the child’s views and preferences, if they can reasonably be ascertained; (c) the length of time the child has lived in a stable home environment; (d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child; (e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing; (f) the permanence and stability of the family unit with which it is proposed that the child will live; (g) the ability of each person applying for custody of or access to the child to act as a parent; and (h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1) ; 2009, c. 11, s. 10 .

75Both the Divorce Act (in s. 16(9) , above) and the Children’s Law Reform Act (in s. 24(3) ) discourage reliance on the past conduct of any person when making decisions about the parenting of a child unless the conduct is relevant to the ability of that person to parent a child.

76Section 24(4) of the Children’s Law Reform Act provides that 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.

The Report of the Office of the Children’s Lawyer

77I have already noted that on February 2, 2017, Master Champagne, as she then was, requested the involvement of the OCL. The OCL accepted the case on March 27, 2017, and assigned clinical investigator Victoria Hasbani to investigate and provide a report to the court under s. 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

78Ms. Hasbani has a Master’s degree in social work and has worked with children and families for more than 20 years. Ms. Hasbani worked with the Children’s Aid Society for 12 years before joining the OCL in 2011. Ms. Hasbani has also worked with a school board for many years. Ms. Hasbani estimated that she had previously been appointed to investigate 50 to 60 cases by the OCL.

79To prepare her report dated February 12, 2018, Ms. Hasbani interviewed the mother, the father, Hunter, Mr. Marchal and Ms. Reimer. Ms. Hasbani met Holly but did not interview her because she considered Holly to be too young at the time. Ms. Habani reviewed written information provided to her by the CAS and interviewed two CAS investigators and a CAS intake worker. Ms. Hasbani interviewed two of Hunter’s teachers and a counsellor and a supervisor with Catholic Family Services, to which the mother had referred Hunter. Ms. Hasbani met with each parent, the parent’s partner and the two children in the parents’ respective homes and observed the interactions between the children and the adults.

80Although the mother did not formally dispute Ms. Hasbani’s report under Rule 21 (e) of the Family Law Rules, O.Reg. 114/99 as am, she strenuously objected to the report at trial, arguing that Ms. Hasbani did not fully or appropriately assess the available information and that Ms. Habani’s report was biased in favour of the father.

81Although he was not required to do so, the father called Ms. Hasbani as a witness at trial. In her written closing submissions, the mother questioned Ms. Hasbani’s neutrality on this basis, and commented that the relationship between the father and Ms. Hasbani was unclear and that they had obviously corresponded extensively during the investigation. There was nothing under-handed about the father’s decision to call Ms. Hasbani as a witness; the effect of him doing so was to provide the mother’s lawyer with an opportunity to cross-examine Ms. Hasbani which she otherwise would not have had, had Ms. Hasbani’s report simply been filed under s. 112(3) of the Courts of Justice Act.

82In cross-examination, the mother challenged Ms. Hasbani on the basis that she had not reviewed the entire continuing record in this application. Ms. Hasbani explained that she must rely on documents she is provided by the parties and the other people she interviews. Ms. Hasbani said the mother’s lawyer did not provide her with the continuing record. She said that later in her investigation, when the mother began to represent herself, the mother had said she would provide Ms. Hasbani with the court file and then sent her some affidavits. Ms. Hasbani said that she received affidavits and some exhibits from both parents as well as numerous emails. The mother was also critical of Ms. Hasbani for not having interviewed the mother’s father. Ms. Hasbani explained that she was aware that Mr. Poisson had been involved in the parents’ exchanges of the children but that she did not believe that interviewing him was necessary for the purposes of her investigation.

83I do not share the mother’s assessment of Ms. Hasbani’s investigation. I reject any suggestions of bias. I found Ms. Hasbani’s 45-page report to be comprehensive and thoughtful. I also found that Ms. Hasbani’s testimony at the trial, both in direct and cross-examination, served to underscore the meticulousness of her investigation, the amount and depth of information she had gathered about the parents and the children and the insights she had into the dynamics of the various parent-child relationships and the two new family units. Ms. Hasbani impressed me as being well-prepared, knowledgeable and fair.

84Ms. Hasbani’s observations based on her interviews, family visits and document review, which informed her conclusions, included the following:

• Both parents want a relationship with the children, are committed to the children and love the children and both parents believe they are acting in the best interests of the children.
• Hunter and probably also Holly have been exposed to the adult conflict post-separation and are at risk of further exposure if the parents do not change their behaviour. Hunter was quite aware of the issues between his parents, which might have contributed to some negative feelings he has had toward his father. For example, Hunter told Ms. Hasbani that the mother had shown him some emails between the parents and told Ms. Hasbani that his father refused to pay for his sports and only wanted access to avoid paying child support. Hunter told Ms. Hasbani that the father was “disresponsible” and was a liar; he said the father had lied to the government and to a judge.
• Catholic Family Services had provided counselling to Hunter and had expressed concern that he was being harmed by exposure to adult issues.
• Hunter consistently referred to his father by his first name, which upset the father, who felt that the mother was encouraging the children to call him “Allan” while encouraging them to call the men she was involved with post-separation “Dad” or “Papa.” Ms. Hasbani said that it is unlikely that the children would do this without parental encouragement. The mother told Ms. Hasbani that the children simply wanted to know what to call Mr. Marchal, whose first name is Julien, and they had agreed on “Papa Ju.”
• The parents have very different parenting styles. The mother is committed to the children, their academic and athletic success and their skill development. The mother has a structured parenting style and high expectations of the children and a predictable routine. The father believes the child are over-programmed. He has a more fluid parenting style, although he told Ms. Hasbani that he requires the children to read for 20 minutes and to go to bed at a specific time. Both parents would benefit from support with parenting.
• The mother has a tendency “to express herself with inflated wording and harsh accusations and has had some exaggerated responses to events which may have occurred.” Ms. Hasbani said, for example, that the mother said that the father “feeds” alcohol to Hunter, but on further questioning, was aware of only one occasion. Ms. Hasbani also said that the mother told her that Hunter’s schooling had been negatively affected, both academically and socially, as a result of the father’s access but this claim was not supported by the school.
• Hunter likes both Mr. Marchal and Ms. Reimer. There was no suggestion of conflict within the two new family units and no evidence to suggest that the current family units present a risk to the children of exposure to domestic violence.
• The father is motivated and committed to increasing his time with the children.
• The mother has acted in a way that suggests that she feels she must protect the children. She maintained the view that the father’s access should be supervised and felt that just because the children had fun when they were with him did not make it a safe situation for them.
• By the time Ms. Hasbani wrote her report, the father had had almost a year of consistent access with the children. It was going well. He had provided a safe and comfortable environment for them, made them available for their activities and exposed them to new experiences and their extended family on his side.

85In Ms. Hasbani’s opinion, the mother’s decision-making in respect of matters that could expose the children to the conflict between the parents suggested that the mother has limited awareness of the impact her decisions have on the children. Ms. Hasbani concluded that the mother’s animosity toward the father and desire to build a case against the father fuel her decision-making and not the well-being of the children. Ms. Hasbani used as an example, incidents in which the mother and others on her behalf took photographs of the father, sometimes in public places and at his home. Ms. Hasbani said that this conduct forced her to question the mother’s common sense and noted the degree to which the mother was pre-occupied with the father’s life. Ms. Hasbani said, however, that both parents must accept their role in the conflict between them.

86Ms. Habani recommended joint custody, with the assistance of a parenting coordinator and a gradual shift for the children from spending every second weekend with the father to equal time-sharing between the parents. Ms. Hasbani expressed concern that a grant of sole custody to the mother would be used to further exclude the father from the children’s lives. Ms. Hasbani recommended that the parents participate in counselling or training to develop a greater appreciation of the effects of high conflict on children and recommended individual counselling for the mother to support her through any changes in the children’s custody and access.

87Ms. Hasbani’s report was more than 18 months old by the time of the trial. The evidence at trial did not suggest that the conditions at the time of trial were significantly different from those that existed when Ms. Hasbani conducted her investigation.

Analysis

88It is clear from s. 16(8) of the Divorce Act that when deciding the issues of custody and access, the court is to take into consideration only the best interests of the children, and when determining those best interests the court is to look to the conditions, means, needs and other circumstances of the children. As noted above, the Children’s Law Reform Act sets out criteria which inform the “best interests” concept.

89The Divorce Act in s. 16(10) also recognizes that the parents of a child should each have as much contact with the child as is consistent with the child’s best interests. This means that the best interests of the child are a more important consideration than the wishes of the parents. This is frequently referred to as the “maximum contact principle.” This is an important consideration in this case.

90When assessing a child’s best interests, the court must consider at all the factors listed in s. 24(1) of the Children’s Law Reform Act. In Kaplanis v. Kaplanis, Ontario’s Court of Appeal set out the circumstances which would weigh in favour of a joint custody order. Typically, the court would look for a history of cooperative parenting and positive communication between the parents.

91In her closing submissions, the mother’s lawyer acknowledged that both parents love the children. She argued that the parents have been unable to communicate in a manner that is in the children’s best interests, that joint custody is untenable as a result and that the mother is the parent who is better able to put the children’s needs first and above her own. The mother’s lawyer argued that a radical change in the children’s living environment would be difficult for them. She said that while she acknowledges that “maximum contact” is indeed a principle, the father’s history of violence and abuse negates the application of the principle in this case and is the foundation for the mother’s insistence that the father’s access to the children be supervised.

92The children have lived primarily with the mother since they were born. Many witnesses at trial described the mother as an “excellent” mother. The mother’s friend, Mr. Fraser, quoted the mother as saying that, after her children was born, she was no longer one person, she was three. I have no hesitation in finding that the mother is utterly devoted to her children. At trial, the mother said that she strives to “empower” the children. She has provided them with love, structure and encouragement. She has ensured that they have mastered the French language, that they do well academically and that they are engaged in, and particularly in Hunter’s case, excel at sports. Ms. Reimer described the children as “great kids.”

93It is evident that the mother’s husband, Mr. Marchal, is also dedicated to the children. He is actively involved in their day-to-day lives. He cares for them, he tutors them, he drives them to their activities and he has coached Hunter’s teams. Ms. Hasbani noted that the children, and Hunter in particular, are obviously attached to Mr. Marchal and that Mr. Marchal has a gentle manner with them.

94There is no question that the home the mother and Mr. Marchal share is suitable and safe for the children. The mother is close to her parents, who live in Ottawa.

95I have already found that the father’s contact with the children in the aftermath of the parents’ separation was sporadic and inconsistent. The mother suspects that the father was drinking heavily at the time. In 2015, after the father first introduced the children to Ms. Reimer, the mother prevented the father from seeing the children unless he did so at a supervised access centre and he did not see them for nine months. In recent years, the father has fought to repair and maintain his relationship with the children. The mother has actively resisted his efforts.

96The father and Ms. Reimer have been a couple since the spring of 2015. They began to live together in February of 2016. They still live in the same home, a semi-detached near the Civic campus of the Ottawa Hospital. Ms. Reimer can walk to work. The home has three bedrooms, a finished basement, two bathrooms and a fenced-in yard. It is near Ottawa’s Experimental farm, parks and a skating rink.

97The father and Ms. Reimer have a daughter of their own, Maya. The father and his father both testified about how fond Hunter and Holly are of Maya and how they argue about which one of them gets to hold her. The father wants to foster the relationship between the children and their half-sister.

98Both the father and Ms. Reimer work full-time. Ms. Reimer works on a four days on/five days off schedule. The father’s and Ms. Reimer’s parents live in Ottawa. The father’s father is retired and his mother does not work outside the home. Ms. Reimer’s parents are retired. The father and Ms. Reimer both have flexibility in their work schedules and extended family to look to if work were to interfere with the children’s needs or activities.

99The father and Ms. Reimer have now had consistent access to the children for three years. They have routines; they take the children to their activities; they make sure that the children read; they have assigned certain responsibilities to the children, such as assisting with meal preparation and doing dishes; they make sure the children carry out their responsibilities.

100Ms. Reimer said that she has no concerns about the father’s state of mind and mental health. She said that she commends him for his resilience in his efforts to fight for his relationship with the children. She said that he has been very focused on the children and that both of them have had counselling, separately and together, to help deal with the conflict relating to the children.

101It would be easy to discount Ms. Reimer’s evidence on the basis that she, obviously, is not neutral, that she is on the father’s side. I am mindful, though, of the fact that Ms. Reimer made a report to the CAS following the parents’ dispute over the mother’s planned trip to Disney and the father’s refusal to sign the children’s passport applications. Ms. Reimer was concerned that the children were being harmed by the conflict between the parents. There was no guarantee that that report to the CAS would absolve the father and, in fact, it did not absolve the father, because it concluded that the children were in fact being harmed by the parents’ conflict. While Ms. Reimer obviously wants what is best for the father, I found her to be a thoughtful and fair witness, whose eye was very much on the best interests of the children. I was also impressed by an email Ms. Reimer had sent to the mother, without the father’s knowledge, in which she disclosed her own experience as the child of separated parents and urged the mother to protect the children from what she herself had endured. At trial, the mother presented Ms. Reimer’s email as an attempt to interfere with the mother’s parenting of the children. I did not see it that way; I saw it as a sincere plea, based on a difficult and life-altering childhood experience Ms. Reimer was hoping the children might be spared.

102Ms. Hasbani reported that during her observation visits to the parents’ homes, the children appeared to be happy and comfortable in both homes and that they interacted well and were affectionate with both parents and the parents’ new partners.

103I find that both parents are able to offer the children stable and loving home environments. Their parenting styles are very different, in that the mother says that she believes strongly in structure, routine and accountability while the father says he has a more laid-back approach. The father’s approach is likely to change by necessity when he is no longer the every-second-weekend parent.

104I am satisfied that both parents want what they believe is best for the children.

105While I find that, to the extent that she is capable, the mother is sincerely dedicated to the best interests of the children. I also find that, unfortunately, the mother has a blind spot when it comes to the father.

106At trial, the mother, even when answering her own lawyer’s questions in examination in chief, could not conceal the rage she so obviously feels toward the father and his family. The mother frequently referred to the father as “the respondent.” When the father asked the mother in cross-examination to describe his relationship with the children before the parents separated, which other witnesses (the father, the father’s father and the mother’s friend, Mr. Fraser) had described as close and loving, the mother replied, “absent.” When the mother described dropping off the children with the father’s family at Meech Lake, the mother repeatedly referred to the Meech Lake address as the father’s parents “alleged” address. The mother did not explain her suspicions about the Meech Lake property but those suspicions undoubtedly explain why the father’s parents found Mr. Marchal parked in front of their Meech Lake residence one day in or about 2018. The father’s father testified that Mr. Marchal did not have skis with him and it was not possible to walk on the lake at the time. He said Mr. Marchal had no reason to be there.

107It is clear that the mother has failed to protect the children from her animosity toward the father. Ms. Hasbani’s interview with Hunter revealed that Hunter knew much more than a child should know about the conflict between the parents. Hunter told Ms. Hasbani that everyone in his family “except Mr. Marchal and Grammy” tell him that the father sees him and Holly so that the father doesn’t have to pay money. Hunter said his mother told him that his father would not pay for any of his sports. Hunter also said that he knew that his father had pushed and shoved his mother when Hunter was four because his mother had told him. In Ms. Hasbani’s first interview with Hunter, Hunter told her that he only wanted to see his father once every three weeks or never. Asked why he said never, Hunter said he did not know and then said that he did not want his father to ruin their lives. Ms. Hasbani reported that the second and last time she spoke with Hunter, Hunter said that he looks forward to seeing his father and that they do fun things and go to special places.

108Based on the evidence at the trial, I accept and adopt Ms. Hasbani’s observation that the mother’s animosity and desire to build a case against the father, and not the well-being of the children, has fueled much of the mother’s decision-making over the years. Based on the evidence at the trial, I also accept and adopt Ms. Hasbani’s observation that the mother has limited awareness of the impact her decisions have on the children. The mother’s lack of insight is not improved by her father’s and, to a lesser degree, her new husband’s willingness to enable her conflict with the father. I have already described how Mr. Poisson waited outside the father’s house one morning and then followed the father to work to find out if he was still working and also how Mr. Poisson met the father for a planned exchange of the children with passport applications in hand and no children. In addition to his trip to Meech Lake, Mr. Marchal took photos of the father at a parents’ meeting at a sports organization.

109It is particularly concerning to me that the mother’s attacks against the father continued following the release of Ms. Hasbani’s report, which questioned whether the mother had any insight into how her decision-making vis-à-vis the father was affecting the children and warned that the mother’s willingness to expose the children to the conflict between the parents was harming the children. At trial, the mother said she had read the report but argued that it was incomplete and flawed.

110I have already referred to the mother’s report to the CAS in June, 2019, about 15 months after Ms. Hasbani’s report was released, and the mother’s related motion to terminate the father’s access to the children. As I have already described, the CAS dismissed the complaint and said in a letter dated July 2, 2019 that it found no evidence to suggest that the father posed a risk of harm to the children or that he was violent. The CAS also said it had no concerns about the father’s home environment or the father’s ability to provide care for his children. The CAS said that it had no objections to the father having unsupervised access to the children. Audet J. dismissed the mother’s motion to terminate access. Audet J. echoed a warning Ms. Hasbani had issued, that if the mother persisted in her efforts to exclude the father from the children’s lives, the ultimate result could be a sole custody order in favour of the father.

111Nonetheless, at trial, the mother insisted the father’s access should be supervised because he could not be trusted to ensure the children’s safety. She argued that that Ms. Hasbani was biased. She dismissed the July 2, 2019 CAS letter on the basis that the CAS had made a decision about her complaint without giving Mr. Marchal an opportunity to be interviewed in the language of his choice.

112Much of the evidence presented by the mother at trial was intended to persuade me that the father is prone to violence and that he cannot be trusted to make good decisions on behalf of the children or to have the children in his care without supervision. I have considered all of the issues raised by the mother, whether or not I refer to them specifically in these reasons for decision. The issues raised by the mother include the following: (1) The father’s impaired driving conviction of 2007: This was 13 years before the trial and before either of the children was born. The offence of drinking and driving is a serious one but I do not accept the mother’s submission that the father’s “criminal background” should disentitle him from decision-making or unsupervised access to the children. (2) That the father drove his car while his license was under suspension and had no insurance: I consider this to be highly irresponsible behaviour and I find that, at least for some period of time, it was willful and not the result of a misunderstanding. The father has since obtained a license and insurance. Ms. Hasbani was aware of this infraction as was the CAS when it dismissed the mother’s complaint in July, 2019. (3) The assault of December 1, 2013: The father admitted that he pushed the mother into a wall. There is no universe in which the father’s assault of the mother that night can be condoned. However, I find that the incident was precisely what the mother told the police that night that it was—an isolated incident. I do not accept that it was part of a pattern of abuse, as the mother contended. It is concerning that the mother would tell the CAS in 2019 that the father repeatedly assaulted her and raped her. There is no evidence in support of this claim, which I find to be untrue.

113At trial, the mother raised a number of incidents she presented as evidence of the father’s irresponsible parenting. I have considered all of these incidents, whether or not I refer to them specifically in these reasons for decision. The mother said the father gave Hunter beer and that he allowed Hunter to use a gun and drive a water motor vehicle. These were all incidents Ms. Hasbani was aware of and found to be exaggerated or not problematic. The mother said that the father had ignored a toe injury Holly had sustained, which lead to an infection which required medical care. However Ms. Reimer, a registered nurse, testified that she and the father were both aware of the injury and that she had treated it in a manner she felt was medically appropriate. The mother accused the father of exposing Hunter to sunstroke. On one occasion, the mother emailed Ms. Hasbani and told her that Hunter had complained to her that, while with the father, he had been sick and had thrown up and gone to bed at 4:30 with sunstroke symptoms. The mother said she was concerned because the father had not told her about this. Coincidentally, Ms. Hasbani had been at the father’s home the same afternoon, conducting the family observation that was part of her investigation. Ms. Hasbani was with the family from 4 p.m. to 5:30 p.m. that day. Ms. Hasbani said that Hunter had been given Gatorade and water and although he appeared to be somewhat tired toward the end of the day, he was not sick or throwing up.

114I find that shortcomings in the father’s past do not justify the mother’s subsequent efforts to obstruct his relationship with the children. The incidents the mother raised at trial to prove that the father was an irresponsible parent had previously been brought to the attention of the CAS or Ms. Hasbani; neither concluded that it was not safe for the father to have unsupervised access with the children. I agree with the father that the mother was dedicated to looking for flaws in the father’s character and parenting. While the mother denies having told Ms. Hasbani that, as Ms. Hasbani reported, the mother’s preference would be that the father have no access to the children, there can be no doubt that this is how the mother truly feels.

115Turning now to the considerations in s. 24(2) of the Children’s Law Reform Act, I find that the children have emotional ties to both parents (s. 24(2)(a).) They have a stronger bond with the mother, with whom they have lived since birth. The children have spent less time with the father over the years, in part because he did not prioritize them for up to 18 months after the parents separated and in part because of the mother’s efforts to keep the children away from him. However, based on the evidence of the father, Ms. Reimer, the father’s father and Ms. Hasbani, I find that the children are also attached to the father. It is difficult to ascertain the children’s true views and preferences (s. 24(2)(b)) because the mother’s views and preferences must be so apparent to them. That said, I accept Ms. Hasbani’s observation that the children appear comfortable in the company of the mother and Mr. Marchal and of the father and Ms. Reimer. The children have lived in a stable home environment with the mother since birth (s. 24(2)(c)) and with the mother and Mr. Marchal since the spring of 2017. The father’s access on alternative weekends has been consistent since March, 2017; both children appear to get along well with Ms. Reimer. I find that the factors in ss. 24(2)(d) through 24(2)(h) are weighted equally in favour of each parent.

116For the preceding reasons, I do not accept the mother’s submission that the father’s past conduct would put the children at risk. I find that both parents are capable of providing healthy, safe and stable home environments for the children and that the parents’ new partners have enthusiastically welcomed the children into their lives.

117The mother has argued that joint custody would be inappropriate because of the conflict between the parents and their inability to communicate and cooperate. However, one parent cannot create problems with the other parent then claim custody on the basis of a lack of cooperation (Lawson v. Lawson (2006), 81 O.R. (3d) 321 (C.A.), at para. 15).

118In recent years, to preserve a parent’s relationship with their children in the face of intense conflict between the parents, joint custody or parallel parenting orders have been made when the children’s primary caregiver has resisted joint custody without justification. These orders divide decision making between the parents, such that each of them has sole, final decision-making authority in specified areas. In N.H. v. J.H.H., 2017 ONSC 4867, Justice Mackinnon stated the following before making a parallel custody order in a very high conflict parenting matter:

625…This type of order may be appropriate in high conflict cases where full joint decision making is not a feasible option, but granting one party sole custody is not considered to be in the child’s best interests.

627A very significant question is whether a parallel parenting order is more likely to decrease the conflict between the parties or increase it. For this type of order to be effective the parents need to be able to comply and to navigate basic issues such as scheduling and interpretation of the order.

119I find that there is no reason that these parents would be incapable of navigating scheduling and interpretation of a parallel parenting order. They are both intelligent people and they both want what is best for the children, although they disagree about what that looks like. There is evidence that on some occasions in the past the parents were, in fact, capable of discussing issues involving the children and agreeing on solutions; the problem has been their willingness to cooperate, not their capacity to do so.

120I find that granting the right to make decisions to each parent is appropriate in this case to preserve and promote the father’s role in the children’s lives. The mother has worked hard to sideline the father from the children’s lives and activities and to confine his access to the children. Historically, she has withheld access. More recently, she has rejected requests for changes to the access schedule which would have permitted the children to spend Father’s Day with their father, to take part in the celebration of their half-sister’s first birthday and to attend a wedding in the father’s family. Even now, the mother is arguing that the father’s access to the children should be supervised. I find that it is both necessary and in the best interests of the children for both parents to be permitted to play an influential role in their lives. I also find that there would be real value in ensuring that the children maintain a meaningful relationship with each parent. I find that this will be best achieved by providing for maximum contact between each parent and the children, in accordance with the principle enshrined in s. 16(10) of the Divorce Act.

121Both Hunter and Holly appear to be doing well in school, to be engaged positively in extra-curricular activities and to be close to each of their parents. There is evidence, however, that Hunter is suffering emotionally as a result of the parents’ conflict. The mother has made statements to Hunter about the father, about her relationship with the father and about this legal proceeding which no child should be permitted to hear and which she knew would serve to lower Hunter’s opinion of the father. Ms. Hasbani’s report describes several instances in which Hunter described the father as a liar but could not adequately explain why he said so.

122The children deserve the opportunity to be able to see their father as an equal parent, and not as someone who spoils them every second weekend and whom their mother does not want them to get too close to.

123I have concluded that, in these circumstances, it is in the children’s best interests to grant each parent the right to make decisions that affect the children in respect of certain matters.

124Specifically, the mother shall have the right to make decisions with respect to the children’s education, including choice of schools, although the children shall not be enrolled in a school that is farther than 15 kms from the father’s current place of residence, without the father’s consent.

125The parents have disagreed about whether the children require a French tutor while in the care of their father. At trial, the mother raised concerns that the father is not capable of assisting the children with their homework because his French is not strong enough. The mother and Mr. Marchal testified that they believed that the father should arrange for a French tutor when the children were with him for his alternative weekend access. The mother said that she spent a great deal of time obtaining quotes from tutors, but the father did not then follow through. The father concedes that he struggles with written French but says that his oral French is quite good. Ms. Reimer says that her employer considers her to be bilingual. The father said that he told the mother that if the children’s grades slipped or if improvement was needed, he would hire a tutor but he did not think that doing so was necessary. Ms. Hasbani said that although the mother and Hunter had both told her that Hunter’s grades had dropped because the father did not do homework with him, Ms. Hasbani found that this was not supported by the school records. Ms. Hasbani recommended that if it appeared the children required help with French homework, a tutor should be hired. Although I am granting the mother the right to make decisions about the children’s education, the father shall have the right to decide whether the children require French-language tutoring while in his care. That said, I take judicial notice that the COVID-19 pandemic may prevent schools from operating as they have in the past, which may result in more at-home and/or on-line learning. In these circumstances, the father may be well-advised to consider hiring a French-speaking tutor if the children require assistance he and Ms. Reimer are unable to provide.

126The father shall have final exclusive decision-making power in respect of the children’s health, including their dental health.

127The parents shall share the right to make decisions in respect of the children’s extracurricular activities, with each of them having the right to choose activities every second year, in consultation with the children. The mother shall have this right in respect of activities in the fall of 2020 and winter of 2021. The father shall then have this right in respect of activities in the spring and summer of 2021 and the fall of 2021/winter of 2022. The mother shall then have this right for activities in the spring and summer of 2022 and the fall of 2022/winter of 2023. The parents’ right to make these decisions will then continue to alternate on the same, annual spring to winter basis.

128I have also concluded that it is in the children’s best interest for them to spend an equal amount of time with each parent. Over the summer, the father’s access will be gradually increased until what is known as a “2-2-5-5” parenting schedule is achieved, which will see the children spend each Monday and Tuesday night with the mother, each Wednesday and Thursday night with the father and alternating weekends at each parent’s home.

129These reasons for decision include a detailed parenting order, which I have marked as “Appendix A.” This order is intended to anticipate some of the issues that may arise between the parents and to reduce the need for decision-making and communication, thereby reducing the number of potential areas of dispute. The order includes the details of the children’s gradual increase in access to the father, which is loosely based on the recommendations of Ms. Hasbani, taking into account that this decision is being released in the first week of the summer. The order also mandates the appointment of a parenting coordinator, whose role will be in part to assist the parents improve their ability to communicate and cooperate so that they can deal with the issues that will arise.

130Although I will not make orders to this effect, in accordance with the recommendations of Ms. Hasbani, I strongly urge both parents to participate in counselling to learn about the impact of parental conflict on children. I strongly urge the mother to consider individual counselling to ease her through the difficult change in her life and the life of her family that I know this decision will create. The mother has suffered from anxiety and has been forced to deal with a number of difficult challenges in her life in addition to her relationship with the father. Sharing decision-making about the children with the father and an equal access schedule will not be easy for the mother. This is particularly so because the does not, at present, appear to understand that her role in and reaction to the conflict with the father is harming the children; it will be difficult for her to appreciate why increasing the father’s role in the children’s lives is in their best interests.

Issue #2: Special and extraordinary expenses and child support

Special and extraordinary expenses

The mother’s position

131The mother’s position is that, since Doyle J.’s order, the father owes her almost $14,000.00 in special and extraordinary expenses.

132The father produced a Family Responsibility Office statement of arrears dated June 14, 2019, to which a detailed spreadsheet prepared by the mother was attached. The mother had calculated that the father owed her $10,369.11 in “section 7 expenses”; the last entry on the spreadsheet was dated April 13, 2019. The spreadsheet included a deduction of $2,100.00/year, which I understand to take into account tax credits that were available to the mother.

133At trial, the mother gave evidence about additional expenses incurred in 2019. The mother’s lawyer submitted that, by the end of 2019, the amount owing to the mother by the father was closer to $14,000.00.

134The mother’s calculations were based on a contribution to expenses by the father of 65 per cent and the mother of 35 per cent.

The father’s position

135The father admits that has not paid the mother for s. 7 expenses.

136The father argues that when he was ordered to pay a 65 per cent share of these expenses, the mother’s income was less than half of what it now is, while his income has since declined somewhat.

137The father argues that the mother failed to consult before incurring expenses on behalf of the children and that the expenses are excessive. The father argues that the mother incurred child care expenses but never gave him the option of providing the child care himself. The father argues that he now has a third child to support and that he pays $500.00/month for child care for that child. The father argues that he has been paying $725.00/month in child support and that, in the circumstances, it is not reasonable for him also to be required to contribute to s. 7 expenses, particularly when the mother’s income is now higher than his.

Analysis

138To determine the share of s. 7 expenses each parent should pay after December 31, 2016, I looked to the parents’ respective annual “T4” incomes, according to their financial statements:

YEAR	MOTHER	FATHER
2016	$28,004.00	$48,790.18
2017	$49.754.00	$47,520.00
2018	$57,236.40	$43,759.98
2019	$57,236.40 (estimated)	$45,000.00 (estimated)

139I find that, based on the parents’ respective annual incomes in 2017, 2018 and 2019, it would be fair for them to divide the children’s s. 7 expenses for those three years on a 50-50 basis.

140According to the spreadsheet the mother submitted to FRO, s. 7 expenses other than child care expenses to April, 2019 totaled approximately $8,735.00, the father’s 65 per cent share being $5,677.31. Net child care expenses (following a deduction of $2,100 for each of 2017 and 2018) totaled $7,218.15, the father’s 65 per cent being $4,691.80.

141Based on a 50-50 split, each parent would be responsible for $7,976.58.

142The mother testified that in 2019, she also paid an additional approximately $6,000.00 or $7,000.00 for hockey and soccer for Hunter, gymnastics for Holly and equipment for both children.

Conclusion with respect to s. 7 expenses

143There was ample evidence at trial that the children are active and that they enjoy and are devoted to their sports-related activities in particular. I find that the expenses claimed by the mother are reasonable.

144The father shall pay the mother:

• If he has not already done so, the amount ordered by Doyle J. on March 21, 2017, $2,213.80, representing expenses to December 31, 2016, plus three per cent interest since December 31, 2017;
• Section 7 expenses to the end of December, 2019 in the amount of $10,976.58 ($7,976.58 plus $3,000.00.) [This amount is adjusted to $9,476.58, below, to take into account an overpayment of child support.]

145On an ongoing basis, the parties shall share the children’s special and extraordinary expenses in an amount proportionate to their annual incomes. Although the mother is now out-earning the father, in the draft order the father submitted to the court for consideration, the father proposed that the parents share the expenses equally. I order that, at this time, the parents each pay 50 per cent of these expenses.

Child Support

146The parties separated on December 1, 2013 and the mother’s court application was started in July, 2015.

147On October 15, 2016, Kershman J. ordered the father to pay child support of $596.00/month, beginning October 1, 2015, based on an income of $40,000.00/year and subject to confirmation of his income.

148On April 15, 2016, Minnema J. ordered the father to pay $739.00/month, based on an income of $49,741.00.

149As noted above, the parents appeared before Doyle J. on March 21, 2017. The mother had claimed child support from October, 2014. Doyle J. ordered that child support would be payable from the date of service of the mother’s application, which was September, 2015. Doyle J. found that the father owed retroactive child support of $1,429.00. Doyle J. ordered the father to pay child support in the amount of $725.00, based on his 2016 income of $48,790.00.

150Child support has been enforced through FRO since the fall of 2015.

151In the draft order she presented at the conclusion of the trial, the mother asked that child support “be re-calculated based on the offset amount of each party’s gross annual income(s) from 2018 and 2019.” She also requested retroactive child support, although she did not actively pursue this request. It was not referred to in her oral submissions or mentioned in her written submissions.

152In the draft order the father presented at the conclusion of the trial, the father, who had also asked for equal parenting time, asked for the mother to beginning paying support based on an offset of their incomes. The father stated in his argument that he has been over-paying child support, because the amount he has paid was based on his 2016 income, when his income in the following three years was lower. The father did not request a reimbursement in his draft order but argued that his overpayment of child support should be a consideration in his request not to be ordered to pay any retroactive s. 7 expenses, a request I have rejected.

153I find that Doyle J. addressed and determined any issues relating to retroactive child support; I find that no retroactive child support is payable.

154I find that the father has over-paid child support for the years 2017, 2018 and possibly 2019, as the amount payable was based on his 2016 income, which was higher than his income in 2017 and 2018 and was projected to be higher than his income in 2019. In the circumstances, and because I have ordered the father to pay his share of the retroactive s. 7 expenses, I conclude that it would be fair to offset the father’s child support overpayment against the amount of s. 7 expenses I have ordered him to pay.

155Based on the father’s 2017 income of $47,520.00, the table amount he should have paid was $706.26, resulting in an overpayment that year of $18.74. Based on the father’s 2018 income, the table amount he should have paid was $651.62, resulting in an overpayment of $880.56. Based on the father’s projected income for 2019 of $45,000.00, the table amount he should have paid was $674.00, resulting in an overpayment of $612.00.

156The $10,976.58 in s. 7 expenses I have ordered the father to pay shall be reduced by the child support overpayment of $1,500.00; the result is $9,476.58.

157From August 1, 2020, forward, because the children will be spending an equal or approximately equal amount of time with each parent, child support shall be payable based on a set-off of the amount each parent would owe the other, based on their annual incomes.

Issue #3: The father’s obligation to repay money lent to the parents by the mother’s parents

158The mother has requested an order that the father pay his portion of “the joint consolidated loan” from the mother’s parents.

159There was evidence at trial of more than one loan from the mother’s parents.

The $3,500.00 loan to the father from the mother’s father

160In May, 2015, the mother’s father, Mr. Poisson, lent the father $3,500.00 for expenses related to the matrimonial home and some additional money for supplies to repair the home so that it could be sold. The father and Mr. Poisson signed a loan agreement in respect of these loans on May 1, 2015.

161Mr. Poisson testified that the father repaid the $3,500.00 and the amounts related to supplies about a year after the house was sold.

The debts referred to in the May, 2014 separation agreement

162The May, 2014 separation agreement, referred to previously, provided that “any and all monetary gains” from the sale of the matrimonial home would go to the payment of three debts: (1) a personal loan for a house down payment from the mother’s parents in the amount of $5,911.42; (2) a credit card consolidation debt held by the mother’s mother in the amount of $12,000.00; and (3) a personal loan for the parents’ wedding from the mother’s parents in the amount of $3,400.00.

163The separation agreement also provided that the father agreed to absorb all outstanding debts that were not paid in full by “any and all monetary gains” from the sale of the matrimonial home.

164The mother argues that the father is required to pay the amount owing to her parents under the agreement.

165The father argues that he signed the separation agreement without legal advice. He says that he and the mother had agreed that the mother and the children would move out of the matrimonial home and that he would move back in. He says he needed a place to live and the mother insisted that he sign the agreement in order to move back in. The father says that until the mother presented him with the separation agreement, he believed that the money the mother’s parents had given the couple for the down payment on their home and their wedding had been a gift. The father acknowledges that the mother’s parents lent them money to pay off their loans. He says that he does not agree that the amount owing was $12,000.00. He notes that in the loan document he and the mother’s father signed on May 1, 2015, the amount owing under the debt consolidation loan was $10,700.00 and not $12,000.00. The father also points to a TD Canada Trust document dated August 16, 2010, shortly before the mother and the father married and purchased their home that indicated that the mother’s mother had given the mother a gift of $13,000.00. The TD Canada Trust document referred to the purchase of the matrimonial home and said that “the money is a genuine gift and does not have to be repaid.”

166I have already observed that although the father argued that he signed the May 2014 separation agreement without legal advice, the agreement stated that each had consulted “an attorney” with respect to his legal rights. Although the father argued that the mother effectively forced him to sign the agreement because he needed a place to live and she would not permit him to move into the matrimonial home unless he signed it, the agreement stated that he voluntarily signed the agreement. The father has not sought to set aside the agreement.

167As a general proposition, in the absence of fraud or misrepresentation, a person is bound by an agreement to which they have put their signature whether they have read its contents or have chosen to leave them unread. Cheshire, Fifoot & Furmston's Law of Contract , 13th ed. (1996) at p.168: Fraser Jewellers (1982) Ltd. v. Dominion Electric Protection Co., 1997 CarswellOnt 1894 , [1997] O.J. No. 2359 , 101 O.A.C. 56 , 148 D.L.R. (4th) 496 , 32 B.L.R. (2d) 1 , 32 B.L.R. (2d) 2 , 34 O.R. (3d) 1 , 35 C.C.L.T. (2d) 298 , 71 A.C.W.S. (3d) 871 .

168An issue arose with respect to whether this court has jurisdiction to make an order in respect of the parents’ property, because they were living in Quebec at the time they separated. This issue was not raised in the parents’ pleadings. Regardless, I find that I am being asked to interpret a portion of a contract between the parties, the May, 2014 separation agreement, which neither party has sought to set aside. The contract states if any portion of it is unenforceable, the remainder of the agreement shall continue to apply. The agreement also states, in its last paragraph, that the laws of Ontario shall apply to its interpretation. I find that I have jurisdiction to consider the issue of the loans from the mother’s parents.

169Regardless of evidence that the mother’s parents may, at one time, have considered some of the money given to the parents to have been a gift, I find that the father is bound by the May, 2014 separation agreement to do what he contracted to do, which was “to absorb all outstanding debts that are not paid in full by any and all monetary gains from the sale of the [matrimonial] home.” I find, based on the agreement between the father and the mother’s father dated May 1, 2015, that by that time, the amount owing under the debt consolidation loan was $10,700.00 and not $12,000.00.

170I also note that the May, 2014 agreement provided that the parents agreed that “any and all monetary gains from the sale of the [matrimonial] home will go towards the payment” of the three loans from the mother’s parents. This agreement required each parent to apply his or her share of the proceeds of the sale of the matrimonial home to the debt owed to the mother’s parents. A disbursement statement dated December 15, 2015 and signed by the mother shows that the mother received $6,483.52 from the sale of the home and the father $6,846.49. The mother’s $6,483.52 either was or should have been applied to reduce the amount owing under the loan.

171The father shall pay to the mother the amount he agreed to pay to her parents, which I find is $5,911.42 plus $10,700.00 plus $3,400.00 minus $6,483.52. The father shall, therefore pay the mother $13,527.90 on account of these loans. The separation agreement did not provide for interest to be paid on this amount; I exercise my discretion under s. 130(1) (a) of the Courts of Justice Act and order no prejudgment interest on this amount.

Costs

172If the parties cannot agree on the issue of costs, the father may deliver written submissions with respect to costs within 14 days of the date of this decision. The mother may then deliver responding written submissions in response within 14 days of the date of receipt of the father’s submissions. The father may deliver any reply submissions of no more than three pages in length within seven days of the date of receipt of the mother’s submissions.

173The costs submissions may be filed by sending them to me by email at scj.assistants@ontario.ca .

Madam Justice H. J. Williams Date: June 22, 2020

MULLOY (MARCHAL) v. MULLOY FC-15-1602-1 APPENDIX A Multidirectional order (in respect of parenting issues only)

THIS COURT ORDERS THAT:

Custody

1. The incidents of custody respecting the children, Hunter Donald Mulloy, born January 5, 2008 and Holly Debra Mulloy, born September 25, 2012 shall be divided between the mother and the father under a parallel parenting regime, in accordance with the terms set out in this order.
2. The mother shall have the right to make major decisions in all areas relating to the children’s academic education. These rights and responsibilities shall include but not be limited to the following: a. The right to decide which school the children attend, although the children shall not attend a school that is farther than 15 kms away from the father’s current place of residence without the father’s consent; b. The right to determine whether the children require academic assistance and support, including but not limited to tutoring, other than French-language tutoring while the children are in the care of the father, and to determine the professional(s) who will provide this assistance and support; c. The right to sign consents relating to the children’s academic education. This shall not include the right to sign consents regarding medical and health care and treatment, which fall within the scope of the father's custodial rights, below, but shall include the right to sign consents regarding psycho-educational assessment; and d. The right to sign consents relating to the children’s school activities.
3. Subject to paragraphs 4, 5, 6 and 7, the father shall have the right to make major decisions relating to the children’s medical and health care, treatment and assessment, including but not limited to issues relating to the children’s physical health, dental care and eye care. These rights and responsibilities shall include but not be limited to the following: a. The right to decide which medical and other health care professionals will be involved with the children. b. The right to make and take the children to all appointments respecting the children’s medical and health care, treatment and assessment. c. The right to decide all issues and sign all consents relating to the children’s medical and health care, treatment and assessment, other than the right to sign all such consents required to carry out school-related psycho-educational assessments.
4. The terms of paragraph 3 shall not preclude the mother from administering standard over-the-counter medications and treatments to the child for routine children’s health issues or concerns.
5. In the event that the children require immediate medical or health care, treatment or assessment while in the mother’s care, the mother shall forthwith take all reasonable steps to contact the father so that he may exercise his rights under paragraph 3. The mother may take the children for medical or health care, assessment or treatment in this situation, but the father shall have the right to decide where and by whom the children will be cared for, treated or assessed, and shall also have the right to attend. These terms shall not apply if in the opinion of the attending health care professional the situation is so urgent that the time required to attempt to contact the father would place the children at risk.
6. In the event that the mother is unable to reach the father in the circumstances referred to in paragraph 5 after making reasonable efforts to do so, or the time required to contact the father and/or obtain his consent would in the opinion of the attending health care professional(s) place the children at risk, the mother shall have the right to make the emergency medical or health care, treatment or assessment decisions respecting the children.
7. Neither parent shall have the child attend a psychiatrist, psychologist, family therapist or any other person for psychological treatment unless both parents specifically consent, in writing, or the court orders.
8. The parents shall share the right to make decisions in respect of the children’s extracurricular activities, with each of them having the right to choose activities every second year, in consultation with the children and taking into account the children’s views, preferences, aptitudes and interests. The mother shall have this right in respect of activities in the fall of 2020 and winter of 2021. The father shall have this right in respect of activities in the spring and summer of 2021 and the fall of 2021/winter of 2022. The mother shall have the right in respect of activities in the spring and summer of 2022 and the fall of 2022/winter of 2023. The parents’ right to make these decisions will then continue to alternate on the same, annual spring to winter basis.
9. The mother and the father shall both be named as emergency contacts with the children’s schools and with any other organizations or professional involved with the children.
10. Each parent shall be entitled to receive copies of all medical, dental, school and other reports related to the children and shall be entitled to consult with the children's teachers, caregivers, physicians, dentists, and other health care providers concerning the general well-being of the children. Each parent shall be listed on all documents pertaining to the children and shall be entitled to attend any of the children's scheduled appointments. Both parents shall execute consents or authorizations to all persons, including teachers, doctors, dentists and others involved with the children to speak fully and openly with both parents.
11. The children's school(s) will be advised to contact the parent in whose care the children are, in the event of an illness, or other emergency at the school. The parents shall provide the school(s) with their contact numbers for this purpose.
12. The mother and the father shall advise each other of all important events, functions, or appointments for the children in a timely manner, and with the exception of family or other social events, both parents shall be entitled to participate in these events, functions or appointments, subject to the recommendations of any professionals involved.
13. The parents shall provide each other with the names of and contact information for any professionals involved with the children within five days of the professionals becoming involved.
14. The father shall have right to obtain, renew and/or replace all legal documents relating to the children, including but not limited to the children’s passports, birth certificates, social insurance cards and health cards, without the consent of the mother. The mother shall have notarized certified copies of all of these documents.
15. In the event of a serious illness, accident or other misfortune involving either or both of the children, the parent then having the children in their care shall immediately and promptly notify the other parent. During any period of illness or recovery, each parent shall have generous and reasonable contact with the child, consistent with the conditions of this order and the welfare and happiness of the child.
16. Neither parent shall interfere with the religious observance of the other with the children.

Residency Schedule

Primary residence

Following the transitional period described in this order, the children shall reside equally with each of their parents.

Transitional period

Effective immediately, instead of residing with their father every second weekend from Friday afternoon to Sunday afternoon, the children shall reside with their father every second weekend from Friday afternoon (which means after school or at 5 p.m. if there is no school) until Monday morning (which means at school or at 9 a.m. if there is no school.) Effective immediately, instead of a telephone call with the father each Wednesday afternoons, the children shall also reside with their father each Wednesday afternoon (which means after school or at 5 p.m. if there is no school) until Thursday morning (which means at school or at 9 a.m. is there is no school.) For four weeks in the month of August, the children shall alternate between the parents’ homes on a week on/week off basis. The parent who is already scheduled to have the children on the weekend beginning the afternoon of Friday, July 31, 2020 shall have the children at his/her home from that afternoon until the afternoon of the following Friday (August 7, 2020.) The other parent shall then have the children at his/her home from that afternoon until the afternoon of the following Friday (August 14, 2020.) The children shall continue to alternate homes on the same week on/week off schedule until the afternoon of Friday, August 28, 2020. Regardless of which parent the children lived with during the week of August 21, 2020 to August 28, 2020, the mother shall have the children at her home from the afternoon Friday August 28, 2020 until the afternoon of Wednesday, September 2, 2020 (which means after school or at 5 p.m. if there is no school.) The father shall then have the children at his home from the afternoon of Wednesday, September 2, 2020 until the afternoon of Monday, September 7, 2020 (which means after school or at 5 p.m. if there is no school.)

School year

Thereafter, during the school year, the parents will have physical care of the children in accordance with what is known as a “2-2-5-5” parenting schedule, which shall operate as follows: a. The children shall always be with the mother overnight on Mondays and Tuesdays, from the end of school on Monday until the end of school on Wednesday; b. The children shall always be with the father on overnight on Wednesdays and Thursdays from the end of school on Wednesday until the end of school on Friday; and c. The children shall alternate weekends with each parent, from the end of school on Friday until the end of school on Monday. If the Monday is a statutory holiday or there is no school on Monday, the access of the parent who had the children with him or her on the weekend shall end at 5 p.m. on Monday. If any other exchange day occurs on a day when the children are not in school, the exchange time shall be 5 p.m. The parents shall not withdraw the children from school early unless it is for a scheduled appointment or for medical reasons. 26. If a parent intends on removing the children from school for a non-medical reason (such as an extended trip, travel, family event) they shall provide the other parent with at least seven (7) days’ notice of their intention to do so as well as an explanation of the reason why the child will be taken out of school. 27. If a parent is unable to care for the children on his or her parenting time for more than one overnight, right of first refusal shall be given to the other parent to care for the children before any other responsible adult is asked to care for them. No make-up access needs to be provided when the residential parent is unable to care for the children and offers the other parent to care for them in his/her home. 28. All of the children's transitions between the parents’ care shall take place at the children’s school or schools, or, if the children are not in school, through the Family Services Exchange Program, or any mutually-acceptable alternative.

Holiday Schedule

29. The Father and Mother shall share, equally, all school vacations and holidays. The residency schedule set out above shall be replaced during vacations and holidays as follows: Christmas vacation is that period of time commencing at the end of the last day of school in December and terminating on the first day of school in January. Commencing in 2020, the father shall have the children in his care from the last day of school, as above, until Christmas Day at 1 p.m. The mother shall have the children from Christmas Day at 1 p.m. until Boxing Day at 6 p.m. In odd-numbered years the father shall have the last half of the Christmas school vacation, including New Year's Eve and New Year's Day. In even-numbered years, the mother shall have the last half of the Christmas school vacation, including New Years' Eve and New Year's Day. March Break is that period of time commencing Friday after school (or at 3 p.m. if the children are not in school) to Monday at the start of school (or at 9 a.m. if the children are not in school). If the March Break is a period of two weeks, the father shall have the first half of the March Break and the mother shall have the second half of the March Break. If the March Break is a period of one week, the father shall have the March Break in even-numbered years and the mother shall have the March Break in odd-numbered years. The father shall have the children for Easter weekend in odd-numbered years commencing Thursday after school (or at 5 p.m. if the children are not in school) to Tuesday at the start of school (or at 9 a.m. if the children are not in school). The mother shall have the children for Easter weekend in even-numbered years. Summer vacation is defined as that period of time which starts on the first day following the last day of school and terminating on the day prior to the first day of school where each of the children go to school. Commencing in 2021, each parent shall have the children in his/her care for one half of the summer vacation period, in a cycle that rotates between their residences in two week cycles, until it becomes mathematically impossible to do so. In that event, in order to ensure equal time between the parents, any remaining time after the two week cycles have been exhausted, shall be shared equally between the parents. The children shall not spend more than a continuous two-week period of time with either parent. The parent who does not have the children in his/her care on the last day of school in June of each year, shall have them for the first two-week cycle of summer access. Exchanges shall occur on Fridays at 5 p.m. In odd-numbered years, the father shall have the children for Thanksgiving weekend from Friday after school (or at 5 p.m. if the children are not in school) to Tuesday at the start of school (or at 9 a.m. if the children are not in school). The mother shall have the children for Thanksgiving weekend in even-numbered years. The father shall have the children every Father's Day. If the children are not already in the father's care on Father's Day, then the children shall reside with the father that day from 9 a.m. to 7 p.m. The mother shall have the children every Mother's Day. If the children are not already in the mother's care on Mother's Day, the children shall reside with the mother from 9 a.m. to 7p.m. The children shall spend their birthdays with the parent who has care of them in accordance with the residency schedule set out above. All other holidays and special occasions, including but not limited to, Family Day, Victoria Day, Canada Day, the August Civic Holiday, and Halloween shall follow the residency schedule set out above.
30. Parenting time shall only be altered on consent of the parents, by further court order, or on the recommendation of a medical professional in the event of medical emergency. Both parents shall discuss any medical emergency concerning the Children with the professional in that event.
31. There shall be no make-up time for missed parenting time, unless the parents agree otherwise.
32. If one or both of the children is/are sick, the transition from one parent’s care to the other parent’s care is to proceed unless the child is too sick to travel between the parents' homes as per the determination of the child's doctor.
33. If either parent is unable to meet the other parent at the transition location due to inclement weather or unreasonable traffic, that parent shall advise the other parent by email/text as soon as is reasonably possible.
34. Neither parent may object to the other's plans with the children and must respect each other's ability to care for the children appropriately.
35. Neither parent will arrange activities for the children when the children are scheduled to be with the other parent without that parent's consent.
36. The mother and father shall advise each other within one day of learning of any special activities or events that arise for the children during the times when the children are scheduled to be with the other parent. They shall make reasonable efforts to allow the children to attend these activities or events, unless they have previously scheduled other special activities or events. Each parent shall use reasonable efforts to accommodate the children’s wishes in these circumstances, as expressed directly by the children to the parent with whom the children are scheduled to spend the time in question.
37. Both parents shall be at liberty to attend scheduled school events and extracurricular activities whether or not they occur during their parenting time.
38. The parent in whose care the children are residing at the time of the school event or extracurricular activity will ensure that the Children are brought to school events and extracurricular activities. To maximize the benefit of the children's participation in ongoing events and activities, both parents shall make their best efforts to ensure regular attendance.
39. Both parents shall be at liberty to attend field trips and participate in classroom events when the children are in their care and will not attend those events if the children are in the care of the other parent at the time.
40. There shall be no restrictions placed on the children with respect to personal items, toys and gifts they wish to take with them between the residence of their parents. Should the children wish to take a gift, toy or article of clothing, they shall be permitted to do so, without the intervention of the other parent.
41. Both parents shall provide the other by email their current addresses and a phone number where they can be reached at all times.
42. Both parents are to advise the other by email if the children will be other than in the mother's home or the father's home for more than one night, and to provide the details of where the children are as well as a phone number where the children can be reached.

Communication

43. The parents 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 or members of each other’s household or families in the presence or within earshot of the children. b. They shall not question the children about the other parent’s personal life and activities. c. They shall not video or audio record the children for the purpose of recording statements or discussions about the other parent, members of their household or family, or parenting issues. d. 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 parents. e. They shall not use the children to pass messages or documentation on to each other. f. 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 child and extended family members.
44. Neither parent shall discuss with the children, or with another person in the presence of the children, legal proceedings or issues between the parents related to legal proceedings, including any outstanding issues relating to the parents or the children or regarding conflicts between the parents relating to parenting issues. Each parent may respond briefly and in a fair and reasonable manner to questions with respect to such matters initiated by one of the children.
45. Neither parent shall leave out or accessible to the children information or documents pertaining to any issue arising from the parents' separation and divorce, including any material that pertains to the matters referred to in paragraph 45 above, and neither will permit the children to access to their personal email where communications regarding these matters are stored. Both parents shall ensure that the children will not have access to information regarding the parents' separation and divorce by password-protecting any area of their personal computers that hold such information.
46. The parents shall communicate about the children by email or, at their joint option, My Family Wizard, which shall not be shared with the children. If they choose to communicate by email, the emails shall not be read by the children. Each parent will respond promptly by return email to the email of the other. The parents shall exchange information regarding the children's care, developmental milestones, scheduled activities and appointments, medical and otherwise and any requests for changes in the parenting schedule. Any emails between the parents regarding the children shall not be deleted nor shall they be forwarded to third parties without the other parent's consent. All communications shall be brief, respectful and related solely to the children.
47. The parents shall share all documents pertaining to the children by scanning the document and then sending it to the other parent by email. The parents shall not rely on the children to transport documents between them.
48. If one parent requests information or a temporary change by email, the other parent shall respond within 48 hours. Requests made giving less than 48 hours notice shall be responded to as soon as possible. In the event of an emergency or truly time-sensitive matter, the parents shall telephone each other. If a reply requires more time than 48 hours, an email shall be sent advising that the reply cannot be reasonably given with this time period and advising when the response can be expected.
49. Any discussions between the parents at transition times, activities or other special events where the children are present or nearby shall be limited to brief and cordial interchanges. If one parent considers the discussion not to be courteous, both shall discontinue the conversation and may revisit the issue later by email.
50. If one parent finds what one (or both) of the children has/have said about the other parent to be of significant concern, that parent shall first ask the other parent, by email, what precipitated the comment. If a complaint is made by one (or both) of the children to one parent about the other, the child shall be encouraged to talk directly to the parent he or she is complaining about.
51. Each parent shall be entitled to make one telephone call to the children on any day the children are out of their care for a 24-hour period. The call may last up to ten minutes with each child. The other parent shall actively support and use reasonable efforts to facilitate the call. The other parent shall not be in the same room as the child during the call, except to facilitate the call. The call may be used to wish the child good night and provide comfort but shall not be used to question the child about parenting methods or the activities of the other parent.
52. If the children wish to telephone the non-residential parent, they may do so and the residential parent shall, if required, ensure that the call is placed. The residential parent shall not be in the same room as the child during the call, except to facilitate the call; the non-residential parent shall not question the child about parenting methods or activities of the other parent.
53. Neither parent shall go to the other's home except with the express consent of the other. The children shall take responsibility for the movement of their possessions as necessary between the parents' homes.

Children's Names

54. Neither parent shall change the names of the children, formally or informally, without the written consent of the other parent or court order.

Parenting Coordinator

55. The parents shall retain the services of a parenting coordinator. On or before July 17, 2020, the father shall provide the mother with the names and coordinators of three parenting coordinators, after having confirmed their willingness and availability to assist the parents. On or before July 31, 2020, the mother shall advise the father of her choice of parenting coordinators from the list he provided. A parenting coordination agreement shall be signed by the parents on or before August 14, 2020. The parenting coordination agreement shall be for a period of not less than 18 months. The parties shall divide the cost of the parenting coordinator’s services on an equal basis.

Mobility Restrictions & Travel

56. Neither parent shall change the children's residence from the City of Ottawa without the other's consent.
57. The children may travel within Canada for vacation purposes with either parent, which travel will not require the consent of the other parent.
58. The children may travel outside Canada for vacation purposes with either parent, with the consent of the other parent, which consent is not to be unreasonably withheld. The travelling parent shall request the consent of the non-travelling parent a minimum 21 days in advance of the scheduled trip, unless otherwise agreed, and the non-travelling parent shall provide a notarized "Travel Letter" authorizing the children to travel with the travelling parent a minimum 7 days in advance of the scheduled trip.
59. Should either parent desire to take the children from the provinces of Ontario or Quebec for vacation purposes, they shall advise the other parent in writing of dates of travel, location, flight details (if applicable), address and phone numbers where the children can be reached where they are going, a minimum 21 days in advance of the scheduled trip, unless otherwise agreed.
60. Should a passport be required for the children, the parents shall cooperate with each other in providing the necessary information to make the application. The father shall keep the passports at his residence and they shall be made available to the mother as required.