Court File and Parties

COURT FILE NO.: FC-15-1252 DATE: 2021/02/17

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

M.C. Applicant – and – S.L. Respondent

Counsel: Sonia Notturno, for the Applicant Kathleen Kealey, for the Respondent

HEARD: January 18, 19 and 20, 2021 M. Fraser J.

REASONS FOR JUDGMENT

Introduction:

[1] The Applicant father, M.C. and the Respondent mother, S.L. are the parents of D., born April 8, 2010. The parties began to live together in 2002. D. was born April 8, 2010. Although the parties began to live separate and apart under the same roof sometime in 2012, the parties physically separated in 2014 when D. was four years old.

The issues:

[2] The issues before me are as follows:

a. Custody: M.C. asks for an order for joint custody of D. S.L. asks for sole custody of D.

b. Decision-making: S.L. asks for decision making responsibility on medical/health issues and education. M.C. asks that he be responsible for decisions concerning D’s education and that S.L. be responsible for decision making concerning D’s medical/health care.

c. Parenting time: M.C. asks for a week-about arrangement. S.L. asks that the terms of access continue as per the terms of the most recent temporary order, namely that D. reside primarily with her and exercise access with M.C. every alternate Friday after school until Tuesday morning before school, every Monday overnight, and on a week-about basis during the summer.

d. Police enforcement clause: Both parties suggest that a police enforcement order should be ordered.

e. Mobility restriction: Both parties ask that there be an order prohibiting D’s residence from Ottawa, ON.

f. Travel restriction: M.C. believes that should either party wish to leave Ottawa on vacation with D. then they should get the prior consent of the other. S.L. asks that there be no restriction on her right to travel with D but that M.C. obtain her prior consent.

g. Name change: M.C. asks that he be permitted to apply to change D.’s last name to add “C.” as part of his surname. S.L. opposes this.

h. S.L. asks for an order for child support.

The evidence:

M.C.’s evidence:

[3] M.C. testified that prior to 2014 when the parties resided together, M.C. was actively involved in D.’s care and that he would oversee D’s care while S.L. was working.

[4] According to M.C., following the parties’ separation, the parties had difficulty finding common ground as it pertained to D. S.L. was dictating and severely restricting his ability to see D. On August 24, 2014, S.L. presented him with papers which provided that S.L. was to have sole custody of D. M.C. stated that S.L. represented that unless he signed these papers she would not allow him to see D. He says he felt he had no alternative but to sign the document.

[5] M.C. testified that he was then permitted to see D. but that S.L. continued to severely restrict his access time with D. In the first year he claims he saw D. approximately three times over the span of that year. Despite efforts to arrange time with D., he went through a period of approximately three months without being permitted to have access with D. at all.

[6] M.C. therefore commenced this Application on June 10, 2015.

[7] The parties then agreed upon an interim arrangement which provided M.C. regular access with D. The terms of access have been varied several times. Ultimately, by June 2017, M.C.’s interim access was expanded so that D. was in M.C.’s care every other Friday to Tuesday and then every other Monday overnight. The parties shared week-about access in the summer. These are the terms of the temporary order for access which was in place at the time of this trial.

[8] Notwithstanding the terms of the June 2017 Order, when the COVID-19 pandemic hit, the parties modified the access schedule to a 5-5-2-2 parenting arrangement. They followed this schedule for a four-month period (March to June 2020).

[9] For the summer of 2020, the parties then reverted back to the terms of the Order and shared parenting time for the summer on a week-about basis.

[10] When September arrived, M.C. testified that the parties continued with the access schedule provided for by the June 2017 Order. However, following a settlement conference on October 8, 2020, the parties began to expand upon that access. After that date, M.C. maintains that his access has more approximated a week-about access schedule.

[11] The deviations from the court ordered access schedule occurred, according to M.C., informally and usually as a result of D. expressing his wish to stay with M.C. for extended periods. M.C. feels this expansion in access is a demonstration that the parties are, at this point, able to work together and cooperatively for the sake of what is best for D.

[12] M.C. feels that the expanded week-about arrangement has worked well for D. and that it is consistent with what D. wishes. He related that there has not been conflict between the parties in accommodating this flexible schedule and that when D. requested further time with M.C., S.L. has usually agreed.

[13] M.C. agrees with the recommendations of the Voice of the Child’s report. He denied in cross-examination having influenced D.’s views. M.C. maintains that D.’s views and preferences as related to the Children’s Lawyer continue to be his views.

[14] M.C. related that D. suffers from a form of anxiety. The parties have had to work together in order to support D. It is a form of anxiety which manifests itself in physical symptoms. It first appeared as pain in his legs. D. couldn’t walk for periods of time. D. suffered from this condition for months and he was hospitalized for a part of this time. His condition subsequently appeared in the form of mouth pain. This pain resulted in D. not being able to speak. Most recently his anxiety has manifested itself in ear pain/hypersensitivity to noise.

[15] The parties are working with D. They have consulted with D.’s doctors. They have been told his problem is a psychological condition which manifests itself with physical symptoms. For the past six months or so, M.C. advises that this is sometimes the reason that D has requested that he stay for extended access with M.C. as D. finds it difficult at times to be around a younger sibling at S.L.’s home.

[16] M.C. advises that they help D. by not speaking too loudly with him. S.L. has also provided D. with earphones which helps to reduce the noise from external sources.

[17] M.C. believes that S.L. and he are generally able to cooperate in supporting D. and make decisions jointly for his benefit When they communicate, their discussions are usually restricted to matters concerning D.

[18] M.C. does not take any real issue with S.L.’s parenting abilities. He has some concern with respect to S.L.’s use of marijuana. He also complained that he feels S.L. “badmouths” him to D.

[19] M.C. disputes S.L.’s concerns that M.C.’s living accommodations are inappropriate for caring for D. because he resides in a small one-bedroom apartment.

[20] M.C. testified that he recognizes that at some point he will want to find a more spacious apartment. He has been provided the application to submit to Ottawa Community Housing to apply for a two-bedroom apartment. He has been told that he is not eligible to apply for the bigger apartment unless he has a shared custodial arrangement. If granted a shared arrangement, M.C. intends to apply for a two-bedroom accommodation.

[21] When D. is in his care, M.C. testified that D. sleeps in the bedroom and M.C. sleeps on the couch in the living room. There is a desk in the bedroom but it has a tv on it. When D. is at M.C.’s, he does his school work at the kitchen table or on the couch. While M.C. admits that the apartment is small, he advised that he would still facilitate D. having friends over. He stated that D. sees most of his friends at school and that this has not been an issue in the past.

[22] When cross-examined, M.C. was asked whether he used physical discipline on D. He denied this. He stated that he doesn’t. He admitted to once grabbing him by the shirt collar in order to get his attention.

[23] M.C. advises that he and D. often watch movies and play games. He maintains that D. would prefer to play or go outside when he spends time with M.C., but M.C. ensures that D. also does his school work. D. is registered in the French Immersion program at Manor Park Public School. He is presently in grade 5.

[24] Due to the COVD-19 pandemic, D. has been learning online and does so from whichever home he is at. D. has found online learning to be challenging. The parties tried homeschooling for a bit but decided to return to online learning when the school discussed the matter with them and recommended re-registering D. for online learning.

[25] M.C. testified that the parties have not discussed or agreed where D. would attend junior high. M.C. would prefer he continue in French school or French immersion. M.C. believes that D. would benefit from becoming bilingual.

[26] M.C. conceded in cross-examination that D. has been struggling with the current French stream he is in and that D. is behind. D. has missed a lot of school due to his health issues and he needs to catch up. M.C. believes that some of the difficulty lies in the fact that D.’s French teacher is Anglophone and her accent makes it difficult for D. to understand.

[27] M.C. does not dispute S.L.’s request to make decisions with respect to D.’s medical issues. He advised that S.L. has traditionally informed him of issues in the past and that there has not been any particular difficulty coming to a consensus on issues.

[28] In cross-examination, M.C. admitted to acting unilateral with D. following some surgery and when it came to trying to support D. when he was unable to walk. In the first instance, M.C. brought D. in to have a stitch removed rather than allowing it to dissolve on its own and this was a painful experience for D. In the second instance, M.C. provided D. with a walker in order to facilitate D. returning to school when the treating physician recommended not assisting D. in this way.

[29] M.C. does not dispute S.L.’s request that she remain in charge of any decision making concerning medical/health issues.

[30] M.C. feels it would be fair and appropriate that he be put in charge of decisions concerning D.’s education. He maintains that he has always participated in and supported D.’s schooling.

[31] M.C. states that he does not intend to move from Ottawa. He recognizes the benefit for D. of both parties being resident within close proximity to one another. He has no difficulty with there being an order that neither of them move the child’s permanent residence outside of Ottawa.

[32] M.C. believes that should either of the parties wish to vacation out of the country with D. that they should get the prior consent of the other. He asserts that he would accommodate a request for vacation time in the event it interfered with the normal access schedule. He believes this should work both ways.

[33] M.C. acknowledges that there was an occasion years ago in which he did not cooperate with S.L.’s request to travel with D. This resulted in S.L. having to pursue a court order permitting her to do so. D. claims that things have changed and that they have “come a long way since then.”

[34] M.C. also admitted to having said that he would like to leave with D. and that he would go to his aunt’s home who lives out of province. M.C. stated that he only said this to express his frustration with S.L. when she was restricting his access to D. He stated that he would never do this to S.L. or D.

[35] M.C. wishes to change D’s legal name to add “C.” to his surname. He acknowledges that S.L. raised the issue of using his surname when she was pregnant with D. He claimed he did not agree to this at the time. This is because he was teased about his name when he was younger. By the time D. turned one year old, he regretted this decision. He advises that he approached S.L. and that she was unprepared to agree to a name change.

[36] M.C. believes that D. would like to change his name and that sometimes he writes down his name as “C.- L.” M.C. admits that it is possible he raised this issue with D.

[37] As a result of back pain, M.C. has not been able to work and he has been receiving ODSP since 2019. He receives $906 monthly. This is presently his only source of income. His income for the purposes of support is $11,099.12. He has managed some limited work for Finnegan’s restaurant/bar running the music. When this happens, his earnings are deducted from his ODSP.

[38] M.C. maintains that he has not worked under the table in any fashion. It has been suggested that he was making money by selling items on Kijiji. He denied this. He advised that he has sometimes posted items for sale for his brother but that he has never sold items on this website as a means to earn income.

[39] M.C. states that S.L. always made more money than he did and he admits that when they were together there was always pressure from S.L. for M.C. to get another job.

[40] M.C. has his high school diploma. He completed his diploma while living S.L. through the adult high school.

[41] M.C. does not presently pay child support for D. While he hopes to eventually return to the workforce, he states that he is unable to work at the moment if it involves sitting, standing or laying down.

[42] M.C. noted that S.L. receives the child tax benefit, and normally she receives three times more per month than he does. M.C. believes both of the parties should get the benefit of this money. He feels this has been particularly unfair during the summer when the parties share access on a week-about basis.

[43] M.C. believes that S.L. insistence on sole custody/principal residence is based upon her not wanting to give up the child tax benefit.

Evidence of S.L.:

[44] S.L. has resided in the City of Ottawa for most of her life. She lives in the Manor Park neighbourhood. Her sister lives two doors down from her. Her mother lives right around the corner.

[45] S.L. presently lives in a two-bedroom townhome with D. and her younger son Dawson, who is almost four years old. D. presently has his own room. Dawson sleeps in her bedroom. Until the past year, S.L.’s partner, Jeff, resided with them. Jeff has moved out to assist with his own son’s health issues. Notwithstanding this development, Jeff continues to visit frequently and spend time with them.

[46] Prior to the COVID-19 pandemic she worked as a manager at a Suzy Shier store. During the pandemic, the store’s lease expired and it closed permanently. She now receives Employment Insurance benefits. The only other source of support she receives is the Child Tax Benefit. Her income, for the purpose of support is $21,408.

[47] S.L. testified that when she met M.C. she was working at the Canadian Bank Note company. M.C. was working at Finnegan’s pub two nights a week. Their relationship began in 2002 when she was 19 years old.

[48] S.L. recalled always being the primary wage earner and often the sole source of financial support for their family. It was, according to her, a constant source of conflict.

[49] After D. was born, S.L. maintains that the parties separated for a short while. After they reconciled, she confirmed that M.C. would look after D. while she was working at the Canadian Bank Note Company. She would work on Sunday, Monday and Tuesday each week.

[50] According to S.L., they separated again on a number of occasions. They separated for the final time when she learned that M.C. was seeing someone else.

[51] At that time, S.L. moved with D. into her mother’s home. There she shared a bedroom with D. who was four at the time. She stated that she needed to move into her mother’s home as M.C. was not providing financial support and that he kept showing up at her previous home and this prevented that from happening.

[52] S.L. subsequently obtained her present home. Once she became involved with Jeff, she testified that there was insufficient space at her mother’s home for them all to reside together comfortably.

[53] S.L. maintains that she did not allow M.C. to have access with D. following their separation because a friend contacted her and reported that M.C. had stated that he was thinking about taking D. and moving to Calgary to his aunt’s home. S.L. sought advice from both the police and child protection authorities and based on this advice, she restricted access unless he agreed to the terms of an agreement she prepared that by its terms restricted his ability to leave with D. and gave her sole custody of D.

[54] S.L. termed her relationship with M.C. during this time to be terrible. She felt that he was constantly pursuing her wherever she was and that he would show up and a confrontation would ensue.

[55] S.L. admits that their relationship has improved and that it is presently better than it has ever been.

[56] Presently the court ordered terms of access provide that M.C. has access with D. every second Friday until Tuesday morning and every Monday evening overnight to Tuesday on the alternate week. During the summer period, the parties have followed a week-about schedule.

[57] This access schedule has been in place for approximately three years.

[58] S.L. testified that as a result of D.’s issues with his ears, D. has been spending more time with M.C. or at her mother’s home as that way D. can escape the noise of her toddler. S.L. advises that she has accommodated this.

[59] While S.L. acknowledges that the Voice of the Child’s report states that D. wishes to exercise a week-about arrangement between the parties, S.L. opposes this. She does not feel this would be in D.’s best interest. She maintains that D. does not express this view with her and she does not believe this continues to be his wish.

[60] Further, S.L. does not believe that M.C.’s apartment is suitable to accommodate a week-about arrangement. She maintains it is too small and D. doesn’t have his own bedroom with his own things. As D. gets older, she believes it’s important that D. have more privacy than M.C. is able to provide to him. It was pointed out to S.L. in cross-examination that S.L. expressed the same concern when the court proceedings were commenced and D. was only 5 or 6 years old at the time. She responded that it was a lesser concern then.

[61] S.L. maintains that she still would take issue with a week-about arrangement even if M.C. obtained a two-bedroom apartment. S.L. suggests that M.C. gets aggressive with D. In cross-examination, however, S.L. admits that she hasn’t disputed D. staying with M.C. five nights per week and that she has permitted D. to spend additional time with M.C. throughout the pandemic.

[62] S.L. agrees that the access which has occurred between the parties has been over and above the terms provided by the paper order. She agrees that no major issues have come up. She states that the only reason she is making this exception is due to D.’s ear/health issues. She doesn’t believe that she will agree to a continuation of the informal arrangement once this health issue clears up. She believes D. needs to be where his friends are and that his views will change.

[63] Notwithstanding the fact that relations have improved, S.L. recounted M.C. bringing D. to his family physician without her knowledge after his surgery. He did so to have a stitch removed which was supposed to dissolve on its own. This resulted in more pain and discomfort for D.

[64] S.L. testified regarding D.’s issues with anxiety and the problems D. had with leg pain. She recounted that it developed to the point that he was unable to walk for several months. D. was eventually hospitalized and ultimately they were told that he was somatising. With this diagnosis, they were referred to a psychologist at CHEO. The psychologist recommended they bring D. for counselling and that they don’t support his perception that he couldn’t walk by assisting him. S.L. stated that within the week M.C. had provided him with a wheelchair.

[65] D. now has issues with his ears. The pain and noise sensitivity he has been experiencing has been ongoing for over a year now. S.L. stated that as a result D. is sometimes uncomfortable in her home because of the noise associated with having a younger sibling.

[66] S.L. has provided D. with noise cancelling headphones to help D. cope. Unfortunately the headphones create a moist environment which then prompts ear infections.

[67] When a medical appointment is needed, S.L. advises that she usually makes the appointment and informs M.C. of that appointment and that he will often also attend the appointment.

[68] S.L. admits that she and M.C. have communicated very well over the past year. However, she feels that he has been more cooperative simply due to the lead up to this trial and she questions whether things will revert to “old way” when the proceeding is concluded.

[69] S.L. testified that D. is currently registered in the French Immersion program. She states that this decision was made by both of them.

[70] Due to the COVID-19 pandemic, D. is registered for virtual learning. S.L. believes they would have opted for the online program even were D. not struggling with his ear issues due to the fact that it is a scary time with the pandemic.

[71] S.L. reports that D. has been having trouble adjusting to the online learning and that he has been having trouble understanding his French teacher. This has been a source of stress for him. In order to help him, S.L. decided to attempt to home school D. instead. She advised that this proved challenging and that after further discussions with D.’s school, he was registered for online learning again. She doesn’t agree that it is simply an issue with D. having difficulty understanding his present French teacher. She says his anxiety and difficulties arose prior to this particular teacher.

[72] S.L. maintains that she has principally responsible for overseeing D.’s schooling even though she agrees that both M.C. and she would both volunteer at the school and in the past, she has consulted with M.C. when making decisions.

[73] S.L. stated that she recently had a discussion with M.C. concerning where D. would attend high school. She is of the view that M.C. is intent on having D. transfer to a French language high school and alternatively a French Immersion program for high school. Given D. is already struggling, she believes this would cause D. to fall further behind. She believes it is more important that D get a solid education and that this takes priority over D. becoming bilingual.

[74] S.L. asks for an order permitting her to travel without M.C.’s consent. In the past she advised that M.C. has unreasonably delayed giving his consent. Also, when she arrived back from the trip, D. was too tired to go to M.C.’s as it was then time for M.C.’s access. M.C. apparently threatened to not consent to her travelling with D. again.

[75] On the other hand, S.L. believes that M.C. should have to obtain her consent prior to travelling with D. She recounted when D. was young that M.C. had threatened to leave out of province with D. This happened when D. was four.

[76] Prior to D.’s birth, S.L. states that she discussed the issue of using M.C.’s surname several times. She advises that M.C. wasn’t sure he was ready for a child and that he thought his name was too French. Therefore, it was M.C. who didn’t want her to use his name even though at the time she says she was prepared to use it.

[77] S.L. believes at this time that it should be left to D. to decide when he is older. She disputes he has ever expressed the desire to change his name and she believes he would have difficulty adjusting. She also pointed out that there is a cost to changing a name and questioned how M.C. can afford to do this when he can’t afford to pay child support.

[78] S.L. admits to using marijuana to ward off panic attacks. She denies that there is any issue with her abusing this substance or using it inappropriately when D. is in her care.

OCL Voice of the Child report:

[79] A Voice of the Child report was prepared by OCL Clinician Karen Poole dated January 21, 2020.

[80] Of note were the following observations by Ms. Poole:

1. D. was almost ten years old and appeared to be his chronological age. He was eager to put forward his thoughts and he actively engaged with Ms. Poole. He had a good sense of the reason for meeting with Ms. Poole. Ms. Poole conducted two private interviews with D., who was brought in once by each parent;
2. D. was made aware of the limits of confidentiality arising from the interviews and agreed to participate with that knowledge. He expressed some concern about the impact that his expressions would have on his mother’s response to him as he was concerned that Ms. S.L. would be upset with him;
3. D. was, at the time of the interviews, in Grade 4 at Manor Park Public School. He reported progressing well and not getting into trouble;
4. While D. reported having friends at school, he advised that he didn’t see those friends outside of school. He is not involved in any extra-curricular activities;
5. D. was living primarily with S.L. and her partner Jeff and their 2-year-old son, Dawson;
6. D. had access with M.C. alternate weekends from Friday until Tuesday morning and every Monday night. In the summer he advised that he resided on a week-about basis with both parents and that he loved this.
7. D. conveyed affection for S.L. and he stated that he wished that she understood how much he cares for M.C.;
8. D. reported not getting along well with S.L.’s partner, Jeff. He reported that he fights with him and that he says bad things about M.C..
9. D. expressed a great deal of affection for Dawson.
10. D. reported being very close to his maternal grandmother, whom he sees most days after school
11. D. has his own room at S.L.’s home.
12. D. indicated that he loved being with his father and feels very close to him. D. reported that his favourite thing about M.C. is “everything.”
13. D. reported that M.C.’s home is a small one-bedroom apartment that is neat and tidy. D. advised that he doesn’t mind not having his own space at his father’s and that M.C. usually sleeps on the floor due to his bad back. D. advised that he loved it on the very rare occasions when he and M.C. slept in the same bed.
14. He reported that M.C. gave him an idea of why he was meeting with Ms. Poole and that he saw it as his chance to make a difference by expressing what he wants.
15. D. reported knowing what is going on in court. He claimed he has heard his parents talk about these issues a lot. He complained that, “The judge always believes my mother and not my dad for some reason and I really don’t like that.” “It’s important that the judge listens to my dad more.” “I want 50-50.” “If the judge doesn’t listen to this I am done.” “I mean I will be very upset and get annoyed.”
16. D. would like all the disagreements to stop. D. described himself as often experiencing anxiety, which is exacerbated by the conflict between his parents.
17. D. wants more time with Mr. M.C. because he feels comfortable there. D. opined that he already exercises a week-about arrangement in the summer and would like this all year. He is very frustrated with having insufficient time with M.C..
18. D. presented as having thought about the issues and having formed his own views about them.
19. Ultimately D. expressed a desire to have a week-about arrangement.

Legislative framework:

[81] Section 20 of the Children's Law Reform Act (“CLRA”) provides that parents are equally entitled to custody of the child.

[82] Under s. 24 of the CLRA, the merits of an application to court in respect of custody of or access to a child shall be determined on the basis of the best interests of the child.

[83] When making that determination, s.24(2) states that the court shall consider all the child's needs and circumstances, including,

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

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

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

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

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

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

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

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

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

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

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

Analysis:

[84] Family law cases are, by their nature, fact-based and discretionary. As in any custody case, the sole issue before me is what in the circumstances is in the best interests of D.

[85] It is well established a joint custody order is generally only appropriate in cases where there is evidence of historical and appropriate communication between the parents. See Kaplanis v. Kaplanis. A number of other legal principles apply to the Court’s decision about the form of custody order to grant. Even though both parents may be good parents, that does not necessarily mean that joint custody should be ordered.

[86] The fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered. On the other hand, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody. There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another. See: Kaplanis, at para. 11.

[87] While a child's best interests are not necessarily synonymous with the child's wishes, the older the child, the more an order as to custody requires the co-operation of the child and consideration of the child's wishes

[88] Ultimately, to decide issues of custody and access, I must consider whether joint custody or sole custody is in D’s best interests when considering the factors in sections 24(2)-(4) of the CLRA. Similarly, I must consider the “best interests” test in determining what access is appropriate in this case.

[89] The evidence given by both parties would suggest that the parties have managed to communicate with relatively minimal conflict. Unlike so many custody/access disputes, there was little evidence of actual conflict between the parties. Furthermore, any level of conflict which may have existed when this matter was commenced, has, based upon the admission of both parties, dissipated over time. Both parties admitted that the arrangements between them have been running smoothly, both parties admitted to there being a level of cooperation between them, particularly as they have had to address D’s online schooling and his medical issues. When there has been disagreement, their evidence would suggest that the parties have not allowed this to escalate to an unacceptable level of conflict between them. Rather, the parties, to their credit, have managed to work out their differences.

[90] In determining whether to make an order for sole or joint custody, I have considered D’s needs and circumstances by looking at the totality of the evidence presented at trial.

[91] I am satisfied that both parents love D very much and both wish to play a constructive role in his development. Neither party disputed that D has a close and loving relationship with both of them.

[92] D. has been in S.L.'s primary care since birth. By all accounts, he is developing appropriately in a stable, loving environment and it would appear his needs have been met.

[93] D.’s relationship with M.C. has evolved over the years. For a period of time following the parties’ separation, D. had limited contact with M.C. However, access has increased over time and for the better part of the past year, M.C. has been parenting D. on very close to an equal basis. As D.’s access time expanded with M.C., it is clear that D. has developed a close and loving relationship with his father.

[94] I do not find that there is any evidence of misconduct by either parent that poses a risk to D.

[95] While it was suggested by S.L. that M.C. acted inappropriately by taking D. to his family doctor to have a stitch removed following his surgery, I conclude M.C. was acting in good faith and subject to the judgment of the family physician who determined it appropriate to remove the stitch. While M.C. ought not to have made the decision to bring D. to have the stitch removed without S.L.’s concurrence, I do not conclude that he acted unreasonably.

[96] Similarly, while M.C. did not initially follow the recommendations of the psychologist concerning how to appropriately deal with D.’s reluctance to walk, I see his actions as well intended and he did ultimately revise his response to appropriately follow medical advice.

[97] I conclude that both parties are able to meet D.’s needs. Both parents have been engaged in meeting D.’s day-to-day needs. No party suggested that the other was not appropriately providing for D.’s daily needs while in the other’s care.

[98] The only other evidence provided by S.L. to support her position that M.C. is unable to meet D.’s needs concerned the appropriateness of M.C.’s one-bedroom apartment. I disagree with S.L.’s position on this issue. First, M.C. was clear in his evidence that in the event he is granted a shared parenting arrangement with S.L., he will qualify for and will apply for a two-bedroom unit. Secondly, there was no evidence that D. has found M.C.’s accommodations uncomfortable or awkward. To the contrary, D.’s advised the OCL clinician was that he was comfortable with M.C.’s living arrangement. Thirdly, D.’s needs, like any other child, will change and evolve as he grows. I find that both M.C. and S.L. have acknowledged that his needs will change. I am satisfied that both of the parents have demonstrated the flexibility and willingness to accommodate D.’s changing needs and put his interests before their own.

[99] Having found no misconduct on the part of either of the parents and that both are able to meet D.’s needs, I start my analysis from the presumption that both parents are equally entitled to custody and to parent D. and that each should have the maximum contact possible with him as may be consistent with his best interests.

[100] I next consider D.’s views. D. is 11 years old. His views deserve due consideration and weight. The only independent evidence of D.’s views were made available through the Voice of the Child’s report. According to this report D.’s views were clear that he wished to exercise a week-about arrangement. The OCL clinician, Ms. Poole concluded that these views were made of D.’s own volition.

[101] S.L. believes that these reported views are outdated. However, I don’t accept that D. is able to be frank in discussing this issue with her. It is clear from the Voice of the Child’s report that D. is concerned about his mother’s reaction to his views. I conclude D.’s present views have been aptly expressed through his actions. He has, when permitted, consistently arranged for extended time with M.C. over the course of the past year.

[102] I am satisfied there should be an order that M.C. and S.L. have joint custody of D. It is important that D. know that both of his parents are contributing meaningfully to the decisions which affect his life. Both S.L. and M.C. have been actively involved in D.’s life and both should continue to have meaningful input with respect to important decisions.

[103] With respect to decision making on issues concerning D.’s medical/health care or education, given the limited financial ability of the parties to pay for dispute resolution, I conclude that one of the parties ought to have right to make the decisions on such issues in the event of a disagreement between the parties. I conclude that it would be appropriate for S.L. to be that person. She has adequately and competently made such decisions in the past and this should continue. I also believe that she has best articulated a realistic understanding of D.’s educational needs and a recognition that consideration might need to be given to schooling in English, depending on whether D. continues to struggle with the French Immersion program.

[104] I see no compelling reason why D.’s views and preferences with respect to the access schedule should not be honoured. The parties have managed commendably over the past year in accommodating a shared week-about arrangement. I am confident that the parties have demonstrated by their own actions that they are able to cooperate sufficiently to make such an arrangement work. I conclude that it is in D.’s best interests for a week-about parenting arrangement to be ordered.

[105] I am not prepared to include a police enforcement clause as part of my order. I am not satisfied, on the evidence, that there are reasonable and probable grounds to believe that either party will withhold access from the other.

[106] Both parties are in agreement that there be an order prohibiting either party from moving D.’s residence from Ottawa without the consent of the other or further court order.

[107] Having found it appropriate that the parties have joint custody of D., I conclude that neither should have the right to remove D. from Canada without the written consent of the other, which consent should not be unreasonably withheld. The other party shall be provided with 60 days’ notice of the intention to travel outside of Canada with D. and shall provide a detailed travel itinerary. Both parties shall cooperate with each other in executing the appropriate documentation to obtain a Passport for D.

[108] Either party should be entitled to travel within Canada with D. during that party’s access time without the consent of the other. Such travel is not to interfere with the other parties’ access time without first obtaining the other’s consent. In the event a party will be travelling further than 300 km outside the geographical limits of Ottawa with D., that party should provide the other party with 72 hours’ notice of their intention to travel with D. and provide the other party with an itinerary of their travel plans.

[109] There was no independent evidence which would suggest that D. would like his name changed to include “C.” as part of his surname. D. is 11 years old and I am not satisfied that D.’s best interests support making an order requiring a child of this age to change his name absent satisfactory evidence that he is in favour of such change or other compelling reason.

[110] M.C. had the opportunity to have D adopt his name when D was born. He declined to do so. M.C. later had a change of heart. D is now 11 and he has lived his lifetime with his present name. I conclude that the decision to adopt the name “C.” should be left to D to decide when he is 18.

Disposition:

[111] For these reasons it is ordered that:

Custody and decision making:

1. M.C. and S.L. shall have joint custody of D. born April 8, 2010;

2. Subject only to the following provisions, M.C. and S.L. shall be responsible for day-to-day decisions and expenses arising at times when D. is residing with him or her;

3. M.C. and S.L. shall be able to obtain information directly from healthcare providers, teachers, or any other professionals relating to D. and this shall be sufficient authority for them to do so. In accordance with the provisions of section 20(5) of the Children’s Law Reform Act, M.C. and S.L. shall have the same rights to make inquiries and to be given information with respect to health, education and the welfare of D. If necessary, both parties are to execute consents or authorizations to all persons, including teachers, doctors, dentists and others involved with D. to speak fully and openly with both of them;

4. Aside from medical emergencies which require that an immediate decision be made, M.C. and S.L. shall confer with each other and come to an agreement in writing on all plans and arrangements relating to custody of and access to D. and in general, on all important matters relating to his education, health, residence, welfare, extracurricular and recreational activities, religious training and upbringing;

5. On important issues relating to D.’s education and medical/health care, if the parties cannot come to a decision after meaningful consultation then S.L. shall have final say as it relates to D.’s education and medical/health care.

Access:

6. Access with D. shall occur on a week on, week off shared parenting arrangement.

7. Exchanges for the week on, week off parenting time will take place on Fridays after school (or 3 p.m. if there is no school on the exchange day). The party beginning parenting time will pick up D. from school or the other party’s home if there is no school on an exchange day. The parties shall respect the exchange time and have D. ready on time.

8. During the summer school break, the exchanges shall occur at noon on Fridays. The party beginning parenting time will pick up the D. at the other party’s home at noon. M.C. and S.L. shall respect the exchange time and have D. ready on time.

9. The holiday schedule shall override the regular parenting time schedule above. Unless otherwise noted, the party beginning parenting time will pick up the D. at the other party’s home at noon and drop him back off at 8 p.m. (at the end of holiday parenting time). The parties shall respect the exchange time and have D. ready on time.

10. Family Day (Monday): In even years D. shall spend the day with M.C. and in odd years with S.L.;

11. March Break: The party that has D. on the morning of the Friday before the break will keep D. until Wednesday at noon and then D. will spend the remainder of the break from Wednesday at noon until Monday morning at school (or noon if D. is not in school for any reason) with the other parent;

12. Easter (Sunday): In even years D. shall spend the day with M.C. and in odd years with S.L.;

13. Mother’s Day: regardless of the regular parenting schedule, D. will be with S.L. on Mother’s Day, beginning on the Saturday evening at 8 p.m., until Monday morning at school;

14. Father’s Day: regardless of the regular parenting schedule, D. will be with M.C. on Father’s Day, beginning on the Saturday evening at 8 p.m., until Monday morning at school;

15. Victoria Day (Monday): In even years D. shall spend the day with S.L. and in odd years with M.C.;

16. Canada Day: In even years D. shall spend the day with M.C. and in odd years with S.L.;

17. Civic Holiday (Monday): In even years D. shall spend the day with S.L. and in odd years with M.C.;

18. Thanksgiving (Monday): In even years D. shall spend the day with M.C. and in odd years with S.L.;

19. Halloween: S.L. shall have D. from 5 p.m. until 6 p.m. to trick or treat and the M.C. shall have the rest of the night. These times are subject to change as per the agreement of the parents or wishes of D. who may choose to spend Halloween with his friends or the parent of his choosing;

20. Christmas: In even years the child shall spend the last day of school until Christmas Day at noon with his father, from Christmas Day at noon until New Years’ Day at noon with his mother and New year’s Day at noon until the first day back at school with his father and in odd years the schedule will flip;

21. D’s birthday: The Father shall have the child for his birthday in even-numbered years and the mother shall have the child for his birthday in odd-numbered years from after school or 3p.m. to 8 p.m. if not otherwise their parenting time;

22. For each parent’s birthday every year, the parent whose birthday it is shall have parenting time with D. from after school (or 3 p.m. if there is no school) until 8 p.m. if not otherwise their parenting time;

23. Professional Development days: These days will follow the regular parenting time schedule. If the parent cannot take a vacation day, right of first refusal shall be given to the other parent;

24. Any other days and times as the parties may agree, taking D.’s views and preferences into account;

25. Neither party is to make any negative comment about the other party (or their family, friends, or companions) to D. or in the presence of D. or within ear shot of D. Neither party shall allow their family, friends, or companions to make negative comments about the other party in the presence of D. either;

26. Both parties shall make their best efforts to promote a positive and respectful relationship between D. and the other party;

Mobility:

27. Neither of the parties shall move D.’s residence from Ottawa without the prior written consent of the other or further court order;

Travel:

28. Neither party shall remove D. from Canada without the written consent of the other, which consent should not be unreasonably withheld. The party wishing to travel with D. shall provide the other with 60 days’ notice of their intention to travel outside of Canada with D. and shall provide a detailed travel itinerary;

29. Both parties shall cooperate with each other in executing the appropriate documentation to obtain a Passport for D.;

30. Either party shall be entitled to travel within Canada with D. during that party’s access time without the consent of the other. Such travel is not to interfere with the other parties’ access time without first obtaining the other’s consent. In the event, a party is travelling further than 300 km from Ottawa with D., that party shall provide the other party with 72 hours’ notice of their intention to travel with D. and provide the other party with an itinerary of their travel plans.

Name change:

31. The request to change D.’s name to add “C.” is denied;

Child Support and Special or Extraordinary Expenses:

32. For the purposes of child support and special and extraordinary expenses, M.C.’s income is $11,099.12, and the S.L.’s is $21,408. In view of M.C.’s income and S.L.’s financial circumstances, no child support is payable by either party;

33. There are no arrears of child support owing by either party;

34. The parties shall share the child’s special or extraordinary expenses proportionate to their incomes;

35. Currently, the parents’ proportionate share of the children’s special or extraordinary expenses is as follows: M.C.’s share is 34% and C.L.’s share is 66%;

36. Beginning in January 2022, each party shall provide the other with the following by June 1st of each year to the determine the amount of child support payable and apportionment of special or extraordinary expenses: a. Income tax returns and all attachments for the previous year; b. Documentary proof of income for all sources for end of year; and c. Notices of assessment or any reassessment received by each party, which shall be mailed to the other party within 15 days of receipt of such notice;

Costs:

37. If the parties are unable to agree on costs, and a party wishes to argue for an award of costs in this proceeding, then they may do so by filing written submissions of no more than five pages, double-spaced, in addition to any pertinent offers and draft bills of costs, within 20 days. The other party shall have 10 days to respond to any such submissions. If no submissions are received within 20 days of the release of these reasons, there will be no order as to costs.

Justice M. Fraser Released: February 17, 2021