COURT FILE NO.: 634/18 (St. Catharines)

DATE: 20210607

ONTARIO SUPERIOR COURT OF JUSTICE – FAMILY COURT

BETWEEN:

frank carm di felice Applicant

– and –

lindsay Ann di felice Respondent

COUNSEL: Luigi De Lisio, for the Applicant Maria G. Lucarelli and Dana Hogarth, for the Respondent.

HEARD: January 25-29, February 1-5, April 8, 9, 12, 14, 15 and 20, 2021, by video conference

BEFORE: R. A. Lococo J.

REASONS FOR JUDGMENT

I. Introduction

[1] Frank Di Felice and Lindsay Di Felice separated in February 2018 after being married over four years and cohabiting for six years in total. They have two children, JVD and CJD. At the time the parties separated, JVD was two, and CJD was four months.

[2] Following their separation, the parties have been unable to agree on a parenting regime for the children, including decision-making responsibility and the allocation of parenting time. Those are the principal unresolved issues in Frank’s divorce application.

[3] JVD (now five) is currently completing senior kindergarten at a separate (Catholic) school in Grimsby. CJD (age three) begins junior kindergarten in September 2021. They are happy, well-adjusted children. They have a strong, loving bond with both parties, who are both capable parents.

[4] Since the separation, the children have resided primarily with their mother. Lindsay lives in her own residence in Grimsby. She works normal workday office hours as a human resources officer with a locally based company. When she is at the office during the time the children are scheduled to be in her care, CJD is in daycare and JVD is either at school or in daycare (in a before-and-after-school program).

[5] Frank lives nearby, in his own residence in Beamsville. He is employed as a full-time firefighter in Burlington on four-week repeating cycle, working seven 24-hour shifts in each cycle. Under a without-prejudice temporary access order, Frank has parenting time with the children structured around his work schedule. In each cycle, he currently has the children in his care two weekends (Friday p.m. to Monday a.m.) when he is not working either day, plus three additional weekday sleepovers. Frank’s father, who lives in Welland, assists in access exchanges (and incidentally with childcare) when required by Frank’s work schedule.

[6] In his divorce application, Frank seeks joint parental decision-making responsibility. He acknowledges the acrimonious nature of the parties’ breakup but submits that after initial difficulties, the parties have been able to cooperate in making parenting decisions and will be able to continue to do so going forward. His proposed parenting schedule would provide approximately equal parenting time for both parties. Frank argues that there is no issue about his capacity to care for the children (including on days following a 24-hour work shift), with his father being available to assist as he has to date. Frank also argues that it is not in the children’s best interests to be in daycare when he is available to care for them.

[7] Lindsay does not agree. She seeks sole decision-making responsibility, arguing that continuing acrimony and lack of cooperation between the parties precludes a joint decision-making regime. She also says that the current interim parenting schedule (under which the children are thriving) should continue, with minor adjustment. Lindsay argues that her proposed schedule (including the children’s participation in daycare, which they enjoy) provides them with the consistency and stability required for young children at their development stage. She questions Frank’s capacity to care for the children immediately following a 24-hour work shift. She also questions Frank’s continued reliance on his father’s assistance for access exchanges and incidental childcare as being beyond his father’s capacity and role as a grandparent.

[8] For the reasons below, I have decided that Lindsay should have parental decision-making responsibility with respect to the children. She would be required to consult Frank with respect to significant decisions about the children’s well-being but if they are unable to agree, Lindsay would be responsible for making the decision.

[9] I have also decided that a parenting time schedule with a structure similar to the current interim access schedule (with some additional parenting time for Frank) is in the children’s best interests.

[10] In the balance of these Reasons, I will first set out further background information about the parties and events relevant to the matters in issue. I will then address the matters being determined, under the following headings:

a. Parental decision-making responsibility;

b. Parenting time;

c. Child support and related matters; and

d. Other order terms.

II. Background information

[11] Frank is 36 years old. He currently lives in Beamsville. He has been employed as a fire fighter in Burlington since 2016. He grew up in Welland. He attended university in Waterloo, followed by a diploma course at Niagara College. He is close to his parents and his sister and her children, who all live in the Niagara Region. His family and cultural background is Italian. He is Roman Catholic and wants the children to attend Catholic schools.

[12] Lindsay is also 36 years old. She currently lives in Grimsby, where she works with an equipment rental firm as a human resources officer. She grew up in Woodbridge. She attended university in Toronto, followed by a diploma course in human resources at Sheridan College. She is close to her brother, who resides with his wife and children in Woodbridge. She is also close to family friends in Woodbridge, whom she considers to be her aunt, uncle and cousin. Her family and cultural background is Maltese. She is Roman Catholic and wants the children to attend Catholic schools.

[13] The parties met and began dating when they were in university. They began living together in 2012. At that time, Frank worked for the Niagara Region and Lindsay worked in greater Toronto. In March 2012, they bought a house together in Grimsby. Lindsay began working for her current employer in Grimsby later that year.

[14] The parties married in September 2014 and decided to move to a new house in Welland. They sold their house in Grimsby and moved in with Frank’s parents in Welland while their new house was being built.

[15] They began living in their own home in May 2015. They resided there together until their separation in February 2018. During that time, both children were born, JVD in 2015 and CJD in 2017. In each case, Lindsay took a one-year leave of absence from work, commencing shortly before the birth of each child. When she was not on maternity leave, she commuted to work in Grimsby on weekdays.

[16] The sequence of events that led to the parties’ separation began in April 2017, when Lindsay was pregnant with their second child. Frank discovered that Lindsay had been in an intimate relationship with one of her coworkers. Frank learned of the relationship after surreptitiously going through Lindsay’s work email while she was in the shower.

[17] Lindsay admitted to the relationship, which she said was short-lived and long over before she became pregnant with CJD. Frank did not believe her and was initially fixated with doubts about the child’s paternity (although he came to accept that he is the child’s father).

[18] During the same period, Lindsay’s father was dying. She was travelling back and forth between Welland and the Toronto area to attend to her father, who died a few days after Frank’s discovery of her previous relationship.

[19] Lindsay’s evidence was that after learning of the relationship (and persisting for some weeks), Frank persisted in angrily castigating her in person and by telephone, calling her humiliating names, and forcing her into sexual activity without her consent. Frank admitted to being extremely upset and verbally aggressive with Lindsay but denied any non-consensual intimate relations. He initially resisted attending the funeral of Lindsay’s father but (with his father’s urging) attended and acted as a pallbearer.

[20] Commencing in about June 2017, the parties attended joint counselling (offered as part of Lindsay’s employment benefits). Frank testified that he did not find the counselling helpful. He declined to continue counselling after a couple of joint sessions. Lindsay continued counselling alone.

[21] Despite their differences, the parties continued to reside together during the period leading to CJD’s birth (and the commencement of Lindsay’s second maternity leave) later that year. After CJD’s birth, they made plans for his christening the following spring. They agreed that the godmother would be Lindsay’s cousin Kimberly (the daughter of Lindsay’s aunt and uncle in Woodbridge) and Kimberly’s husband. By the end of 2017, the parties were also looking at other houses in the area, with a view to selling the matrimonial home and moving with the children. As well, they gave instructions to a lawyer to prepare wills and powers of attorney for the two of them (naming each other as principal beneficiary). Those documents were executed in February 2018, less then two weeks before their separation.

[22] Later in February 2018, the parties separated. Frank left the matrimonial home and moved to his parents’ house in Welland. Earlier that day, Lindsay accused Frank of having an affair with another woman, whom Lindsay later identified as Frank’s current girlfriend. The basis for Lindsay’s accusation was a recorded telephone conversation (not tendered in evidence) on a device Lindsay had concealed in Frank’s car. Frank confirms that he was acquainted with his current girlfriend before the parties’ separation but denies being in a relationship with her until after the separation.

[23] Following the separation, Lindsay initially remained in the Welland matrimonial home with the children. Frank continued to see the children (either at the matrimonial home or his parents’ house), but relations between the parties remained strained. On one occasion in March 2018, Lindsay drove (with the children) to the gym that Frank frequented, found his car and that of his girlfriend in the parking lot, and smeared brownies on his girlfriend’s car.

[24] Later that month, there was a confrontation between the parties when Frank was at the matrimonial home to see the children. After a tense verbal exchange, Lindsay testified that Frank grabbed her by the throat and pressed, which Frank denies. Lindsay called the police, with the express purpose of creating a record of the incident. She did not pursue charges, stating that for the children’s sake, she did not want their father to face criminal prosecution. However, in order to address her expressed concern about being alone with Frank going forward, Frank’s father agreed to be present (or act as a go-between) for access exchanges.

[25] During that period, Frank also had a tense telephone conversation with Lindsay’s cousin Kimberly. He then withdrew his agreement to her being CJD’s godmother, testifying that he did not want someone as a godparent who did not respect him as a parent. To settle the issue, Lindsay suggested that each of them be allowed to designate one godparent. Frank agreed provided that the godmother was someone other than Kimberly. As a result of this impasse, CJD has yet to be christened, even though the parties wish to enrol him in a Catholic school when he starts junior kindergarten in September (which requires proof of baptism).

[26] Soon after the parties’ separation, the parties agreed to put the matrimonial home on the market. It sold quickly, with a closing in late June 2018. The net proceeds were held in trust pending resolution of property issues. Citing financial pressures, Lindsay (who was still on maternity leave) decided to move to Woodbridge temporarily with the children, to stay with her aunt and uncle. She planned a further move to Grimsby when she returned to work in the autumn of 2018. Her plan was to buy a house in Grimsby, using her share of the matrimonial home proceeds to partly fund the purchase price.

[27] Frank was not pleased to have the children move away from Niagara. The parties had been working with a mediator in Niagara to develop a parenting schedule but made little progress. Frank complained that he was not seeing the children as much as he wanted. During the time Lindsay was staying in Woodbridge, Frank would travel to Woodbridge for day outings with the children, with his father normally accompanying them. On those occasions, Frank would return to Woodbridge part way through the day to allow CJD to breastfeed (in accordance with Lindsay’s wishes), limiting his activities with the children on those visits. Frank would also take JVD (but not CJD) to his parents’ place in Welland for overnight access, initially on a schedule worked out with the mediator’s assistance (and later through counsel).

[28] When the mediated interim parenting schedule ran out in July 2018, Frank refused to return JVD to Lindsay from an access visit in Welland at the time Lindsay expected. Frank advised her that the child would remain overnight with him at his parents’ house. Lindsay was particularly upset because she wanted JVD to be at her niece’s christening celebration in Woodbridge the following day. She immediately drove from Woodbridge to Welland with her brother. With the assistance of Frank’s father and Lindsay’s brother, Frank agreed to return JVD to Lindsay, with the assurance that Frank would have additional time with JVD the following week.

[29] While staying with her aunt and uncle in Woodbridge, Lindsay agreed to purchase a residence in Grimsby. She requested release of $90,000 from the matrimonial home proceeds for that purpose. Frank refused to agree to the release unless the same amount was released to him. Following negotiations through counsel, the parties ultimately agreed to the release of $40,000 to each of them. Lindsay borrowed money from her uncle to make up the shortfall required to complete the house purchase.

[30] Lindsay moved to her new residence in Grimsby in October 2018 and returned to work the same month. When she was required to be at work during the time the children were in her care, they were placed in daycare in Grimsby.

[31] In October 2018, Frank brought his divorce application, in which he sought custody of the children (or alternatively shared custody on a 50/50 basis). He also brought an emergency access motion, which (following a case conference) was heard in December 2018. Under the temporary order of L. Walters J. dated December 18, 2018, Frank’s parenting time with the children is on a four-week repeating cycle structured around his work schedule. To the extent possible, access exchanges occur at the children’s daycare centre “to avoid parental conflict” (quoting from the temporary order). The parties were also ordered to employ a parenting communications app (“so that communication between the parties would be conducted in a civilized manner”) and to refrain from making negative comments about each other. The order also determined Frank’s Christmas holiday access for that year.

[32] The parenting schedule set out in the December 2018 temporary order remains in effect at the present time. As noted further below, it also provides the basis for the parenting schedule that Lindsay seeks in the final order.

[33] Under the December 2018 order, Frank has the children in his care for the first and second weekend in each four-week cycle, picking the children up at on Friday at 4:30 p.m. and dropping them off on Monday at 8:30 a.m.[^1] He also has an additional overnight access visit in the first, third and fourth week of each cycle, commencing with a pick-up at 4:30 p.m. and a drop-off at 8:30 a.m. the following morning. Frank’s father would normally perform two or three of the 8:30 a.m. drop-offs in a four-week cycle, since Frank begins a work shift at 7:00 a.m. those days.

[34] Frank continued to reside with his parents until January 2019. He moved to a townhouse he purchased in Welland, which he sold later that year. He then moved to a rented house in Beamsville to be closer to the children, while a new house was being built in Beamsville (his current residence).

[35] Since the December 2018 access motion, there have been several additional contested motions and temporary orders. The orders include (i) a June 2019 order (with costs payable by Lindsay) to determine Frank’s summer vacation time with the children, and (ii) a September 2019 order (with costs payable by Frank) dismissing Frank’s motion to permit him to care for the children when Lindsay is working (rather than place them in daycare). There were also disputes between the parties relating to Christmas holiday access and 2020 summer holiday access that were ultimately resolved through counsel.

[36] As well, in mid 2019, there was a dispute relating to JVD’s registration for junior kindergarten commencing in the fall of 2019. Earlier that year, Lindsay made enquiries about registering JVD in the Catholic elementary school in the catchment area of her Grimsby residence. When she did so, she learned that Frank had already contacted a school board official to advise that his consent was needed with respect to any decisions relating to JVD’s schooling. As a result, JVD was unable to attend a preliminary “meet and greet” at the school in June 2019, since he was not yet registered for the fall session. The issue was ultimately resolved through counsel, Frank having no real objection to JVD’s attending that school. Once JVD was registered, he was able to attend a further orientation session prior to commencing school in September.

[37] Frank’s divorce application was previously scheduled for trial in early 2020, but the trial did not proceed at that time. In May 2020, the parties entered into Partial Minutes of Settlement, resolving the following issues on a final basis: (a) arrears of child support to February 29, 2020; (b) ongoing table child support commencing March 1, 2020; (c) spousal support; (d) equalization of net family property; (e) division of matrimonial home proceeds; and (f) division of pensions. L. Walters J.’s partial final order dated October 5, 2020 gave effect to the Partial Minutes of Settlement. As well, by endorsement dated April 12, 2021, I granted the parties’ divorce, effective 31 days later.

[38] The remaining issues to be determined are addressed in the balance of these Reasons for Judgment.

III. Parental decision-making responsibility

A. Legal principles

[39] Upon the application of either spouse, the court has the authority to make a parenting order in respect of any child of a marriage. A parenting order may provide for the exercise of parenting time or decision-making responsibility in respect of the child: Divorce Act, R.S.C. 1985, c. 3 (2nd) Supp, s. 16.1(1). In doing so, the court may allocate parenting time and decision-making responsibility between the parents and provide for any other matter that the court considers appropriate: Divorce Act, ss. 16.1(1) and (4). The terms parenting order, parenting time and decision-making responsibility are defined terms, recently added to the statute to replace previous terminology relating to custody and access: see Divorce Act, s. 2(1), definitions of those terms.

[40] In making a parenting order, the court is directed to take into consideration only the best interests of the child: Divorce Act, s. 16(1). In determining the child’s best interests, the court is required to consider all the child’s circumstances, including those enumerated in s. 16(3), giving primary consideration to the child’s physical, emotional and psychological safety, security and well-being: Divorce Act, ss. 16(2) and (3).

[41] The Divorce Act also provides that unless the court orders otherwise,

a. a person to whom parenting time is allocated has exclusive authority, during that time, to make day-to-day decisions affecting the child (s. 16.2(2)); and

b. each parent is entitled to ask for and (subject to applicable law) receive from the other parent (or a third-party) information about the child’s well-being, including their health and education (s. 16.4).

[42] Dealing first with decision-making responsibility, that term is defined in s. 2(1) as the responsibility for making significant decisions about a child’s wellbeing, including in respect of (a) health, (b) education, (c) culture, language, religion and spirituality, and (d) significant extra-curricular activities.

[43] When considering whether the court should order joint decision-making responsibility (as Frank requests), the principles set out in previous case law relating joint custody orders are instructive. Those decisions address the importance of the parties’ ability to communicate and cooperate with one another for the child’s benefit. As indicated further below, the case law requires that in order to grant joint custody, there must be some evidence before the court that despite their differences, the parties are able to communicate effectively with each other in order to advance the child’s best interests. In assessing parents’ ability to work together, the court is not required to apply a standard of perfection. “The cooperation needed is workable, not blissful; adequate, not perfect”: Brook v. Brook, 2006 CanLII 12294 (Ont. S.C.), at para. 66; see also Caverley v. Stanley, 2015 ONSC 647, at para. 26.

[44] In Kaplanis v. Kaplanis (2005), 249 D.L.R. (4th) (Ont. C.A), at para. 11, the Court of Appeal states as follows:

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. No matter how detailed the custody order that is made, gaps will inevitably occur, unexpected situations arise, and the changing developmental needs of a child must be addressed on an ongoing basis. When, as here, the child is so young that she can hardly communicate her developmental needs, communication is even more important.

[45] In some cases, as an alternative to sole or joint decision-making responsibility, the court has ordered a subcategory of joint decision-making referred to as parallel parenting. Under a parallel parenting regime, each parent is typically provided with an exclusive domain of responsibility (such as health, education or religion), with one parent having final say in case of conflict. The recent amendments to the Divorce Act confirm the court’s authority to make such an order: see Divorce Act, ss.16.1(4)(b) and 16.3. Pazaratz J. in Izyuk v Bilousov, 2011 ONSC 6451, at para. 507, notes as follows:

[S]ome courts have made parallel parenting orders even in high-conflict cases in circumstances, for example, where a sole custody order might facilitate parental alienation. The court must still be satisfied that that it is dealing with equally competent parents whose lack of cooperation does not affect the best interests of the child.

[46] In their closing submissions, counsel referred to certain case law relating to parallel parenting. However, neither party has proposed that a parallel parenting order should be made in this case.

B. Parties’ positions

[47] As previously noted, Frank seeks an order that the parties have joint decision-making responsibility with respect to the children. Under Frank’s draft final order, the parties would be required to consult with one another on all issues relating to the children’s health, education and well-being. Communications between them would be through AppClose or another agreed parenting communication program unless there is an emergency or other time-sensitive issue.

[48] Frank’s draft final order also provides that the parties would be entitled to receive information from all professionals dealing with the children. The parties would also be required to advise each other in a timely manner of appointments and any special events involving the children, and to name each other as contacts (and provide the other’s contact information) on all registrations and other documentation relating to the children. Neither party would be able to change the children’s medical/dental practitioners without the written consent of the other.

[49] In seeking an order for joint decision-making responsibility, Frank submits that despite the acrimonious nature of the parties’ breakup and initial communication difficulties, the parties have been able to cooperate in making parenting decisions. By way of example, he notes that the parties cooperated with respect to medical issues relating to CJD that arose after separation, which required tubes to be surgically inserted in his ears to address persistent infections. Frank says that they were able to address this issue cooperatively, including jointly attending medical appointments. According to Frank, the parties will be able to cooperate going forward in making joint parenting decisions, in the children’s best interests.

[50] As previously noted, Lindsay is seeking sole decision-making responsibility with respect to the children. Her draft final order (like Frank’s) contemplates continued use of AppClose or another parenting application for communication between them.

[51] Lindsay’s draft order also includes specific directions relating to certain parenting-related matters, including (a) the school the children will attend (JVD’s current school), (b) their continued attendance at daycare, (c) the parties’ communications with the children’s service and care providers relating to their education, medical/dental and recreational activities, and (d) arrangements for CJD’s baptism. With respect to the latter, Lindsay requests an order that CJD be baptized as soon as possible, and that his godparents be her cousin Kimberly and Kimberly’s husband.

[52] Lindsay argues that granting her sole decision-making responsibility is in the children’s best interests, consistent with her role as the children’s primary caregiver since their birth. In her submission, the continuing acrimony and lack of cooperation between the parties precludes a joint parenting regime. She also submits that the court should break the impasse relating the CJD’s baptism by requiring that the baptism occur and designating the godparents.

C. Analysis and conclusion

[53] For the reasons below, I have concluded that Lindsay should be granted decision-making responsibility with respect to the children. Communications between the parties would generally be by way of a parenting application, as both parties requested in their draft orders. Unlike in Lindsay’s draft final order, she would be required to consult Frank with respect to significant decisions about the children’s well-being in order to reach a consensus on how to proceed in the children’s best interests. If the parties are unable to agree, Lindsay would be responsible for making the decision. The parties would also be required to pursue private mediation in good faith to settle disputes before returning to court.

[54] I have included the consultation requirement in the final order to ensure that Frank continues to have an important role in parental decision-making, in addition to his responsibility for day-to-day decisions under s. 16.2(2) when the children are in his care. Frank’s essential presence and significant influence in the children’s lives will continue. His input on significant decisions must be respected. His role as a parent must not be pushed to the margins.

[55] That being said, applying the principles set out in Kapalanis and other case law, I am not satisfied on the evidence that the parties have been able to communicate constructively and effectively with each other in the children’s best interests to the extent required to support an order for joint decision-making responsibility. In the December 2018 interim access order, the court recognized the fraught nature of the parties’ communications by requiring use of a parenting application to allow communications to be conducted in a civilized manner. The uncivil nature of the communication record since that time (persisting virtually to the eve of trial), as well as the parties’ record of mutual distrust and conflict on various parenting matters, do not inspire confidence in their ability to jointly parent the children going forward.

[56] By way of example, during communications on particular parenting matters, Frank is at times unable to resist getting in a shot about Lindsay’s previous infidelity. In addition to being irrelevant to the issue under discussion, the parties’ ability to agree on a course of action is thereby jeopardized. It cannot have escaped Frank’s notice that these communications would likely form part of the trial evidence, and yet he persisted. Another favoured needle was ending a virtual message with a ticking clock emoji (explained to indicate that Lindsay’s time calling the parenting shots was coming to an end with the final court order). That was at least an improvement over a previously favoured emoji with more vulgar overtones. Such conduct is focused on righting previous slights and power dynamics between the parties. They do not foster child-focused cooperation on parenting matters in the children’s best interests.

[57] As well, I have already referred to some of the areas of disagreement between the parties that were only resolved by court order or counsel’s involvement. A notable example of the latter was JVD’s initial registration at his current school, a matter upon which the parties had no real substantive disagreement but still required extensive correspondence between counsel to resolve.

[58] Another unresolved matter (upon which the parties nonetheless fundamentally agree) is CJD’s christening. Both parties want CJD to be baptized. Both want him to attend a Catholic school, which requires proof of baptism. They previously agreed on his godparents, but Frank withdrew his agreement in a fit of pique following the separation. CJD remains unbaptized. The court is now being asked to order a baptism and designate the godparents. As explained further below, I will do neither.

[59] Having decided that joint decision-making responsibility is not feasible in this case, the remaining option is decision-making responsibility to one of the parents. As previously noted, a parallel parenting regime has been ordered in other cases as a further alternative, but neither party has proposed such an order. In any case, there is no evidentiary basis for imposing a parallel parenting regime in this case.

[60] As between the parents, there would be no real substantive concern relating to the children’s well-being if either of them is given sole decision-making responsibility. Both are capable, loving parents. The children adore and trust both parents. I am confident that each of them would strive to make decisions in the children’s best interests. I have decided, however, that Lindsay should have decision-making responsibility in children’s best interests, as required by s. 16 of the Divorce Act.

[61] Considering the history of the children’s care, Lindsay has been the principal caregiver of the children since their birth. For both children, she was at home on maternity leave for the first year of their young lives (in JVD’s case, also the third year). Since the separation, the children have lived primarily with her. The evidence indicates that she is an excellent mother and has provided the children with exceptional care. They are loving, well-adjusted children. At their young age and stage of development, she recognizes the children’s need for stability, including a consistent parenting time schedule (as referred to further below).

[62] In addition, the evidence indicates that despite their differences, she has supported Frank’s close relationship with the children, being careful not to make negative comments about Frank in their presence. In contrast, Lindsay says that Frank has made disparaging remarks about her in front of the children, causing them distress. (Frank does not dispute making such remarks, but says they are dated and do not reflect more recent experience.) As well, while Lindsay is not blameless for the lack of cooperation between the parties, the evidence indicates that her approach to parenting decisions is consistently child focused. As indicated above, I am unable to say the same of Frank, where power dynamics and tit-for-tat thinking are too often malign influences.

[63] As already stated, the final order requires Lindsay to consult Frank with respect to significant decisions about the children’s well-being in order to reach a consensus on how to proceed in the children’s best interests. In addition to ensuring continuation of Frank’s important role in decision-making, the level of cooperation the parties exhibit may also provide the basis for future consideration of decision-making responsibility at a later stage in the children’s development.

[64] The final order also requires the parties to pursue mediation in good faith to resolve conflicts before resorting to the courts, as permitted by s. 16.1(6) of the Divorce Act. While mediation did not assist the parties in developing an agreed parenting schedule in this case, it may provide a useful tool for avoiding (or minimizing) expensive litigation in the future, with the further passage of time from their acrimonious marriage breakdown.

D. CJD’s christening

[65] Lindsay’s draft final order would require that CJD be baptized as soon as possible and that his godparents be Lindsay’s cousin Kimberly and Kimberly’s husband. That direction would give effect to the agreement between the parties that was in place prior to their separation, which Frank subsequently vitiated.

[66] Lindsay’s counsel submits (and Frank’s counsel does not dispute) that the court has the authority to make such an order under the basket clause in s. 16.1(1)(d), which provides that a parenting order may “provide for any other matter that the court considers appropriate.” In further support of her position, Lindsay’s counsel cites two recent Ontario trial decisions that deal with a child’s baptism in the family law context.

[67] In Rocki v. Wencel, 2016 ONSC 3758, at paras. 185-88, the trial judge provides detailed directions relating to the child’s baptism (which both parties agreed should occur), including the procedure for choosing the date and the godparents. In contrast, in Milonas v. Copsas, 2018 ONCJ 713, at para. 83, Sherr J. declined to make such an order, but not on jurisdictional grounds. Sherr J. states that the “court is not prepared to micromanage the children’s religious issues” by providing detailed directions relating to the selection of the godparents or conduct of the baptism ceremony. Instead, the trial judge left the final decision to the mother, who (as the custodial parent) had the responsibility for making major religious decisions relating to the children.

[68] I prefer the approach taken in Milonas as being the appropriate disposition in this case. The final order will therefore not make any specific reference to CJD’s baptism.

[69] Consistent with Milonas, the court should be slow to become involved in micromanaging religious ceremonies, let alone ordering them to occur. In this case, there is no dispute between the parties that CJD should be baptized. Under the final order, Lindsay, as the parent with decision-making responsibility about CJD’s well-being (including in respect of religion and spirituality), will be required to consult with Frank about plans for the baptism, with a view to reaching a consensus. In doing so, the parties may wish to consider having more than two godparents to reconcile competing views. However, if the parties are unable to agree, Lindsay would be responsible for making the decision.

IV. Parenting time

A. Legal principles

[70] As previously noted, the court has the authority to make a parenting order providing for the exercise of parenting time, and in doing so allocate parenting time between the parents: Divorce Act, ss. 16.1(1), 16.1(4)(a) and 16.2. Parenting time is the time that a child spends in the care of a parent under a court order, whether or not the child is physically with that parent during the entire time: see Divorce Act, s. 2(1), definition of parenting time.

[71] When making an order relating to parenting time (as with any parenting order), the court is directed to take into consideration only the best interests of the child: Divorce Act, s. 16(1). In determining the child’s best interests, the court is required to consider all the child’s circumstances, including those enumerated in s. 16(3), giving primary consideration to the child’s physical, emotional and psychological safety, security and well-being: Divorce Act, ss. 16(2) and (3).

[72] In allocating parental time, the court is also directed to give effect to the principle that a child should have as much time with each parent as is consistent with the child’s best interests: Divorce Act, s. 16(6). Frank relies on the maximum contact principle to support his position that the parties should have approximately equal parenting time with the children.

[73] The mandatory nature of the maximum contact principle is noted by the Supreme Court of Canada in Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, at para. 24, in the following terms:

The "maximum contact" principle, as it has been called, is mandatory, but not absolute. The [Divorce] Act only obliges the judge to respect it to the extent that such contact is consistent with the child's best interests; if other factors show that it would not be in the child's best interests, the court can and should restrict contact …. [Citation omitted.]

[74] Other case law also makes it clear that the maximum contact principle does not necessarily equate to equivalent parenting time for each parent, the overriding consideration being the best interests of the child: see B.B. v. P.V., 2012 ONCA 262, 19 R.F.L (7th) 292, at paras. 17-18; Rigillo v. Rigillo, 2019 ONCA 548, 31 R.F.L. (8th) 356, at para. 13; and Knapp v. Knapp, 2021 ONCA 305, at para. 30.

[75] In Rigillo (a decision Frank’s counsel relied on in his submissions), the child’s father was seeking joint custody and shared (equivalent) parenting time. The trial judge awarded the mother sole custody, with access to the father on alternate weekends and overnight access once each week. The Court of Appeal set aside the trial decision, finding that the trial judge failed to consider and apply (or even advert to) the maximum contact principle: see Rigillo, at paras. 3-10. The Court of Appeal required the parties to provide written submissions on the allocation of parenting time and the allocation of decision-making responsibilities in the parallel parenting model, which the Court of Appeal found to be appropriate in that case based on the trial judge’s findings of fact: see Rigillo, at paras. 12 and 14.

B. Parties’ positions

(i) Frank’s position

[76] Frank’s draft final order proposes two parenting schedules. The first schedule would apply during the school year and the second during the summer months. Both schedules would provide approximately equal parenting time for each party. Parenting time for statutory holidays and other special occasions would follow the applicable regular schedule, with some limited exceptions (notably Christmas vacation and March break, which would be shared equally without further specific direction). Frank’s draft final order would also provide for two non-consecutive holiday weeks for each party each year, one of which may be during the school year.

[77] Like the current interim parenting schedule, Frank’s proposed regular parenting schedules are structured around his work schedule as a full-time firefighter. The rationale for Frank’s proposed schedules may be best explained in reference to his work schedule.

[78] As previously noted, Frank’s work schedule is on four-week repeating cycle, with seven 24-hour shifts in each cycle. His work shifts commence at 7:00 a.m. and end the next day at 7:00 a.m. On workdays, he has meals at the fire station and (unless called out for a fire or other emergency) goes to bed at the station overnight in a communal setting. He leaves in the morning after having breakfast. After each shift, he has at least one day off (and as many as seven days off) before the next shift in the cycle. His work schedule includes one Saturday shift and one Sunday shift on successive weekends, followed by two weekends where he works neither Saturday nor Sunday.

[79] Under the current interim access order, Franks currently has the children in his care for the two weekends (Friday p.m. to Monday a.m.) that he is not working either Saturday or Sunday. Following the first of those weekends, he starts a work shift at 7:00 a.m. on Monday morning, which is too early to drop off the children at daycare or school. On that day, Frank’s father will typically drop off the children at daycare in Grimsby at 8:30 a.m., driving from his home in Welland that morning (or during the weekend) in order to do so.

[80] Under the interim access order, Frank also has three additional weekday sleepovers with the children, picking them up at 4:30 p.m. and dropping them off at 8:30 a.m. the next morning. Once or twice each cycle, Frank’s father typically does the morning drop-off after a weekday sleepover because Frank starts a work shift that morning at 7:00 a.m.

[81] Under Frank’s proposed school-year schedule, he would still have the children the two weekends he has no work shift Saturday or Sunday, but his parenting time would be extended, as described below. The rest of the time would be Lindsay’s parenting time.

a. Week 1: For the first weekend of the cycle that Frank has no work shift Saturday or Sunday, his parenting time would start the previous Wednesday (instead of Friday), picking up the children after school (which ends at 3:20 p.m.). Prior to that time, the children would have been in Lindsay’s care since Friday afternoon of the previous week. Frank’s extended parenting time would end Monday morning (as it does under the current order), dropping the children off at school. For that entire period, the children would be in Frank’s care or at school (and not in daycare), except that Frank’s father would perform the Monday morning drop-off at the end of the weekend (since Frank starts a 24-hour shift that morning).

b. Weeks 2-3: The following week, Lindsay would pick the children up after school on Monday, and they would remain in her care until Friday morning, when she would drop them off at school. Frank’s parenting time would start on Friday (as it currently does), picking the children up after school, but ending the following Wednesday (instead of Monday), with a drop off at school. For that entire period, the children would be in Frank’s care or at school (and not in daycare). Lindsay would pick up the children Wednesday after school, and they would remain in her care until Monday morning, when she drops them off at school.

c. Week 4: In the cycle’s final week (in which Frank currently has one overnight access visit from Thursday afternoon to Friday morning), Frank’s parenting time with the children would expand to four consecutive overnights, starting Monday with a pick-up after school and ending Friday morning with a drop-off at school. The children would be in Frank’s care or at school (and not in daycare) for the entire period except for Wednesday morning to Thursday morning when Frank will be at work. During that time, the children would be in the care of Frank’s parents until his return from work on Thursday morning. The children would then return to Frank’s care until Friday morning, when he drops them off at school. Lindsay would pick up the children that afternoon after school, and they would remain in her care until the following Wednesday morning (in Week 1), when she drops them off to school. The four-week cycle then repeats.

[82] Frank submits that his proposed school-year parenting time schedule is preferable to the current interim schedule (or Lindsay’s proposed schedule), including for reasons below.

a. The schedule provides equivalent parenting time to each parent, consistent with the maximum contact principle.

b. It permits the children to be in Frank’s care (or, on a limited basis, his parents’ care) during Frank’s parenting time when they would otherwise be in daycare under the current interim access schedule (or Lindsay’s proposed schedule). Frank argues that the children’s being in their father’s (or occasionally their grandparents’) care is preferable to being in daycare.

c. It reduces to once per four-week cycle the number of times it is necessary for Frank’s father to do the morning drop-off at the end of Frank’s parenting time.

[83] As previously stated, Franks proposes a different schedule for the summer months than would apply during the school year. The proposed summer schedule would provide the parents with longer periods of continuous parenting time, in two blocks (totalling 14 days) for each parent in each four-week cycle.

[84] In the cycle’s first week, Frank would have eight days of parenting time, picking the children up Sunday morning from Lindsay’s residence and dropping them off the following Sunday at the end of the day. The children would be in Frank’s care the entire time except for Tuesday morning to Wednesday morning, when Frank would be at work. During that time, the children would be in the care of Frank’s parents until his return from work on Thursday morning.

[85] Similarly, in the cycle’s third and fourth week, Lindsay would have parenting time with the children for nine full days (ten sleepovers), picking the children up at Frank’s residence at 3:00 p.m. Thursday in the cycle’s third week and remaining with her until Frank picks them up on Sunday morning the following week.

[86] Lindsay would have five more days of parenting time in the cycle’s second week (Monday to Friday), followed by six more days of parenting time for Frank. In total, each parent would have 14 days of parenting time each four-week cycle.

[87] Frank says that his proposed summer parenting time schedule is preferable to the current interim access schedule (or Lindsay’s proposed schedule), including for the reasons below.

a. The only time that Frank would be scheduled to work during his parenting time would be from 7:00 a.m. on Tuesday of the cycle’s first week until 7:00 a.m. the following morning (during which the children would be in his parents’ care). The rest of Frank’s scheduled work shifts each cycle would fall within Lindsay’s parenting time. Therefore, Frank would be available to personally care for the children for all but one 24-four period during his parenting time each cycle.

b. The children would be with each parent for longer continuous periods each four-week cycle when they would otherwise be at daycare.

c. The number of access exchanges would be reduced, also minimizing the opportunity for parental conflict.

(ii) Lindsay’s position

[88] Lindsay’s proposed final order would provide a single parenting schedule that would be in place for the entire year. The order would also provide detailed provisions for sharing of statutory holidays and other special occasions, generally providing each party with parenting time for each occasion in alternating years. Lindsay’s draft final order would also provide for two non-consecutive holiday weeks for each party each year, both in the summer months.

[89] Like the current interim access schedule (and Frank’s proposed parenting time schedules), Lindsay’s proposed regular parenting time schedule is built around Frank’s work schedule. Her proposed schedule is like the current interim access schedule, with a few refinements.

[90] As with the interim access schedule, the children would be in Frank’s care the two weekends of the access schedule when Frank has no scheduled work shifts on Saturday or Sunday. The difference is that on the first of those two weekends (following which Frank has a work shift starting 7:00 a.m. Monday morning), Frank’s parenting time would end at 7:00 p.m. Sunday, rather than the following morning. The change would mean that it would no longer fall on Frank’s father do the Monday morning drop-off.

[91] Under Lindsay’s proposed schedule, Frank would still have parenting time for three additional overnight visits. In Week 1 and Week 4 of the cycle, the overnight parenting time would end at 8:30 a.m. the following morning with the children’s return to daycare (as they currently do under the interim access schedule). However, in Week 3, the end of Frank’s overnight parenting time would be extended to 7:00 p.m. the following evening, with the children’s return to Lindsay’s home. As indicated in the chart Lindsay’s counsel provided with her closing submissions, Lindsay contemplates that for the Week 3 overnight visit (which starts Wednesday at 4:30 p.m. with a pick up at daycare), Frank would in fact drop off the children at daycare at 8:30 a.m. Thursday morning and then pick them up again from daycare at 4:30 p.m. that day. As a result, the children would be with their father at dinnertime for the second consecutive night, before their returning to Lindsay’s home at 7:00 p.m.

[92] Lindsay submits that her parenting schedule time is preferable to Frank’s proposed schedule (or the current interim schedule), including for the following reasons:

a. The schedule is like the current interim access schedule, under which the children are thriving. It provides the consistency and stability required for young children at their development stage.

b. A single schedule for the whole year (rather than a separate schedule for the summer months) is also consistent with the children’s need for stability and consistency.

c. The schedule contemplates the children’s continued participation in daycare (in a before-and-after-school program during the school year), which they both enjoy and benefit from. As well, Lindsay testified that the children’s consistent attendance at daycare in the before-and-after-school program also allows her, as primary custodial parent, to access that program on a subsidized basis (the subsidy being jeopardized by a child’s repeated failure to attend without valid reason). However, as noted below, I do not consider the availability of a daycare subsidy to be a relevant consideration when determining the parenting time schedule in this case.

d. The proposed schedule reduces the number of required morning drop-offs by Frank’s father to once in each four-week cycle. Lindsay questions Frank’s continued reliance on his father’s assistance for access exchanges and incidental childcare as being beyond his father’s capacity and role as a grandparent.

e. Like the interim access schedule, Lindsay’s proposed schedule minimizes the occasions during each cycle when the children are in Frank’s care immediately following the end of a 24-hour work shift. Lindsay questions Frank’s capacity to care for the children immediately following a 24-hour work shift.

C. Analysis and conclusion

[93] As explained below, the parties’ parenting time with the children will be as set out in the Final Order Terms attached as Appendix A to these Reasons. The final order provides for a single regular schedule for the whole year, with special provision for non-consecutive holiday weeks for each party during the summer months. Parenting time exchanges will generally continue to occur at the children’s daycare, to minimize the opportunity for parental conflict. The final order also allocates parenting time for statutory holidays and other special occasions, generally as proposed in Lindsay’s draft order.

(i) Regular parenting time schedule

[94] The final order provides that (i) the children’s primary residence will be with Lindsay, and (ii) the children will be in her care except as otherwise provided in the final order. Frank will have parenting time with the children on a four-week repeating cycle, as follows:

a. Week 1: The children shall be with the Frank (i) starting Monday at 4:30 p.m. after daycare until their return to daycare on Tuesday at 8:30 a.m., and (ii) starting Friday at 4:30 p.m. after daycare until their return to daycare on Monday at 8:30 a.m.

b. Week 2: The children shall be with the Frank (i) starting Tuesday at 4:30 p.m. after daycare until their return to daycare on Wednesday at 8:30 a.m., and (ii) starting Friday at 4:30 p.m. after daycare until their return to daycare on Monday at 8:30 a.m.

c. Week 3: The children shall be with the Frank on Wednesday from 4:30 p.m. after daycare until Thursday at 7:00 p.m. when he returns the children to Lindsay’s home. For greater certainty, if Thursday is a school day, Frank is responsible from dropping them off at school on time that morning and picking them up at school on time at the school day’s end. The children will otherwise be in Frank’s care during his parenting time that week.

d. Week 4: The children shall be with the Applicant on Thursday from 4:30 p.m. after daycare until their return to daycare on Friday at 8:30 a.m.

[95] The regular parenting time schedule therefore follows the structure of the current interim order but expands Frank’s parenting time by adding an additional overnight parenting time visit in Week 2 and expanding the length of the existing overnight parenting time visit in Week 3, as explained further below.

a. As under the interim access schedule, on the two weekends at the end of Weeks 1 and 2 (when Frank does not work either Saturday or Sunday), he will continue to have parenting time with the children from 4:30 p.m. Friday to 8:30 a.m. Monday. I have not adopted Lindsay’s proposal that Frank’s parenting time end at 7:00 p.m. Sunday on the first weekend. Frank would continue to rely on his father to drop off the children at daycare that morning, since Frank begins work at 7:00 a.m. that day. As explained further below, I see no sufficient basis for altering this aspect of the current schedule as Lindsay suggests.

b. In Week 2, Frank would have an additional overnight parenting time visit, picking up the children from daycare on Tuesday at 4:30 p.m. and returning them to daycare at 8:30 a.m. on Wednesday. Under the interim access order, Week 2 was the only one in which Frank did not have weekday overnight parenting time with the children.

c. In Week 3, I have accepted Lindsay’s proposal that Frank’s Wednesday overnight parenting time be expanded so that it ends on Thursday at 7:00 p.m. rather than at 8:30 a.m. Expanding that parenting time visit also makes sense in light of Frank’s limited parenting time before he next has the children for a full weekend (in the following four-week cycle). The final order also makes it clear that the children will be in Frank’s care for that overnight parenting time visit, except on a school day, when Frank will be required to drop the children off in time for school in the morning and pick them up at school at the end of the school day, before returning them to Lindsay’s home that evening at 7:00 p.m. Therefore, Frank would not be required to place the children in daycare during the day on Thursday, as suggested in the chart Lindsay’s counsel provided with her closing submissions.

[96] In determining whether I should adopt a schedule that provided Frank with more parenting time, I considered Frank’s position that his proposed schedule, providing each parent with equal parenting time, was consistent with the maximum contact principle (unlike Lindsay’s proposed schedule). I also considered his position that his proposed schedule had the further inherent advantage of placing the children in his care (or occasionally, his parents’ care) during time that the children would otherwise be in daycare.

[97] As indicated above, the maximum contact principle, while mandatory, does not require equal or equivalent parenting time for each party. What the maximum contact principle requires is “as much time with each [parent] as is constent with the best interests of the child”. On the evidence, I have concluded that a regular parenting schedule modeled on the current interim access schedule, with additional parenting time for Frank as indicated above, is in the childen’s best interests. The same schedule would apply during both the school year and the summer months, with special provision for non-consecutive holiday weeks for each parent during the summer months.

[98] I realize that the current interim access schedule was imposed on a without prejudice basis and, for that reason, “preserving the status quo” does not provide valid justification for continuing with a similar timesharing schedule. However, I agree with Lindsay that the schedule as currently structured, including the children’s continued participation in daycare (in before-and-after-school programs for both children during the school year), will provide the children with structure and consistency that is beneficial at their young age and stage of development. The same considerations justify a consistent schedule throughout the year. The final order’s timesharing schedule also provides both parties with significant (though not equal) parenting time that is appropriate in present circumstances, consistent with the maximum contact principle.

[99] There is no dispute that the JVD and CJD are happy, well-adjusted children who have thrived under the parenting schedule in place to date. They enjoy their time in daycare, including their participation in the various activities and interaction with other children. Lindsay feels strongly that the children should continue to participate in daycare as being in their best interests. As previously noted, she is an exceptional mother and has provided the children with exceptional care. Her approach to parenting decisions is consistently child focused. Under the final order, she will have decision-making authority in respect of the children. In these circumstances, her views relating to the children’s continued, consistent participation in daycare at this stage of their development should be afforded considerable weight. As well, parenting time exchanges at daycare or school (rather than the parties’ homes) have the added advantage of minimizing the opportunity for parental conflict, which has been a continuing issue in this case.

[100] That being said, as previously noted, I do not consider that the availablity of daycare on a subsidized basis to be a relevant factor when determining the timesharing schedule in this case. That issue became a point of contention on previous occasions when Frank picked up JVD directly from school before the commencement of after-school daycare, potentially placing the subsidy in jeopardy. Of course, court order terms (including those setting the time and place of parenting time exchanges) are mandatory and must be followed. However, in setting the order terms, the determining factor is the children’s best interests. The availability of a daycare subsidy is not part of the equation. If a subsidy is not available, the financial consequences will fall (as they should) on both parties on a shared basis under s. 7 of the Federal Child Support Guidelines, S.O.R./97-175 (the “Guidelines”).

[101] In determining the regular parenting time schedule, I also took into account the considerations below.

a. Lindsay expressed a concern about the capacity of Frank’s father relating the children’s morning drop offs, in particular as a justification for changing the time for termination of Frank’s weekend access at the end of Week 1 to Sunday evening from Monday morning. That concern was not justified on the evidence. It was clear from the evidence of Frank’s father that he is a devoted, capable grandparent whom Lindsay and Frank relied on for assistance during their marriage and also during the difficult period surrounding the parties’ separation (including his being present or acting as a go-between for access exchanges when Lindsay was still in the matrimonial home in Welland). As well, Lindsay’s proposed parenting time schedule includes another occasion when Frank’s father would be required to perform the morning drop-off, which is not consistent with her professed concern about his access exchange capability.

b. Lindsay also expressed a concern about Frank’s capacity to have the children in his care immediately after a 24-hour work shift. The evidence did not support the validity of that concern. I accept Frank’s testimony that he had no difficulty caring for the children in those circumstances. One of his co-workers (who also has young children) provided testimony to the same effect. Typically, they are able to nap during the day and get a full night’s sleep (or its equivalent) during a 24-hour work shift. In any case, if the occasion arose when Frank required assistance with childcare in these circumstances, his father (or both his parents) would be available to assist.

(ii) Statutory holidays/special occasions/holiday weeks

[102] As set out in Appendix A, the final order allocates parenting time for statutory holidays, other special occasions and holiday weeks, generally as proposed in Lindsay’s draft order.[^2] The general principle followed is that parenting time for statutory holidays and other special occasions is to be allocated equally between the parties, generally providing each parent with the same scheduled parenting time in alternating years. Given the structure of the regular parenting time schedule in the final order, that approach appears to make more sense than Frank’s proposal draft order, under which parenting time for statutory holidays and other special occasions would follow the regular schedule, with some limited exceptions. The final order also requires the parties to remain flexible regarding holiday time and use their best efforts to accommodate minor amendments to the schedule.

[103] As both parties proposed, the final order also provides for two non-consecutive holiday weeks with the children for each party. As set out in Lindsay’s draft order, both weeks would be in the summer months (when missing school would not be an issue), with a specified mechanism for choosing those weeks each year. Should one of the parties wish to have a holiday week with the children during the school year, separate arrangements would have to be made with the other party.

V. Child support and related matters

[104] The final order requires Frank to pay child support to Lindsay in the table amount required by the Guidelines, commencing May 1, 2021, based on Frank’s 2020 income. The amount of child support payable updates the amount required to be paid under the October 2020 partial final order, which was based on Frank’s 2019 income. There is no dispute between the parties that the full table amount of child support should be payable if the timesharing schedule in the final order provides for a parenting time split of more than 60/40 in Lindsay’s favour (as it does in this case).

[105] The final order also revises each party’s required contribution to special or extraordinary expenses using the parties’ 2020 income. The order also provides (for greater certainty) that the children’s special or extraordinary expenses shall include expenses for daycare, including for a before/after school daycare program.

[106] The final order also requires the parties to exchange income information annually, in order to permit adjustment of the table amount payable and the proportionate sharing of special or extraordinary expenses (effective July 1 each year starting in 2022), based on the parties’ income in the previous year.

[107] As suggested by both parties, the final order also addresses the parties’ respective contributions to education expenses should the children attend a post-secondary educational institution. The approaches the parties suggested in their respective draft orders were very different. Lindsay’s draft order contained detailed requirements of the kind often found in a separation agreement or negotiated consent order. Frank’s draft order was more general, based on a statement of the parties’ intentions, which did not seem appropriate for a court order. Since this issue is not one of immediate concern (given the children’s young ages), the final order will briefly address the issue by requiring the parties to each contribute to the cost of the children’s post-secondary education expenses in proportion to their respective incomes in accordance with s. 7 of the Guidelines, taking into account any contribution from the child, including through employment, scholarships, bursaries, grants or student loans.

[108] The final order also addresses medical and dental benefits and life insurance for the children’s benefit. Rather than adopting the detailed provisions in Lindsay’s draft order, the final order imposes a general obligation on both parties to maintain such benefits in the children’s favour. Under the final order, the parties are required to maintain medical and dental benefits as may be available for the children’s benefit through the parties’ employment, for so long as the benefits are available and the children are eligible. Similarly, for so long as the children remain children of the marriage, the parties are also required to continue to designate the other party as the irrevocable beneficiary, in trust for the children, of existing life insurance policies, including policies available through their employment for so long as the policies remain available.

VI. Other order terms

[109] Without being exhaustive, the final order contains other terms adapted from Lindsay’s draft final order, as indicated below.

a. Education/daycare/extra-curricular activities: The final order confirms the parties’ intentions with respect to the school the children will attend in Grimsby and the status quo arrangements relating to daycare. It also confirms that both parties may attend school functions regardless of the parenting time schedule, and also addresses their attendance at parent-teacher meetings, receipt of school calendar and notices, and attendance at school field trips, classroom events and extra-curricular activities.

b. Access to information from third parties: Consistent with s. 16.4 of the Divorce Act, the final order addresses the parties’ access to information from the children’s teachers, health care providers and others involved with the children. The parties are required to execute any authorization or direction required to provide the other party with access to such information.

c. Communications: In addition to generally requiring the parties to communicate with one another using AppClose or another parenting application, the final order requires the parties to be civil and child-focused in there communications and to shield the children from exposure to parental conflict, including any discussion of past or present legal proceedings.

d. Children’s residence: The final order requires that neither party move the children’s permanent residence out of the Niagara Region without the other’s written consent or a court order. It also requires a party planning to move their home residence to provide the other party with 60 days written notice, with particulars of the proposed move.

e. Travel: The final order provides for Lindsay’s applying for passports for the children and providing them to Frank when he needs them for travel. It also addresses the parties’ obligations relating to notification, itineraries and other information relating to planned travel with the children.

f. Right of first refusal: Lindsay proposed order would provide a mutual right of first refusal to care for the children if the party scheduled to care for the children is unable to do so for more than one overnight period. The final order does not contain a right of first refusal. A first refusal right is sometimes appropriate in circumstances in which the parties can deal with each other in a cooperative and respectful manner. This is not one of those cases. In my view, including a first refusal right would provide the parties with a new opportunity for discord and disharmony, to the children’s detriment.

VII. Disposition

[110] Accordingly, the final order will provide as follows:

a. The final order will have the terms set out in Appendix A (Final Order Terms) of these Reasons.

b. A support deduction order will issue.

c. Unless settled between the parties, costs will be determined based on written submissions.

d. Except as addressed in this final order, the divorce order or the partial final order dated October 5, 2020, any other claim by either party is dismissed.

[111] If the parties cannot agree on costs, each party may serve and file brief written submissions (not to exceed three pages) together with a bill of costs within 21 days. Each may respond by brief written submissions within 14 days. If no submissions are received within the specified timeframe, the parties will be deemed to have settled costs.

The Honourable Mr. Justice R. A. Lococo

Released: June 7, 2021

APPENDIX A – Final order terms

DECISION-MAKING RESPONSIBILITY

1. The Respondent, Lindsay Ann Di Felice, shall have decision-making responsibility in respect of the children of the marriage, namely [insert name] Di Felice born [insert date], 2015 (“JVD”) and [insert name] Di Felice born [insert date], 2017 (“CJD”), referred to collectively as the “children”.

2. Lindsay shall consult with the Applicant, Frank Carm Di Felice, with respect to significant decisions about the children’s well-being in order to reach a consensus on how to proceed in the children’s best interests. If the parties are unable to agree, the Respondent shall be responsible for making the decision.

PARENTING TIME

3. Each of the parties shall have parenting time with the children as set out in this order.

4. The children’s primary residence shall be with the Respondent. The children shall be in the Respondent’s care except as otherwise provided in this order.

5. Frank shall have parenting time with the children as follows:

a. Week 1 – The children shall be with the Applicant (i) starting Monday at 4:30 p.m. after daycare until their return to daycare on Tuesday at 8:30 a.m., and (ii) starting Friday at 4:30 p.m. after daycare until their return to daycare on Monday at 8:30 a.m.

b. Week 2 – The children shall be with the Applicant (i) starting Tuesday at 4:30 p.m. after daycare until their return to daycare on Wednesday at 8:30 a.m., and (ii) starting Friday at 4:30 p.m. after daycare until their return to daycare on Monday at 8:30 a.m.

c. Week 3 – The children shall be with the Applicant on Wednesday from 4:30 p.m. after daycare until Thursday at 7:00 p.m. when the Applicant returns the children to the Respondent’s home. For greater certainty, if Thursday is a school day, the Applicant is responsible from dropping them off at school on time that morning and picking them up at school on time at the school day’s end. The children will otherwise be in the Applicant’s care during his parenting time that week.

d. Week 4 – The children shall be with the Applicant on Thursday from 4:30 p.m. after daycare until their return to daycare on Friday at 8:30 a.m.

6. If pick-ups and drop-offs cannot occur at daycare (as set out in the preceding paragraph) or at school due to closure/holiday, child’s illness or other reason, the Respondent shall be responsible for bringing the children to the Applicant’s home for timesharing, and the Applicant shall be responsible for returning the children to the Respondent’s home at the end of timesharing. If either party moves more than 10 km from the other’s home, this aspect of this order shall be subject to review, any such review being subject to compliance with the dispute resolution provisions of this order. The parties shall not communicate with each other during exchanges other than to exchange pleasantries and urgent information with respect to the care of the children.

7. The Applicant and the Respondent shall share time with the children on holidays and other special occasions in accordance with the following holiday schedule. The holiday schedule shall supersede the regular parenting time schedule in the event of a conflict.

Family Day Weekend

a. The children shall be with the Applicant on Family Day weekend in odd-numbered years and with the Respondent in even-numbered years, from 4:30 p.m. on Friday until 8:30 a.m. on Tuesday.

School Spring Break

b. In even-numbered years, the children shall be with the Respondent from after daycare and/or school at the commencement of spring break, until Wednesday at 8:30 a.m., and with the Applicant from Wednesday at 8:30 a.m. until their return to daycare and/or school at the end of spring break. In odd-numbered years, the children shall be with the Applicant from after daycare and/or school at the commencement of spring break, until Wednesday at 8:30 a.m., and with the Respondent from Wednesday at 8:30 a.m. until their return to daycare and/or school at the end of spring break.

P.A. Days

c. If the children have any P.A. Days when they are not in daycare and/or school that are not already addressed by this holiday schedule, the parties shall alternate care of the children. In odd-numbered years, provided that the Respondent is not required to be at her place of employment, the children shall be with the Respondent from 8:30 a.m. on their first P.A. Day and every other P.A. Day until 7:00 p.m. when the regular parenting time schedule shall resume. Provided that the Applicant is not working, the children shall be with the Applicant on the children’s second P.A. Day and every other P.A. Day from 8:30 a.m. until 7:00 p.m. when the regular parenting time schedule shall resume. In even-numbered years, provided the Applicant is not working, the children shall be with the Applicant on their first P.A. Day and every other P.A. Day thereafter from 8:30 a.m. until 7:00 p.m. when the regular parenting time schedule shall resume. Provided that the Respondent is not required to be at her place of employment, the children shall be with the Respondent on their second P.A. Day and every other P.A. Day thereafter from 8:30 a.m. until 7:00 p.m. If either of the children’s P.A. Days are accounted for elsewhere in this holiday schedule (i.e. Easter, Thanksgiving, etc.) those provisions shall take precedence over this provision. If the Applicant is working during the day on a P.A. Day that he would normally be scheduled to spend with the children according to the schedule above, the children shall be with the Respondent.

Easter Weekend

d. In odd-numbered years, the children shall be with the Applicant from Good Friday at 9:00 a.m. to Easter Sunday at 9:00 a.m. and shall be with the Respondent for the remainder of the Easter weekend to the return to daycare and/or school Tuesday morning at 8:30 a.m. In even-numbered years, the children shall be with the Respondent from Good Friday at 9:00 a.m. until Easter Sunday at 9:00 a.m. and with the Applicant from Easter Sunday at 9:00 a.m. until their return to daycare and/or school on Tuesday at 8:30 a.m.

Mother’s Day

e. If the children are not otherwise in the Respondent’s care on Mother’s Day weekend, the children shall be with the Respondent on Mother’s Day weekend from Saturday at 7:00 p.m. until their return to daycare and/or school on Monday morning unless the Respondent is required to be at her place of employment on Mother’s Day.

Victoria Day Weekend

f. The children shall be with the Respondent on Victoria Day weekend in odd-numbered years and with the Applicant in even-numbered years, from after school on Friday until their return to daycare and/or school on Tuesday morning.

Father’s Day

g. If the children are not otherwise in the Applicant’s care on Father’s Day weekend, the children shall be with the Applicant on Father’s Day weekend from Saturday at 7:00 p.m. until their return to daycare and/or school on Monday morning unless he is working on Father’s Day.

Summer Vacation

h. With respect to the children’s Summer Vacation, each party will spend uninterrupted vacation time with the children as follows:

i. The children shall be with the Respondent for two non-consecutive weeks, during which time the Applicant’s regular parenting time shall be suspended.

ii. The children shall be with the Applicant for two non-consecutive weeks, during which time the Respondent’s regular parenting time shall be suspended.

iii. The Respondent shall have first choice of vacation time in odd-numbered years and the Applicant shall have first choice of vacation time in even-numbered years. The party with the first choice shall advise the other, in writing, by April 1 of each year, of their chosen vacation weeks. The party with the second choice shall advise the other, in writing, by May 1 of each year, of their chosen vacation weeks. For the summer of 2021, the parties’ vacation weeks shall be as the parties arrange (if necessary through counsel), with the Respondent having first choice of vacation time.

iv. In making plans, each party shall take into account the children’s daycare, camp, and other scheduled activities.

August Civic Holiday

i. Subject to the Summer Vacation schedule above, which will take precedence, the children shall be with the Applicant on the August Civic Holiday weekend in odd-numbered years and with the Respondent in even-numbered years, from 4:30 p.m. on Friday until 7:00 p.m. on Monday.

Labour Day Weekend

j. The children shall be with the Respondent in odd-numbered years on Labour Day weekend and with the Applicant in even-numbered years, from 5:00 p.m. on Friday until their return to daycare and/or school on Tuesday morning.

Thanksgiving Weekend

k. In odd-numbered years, the children shall be with the Applicant for Thanksgiving from Friday after daycare and/or school until Sunday at 9:00 a.m. and with the Respondent from Sunday at 9:00 a.m. until they are returned to daycare and/or school on Tuesday morning at 8:30 a.m. In even-numbered years, the children shall be with the Respondent for Thanksgiving from Friday after daycare and/or school until Sunday at 9:00 a.m. and with the Applicant from Sunday at 9:00 a.m. until the children are returned to daycare and/or school on Tuesday at 8:30 a.m.

Halloween

l. The children shall be with the Applicant for Halloween in odd-numbered years and with the Respondent in even-numbered years, from after daycare and/or school until 9:00 p.m., at which time the children are to be returned to the party who has the children in accordance with the regular parenting time schedule. The party who has the children for Halloween shall be responsible for the children’s Halloween costumes.

Christmas Break

m. The parties shall equally share the children’s school Christmas Break, taking into account the Applicant’s work schedule. The Christmas Break shall commence after daycare and/or school on the children’s last day of school in December and end on the morning the children return to daycare and/or school on the first day of school in January.

Christmas Eve/Morning and Christmas Day

n. Regardless of the Christmas Break Schedule set out above, the children shall be with the Applicant on Christmas Eve from 9:00 a.m. until 8:00 p.m. and the children shall always be with the Respondent on Christmas Day from 10:00 a.m. until 8:00 a.m. on Boxing Day. In even-numbered years, the children shall be with the Respondent from Christmas Eve at 8:00 p.m. until Christmas Day at 10:00 a.m. In odd-numbered years, the children shall be with the Applicant from Christmas Eve at 8:00 p.m. until Christmas Day at 10:00 a.m.

o. If the Applicant must work on Christmas Eve in any year, the Respondent shall have the children from Christmas Eve at 9:00 a.m. until Christmas Day at 10:00 a.m. and the Applicant shall have the children from Christmas Day at 10:00 a.m. until 8:00 a.m. on Boxing Day.

New Year’s Eve

p. In even-numbered years, the children shall be with the Applicant on New Year’s Eve from 10:00 a.m. until New Year’s Day at 8:30 a.m. when the children shall be with the Applicant for his birthday in accordance with the next subparagraph. In odd-numbered years, the children shall be with the Respondent on New Year’s Eve from 10:00 a.m. until New Year’s Day at 8:30 a.m. when the children shall be with the Applicant for his birthday in accordance with the next subparagraph.

Parties’ Birthdays

q. If the children are not ordinarily with the Respondent on her birthday on July 2, the Respondent shall have the children from 8:30 a.m. until 8:00 p.m. If the children are not ordinarily with the Applicant on his birthday on January 1, the Applicant shall have the children from 8:30 a.m. until 8:00 p.m. If the Applicant must work on his birthday, the Applicant shall have the children on January 2 from 8:30 a.m. until 8:00 p.m.

Children’s Birthdays

r. Each child will spend his birthday in accordance with the regular schedule.

8. If either party is not available to be with the children during their holiday parenting time in accordance with the preceding paragraph due to their work schedule, the other party shall care for the children during the times that the first party is unavailable.

9. The parties shall remain flexible regarding the holidays and shall make decisions for the children based on the best interests of the children so that if future plans with either family do not comply with the above holiday schedule, the parties shall maintain flexibility where possible. If either party requests minor amendments to the holiday parenting time schedule, the other party shall use their best efforts to accommodate the request. The parties shall maintain the general principle that holiday time with the children shall be divided equally between the parties.

10. The Applicant shall provide the Respondent with his annual schedule within ten days of receiving same from his employer and in any event no later than December 1 each year. If the Applicant’s work schedule changes, he shall advise the Respondent within ten days of being notified of the change and shall provide the Respondent an updated schedule when it is available.

PARENTING - GENERAL

11. CJD shall continue to attend daycare at the YMCA located at Our Lady of Fatima School in Grimsby, Ontario, until such time as he is old enough to be enrolled in junior kindergarten. Thereafter, CJD shall attend kindergarten at St. John’s Catholic Elementary School in Grimsby, Ontario, and shall attend before and after school care with the YMCA located at the school, unless the parties agree otherwise in writing.

12. JVD shall continue to be enrolled in and attend school at St. John’s Catholic Elementary School in Grimsby, Ontario, and shall continue to attend before and after school care at the YMCA located at the school unless the parties agree otherwise in writing.

13. With respect to the decision-making and parenting time arrangements for the children as set out above, the parties:

a. shall provide each other with their email addresses, current home addresses, and a phone number where they can be reached at all times.

b. shall pick up and/or drop off the children directly at daycare/school during parenting time transitions. When the children are not in daycare/school, the party with the children shall be responsible for dropping them off at the other party’s home, unless otherwise specified, at the commencement of the other party’s time with the children.

c. shall not arrange activities for the children during the other party’s scheduled time without the other party’s consent.

d. may both attend extracurricular activities and scheduled school events regardless of the parenting schedule.

e. shall abide by the regular parenting schedule in the event a child is sick, unless the child is too sick to travel between the parties’ homes, according to the child’s doctor.

f. shall permit the children to take any personal item, toy, gift or article of clothing between the parties’ homes, without restriction.

g. shall advise one another by parenting application or email if the children will be in the care of a third party for more than one overnight during a party’s scheduled time, and shall provide the name, address and phone number of the third party.

h. notwithstanding the above subparagraphs, shall at all times maintain a reasonable and flexible position respecting the decision making and parenting time arrangements for the children and at all times the best interests of the children shall prevail. Accordingly, if special occasions, extracurricular activities, excursions or other opportunities become available to the children, or to either party, neither party will insist that the decision-making and parenting time arrangements set out herein be adhered to without exception.

14. Both parties may make inquiries and be given information by the children’s teachers, school officials, doctors, dentists, health care providers, summer camp counsellors, or others involved with the children. The parties shall execute any required authorization or direction and otherwise cooperate to provide the other party with access to such information.

COMMUNICATION

15. The parties may telephone and/or video call the children on a once daily basis. The children may telephone and/or video call with the parties when they wish.

16. The parties shall continue to use AppClose, Our Family Wizard, or an equivalent parenting application for communication regarding the children except in the event of an emergency or as otherwise provided in this order. Any costs associated with this app shall be divided equally between the parties.

17. Communication between the parties shall be limited to matters directly related to the children only, and shall at all times be child-focused and civil.

CHILDREN’S EDUCATION

18. With respect to the children’s education:

a. Both parties may attend all school functions regardless of the schedule.

b. The parties will attend parent-teacher meetings individually, or together if both parties consent.

c. Each party will obtain his or her own school calendar and school notices.

d. With respect to school field trips or classroom events, the parties will alternate attendance. If one party is unable to attend, that party shall immediately notify the other party, who may attend instead.

CHILDREN’S RESIDENCE

19. Neither party will move the children’s permanent residence from the Regional Municipality of Niagara without the other’s written consent or a court order. This restriction is not intended to limit the parties’ ability to take the children out of the jurisdiction of the court for holiday or other travel purposes.

20. If a party proposes to change their home residence, that party shall give the other party particulars in writing of their new address and other contact information at least 60 days prior to the move date.

TRAVEL

21. The Respondent shall apply for a Canadian passport for each child. The Applicant shall sign the passport application and the costs shall be divided equally between the parties. The Respondent shall keep the passports and give them to the Applicant when he needs them for travel five days prior to the Applicant’s departure with the children. The Applicant shall return the passports promptly upon his return from travelling with the children.

22. If either party plans a vacation with the children, that party shall give to the other a detailed itinerary at least seven days before the trip begins, including the name of any flight carrier and flight times, information about accommodations, including address of the accommodation and telephone number where they may be reached at all times, and details as to how the non-travelling party may contact the children during the trip.

23. If either party plans a vacation without the children, that party shall give the other party a telephone number where he or she can be reached in the case of an emergency or if the children wish to contact the travelling parent.

24. If either party plans a vacation outside of Canada with the children, the travelling party shall provide to the non-travelling party at least 30 days prior to departure a draft letter or travel consent authorizing the children to travel, for the travelling party to execute and have notarized.

CHANGE OF NAME

25. Neither party shall change the children’s names without the other party’s written consent or a court order.

RELATIONSHIP/COMMUNICATION WITH EACH OTHER AND THE CHILDREN

26. The parties shall:

a. prefer the children’s interests to their own and at all times keep the best interests of the children in mind;

b. encourage the children to have a good relationship with each other and with each party;

c. refrain from making disparaging or negative remarks about the other party to the children or in the children’s presence, and shall discourage others from doing so in the the children’s presence;

d. exchange information about the children, such communications to be private, respectful, related solely to the children, and not shared with the children or third parties without the other party’s consent;

e. share documents regarding the children by scanning and emailing documents to the other party, rather than requiring the children to transport documents between them;

f. refrain from discussing with the children, or with a third party in the presence of the children, present or past legal proceedings, issues between the parties in any such legal proceedings, or any conflicts between the parties;

g. ensure that all information or documentation pertaining to the parties’ separation and divorce, including all personal correspondence or email communications in respect thereof, is not accessible to the children; and

h. consult each other regularly about important issues such as the children’s education, healthcare, and religious upbringing.

CHILD SUPPORT AND SECTION 7 EXPENSES

27. Commencing May 1, 2021, and on the first day of each month thereafter, the Applicant shall pay the Respondent child support for the children in the sum of $1,726 per month in accordance with the Federal Child Support Guidelines (the “Guidelines”), based on his 2020 income of $120,827 ($122,787 less union dues of $1,970).

28. Commencing May 1, 2021, the parties shall each contribute to the children’s special or extraordinary expenses in proportion to their respective incomes in accordance with s. 7 of the Guidelines. For greater certainty, the children’s special or extraordinary expenses shall include expenses for daycare, including for a before/after school daycare program. Based on the Applicant’s 2020 income of $120,827 and the Respondent’s 2020 income of $71,740, the Applicant shall contribute 63% of the children’s special or extraordinary expenses and the Respondent shall contribute 37%. The reimbursing party shall promptly reimburse the party incurring the expense after being provided proof of the expense.

29. If either of the children attend a post-secondary educational institution in a program leading to a degree, diploma or certificate, the parties shall each contribute to the cost of obtain the child’s first (and, if the parties agree, a subsequent) degree, diploma or certificate in proportion to the parties’ respective incomes in accordance with s. 7 of the Guidelines, taking into account any contribution from the child, including through employment, scholarships, bursaries, grants or student loans.

30. Commencing in 2022, on or before June 30 of each year, the parties shall exchange their complete income tax return, notice of assessment and any notice of reassessment for the prior calendar year. They will use this information to adjust the child support payable, including both the table amount and the proportionate sharing of the children's special or extraordinary expenses effective July 1 of each year, commencing on July 1, 2022.

31. The Respondent may claim the Canada Child Benefit (including the Child Disability Benefit if applicable), the refundable children's GST/HST credits, the Ontario Child Benefit, and the eligible dependant credit for the children. These benefits/credits will not affect the table amount of child support.

MEDICAL/DENTAL/LIFE INSURANCE

32. The parties shall each maintain for the benefit of the children such health and dental benefits as may be available to them from time to time through the parties’ employment, for so long as the benefits are available and the children are eligible. The parties shall each provide to the other particulars of any coverage available for the children, including through a partners benefit plan. If the plan member is reimbursed for expenses incurred for the children, the parties shall each ensure that payment is made to the party incurring the expense for the children.

33. Medical expenses not covered by either party's extended health insurance shall be special or extraordinary expenses and will be paid according to the applicable special or extraordinary expense sections above.

34. The parties shall be responsible for their own medical, extended health and dental expenses.

35. For so long as the children remain children of the marriage, each of the parties shall continue to designate the other party as the irrevocable beneficiary, in trust for the children, of existing life insurance policies, including policies available through their employment for so long as the policies remain available.

DISPUTE RESOLUTION

36. If the parties cannot resolve a dispute arising from this order or relating to its application, they shall in good faith attend mediation (arranged through the Family Law Information Centre in St. Catharines or, if the parties agree, through private mediation) before bringing the issue to court.

37. If the mediation is unsuccessful, a party seeking to vary the existing order shall provide the other party with 30 days’ written notice before filing any variation motion except in case of emergency.

[^1]: For ease of comparison between the parenting schedule in the December 2018 interim order and the parenting schedules proposed by each of the parties (discussed later in these Reasons), I have changed the numbering of the weeks in the four-week cycle from the that set out in the interim order, without altering the order’s substance.

[^2]: However, I have not adopted proposed wording in Lindsay’s draft order that apparently anticipates certain areas of possible dispute between the parties and resolves them in advance in Lindsay’s favour, rather than dealing with them in the children’s best interests in the circumstances in which they arise. As well, contrary to what Lindsay proposed, I have not made separate provision for “Canada Day Weekend”, since the observed holiday for July 1 does not automatically form part of a three-day weekend.