Vieira v. Vieira, 2021 ONSC 5029

COURT FILE NO.: FC-17-FS-53015

DATE: 2021/07/19

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: RENEE KATHLEEN MARIE VIEIRA, Applicant

AND:

JAYSON EUGENIO VIEIRA, Respondent

BEFORE: Madam Justice J. Breithaupt Smith

COUNSEL: Richard Noll, Counsel for the Applicant

Richard Van Buskirk, Counsel for the Respondent

HEARD: April 9, 2021; April 19 – 23, 2021; April 26 and 27, 2021

REASONS FOR JUDGMENT

“Hurt people hurt people.” – Anishnaabe Elder, Healing of the Seven Generations

[1] This trial, spanning eight days of evidence and conducted entirely virtually, focused on the parenting and support arrangements for the parties’ two children, A. who was ten years of age at separation and is now fourteen, and M. who was turning seven years of age at separation and is now almost eleven. Ms. Renee Vieira is the Applicant and Mother to the boys (“Mother”) and Mr. Jayson Vieira is their Father (“Father”). Both are loving and concerned parents who want the best possible outcome for their boys. Neither party is blameless for the dissolution of their marriage, but nor has either of them behaved ruthlessly in this litigation. They are simply two individuals whose relationship ended, leaving each to grieve that loss in his or her own way. In processing that grief, they have continued to hurt one another in their post-separation communications such that this trial became inevitable despite each parent’s sincere efforts to reach a settlement. Regrettably, the boys have suffered emotionally as a result, but I am confident that the closure provided by these Reasons for Judgment will allow the family to move forward toward a secure and positive future.

[2] The parties took a collaborative and child-focused approach in defining their date of separation. The events which ultimately led to the separation took place during the week of M.’s seventh birthday. In a shared effort to ensure that M.’s birthday would not be overshadowed by the separation, the parties agreed to use July 31, 2017 as the relevant date in all legal documents.

[3] The parties reached Partial Final Minutes of Settlement on December 17, 2020 which addressed all property division issues and satisfied all child support and expenses and any costs orders then-outstanding. The net proceeds of the sale of the matrimonial home were dealt with and a plan set in motion for the division of Mother’s pension at source. The only live financial issues are child support and the apportionment of expenses for the children from January 1, 2021 forward.

[4] In her Application, Mother sought sole decision-making responsibility for the children (“custody” under the prior legislation) and primary residency in her care, with Father having parenting time Wednesdays overnight and on alternate weekends (Friday to Sunday). She maintained this position at trial. In his Answer, Father set out three possibilities: that he would have sole decision-making responsibility for the children; that the parties would share joint decision-making authority with the children to reside primarily with him; or that the parties would share joint decision-making authority with the children spending equal parenting time in each household. Father’s Answer did not set out a possible parenting schedule if the children were to be primarily resident with him. At trial, Father proposed that the current schedule continue, with the parties to share joint decision-making responsibility with parenting co-ordination in place in the event of a disagreement.

[5] The children spent equal time in the care of each parent on a 3-1-3 schedule from the date of separation to November 1, 2018 when A. stopped attending at Father’s home. Thereafter, M. has continued to follow the 3-1-3 schedule to date.

[6] The parties were married and therefore the Divorce Act governs. Both parties sought a divorce, which will be included in the final disposition of this matter.

Chronology

[7] The history, in brief, of this family is as follows based on the undisputed evidence:

(a) the parties started dating in 2002 and were married on October 30, 2004;

(b) both parties worked full-time throughout the marriage, although there were brief periods when Father was between employment positions;

(c) Maternal Grandmother has lived in Waterloo Region throughout the marriage and now lives with Mother and both children when they are in Mother’s care;

(d) Mother has been estranged from Maternal Grandfather since she was five years old following her parents’ difficult divorce;

(e) from 2013 through 2017, Paternal Grandparents lived with the family for five or six months in each year, spending the balance of their time in Portugal or in Toronto with Father’s sibling;

(f) A. was born on April 25, 2007 and M. was born August 12, 2010;

(g) A. had a collapsed lung at birth which resulted in a predisposition to respiratory illnesses and for which he required an inhaler as a young child, although these issues no longer effect him at this time;

(h) Mother took a total parental leave (including vacation time) of approximately 16 ½ months with A., including three months prior to A.’s birth;

(i) M.’s birth had no complications;

(j) Mother took a total parental leave (including vacation time) of approximately 15 ½ months with M., including two months prior to M.’s birth;

(k) both parents would parent both boys regularly throughout the marriage;

(l) both boys attended an in-home daycare during the week;

(m) once the children were school-aged, their Grandparents would provide supportive before- and after-school childcare, including taking the children to some of their activities, with Maternal Grandmother providing care during the months when Paternal Grandparents were not living with the family;

(n) Mother took the planning role in booking medical and dental appointments for the family as a whole and generally took the children to their appointments, with Father attending when his work schedule would allow;

(o) Mother was the primary contact point for the children’s school, and was involved on the school council including organizing Shrove Tuesday celebrations;

(p) Father would attend education-related appointments and events as his work schedule would allow and was involved as a pancake flipper at the Shrove Tuesday celebration;

(q) in mid-2016, when he was about 9 years of age, A. came out to his parents as gay;

(r) in February of 2017, when he was about 6 ½, M. was diagnosed with ADHD and three learning disabilities;

(s) both boys have historically participated in swimming lessons and Kung-Fu, and A. continues with Kung-Fu to date;

(t) on or about August 11, 2017, when the family was staying at a cottage rented by the Maternal Grandmother, an argument took place between the parties which concluded with Mother striking Father with an open hand;

(u) as noted, the parties have chosen July 31, 2017 as their date of separation in the hope that their separation would not be associated with M.’s birthday;

(v) Mother was charged with assault on December 28, 2017 after Father reported the August 11^th incident to police, with the criminal proceeding being resolved on the basis of a twelve-month Peace Bond in effect to January 30, 2019;

(w) there are no other orders or proceedings impacting upon the parties’ ability to communicate with one another or with the children in effect at this time;

(x) the parties have been using Our Family Wizard (“OFW”) to communicate since at least mid-2018;

(y) on November 8, 2018, A. refused to go to Father’s home and has not attended any parenting time with Father since that date;

(z) in January of 2019, A. and Father commenced reconciliation counselling with Mother’s support.

Witnesses & Evidence Generally

Viva Voce Evidence

[8] Seven witnesses testified in total and for the balance of these Reasons I will identify each based on their relationship to the children:

(a) Todd Perreault, Clinician appointed by the OCL;

(b) Mother;

(c) Karen Elizabeth Ferris, Mother’s former co-worker and long-time friend;

(d) Ruth Martin, the boys’ previous counsellor;

(e) Father;

(f) Manuel A. Reis Vieira, Paternal Grandfather; and

(g) M. Oliveira, Father’s childhood friend.

[9] As the trial was conducted via videoconference in its entirety, we were careful to ensure that neither child was able to hear or see the proceedings and that all witnesses were testifying from a private location. The only wrinkle that took place in this regard was when Paternal Grandfather testified from Portugal unaware that he could not speak with Paternal Grandmother during his testimony, and this situation was quickly remedied by Paternal Grandmother’s departure from the room from which he was attending the trial. Although a Portuguese language interpreter had been contemplated at the Trial Management Conference, one was not in fact required at trial. I commend court staff, counsel, each of counsel’s dedicated assistants, Paternal Aunt (co-ordinating technology in Portugal) and the witnesses for making the virtual trial process flow very smoothly despite some minor technical difficulties.

Business Records

[10] The parties agreed that all education and health-related documents filed as Exhibits at trial could be relied upon as business records without the need to call the author of each. Had such an agreement not been reached, there is no doubt that this trial would have been seriously protracted and, having regard to the continuing fluctuations in the operations of the Superior Court of Justice at that time, its conclusion delayed.

Participant Experts’ Evidence

[11] Ms. Shannon Hamar is a “participant expert” as defined by Rule 20.2(1). Her one-page letter and two-page C.V. were served and filed in accordance with Rule 20.2(14) and she was listed as an anticipated witness as part of Mother’s case on the Trial Scheduling Endorsement Form. Ms. Hamar is a Registered Psychotherapist whose major research paper for her Masters of Social Work degree was entitled: “Using Emotionally Focused Therapy to Interrupt Intergenerational Transmission of Child Exposure to Parental Conflict.” In view of Mother’s personal childhood history, and Father’s expressed concerns about its possible rippling effect on the post-separation conflict, Ms. Hamar is uniquely suited to coach Mother in positive co-parenting strategies. With a view to maximizing the efficiency of in-court trial hours[^1], Mother sought to submit Ms. Hamar’s materials without the need for Ms. Hamar to testify in person. Father’s counsel took no issue with this request.

[12] Further, the parents took an extremely child-focused approach in agreeing to submit two letters from the boys’ current counsellor, Ms. Kayla Wideman, into evidence rather than calling her to testify in person so as to preserve the counselling relationship. Ms. Wideman’s letters are also “written opinions” prepared by a participant expert under Rule 20.2(14).

[13] Both sets of materials – from each of Ms. Hamar and Ms. Wideman – are hearsay.

[14] In R. v. Khelawon,[^2] the Supreme Court of Canada defined the essential features of hearsay as: (1) the fact that the statement is adduced to prove the truth of its contents; and (2) the absence of a contemporaneous opportunity to cross-examine the declarant. Writing for an unanimous Supreme Court, Justice Charron underscored that hearsay rules and exceptions, including the “principled exception” originally outlined in R. v. Khan,[^3] are intended to bolster, not impede, the court’s fact-finding role:

Just as traditional exceptions to the exclusionary rule were largely crafted around those circumstances where the dangers of receiving the evidence were sufficiently alleviated, so too must be founded the overarching principled exception to hearsay. When it is necessary to resort to evidence in this form, a hearsay statement may be admitted if, because of the way in which it came about, its contents are trustworthy, or if circumstances permit the ultimate trier of fact to sufficiently assess its worth. If the proponent of the evidence cannot meet the twin criteria of necessity and reliability, the general exclusionary rule prevails. The trial judge acts as a gatekeeper in making this preliminary assessment of the “threshold reliability” of the hearsay statement and leaves the ultimate determination of its worth to the fact finder.[^4]

[15] In this matrimonial litigation, procedure must also be viewed through the lens of the Family Law Rules. The Family Law Rules differ in many aspects from the Rules of Civil Procedure and include specific references to the admission of evidence in various forms. Therefore, regard must be had to the Court’s duty to promote the primary objective of dealing with cases in a manner that is fair and proportionate, having regard to competing interests of time and resources.[^5]

[16] As noted, Father did not object to the admission of Ms. Hamar’s letter which focuses not on any kind of diagnosis or conclusion but instead serves to document Mother’s attendances and goals in working with Ms. Hamar as a co-parenting coach. In her evidence, Mother effectively confirmed the truth of the content of Ms. Hamar’s letter, underscoring its reliability. As both parties agree that the contents of Ms. Wideman’s letters are trustworthy, and as this hearsay evidence “came about” as a result of the important goal of maintaining the integrity of the counselling relationship between Ms. Wideman and the children, I assess them as being reliable. Keeping in mind the practical effect of the Court’s primary objective of dealing with matrimonial litigation justly, I therefore admit both sets of participant expert documents into evidence although the tendering of this hearsay may not be, strictly-speaking, “necessary”, as either of Ms. Hamar or Ms. Wideman could have been compelled to testify.

Clinical Investigation by the Office of the Children’s Lawyer

[17] As noted, Mr. Todd Perreault was appointed as Clinician under s. 112 of the Courts of Justice Act to conduct an investigation and produce a report regarding his recommendations.

[18] Mr. Perreault obtained his Master of Social Work degree from York University in 2005 and worked in child protection for eighteen years before joining the OCL as a Clinician. He has been with the OCL for eleven years. This matter was assigned to him on March 19, 2018. On July 5, 2018 he conducted the Disclosure Meeting, however his Report could not be released within two weeks thereafter as is the usual goal of the OCL in such matters. On August 3, 2018, Mr. Perreault received a telephone message from Ms. Martin, then-counsellor to the boys, which he returned on August 8, 2018. As a result of the developments discussed between the two professionals, Mr. Perreault conducted two further interviews of the children on August 21 and 23, 2018 prior to releasing his Report on September 21, 2018.

[19] Unfortunately, Mr. Perreault misunderstood the shared parenting schedule as a 2-2-3 alternating biweekly schedule, but neither party argued that this misunderstanding undermined the substance of his recommendations, although Mother disagrees with the recommendations (both as to decision-making and as to the residency schedule). In giving his evidence, Mr. Perreault noted that he had been made aware of A.’s refusal to attend any parenting time with Father by Father’s counsel just prior to trial, and underscored that his recommendations were made on September 21, 2018 based on his investigation at that time, and that he has no personal knowledge of developments thereafter. I note here that the parties attempted to re-engage the OCL to update Mr. Perreault’s Report due to the passage of time, but this service was declined to the family, and that this was an administrative decision over which Mr. Perreault had no control.

[20] Mr. Perreault concluded in September of 2018 that it would be in the children’s best interests for the parties to make decisions jointly and with the children continuing on an equally shared parenting schedule. OCL recommendations are not determinative of the issues; they are but one piece of the overall analysis and the court cannot delegate its function and simply follow such recommendations. It is up to the court to render the decision.[^6] However, with respect to bringing the views and preferences of children before the court, OCL Clinicians provide inherently valuable assistance as neutral conduits of such evidence. Where a child’s views can be reasonably ascertained, we must have them to conduct a complete analysis. The court is further assisted where a neutral professional is able to provide context to those views. Although the specific comments attributed to the children are hearsay, such hearsay is both necessary[^7] and, when coming through the independently appointed OCL Clinician, presumed to be reliable.

Substantive Issues

[21] This matter raises the following substantive questions:

(a) How are decisions to be made regarding the boys’ health, education and welfare?

(b) What parenting schedule best suits each child?

(c) How will child support and the apportionment of expenses for the children be handled?

A. Decision-Making

Introductory Comments

[22] In these ever-changing times, it is almost impossible to anticipate the challenges that parents will have to navigate in fulfilling their most important role. The pressures upon families are myriad and come from many directions. Medical decisions triggered by imminent and severe health consequences for a child or education-related decisions that can change the course of a child’s academic career are difficult enough for intact, let alone separated, families. Although parallel-parenting plans have fallen out of favour to a certain extent, the Court of Appeal recently upheld a brave trial judge’s decision to craft a parallel decision-making Order by parsing out a number of anticipated sub-categories under the general scope of “medical decisions.”[^8] As the circumstances of SARS-CoV-2, a virus that has a negligible medical impact on healthy children but that has triggered a destructive socio-educational impact on all children, demonstrate, parenting decisions are more complex and nuanced than ever before. If it is functionally impossible to anticipate parenting decisions presented by circumstance, the only means to address them is individually, as each one approaches. The question is what manner of doing so is in the best interests of A. and M.

The Divorce Act Factors

[23] Although the text of the governing legislation has changed in many important ways, as always, the sole focus is on the best interests of the children. In determining whether the best interests of the children require decisions to be made primarily by one parent or jointly by both parents, the new language of section 16 of the Divorce Act:

(a) mandates that the primary consideration be each child’s “physical, emotional and psychological safety, security and well-being”;

(b) incorporates and expands upon the inclusive list of factors delineated at sections 24(2) through 24(5) of the former text of the Children’s Law Reform Act, which factors guided many Ontario decisions before March 1, 2021;

(c) adds the consideration of “any civil or criminal proceeding, order, condition or measure” relevant to the child’s circumstances;

(d) sets out a non-exhaustive list of seven factors to be taken into account in assessing family violence; and

(e) clarifies that the “Maximum Contact Principle” does not presume equally-shared parenting but rather means “that a child should have as much time with each spouse as is consistent with the best interests of the child.”

[24] Sections 16.1 through 16.4 and 16.6 are new to the Divorce Act and applicable to this family’s situation.[^9] The complete text of these sections, together with section 16, is reproduced at Appendix A to these Reasons. With the greatest of respect to the drafters of the new language, any parenting order that focuses exclusively in the best interests of the children must, of necessity, make the children’s physical, emotional and psychological safety, security and well-being its primary consideration. Realistically, 16(2) adds nothing to the analytical framework of the “best interests” test. The factors for consideration, distilled from the balance of the above-listed sections, are:

(a) each child’s needs having regard to his or her developmental stage;

(b) each child’s relationship(s) with each of the parents[^10], extended family members and other people special to him or her;

(c) each parent’s willingness to support the other’s role in the child’s life;

(d) the history of care for the child;

(e) each child’s views and preferences;

(f) each child’s cultural heritage, inclusive of language and faith as applicable;

(g) any plans for the child’s care;

(h) each parent’s ability and willingness to meet each child’s needs;

(i) the parents’ ability to communicate and co-operate with one another;

(j) an assessment of family violence, taking into account:

i. the timing, severity and frequency of the incidents;

ii. any pattern of coercive or controlling behaviour;

iii. whether the child was subjected to or witnessed aspects of the violence;

iv. the harm or risk of harm to the child;

v. other compromises to the safety of the child or another family member;

vi. current fear experienced by the child or another family member arising from the family violence;

vii. any remedial steps taken by the violent parent; and

viii. any other relevant factor;

(k) the impact, if any, of family violence on the ability of the offending parent to care for and meet the needs of each child;

(l) the impact, if any, of family violence on the parents’ co-operation moving forward;

(m) any legally-founded order, condition or measure relevant to the child’s safety, security and well-being;

(n) past conduct only insofar as it is relevant to a parent’s participation in decision-making for, or parenting time with, the child;

(o) the child’s entitlement to as much time with each parent as is consistent with his or her best interests;

(p) a presumption that day-to-day decisions are to be made by the parent caring for the child at the time the decision arises, unless otherwise ordered by the court;

(q) the best allocation of decision-making responsibility (regarding major decisions) as between the parents and/or any other participating individual;

(r) the means by which information regarding each child’s health and education is to be sourced, i.e. whether as between the parents or from third parties directly;

(s) the existence of a parenting plan submitted jointly by the parents to the court.

Analysis

[25] The following is my application of the facts as elicited at eight days of trial, inclusive of my detailed review of the 72 total exhibits filed, to these nineteen Divorce Act factors.

(a) Each child’s developmental needs

[26] Simply put, a parent’s challenges in meeting a child’s needs diminishes his or her parenting ability. A general assessment of any special needs that a child may have, and each parent’s ability to respond to those needs (both individually during his or her own parenting time and collaboratively in addressing same with the other parent) informs the Court on this factor.

[27] Although A. experienced respiratory issues as a young child, these have not had significant lasting effects upon his health. M. is also physically healthy. M. has been diagnosed with three learning disabilities. Both children show the impact of the separation and their parents’ ongoing conflict on their mental wellness.

Educational Needs

[28] A. is a very strong student and both parents agree that he is well-suited for any subject that he may choose to pursue in high school and beyond.

[29] At the age of 5 (November 2015), in Senior Kindergarten, M. participated in a Speech and Language Assessment by Stephanie Helwig, a Speech-Language Pathologist with the Waterloo Catholic District School Board, and her report was entered as Exhibit 4. M. scored within or above average expected parameters in all areas except “Linguistic Concepts” and “Understanding Spoken Paragraphs,” both of which pertain to a child’s ability to absorb and respond to spoken directions and narratives. The real issue for M. appeared to be around maintaining focus, which had been identified by his teacher. Ms. Helwig noted: “He frequently sat down and stood up, played with test materials and asked to leave the room for a drink or washroom break multiple times. He needed reminders to listen to all instructions and repetition of information was provided to him throughout the assessment.”

[30] When M. was 6 ½ (February 2017), he participated in a Psycho-Educational Assessment conducted by Dr. Loreta Brunella-Prudencio, the goal of which was to “provide parents and teachers with information about [M.]’s strengths and weaknesses and that recommendations be outlined so that he can achieve success to the best of his ability.” Dr. Brunella-Prudencio noted that both parents and M.’s teacher participated in the intake process and “consequently, the information provided was quite comprehensive and detailed.” She noted that M. had difficulty regulating his attention during the testing and, although he “seemed to put forth his best effort,” impulsivity and distractibility “sometimes negatively affected his performances.” Her observations in that regard were consistent with the information from both parents and M.’s teacher. She highlighted a number of M.’s strengths and confirmed that there were no issues with his social or emotional development. She concluded that M. displayed Attention Deficit/Hyperactivity Disorder – Combined Presentation (“ADHD”) and diagnosed M. as meeting the criteria for a Reading Disability, Writing Disability and Math Disability. She provided a number of specific strategies to assist M. in his development, many of which revolved around one-on-one communication of expectations and clarification of tasks with M. She recommended a tutor “who can more specifically provide instruction on areas of concern.” She recommended a further Occupational Therapy Assessment to determine whether M.’s hair-pulling fidget behaviour could be a symptom of a sensory processing disorder.

[31] The Occupational Therapy Assessment was completed in June 2017 as M. approached his seventh birthday. M. did well on the puzzle-assembly and maze-completion tasks and demonstrated “advanced gross motor skills and strength for his age.” No real concerns were noted regarding his handling of writing instruments. His challenges were again connected with distraction and literacy/numeracy. The overall interpretive conclusion was that “M. performs best in an environment with minimal visual and auditory distractions, and when he is provided with opportunities to get physical activity breaks in between sedentary learning breaks.” Specific recommendations for a variety of learning environments were provided.

[32] As a result of these various professionals’ assessments and recommendations, M. has had an Individual Education Plan[^11] (“IEP”) for several years. Although M.’s grades have remained fairly stable throughout his educational career so far, it is worrisome to note that his overall abilities have not really improved. Both parents recognize this reality, but Mother has specifically advised the school of her concern that a year-over-year comparison of M.’s IEPs and report cards shows no improvement.

[33] The question of how to support M.’s learning triggered two significant conflicts between his parents around ADHD medication and tutoring.

[34] M. was originally prescribed Concerta to assist with his ADHD diagnosis by Family Physician Dr. John Dundon in the Fall of 2017. On Sunday, February 11, 2018, when M. was getting ready for bed at Father’s home, he complained of dizziness and told Father that his medication makes him feel dizzy. The next day, Father took M. to Dr. Dundon’s office at which time M.’s prescription was paused for one week and a referral was made to Paediatrician Dr. Philip Mantynen. Dr. Mantynen initially changed M.’s prescription to Vyvanse but later re-issued the prescription for Concerta. Father said that Dr. Mantynen instructed that the medication did not have to be taken when M. was not in school, which he interpreted as inclusive of weekends. Mother’s understanding was different; she believed that the intention was for M. to take the medication through the weekend for consistency during the academic year, pausing during the summer and on longer school breaks. Neither of the doctors were called as witnesses, and thus the question of whether or not M. must take the medication through the weekend to maintain its effectiveness remains unanswered. The purpose of the medication is to help M. to maintain focus and, although he has only just completed Grade 5, it will not be long before his homework assignments and other interests require him to focus throughout the weekend. In the absence of clear evidence, it would be a mistake for a court to presume that consistent dosing throughout school-year weekends is unnecessary.

[35] Similarly, professional recommendations regarding educational support services for M. caused the second conflict between the parents in supporting M.’s needs. The topic started out with both parties being open to any option, and the parties enrolled M. in the Oxford Learning program but saw no improvement in M.’s focus or grades. In the Summer of 2019, Father told Mother that he was unable to afford another classroom-style program, Kumon. By October of 2019 Mother found a tutor experienced in working with children with ADHD. At that time, Father was concerned that Dr. Mantynen had recommended that M.’s medication plan be determined before engaging with a tutor. By March of 2020, the discussion had shifted to the length of tutoring sessions and whether shorter sessions would be more successful during the school year with the potential for longer sessions during the Summer to maintain skills. Of course, the COVID-19 situation largely suspended most of such services for several months thereafter. When discussions resumed regarding supports for M.’s learning, a conflict arose because Father sought one-on-one learning support in a home setting, citing the original recommendation of Dr. Brunella-Prudencio. In contrast, Mother seemed to need some kind of intervention or progress, regardless of whether same would in fact be the best fit for M., and became focused on enrolling M. in Kumon, particularly as it was continuing to operate in some fashion during the COVID-19 lockdowns. Regrettably, the issue was never resolved and, other than the brief stint with Oxford Learning, M. has not had the benefit of any professional learning support to date.

Emotional Wellness

[36] The ongoing conflict between their parents has exacted a toll on both boys. Their parents have made every effort to assist the boys in navigating the post-separation experience, including enrolling them twice in DivorceCare, a group for similarly situated children. As discussed above, the family has worked closely with two counsellors: Ruth Martin and Kayla Wideman.

[37] Ms. Martin’s evidence on many points was vague and unfocused. At times, she did not appear to have any independent recollection of events, particularly regarding the involvement of Mr. Perrault as OCL Clinician. Considering it was Ms. Martin who, according to Mr. Perrault, contacted him to discuss concerns that A. had expressed to her in early August of 2018, this is unfortunate and impedes the Court’s fact-finding goal. It is open to the court to accept some, all or none of a witness’ testimony. I therefore accept the following facts as evidence gleaned from Ms. Martin’s testimony:

(a) She started working with the family in January of 2018 as counsellor for the children, seeing them approximately bi-weekly through 2018.

(b) Both parents were concerned about the impact of the separation and the tension between them on the children.

(c) On January 8, 2019 she referred the family to Kayla Wideman in the Reunification Counselling program following A.’s refusal to attend parenting time at Father’s home starting in mid-November of 2018.

M.:

(d) M. was hesitant to talk about his feelings and worries and was most expressive through play therapy. There were five “exceptionally significant things” she noted in his play therapy.

i. M. would worry about time and scheduling and would say that he needed an alarm clock because “time is always such a problem.”

ii. M. assigned non-threatening personalities to creature puppets which Ms. Martin interpreted as demonstrating his need for tension in the relationships between the puppets to be reduced. The dragon puppet was a vegetarian and the wolf puppet was tame, thus presenting no risk to the other puppets. The squirrel puppet could fly and land without hurting his feet.

iii. M. would try to push all of the dolls into the dollhouse, even when they would not fit inside, and would make comments such as: “it’s really hard to make things work out properly when evil keeps coming back.”

iv. M. would make plasticine figures, possibly representing his own family, and would then try repeatedly to stick them together.

v. M. painted a picture of himself standing at the side of the road with his hand up, which Ms. Martin interpreted as asking for a voice or for the adults around to notice him.

(e) Overall, Ms. Martin felt that M. was the family’s peacemaker. When unable to keep the peace within the family, M. would demonstrate anxious behaviours including pulling his hair out.

A.:

(f) A. was very articulate and was anxious to communicate his thoughts and feelings. He commented that he had “so many thoughts he thought his head was going to explode” and that it was causing him trouble concentrating in school.

(g) A. was upset that Father had re-partnered and that another child was residing with them during Father’s parenting time. His concerns included complaints around having to attend before- and after-school care from his Father’s home and whether Father’s partner could have another baby.

(h) A. admitted that he had listened to conversations between Mother and Maternal Grandmother regarding the separation and other adult issues.

(i) On November 1, 2018, A. attended his scheduled appointment, asked for paper and a pencil, and proceeded to write two letters addressed to Mother’s lawyer. A. did not discuss their contents with Ms. Martin. Copies were made for the counselling file and A. took the originals with him. Ms. Martin was concerned that she would be implicated as having coached A., as A. had included the phrase “witnessed by my social worker Ruth” at the bottom of the first letter.

(j) Ms. Martin attested that A. appeared to be increasingly frustrated that his views regarding the parenting schedule were not being implemented. She was concerned about the letter “but not surprised” because A. was “too aware [of the divorce proceedings] and that he wanted to influence the outcome.”

[38] Kayla Wideman’s evidence was presented through two letters. The second letter, dated November 16, 2020, is an expansion on the content of the first letter. In preparing the letters, Ms. Wideman appears to have been advised of the parties’ shared intention that her evidence be submitted to the court in this manner so as to preserve her counselling relationship with the boys. Ms. Wideman reviews the counselling process, including challenges around non-attendance; the parties’ conflict over scheduling and fee payment; and service suspension during government lockdowns. Ms. Wideman notes that both children are very aware of their parents’ ongoing conflict and emotional states: “Both boys describe subtle ways that they see their parents in conflict such as the facial expressions they make or the way they look at their phones when reading emails. This continued conflict deepens A.’s resistance to engaging with his father and increases the pressure M. feels to keep both parents happy.” Ms. Wideman specifically recommends parenting co-ordination to minimize conflict, and the children’s exposure thereto. Further details from Ms. Wideman’s evidence are discussed in the context of the children’s views and preferences, below. Ms. Wideman’s letter concludes: “Overall the continued adult conflict within the family greatly impacts the boys’ ability to move forward emotionally.”

[39] On March 24, 2021, M. had a crisis at school and, after a discussion with his teacher and the on-site school social worker, Ms. Aislinn Clancy, was referred to Grand River Hospital for assessment.

[40] A fax cover sheet authored by Ms. Clancy regarding the referral and the hospital records were entered as a package as Exhibit 16. Although these are business records, extreme caution is warranted in screening their contents for inadmissible evidence. As Justice S. Sherr pointed out in a 2010 decision, the existence of a business record does not render the hearsay contained therein automatically admissible.[^12] Questions of relevance, threshold reliability and the balancing of probative value and prejudicial effect must be asked. For these reasons, the observations by hospital staff that M. was alert, coherent, sociable and co-operative are admissible. The assessment conclusion made by Jackie Vaerewyck, R.S.W., the hospital employee who interviewed M. for approximately 40 minutes and assessed him for suicidal risk, is admissible. Ms. Vaerewyck concluded that “at the time of [the] interview, there was no acute risk” and M. was “discharged home with existing services,” a reference to M.’s next appointment with Ms. Wideman, scheduled for the following day. In contrast, the reference to a text message “from school staff” which purports to quote a message allegedly provided by Father, and about which Father testified he had no knowledge, is triple hearsay. The prejudicial effect of the suggestion that Father intentionally withheld information provided by the school from Mother outweighs any probative value regarding the text message, particularly as Father denies having seen it.

[41] This incident took place on a day that fell to Father under the parenting schedule, and Mother immediately provided Father with the information she received from the school and then took a secondary role while the situation unfolded. This clearly shows that, despite her complaint that Father did not keep her updated as to developments in a timely fashion as the afternoon unfolded and her subsequent concern about the text message referenced in the hospital notes, Mother has confidence in Father’s ability to meet M.’s needs when dealing with a dramatic parenting challenge regarding a medical issue.

(b) Each child’s significant relationships

[42] Mother resides with Maternal Grandmother, and therefore at this time A. resides primarily with Maternal Grandmother and M. spends half of his time in a household with her. It is undisputed that Maternal Grandmother provided the intact family with childcare support as needed except during the periods when Paternal Grandparents were residing with the family and thus able to do so. Father does not question the children’s connection with Maternal Grandmother, however, an incident described by Paternal Grandfather suggests that Maternal Grandmother has intentionally attempted to distance the children from their paternal family post-separation. On March 15, 2019[^13] M. was in Father’s care and Paternal Grandparents took him to Kung-Fu class. They arrived early and M. went into the dojo while they waited in the parking lot hoping to see A. When they saw A. arrive with Maternal Grandmother, they walked up to the door of the dojo and Maternal Grandmother blocked their path, telling them that A. did not want to see them. They proceeded inside and, when A. saw them, he waved while looking at Maternal Grandmother as if concerned about her reaction. Maternal Grandmother continued to attempt to block their progress into the dojo, surprising Paternal Grandparents with her use of profanity and the remark: “I will take the whole family to Court!” Notably, Maternal Grandmother did not testify. This incident is very concerning and explains Father’s reluctance to rely upon Maternal Grandmother for childcare during his parenting time post-separation.

[43] The boys are both closely bonded with their Paternal Grandparents, who divided their time between the parties’ pre-separation household and Paternal Aunt’s home in Portugal. A basement suite was created for them in the former matrimonial home and, for five or six months in each year, Paternal Grandparents resided with the family and provided childcare support. Although regrettably A.’s connection with Paternal Grandparents has faded since his repudiation of Father, Paternal Grandfather clearly hopes that this will return to normal in future. M.’s connection with his Paternal Grandparents continues such as it can in the COVID-19 world, and Paternal Grandfather attested that they intend to return to Canada when that option is reasonable for them. Mother did not give any impression that she would be anything other than supportive of the relationship between the boys and their paternal family.

[44] Karen Ferris is a long-time friend of Mother’s, the two women having originally met through their shared workplace. Before the COVID-19 situation developed, she would see them almost daily when they were in Mother’s care. She continues to see them as often as possible, such as when she and M. went for a walk with her dog in early April. She described A. as “brilliant and articulate” and that he “knows exactly what he wants.” She has observed that M.’s demeanour has changed in recent months which she attributes to stress associated with his worries about the separation. She has attempted to encourage him to reach out and talk with her or any of the other people who love him, including Father, about his worries so that he doesn’t carry them around with him. She loves both children very much and is an important support to them.

[45] Kung Fu represents a further relationship between the boys and their community. Although M. is not attending Kung Fu at his own request at this time, A. continues to attend classes and to progress. The importance of a deep connection to other participants in a long-pursued sport ought not to be disregarded in assessing children’s relationships under this criterion. Both parents fully support A.’s continued attendance at Kung Fu.

(c) Each parent’s support of the other’s parent/child relationship

[46] In his closing submissions, Mr. Noll for Mother pointed out that neither of the parties wanted this trial. Although Mr. Van Buskirk for Father argued that A. had been intentionally alienated by Mother and/or Maternal Grandmother, there is not sufficient evidence to reach that conclusion. Mr. Van Buskirk relied upon Rogerson v. Tessaro[^14], a case in which the Court of Appeal upheld the Trial Judge’s decision to place the children primarily in the care of Father, the alienated parent. The Court of Appeal noted that Mother had failed to comply with existing orders; had intentionally withheld important medical information from Father; and had moved the children to a different town on the eve of trial. The trial judge concluded that Mother showed a “persistent, ingrained and deep-rooted inability to support the children’s relationship with the father.”[^15] As I discuss further later in these reasons, it is more likely that A.’s comments and choices reflect an excess of self-empowerment and self-aggrandizement than any intentional acts of toxic influence by Mother.

[47] Each parent testified that they support the importance of the other’s role in the children’s lives, and each showed clear insight into the impact that their inter-personal conflict has on the children. Mother in particular understands that toxic comments about Father or his family have the effect of disparaging half of the boys’ identity. She makes continued attempts to maintain the children’s connection with Father, including encouraging A. to make Father’s Day or birthday cards for him and looking at baby pictures featuring Father with the boys. Although Father’s choice to allow his then-girlfriend and her son to stay at the matrimonial home with him and the boys the night that Mother was charged with assault was insensitive, it is clear that he did not leverage the situation to his advantage vis-à-vis Mother’s parenting time with the children. There is no question that the parties have succeeded in reaching collaborative resolutions of the financial issues arising from the conclusion of their marriage – a clear sign that neither one is motivated by a desire to control the other or to prolong this litigation. These two individuals simply do not have the same perspective on the best plans for the health and well-being of the children, and that’s why the Court is available to assist.

[48] I cannot leave this area of analysis without addressing a videogame called “Among the Sleep” played by M. at Father’s home. This videogame became an issue from Mother’s perspective when, upon reading about it online, she formed the view that it was provided by Father to M. with the intention of planting toxic seeds about her in M.’s mind. Mother provided a printout from Wikipedia which was entered as Exhibit “A” for reference purposes at trial and which described the game as focusing on a young child who must escape the nefarious acts of his alcoholic mother in order to “win” the goal of eventually living primarily with his father and beautiful step-mother. There are many legal issues presented, the most critical being whether such a synopsis, obtained from a user-edited online source of questionable reliability, can be entered into evidence. In a peer-reviewed article[^16] published in the Canadian Law Library Review[^17], researcher Rex Shoyama pointed out a myriad of concerns regarding Wikipedia, including “worries that the content on such open collaborative websites is unreliable, inaccurate, frequently out-of-date, possibly biased, and changes very often.” The author concluded that best practice is to cite a truly authoritative source for information and that Wikipedia ought not to be relied upon as a source of historical or statistical information or for the purpose of providing authoritative technological definitions (which the author’s research showed to be the primary use of Wikipedia references in published law journal articles reviewed in the study). Here, Mother was shocked by the synopsis of the game that she read on Wikipedia and therefore did not download it in her home. In contrast, Father played through the game in its entirety before allowing M. to play it as was his practice with all gaming and technology choices that he had made for the family. For clarity, I prefer the evidence of Father who has direct knowledge of the game’s content and who I find to be completely credible on this point. Thus, not only is Wikipedia a generally-unreliable source of accurate information – and therefore should be given very little weight in our courts – it is specifically inaccurate in this instance. I find that Father’s act in allowing M. to play Among the Sleep does not demonstrate any intention on his part to undermine Mother’s relationship with M.

(d) Historic care of the children

[49] Both parents have been directly involved in caring for the children throughout their lives. They have both engaged with the various professionals who have worked with the children on an ongoing basis and have generally worked collaboratively in ensuring that the children’s needs are addressed. The evidence of Marco Oliveira, Father’s childhood friend, was that he observed both parents interacting with A. and M. and, if anything, Mother would delegate parenting tasks, such as making the children lunch, to Father when the families were together. Despite the content of their original pleadings, neither party argued at trial that he or she was exclusively responsible for the children’s care pre-separation. It is refreshing to see both parents acknowledge one another’s parenting contributions in this regard.

(e) Children’s views and preferences

[50] It is rare that any child expresses a view regarding how decisions are to be made on his or her behalf; the usual focus of children experiencing separation is on the division of their time between their two homes. These children are no exception to that general rule. While M. has continued to follow the equal-division parenting time schedule, A. has stopped all contact with Father since November 8, 2018.

[51] Mr. Perrault’s observation visit in Father’s home provides the most objective information available to the court regarding the actual nature of the relationship between Father and A. before A.’s discontinuation of contact. Mr. Perrault writes of his attendance on May 8, 2018:

[Father] sat beside his son, A. and spoke about water pressure. As they spoke, A. would lean into his father’s side. After the children had showed this clinician their bedrooms, A. hugged his father and his father picked his son up. He then put him down as M. wanted to be picked up. [Father] picked up and hugged M.

... Both children were able to take direction from their father and grandparents. Both boys and [Father] would initiate physical touch with one another. There were many instances when conversations occurred between Father and his children that they would make eye contact and giggle with each other. It was clear from the observation visit that the children and their father have a good relationship.

[52] A.’s excuse for discontinuing contact revolves around an alleged perception that certain physical items which remain at Father’s residence – including most importantly a laptop – should be turned over to him. Father testified that the laptop, which was originally intended to be a joint gift from both parents to A., became a shared family item in his home gifted to both children. At Christmas 2017, the parties agreed to share the cost of purchasing electronic gifts for both children. They agreed that a laptop would be purchased for A. A conflict erupted between them when Father’s chosen purchase exceeded the originally agreed-upon budget by a small margin. Father had been responsible for managing the family’s electronics and computer usage and found what he felt was a significantly superior machine for a modest cost increase. Upon learning that the budget had been exceeded, Mother immediately withdrew her participation in the joint gift plans. Father was able to obtain contribution toward the cost of the laptop from his parents, but was unable to purchase a comparable gift for M. He attested that, when Christmas Day arrived, he therefore gifted the laptop to both children from himself and his parents. Mother sensibly did not challenge this evidence as she admitted that she could not have any knowledge of the events that took place at Father’s home. She did note that M. will discuss the laptop with A. and refer to it as “your [meaning A.’s] laptop.” A. came to believe that the laptop was intended for his exclusive use, and he has used Father’s decision not to allow the item to travel to Mother’s home as part of his reasoning in refusing contact with Father. However, if ownership of the laptop was of such a great concern to A., presumably he would have discussed it with Mr. Perrault. No mention of this issue, which would have been ongoing for several months by the time of Mr. Perrault’s involvement, appears in the OCL report.

[53] It is more likely that A.’s real concern is the amount of time that has passed without closure since separation. In the Spring of 2018, he expressed to the OCL that he wanted to transition from the then-applicable equally-shared parenting schedule to an alternating weekend schedule with his primary residence being at Mother’s home. It is important to note that A. told Mr. Perrault: “My mom told me that this would be best to live with her primarily. She could get me to school, it would not be as switchy. Dad would live farther away.” When Father in fact moved out of the former matrimonial home and further away from the boys’ school, A. expressed the clear view to Mr. Perrault that he wanted to live primarily with Mother and spend alternate weekends and Wednesday evenings with Father. He wanted this to take place soon, and certainly within two years at most, and his rationale focused on his distaste for the before- and after-school program and any relationship with Father’s then-partner and her son. By August of 2018 he went so far as to fabricate concerns about Father’s alcohol consumption – which concerns Mother rightly immediately dispelled in speaking with Mr. Perrault and Ms. Martin – in support of his view. His letters, written on November 1, 2018 at Ms. Martin’s office, clearly express his frustration that the process was taking so long and place the blame at Father’s feet. The first page of his letter reads: “I am furious with my father for violating my opinion for the schedule just because he wants me and [M.] and we want mom!” A week later, seeing that the adults had made no progress, A. took matters into his own hands.

[54] Ms. Wideman provides further insight into A.’s comments and behaviours and assists the court in determining how much weight to ascribe to his views. In her letter of November 16, 2020, she describes A.’s anger about Father’s former partner and the laptop as “pieces of the past that [A.] is stuck on.” A. views himself as an adult and uses language similar to Mother’s in discussing concerns about the schedule. A. threatens to run away or use violence if he is compelled to attend parenting time with Father, and becomes frustrated with Mother when she suggests contact points such as making a birthday card for Father. Regarding progress being made with A., Ms. Wideman writes: “[A.] has verbalized that his father has lately been respecting the boundaries that he has set. This is seen as a positive step for A. as he has previously not been able to recognize anything [Father] has done with positive regard.” Ms. Wideman’s summary is demonstrated by the Google Hangouts message thread between Father and A. dating to April 5, 2019, in which A. wrote [sic]:

You’re the only thing that’s bothering me if you aren’t going to give me my things than I have no reason to talk to you say you agree and this will be over or you can waste your own money on things to delay custody. I will never go back to your house under any circumstance you have one more text and if its not “okay I’ll drop your things of at school and agree to my mothers plan” then you can kiss any words from me goodbye

[55] Ms. Wideman recommends continuing reunification counselling without compelling A. to resume parenting time with Father before further progress is made. I agree but note that A. can no longer be permitted to dictate to the adults around him. Appreciating the very difficult position in which A.’s attitude has placed both of his parents, it is the court’s role and responsibility to put an end to the power imbalance that has developed. Thus, I have applied a timeline of six months to encourage progress in the reconciliation counselling which should include discussion of the impact of A.’s behaviours and comments upon M., as identified by Ms. Wideman. At the end of six months, in January of 2022, A. will start attending alternate weekend parenting time in Father’s home on the weekends when M. is also living with Father.

[56] M.’s views and preferences have remained consistent throughout. He continues to share his time between homes notwithstanding his brother’s choice. As noted in the evidence from Ms. Martin, his internal focus appears to be more on maintaining an equilibrium between households as the family’s peacemaker. He expressed to Mr. Perrault that he wants to continue the shared-parenting schedule but would like the periods of time to be longer in order to avoid going back and forth so frequently.

(f) Cultural heritage considerations

[57] As noted, both children have strong bonds with their Paternal Grandparents, who currently reside in Portugal. The children will be free to explore that aspect of their heritage at a future time should they wish to do so, and there is no reason to believe that either parent will interfere with that exploration. Similarly, the children have been raised in the Catholic faith and both parents intend to continue this religious connection for them. Thus, there are no current cultural heritage considerations that influence the determination of parenting issues at this time.

(g) Go-forward care plans for the children

[58] The parents present very different go-forward care plans for the children. Mother seeks to have both boys in her primary care, with Father having parenting time Wednesdays overnight and on alternate weekends (Friday to Sunday). Father’s plan is to continue the existing 3-1-3 schedule. Both parents acknowledge that this schedule pertains primarily to M. at this time, and that the hope is for A. to join his brother in the future.

(h) Parenting ability

[59] Each parent expressed to Mr. Perreault an appreciation of the other’s strengths as a parent, and each parent was able to identify areas in which he or she wished to make improvements. Both parents took the Conflict Coaching course offered by Community Justice Initiatives, a local non-profit agency, and each parent reflected positively on meaningful strategies learned when discussing the course with Mr. Perreault. Father continues his development as a parent through reading and self-study. Mother continues her development with the on-going assistance of Ms. Shannon Hamar[^18], who noted in a summary letter regarding their work together:

It has been my impression that [Mother] hopes to work towards forming a peaceful, respectful co-parenting dynamic where they are able to come to compromise and work towards shared goals for their two sons, A. and M. From information discussed in session, I have experienced [Mother’s] approach to [the] co-parenting relationship and interactions as being child-centred and focused on achieving healthy development and adjustment of both children in cooperation with [Father].

[60] Both parents acknowledged in their respective evidence that they were each directly involved in day-to-day parenting of both children during the relationship and after its dissolution. As noted above, each parent underscored his and her commitment to the maintenance of the children’s relationship with the other parent. It is absolutely clear to me that these children are blessed with two parents who prioritize their job of caring for them above all other considerations. Having regard to the totality of the evidence, I have no doubt that the children would thrive in the care of either of their parents were the unthinkable to happen and the other parent to suddenly become incapacitated. The key for this family is to combine these parents’ individual strengths so as to maximize the children’s return on their parents’ sincere investment in them.

(i) Communication and co-operation between parents

[61] As I alluded to in my opening comments, both of these parents continue to hurt one another through their communications. Mother has a very businesslike and somewhat cold communication style. She can be defensive and guarded, which Father then perceives as perfunctory or dismissive of his parenting role. Father is certain that Mother intentionally minimizes his role, for example by calling her home “the boys’ home” in correspondence, and he doesn’t hesitate to take the bait. Father’s communication style tends to be reactionary and detailed, at times almost to the point of stream-of-consciousness. Mother perceives this as harassing and manipulative; she appears to start with the presumption that Father’s comments are intended as an attack upon her. Having said this, Mother also appreciates that she is part of the parental conflict.

[62] The first example I reference on the issue of communication was relied upon by Mother to convince the court that Father embarks upon lengthy diatribes in order to aggravate and control her. Mother’s perception, not only of the events described in the initial email exchange but also of the email itself, suggests that her suppressed anger toward Father may be tainting her ability to understand Father’s words clearly. For brevity, I reproduce only the initial email from Mother and Father’s initial response, both of which are dated August 20, 2019, as the subsequent two further emails effectively continue the dynamic.

On Tue, 08/20/19 at 5:39 PM, Renee Vieira wrote: [^19]

Jayson

Today at drop off at Kung fu I noticed that you were wearing my grandfathers ring in a chain around your neck. Please return my property. Also saying to [M.] that you and I will discuss Kung fu undermines the doctor’s recommendations that he attend Kung fu and makes me appear to be the bad guy when I tell him he has to go to Kung fu to satisfy his commitments.

Please do not swear at me in front of the children. This is highly inappropriate behaviour and alienates me as a parent.

Please advise who is provided care for [M.] this week and next week.

Please advise of the date and time of doctor’s appointment for [M.] to have his medication reinstated as you remove it for the summer and we both want him to be successful in the school year.

Thank you

R

On Tue, 08/20/19 at 8:14 PM, Jayson Vieira wrote:

Hello Renee,

and thank you for messaging me, because I also think that we need to discuss what happened today.

First, I will start with the important things. I do not recall swearing at you. I try to be very careful with what I say, especially around the children, and I don’t remember saying anything unkind or even having a reason to. What is it exactly that you think you heard me say? The only thing I can think of is when I was hugging our crying child, trying to console him, and you were focusing on taking a picture of my necklace. I mouthed the words “stop it” to you, hoping you would focus on what was actually important. There was no volume behind those words, specifically so [M.] would not have heard them, and mistakenly thought I was telling him to stop. If you misread that, then I’m sorry for your misunderstanding, and I hope that clears things up.

Secondly, we have already discussed this, but the doctor did not insist upon kung fu specifically. He recommended a structured physical activity “like kung fu” because [M.] was already enrolled in it. You know this, because when we asked him specifically at a recent appointment, the doctor clarified that was what he meant.

I was willing to continue encouraging [M.] to go, despite his repeated protests, as he was already signed up. But after today, I am seriously reconsidering. Today, you told our crying child that he had to go to “satisfy his commitments” but he has been against going for almost 4 years, and I have been saying since February that you should not sign him up again without discussing it with me. And yet you ignored us both and signed him up again anyway. They you tell him today that it was “his” commitment. I am not making you “appear to be the bad guy” by saying that we need to discuss things like we’re actually a parenting team, you’re making yourself look like the “bad guy” to [M.] by making decisions opposite to his wishes, and then saying it’s his fault for those decisions.

You are the only one pushing kung fu on the family, against all protests, and I have no idea why. So I have little reason to force our child to adhere to commitments that you made without any input from me or him. Frankly, if you continue to make these kind of family decisions without discussing it with me, than I am well within my rights to undo them without discussing it with you.

I don’t want that to be the case. We should be working together. So I think we should discuss enrolling him in something else, and you should request a refund from the dojo for the unused time. if you have a better idea, I’m open to hearing it, but it has to be one that meets all our concerns.

Now, before I reply to the rest of your message I wanted to suggest something. I think it would be best that we keep message threads to single issues. It makes them easier to follow, and easier to address. So I will be replying in full here, but then starting new threads for each issue separately and copying this reply there. Please respond in those threads. I think that the little extra work will be worth it so messages don’t get missed.

[M.’s] care. [M.] is will me all next week.

Doctor’s appointment, I did my best to accomodate the same schedule you gave me for the co-parenting counselling, but the closest they could give me was next Thursday at 4 pm. If you are not able to make it, I would be happy to ask him any questions you give me in advance, and then send you his responses. I could even record it if you like. Let me know what works for you. (As I was typing this, you said you were actually available. So should I try scheduling the co-parenting counseling for around the same time, or is that under different rules for some reason?)

Mason’s ring. If you recall, you gave this ring to me as a gift when I joined the Masonic lodge. And since it was a gift, it is legally speaking no longer yours, and is in fact my property. This was a gift from someone I loved at an important time, so while I recognize that it has sentimental value to you, it also has sentimental value to me. If you are insistent about getting it back then we can discuss that, but it is not your property, so isn’t something you can just demand of me. It would be me doing you a favour, giving up something I value and enjoy as an offer of goodwill.

[63] On March 27, 2020, an exchange day, M.’s orthodontic retainer was accidentally left at Father’s home. Mother’s opening email on the topic exemplifies my comments above. At 7:54 p.m. she wrote to Father: “There is no retainer in school bag.” Initially Father did not react emotionally, but the situation deteriorated as the parties found themselves unable to agree upon the mechanism for delivering the retainer to M., who was in Mother’s care. Mother wanted Father to put it in the mailbox at her home. Father wanted to exchange it at the school or, alternatively, to have M. come out of Mother’s home to retrieve it. After about twenty minutes and at least eight messages[^20], Mother writes:

Based on your behaviour in OFW tonight I am concerned for the impact to my safety, person, health and well being if I go to a parking lot in the dark to meet you.

Please drop off the retainer at the boys home and notify me when it is dropped off.

R

[64] At some point thereafter, M. lost his retainer completely. This is not, of course, unusual: children lose items of value and their parents have to contend with the consequences. When the new retainer was obtained, a follow up appointment to adjust it for the correct fit had to be arranged. Father obtained an appointment time from the orthodontist, who was able to squeeze them in relatively quickly, and advised Mother[^21]. M. was in Father’s care on the appointment date, and they arrived a few minutes early. Mother had not yet arrived when the orthodontist’s assistant tried to take M. back to the examination room. Father attested that he initially tried to wait for Mother knowing she was planning to attend but, when the orthodontist himself came out to the waiting room before Mother had arrived, further delay became impossible. The appointment took about three minutes; Father watched the orthodontist take the retainer out of M.’s mouth, adjust it, and re-insert it. Mother arrived as Father and M. were leaving. Father (and presumably M.) knew immediately that Mother was upset. Mother bent down to M.’s level with her hand out and M. placed the retainer in her hand. Father repeated twice the orthodontist’s instruction that M. wear the retainer for the afternoon. Mother ignored Father completely, and M. turned to Father and said: “It’s OK Dad, it’s OK.” In her evidence, Mother admitted ignoring Father such that she had no recollection of Father’s statement to her about the retainer. She said:

Jayson called out to me twice and I ignored him, because I was angry and upset that again he met with a doctor, with a medical practitioner for the child, he knew I wanted to be there, and he went in early. There were many times where I would take [M.] to Dr. Mantynen and I knew Jayson was coming and they would say to me: “come on back, he can see you earlier” and I would say “no, we have to wait for Jayson, Jayson needs to be present.” He does not extend me the same courtesy.

Jayson did call after me, but I kept walking because I did not want to have a confrontation with Jayson in front of [M.], so I kept walking.

Our communications are inside Our Family Wizard. Jayson and I do not speak outside of Our Family Wizard. I have learned that he will say things and they don’t have to be true.

[65] I note that there was no evidence that Father has ever instigated any confrontation between the parties in public, and thus Mother’s statement that she wanted to avoid a confrontation reflects her own state of mind. Where the evidence of the parties’ conflicts on any minor details of this event, I prefer Father’s evidence as Mother’s own feelings of anger and hostility render her evidence less reliable regarding this date.

[66] The COVID-19 situation has provided ample fodder for many separated families to re-engage in conflict, and, regrettably, this one is no different. On Friday, July 30, 2020 the parties got into a power struggle over M.’s health card. Mother spoke with the family’s doctor after she and A. experienced gastro-intestinal symptoms and was advised to get a test to “to rule out covid.” M. was in Father’s care at the time, and Father also contacted the doctor’s office and a test was recommended for he and M. out of an abundance of caution. Father was under the impression that M.’s health card was needed in order to get the test, and the conflict ensued when Mother took the position that she was in self-isolation and thus unable to produce it to Father, advising him to use a photograph of the card instead. The situation deteriorated from there, with the health card being placed in the mailbox at Mother’s home and with Father insisting that it be placed at the bottom of the driveway so that he could avoid setting foot on her property. The parties exchanged about thirty messages between them and Father spent almost two hours sitting outside of Mother’s home with M. in his vehicle. The final exchange of that day reads [sic]:

On Thu, 07/30/20 at 4:50 PM, Jayson Vieira wrote:

Hello Renee,

I’m not stepping foot on your property. I’m not touching your mailbox.

I’ve now been waiting outside for 1 hour and 30 mins, added to the 2hr and 40mins since I first asked for the card, and we’ve exchanged 28 messages over what should have been a simple request.

Please let me know when you will be ready to act like an adult, and you’ll come back then. Until that point, I am going to hold you responsible for denying medical care to the children.

On Thu, 07/30/20 at 5:05 PM, Renee Vieira wrote:

I have received 20 emails from you in the last 2 hours

Your truck has been sitting outside my home for the last hour and thirty minutes.

I find your behaviour erratic, threatening and harassing. I am fearful of your actions and concerned for the impact to our children as [M.] is in the truck with you.

As per the doctor I am in self isolation.

Please retrieve the health card from the mail box so you can provide care for our son.

Then please leave the property.

Thank you

R

[67] It is not lost on me that all three of these examples directly involve M., the parties’ peacemaking younger child who is undoubtedly struggling emotionally far more than his brother, A. It is little wonder that M. is suffering.

[68] These incidents were addressed in both parties’ arguments. Mother relied upon them to demonstrate that the parties’ communication is so bad as to displace any possibility of joint decision-making. Father argued that these incidents show Mother’s unreasonable need for control and support his theory that he will be phased out of any meaningful involvement in the children’s lives if joint decision-making is not ordered.

[69] Having said this, both parties testified that they each sincerely want to co-parent. Samples of comments made by each to the other in the course of their often-strained communications supporting this concept are:

(a) Mother’s comments to Father:

i. I would like nothing more than to believe you and trust you.

ii. I want both children to be successful and to have fun and to have a great relationship with all members of their family which includes yours and mine.

iii. Both homes are the boys homes. They have 2 homes.

(b) Father’s comments to Mother:

i. My perspective is we would both actively communicate our concerns and worries of the children how they’re doing in school how they’re doing medically anything we’re trying to help improve their life and that means me communicating whenever necessary with you so that we’re both on the same page.

ii. ... if we can pick this point in time to set aside all of our past differences and focus solely on what’s best for the children and stop trying to pick at each other we can do this...

[70] The Court of Appeal provided direction on apportioning decision-making in high conflict cases in Kaplanis v. Kaplanis[^22], but that case does not, as is often argued, stand for the proposition that conflict between separated parents precludes co-operative decision-making. As Weiler, J.A. wrote: “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.”[^23] As Sherr, J. wrote in considering the language of the amendments to the Children’s Law Reform Act, which mirror the new language of the Divorce Act:[^24]

Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard of perfection is not required and is obviously not achievable. The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis.

[71] There is no question that these parents continue to be in conflict despite the passage of four years since separation, but that conflict does not mean that co-operation has been, or will be, impossible, merely that procedures must be in place to address an impasse. There is clear evidence that they are able to respect one another’s parenting time and that consultation regarding major decisions has taken place and, eventually, resolutions have been achieved on most issues. I find that communication challenges in this matter do not prohibit some form of collaborative decision-making.

(j) Family violence

[72] Family violence is defined in the Divorce Act as:

family violence means any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct — and includes

(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;

(b) sexual abuse;

(c) threats to kill or cause bodily harm to any person;

(d) harassment, including stalking;

(e) the failure to provide the necessaries of life;

(f) psychological abuse;

(g) financial abuse;

(h) threats to kill or harm an animal or damage property; and

(i) the killing or harming of an animal or the damaging of property;

[73] This very broad definition of family violence serves to remind Canadians that, while its characteristics take many forms, any of these forms can create an imbalance of power in a relationship. It also serves to dispel myths around relationships characterized by power imbalance. For example, the fact that the survivor of the family violence did not contact police, or other third-party authorities, to report an incident does not mean that it did not take place. Similarly, the children’s ignorance of family violence in the relationship – because it is driven by financial and sexual abuse to which they are never directly exposed, for example – does not mean that they will be insulated from its future impact on their parents’ ability to make decisions together. Conversely, a division of responsibilities in a spousal partnership resulting in one partner taking carriage of the management of the family’s finances does not, in and of itself, constitute “financial abuse.” The Court must objectively assess the frequency, severity and recency of the incidents of family violence in weighing its impact upon a relationship. Human relationships are not easy, and the court must be very cautious, and must take a broad and comparative approach, in assessing the impact of family violence on post-separation co-parenting. Family violence, and its impact, is thus best assessed by the placement of each individual case on a spectrum that accounts for frequency, severity and recency rather than by using any kind of checklist-based metric.

[74] Family violence is an aspect of these parties’ experience. There are four incidents described by the parties.

[75] The first event took place in the Summer of 2005, when Father alleges that Mother slapped him with an open hand out of frustration that he had not completed the yard work. Mother denies that this occurred. Father’s evidence was that when they discussed the incident afterwards, Mother apologized and assured him that it would not happen again.

[76] The second incident took place in 2007 when Father was between jobs and had taken on computer repair work to make ends meet. Father says that Mother intentionally hit him in the face with her wallet when she was angry that he had not tidied up the computer parts in the area of the basement that he was using for his business. Mother’s evidence is that Father needed her credit card number and she tossed her wallet in his direction not realizing that he was not ready to catch it.

[77] The third event is the most serious. The parties’ evidence is largely consistent on the altercation itself but diverges dramatically regarding the events immediately thereafter. On December 14, 2013, Father returned home from a meeting and was met by Mother, who had a piece of paper in her hand and was thrusting it into his face. Mother alleged that the paper contained the telephone number of a woman with whom Father was having an affair.[^25] Father grabbed the piece of paper, Mother says hurting her arm in the process, and a struggle ensued in the dining room of the home which ended with Mother biting Father on the hand or lower arm. Mother says that she ran up to the master bedroom and Father followed her and “kicked down the door.” Father denies going to the upstairs level of the matrimonial home at all. He says that he couldn’t find his wallet. He says he first went down to the basement to look for it and then left the home to return to the location of his meeting to see if he had left it there. He says that when he returned, he was met by Maternal Grandmother who made a “lewd comment” and denied him access to the home. Father called the police who advised him to stay elsewhere for the night, which he did after Mother provided him with a packed suitcase. At the time, the police commented that Mother’s story was internally inconsistent: “It’s believed that [Mother] had been making up a story as she was getting pressure from (redacted) to have [Father] charged.”[^26] The parties sought counselling and reconciled.

[78] The fourth and final event led to the parties’ separation. Both parties testified that, on or about August 11, 2017, they were at a cottage rented by Maternal Grandmother with the children when the incident occurred. Father went into the washroom in the early part of the morning as the family was rising for the day. When he did so, a text message came in on his cellphone. Mother picked up Father’s cellphone and looked at the text message from Constance Walker, an individual Father met through his workplace and with whom he later had a cohabitation relationship. Mother says that the text message included a photograph of a dog and read something like: “Miss you and wish you were here.” Father says that the message in fact read: “I have a new dog.” Upon his return from the washroom, Mother said to Father: “Outside. Now.” and the parties went out to the front of the cottage where the children would not hear or see their conversation. An emotional exchange ensued wherein Mother accused Father of having an affair (from her perspective, this was not the first time, although Father denies any infidelity) and which resulted in Mother slapping Father across the face. Father attested that, upon seeing his reflection in his vehicle window immediately after the slap: “at that moment, I realized that it was going to keep happening” so he said to Mother “That’s it, I’m done.” He went back into the cottage to collect some belongings in a suitcase and drove away. Mother advised the children that he had to leave to return to work unexpectedly. They spoke by telephone several times during the day and Father returned to the cottage the next day to finish off the vacation for the children’s benefit, although there is no question that they were permanently separated as of that date.

[79] On December 28, 2017, Father went to the Norfolk County O.P.P. to report the events of August 11, 2017. As a result, Mother was charged with assault. Father testified that he did so at the insistence of a friend who was concerned for him and not for strategic purposes, but his choice in having Constance Walker and her child stay overnight with him and the Vieira children in the matrimonial home that same night shakes his credibility on this point. However, there is no question that the assault of Father by Mother took place on August 11, 2017 and that there was no interruption to Mother’s parenting time after December 28, 2017. Any parsing of the timing of reports of family violence to authorities is inappropriate and sets a very dangerous precedent as an attack upon the complainant, especially where such violence is either admitted by the offender or clearly demonstrated by the evidence.

(k) Any impact of family violence on the offending parent’s ability to care for the children

[80] I again commend these parents for dealing with the family violence, and in particular the incident of August 11, 2017, in an extremely child-focused manner. On August 11, 2017, despite the emotional distress that she must have been feeling, Mother was very careful not to alert the children to any problem.

[81] On December 28, 2017, when Mother received the call from Norfolk County O.P.P. asking her to attend and be charged with assault arising from the August 11^th incident, she tried to take the call out of earshot of the children. When it became apparent that they had overheard the officer use the word “arrest,” she attempted to brush it off as nothing for the children to worry about. I find that Mother did her best to keep the children ignorant of the police involvement.

[82] Based on the evidence, Mother has consistently instigated the physical acts, with Father consistently leaving so as to de-escalate the situation. The family violence in this matter is predominantly connected to Mother’s assessment that Father was unfaithful to her. This is important because, demonstrative of A.’s “strong-willed”[^27] personality, Mother is certain that A. has intentionally eavesdropped on conversations in her home. It is likely that, as a result, A. has overheard Mother discussing her experience of the marriage and separation with other adults, particularly Maternal Grandmother. Mother cannot be blamed for this.

[83] When A. then heard the phrase “one bitch of an ex-husband” from a friend, he tried to apply it to Father in Mother’s home. Mother testified that A. was the one who brought the phrase into her household and that she immediately squashed it:

Any attack to Jayson is an attack to the boys, because they’re part of Jayson, so no, I don’t speak negatively about Jayson. I don’t talk negatively and when it happens in my home, I stop it, it should not happen, that’s it. But I also can’t control my oldest son [A.] from saying things, but when he does, it stopped. It’s not acceptable.

Mother’s evidence on this point was sincere and credible both in chief and in cross-examination.

[84] Mother actively corrects A. when he speaks in toxic terms about Father. She does not excuse her actions in becoming violent with Father and has apologized for them. The report of her attendance and participation in the Partner Assault Response Program through the John Howard Society notes that she:

Recognized that she used verbally, emotionally, sexually abusive behaviors in the relationship and participated in minimization of how unhealthy and psychologically damaging the relationship as a whole had become. Keenly aware of the impact of the abuse on her partner, her children and herself and used this awareness to access help on braking free of the cycle.

[85] I find that the family violence has no impact upon Mother’s ability to care for the children.

(l) Any impact of family violence on the parents’ co-operation moving forward

[86] Co-operation moving forward is coloured by the tone of the post-separation relationship which flows necessarily from the tone of the partnership immediately pre-separation. There was a tone of hyper-vigilance to this former couple’s interactions around the question of Father’s infidelity. Father is adamant that he did not have any affairs, while Mother is certain that he has been emotionally connected with at least three other women. The parties sought counselling after Father’s “emotional” affair (which the parties agree did not culminate in physical contact between Father and another woman). As they had agreed in good faith to reconcile and not to discuss that first alleged affair as part of the healing process, they both kept away from any sensationalism and agreed not to call their marriage counsellor as a witness. However, it is clear from the events of December 14, 2013 and August 11, 2017, and from Father’s testimony that, post-separation when he was residing in the basement bedroom of the matrimonial home he awoke to find Mother standing at his bedside checking his cellphone[^28], that she continued to focus on the idea of his infidelity, and this focus led to anti-social behaviours.

[87] I am careful to use the adjective “anti-social” rather than “abusive” as, while the tone of the partnership pre-separation was undoubtedly toxic and possibly controlling, it is not reasonable to call Mother an “abuser.” Simply stated, the frequency and severity of the physical violence expressed in this relationship is at the low end of a comparative spectrum. Its impact upon these parties’ ability to co-operate is minimal.

(m) Other legal proceedings

[88] The only other legal proceeding raised at trial is Mother’s charge of assault, discussed in the assessment of family violence, above.

(n) Relevant past conduct (not otherwise considered)

[89] Each party has accused the other of making bullying or harassing comments in their Our Family Wizard communications. The assessment of post-separation pre-trial past conduct of this type requires a pragmatic skepticism on the part of the trial judge. As renowned Parenting Co-ordinator and Family Therapist Dr. Barbara Jo Fidler has observed, it is surprising for clinical professionals to hear that separated spouses expect the act of separation to change their ex-partner’s behaviour – communication problems leading to the breakdown of a marriage don’t miraculously disappear on the date of separation. So it is for these parties, but each has expressed a clear wish to overcome these past difficulties and work collaboratively to co-parent their boys. While certainly some of the comments are strident, even sarcastic, at times, they do not rise to the level of bullying or harassment when compared to examples in the broader caselaw. Thus, I do not assign much weight to the parties’ strained OFW communications in determining the children’s best interests.

(o) Child-focused division of time between households

[90] As noted, the children spent equal time in the care of each of their parents from the parties’ physical separation in late 2017 through to November 8, 2018 when A. stopped seeing Father. Having regard to the ages of the children at that time, a shared parenting schedule that divided the week (as contrasted with a “week about” schedule) allowed the children frequent and consistent time with each parent. This schedule remains in place for M. to date. Although there have been some struggles around the allocation of vacation parenting time and certain accommodations of time over the last four years, the court’s intervention has been largely unnecessary. Despite their mistrust of one another during the litigation period, the parties have both generally taken a child-focused approach.

(p) Presumed day-to-day decision-making

[91] The parties agree that the parent having care of the children would make minor, day-to-day decisions at the time as required.

(q) Allocation of major decision-making

[92] Appreciating that Mother in particular has expressed concern that Father has arranged appointments with the children’s treating professionals which she was unable to attend due primarily to her work schedule,[^29] neither parent has made major decisions without the other’s participation and consent. In fact, conflicts between the parties have arisen as a result of the challenge that they – and many other separated parents – face in making major decisions for the children. Unlike many cases that come before our Court, neither party has taken unilateral custodial control over decision-making.[^30] In fact, and acknowledging that communication is strained between them, both parties have respected their roles as co-parents of the children and have involved one another in discussions around major decisions accordingly. Both Temporary Orders contained in the Trial Record were obtained on consent, one setting out interim parenting arrangements and the other dealing with property division and other financial matters. All of this speaks to the parties’ respect for one another in the allocation of major decision-making post-separation.

(r) The flow of information regarding the children

[93] The parties have been using Our Family Wizard for many months. Unless they agree otherwise at a future time, the use of this tool should continue.

(s) Any Parenting Plan

[94] The existence of an unsigned Parenting Plan, negotiations regarding the terms of which were discontinued immediately before trial, raises a couple of issues. The Parenting Plan was prepared in draft form with the guidance of Ms. Annette Katchaluba, MSW, RSW, Director of Child-Centred Divorce Services of By Peaceful Waters, the counselling service that has been of pivotal influence in this family’s ability to cope with the separation. It was never finalized. I declined to admit the Parenting Plan when it was tendered as an exhibit during Father’s evidence on the basis that its content was the product of settlement discussions. As part of the trial readiness procedure under the Family Law Rules and our practice directions in this jurisdiction, each litigant is asked to provide a draft Order setting out the terms requested. In that context, the Parenting Plan was submitted by Father as an appendix to the draft Final Order that he seeks. I would underscore that it is not signed and that neither party gave evidence regarding their current views of its terms, and therefore I make no assumptions on that question. For clarity, I confirm unequivocally that I have not assigned any weight to the circumstances surrounding the existence of the Parenting Plan. It is simply a detailed appendix to a proposed Order; one party’s “wish list”, so to speak.

Conclusion

[95] This detailed review of the Divorce Act factors leads to the conclusion that both parents are fully invested in caring for the children to the best of their abilities. While there is much work to be done by each parent in contending with the underlying issues that impede civil communication between them, communication does not have to be perfect in order for collaborative decision-making to work.

[96] Practically-speaking, the real issue is how disputes as to major decisions will be resolved in a collaborative decision-making regime. Many distinctions can be readily drawn between the facts in this matter and those in Kaplanis, and I underscore that my goal is not to “improve the parenting skills of the parties” but rather to provide the mechanism for addressing disagreements on major decisions impacting upon the children. In the very recent case of Di Felice v. Di Felice, Lococo, J. took a similar approach in crafting a Final Order which required consultation to ensure the continuation of both parents’ role in decision-making and mediation prior to resorting to renewed litigation.[^31] His Honour specified that one parent would be the final decision-maker on all issues; I have divided future considerations into four topical areas of decision-making and apportioned the final decisions between the parties in the event of impasse.

[97] While I agree with the Court of Appeal that, generally-speaking, even the most detailed orders cannot anticipate every contingency,[^32] I find that for the Vieira family a procedure-focused decision-making approach will ensure both parents’ participation through a fulsome consultation process inclusive of the children’s views where appropriate, whilst still providing finality and closure in the event of disagreement. The manner by which each of these parents has approached M.’s needs informed my work in crafting terms to address such future disputes. Further, I note that both parents have been open to parenting co-ordination.

[98] Should parenting co-ordination fail, I have allocated the final decision-making authority on the following bases, for the following reasons:

(a) Mother shall make final medical decisions, as she has consistently followed the recommendations of treating professionals and has demonstrated her willingness to support Father at the time of M.’s medical crisis.

(b) Father shall make final educational decisions, as he has taken a more holistic approach in assessing the best option for encouraging M.’s progress while Mother became focused on engaging with any option that was available regardless of its likely efficacy for M.

(c) Mother shall make the final decision regarding extra-curricular activity enrolment, as she appears to have a better appreciation of the stability and self-esteem boost offered by scheduled activities, and also pivoted her perspective to acknowledge M.’s wish to discontinue Kung-Fu.

(d) Father shall make the final decision regarding the allocation of unassigned vacation parenting time, including travel, as he has family residing outside of Canada with whom the boys are closely bonded.

B. Parenting Time

[99] For all of the reasons as set out in connection with my conclusions regarding decision-making for the children, and in acknowledgment of the children’s views and preferences, I find that it is in their best interests for M. to continue to spend equal time in the care of each parent and for A. to transition to spending alternate weekends in Father’s care with the assistance of Ms. Wideman’s reconciliation therapy. The original shared-parenting schedule made sense for this family at separation when A. was ten and M. was seven. Now, the apportionment of the schedule into larger chunks better suits the children. I note that M. told Mr. Perrault that he would prefer chunks of three days so as to minimize the transitions between homes. I note further that much of the parties’ conflict has been around the timing of counselling appointments and activities, as the current parenting schedule does not provide weekday consistency between households. Conflict reduction will assist the family generally, and M. in particular. I therefore find that it is in M.’s best interests to shift to a 5-2-2-5 schedule, such that he will be in Mother’s care on Mondays and Tuesdays; in Father’s care on Wednesdays and Thursdays; and in each home on alternating weekends. For the same reason, wherever possible transitions will take place through M.’s school provided that it is in session in person.

C. Children’s Financial Issues

[100] Full disclosure has been exchanged between the parties and most financial issues settled, such that the only remaining issue is regarding child support for the period commencing January 1, 2021. As I have found that it is in A.’s best interests to reside primarily with Mother and in M.’s best interests to continue on an equally-shared parenting schedule, child support in this instance is properly calculated in accordance with sections 8 and 9 of the Federal Child Support Guidelines having regard to the obligations of each party under the Ontario Table. A calculation generated by the Spousal Support Advisory Guidelines software program in this regard, along with a summary of Father’s outstanding contribution toward A.’s Kung Fu fees, was entered as Exhibit 57 at trial and both counsel confirmed the accuracy of these documents. Thus, child support will be payable by Mother to Father in the amount of $160.00 monthly commencing January 1, 2021, with a reduction to account for Father’s outstanding contribution in the amount of $309.50.

D. Concluding Remarks

[101] Sometimes, a clear path forward stimulates healing. It is my sincere hope that closure will relieve much of the anxiety felt by the children and will enable these two caring parents to start a new, and more positive, chapter in their lives.

E. Final Order

[102] Two Orders shall issue. Divorce Order to issue as a stand-alone document. Final Order to issue pursuant to the Divorce Act and the Family Law Act:

1. per paragraphs 1 through 6 of the Partial Final Minutes of Settlement dated December 17, 2020 (being Exhibit 59).

2. The parties, Renee Kathleen Marie Vieira and Jayson Eugenio Vieira shall share joint decision-making authority for the children of the marriage, namely A., born April 25, 2007 and M., born August 12, 2010, on the following terms:

(a) In the event of a disagreement between the parties regarding a major decision impacting upon either child’s health, education or general welfare, the parties shall first attempt parenting co-ordination.

i. Parenting Co-ordination shall be through By Peaceful Waters (i.e. Ms. Annette Katchaluba) or such other parenting co-ordination service as the parties jointly agree to retain.

ii. Should the parties be unable to agree upon an alternative parenting co-ordination service, then within fifteen (15) days of being advised by By Peaceful Waters that such agency is unable to assist, Renee Kathleen Marie Vieira shall provide Jayson Eugenio Vieira with a list of three alternative options from which to select and, within five (5) business days of receipt of such list, Jayson Eugenio Vieira shall confirm his selection in writing.

iii. Part of such parenting co-ordination may include the determination of the applicable child’s view regarding the decision to be made, in the discretion of the parenting co-ordinator.

iv. The parties shall divide the cost of parenting co-ordination between them proportionately to their respective annual incomes from employment at the time of service.

v. The parties may jointly elect, on an issue-by-issue basis, to empower the parenting co-ordinator to act as Arbitrator in accordance with the Arbitration Act, 1991 S.O. 1991, c. C-17.

(b) Should parenting co-ordination be unsuccessful, then if the decision is regarding:

i. medical care or treatment to be administered to the child, including but not limited to the enrolment of the child in counselling or the prescription of any medication (including health-optimization or preventative treatments such as orthodontics and vaccinations), Renee Kathleen Vieira shall make the final decision;

ii. educational matters for the child, including but not limited to whether the child attends school in person or virtually, adjustments to any Individual Education Plan and the choice of supportive educational programming such as tutoring, Jayson Eugenio Vieira shall make the final decision;

iii. the enrolment of either child in regularly scheduled extra-curricular activities (e.g. Kung Fu, weekly swimming lessons, etc.), the total cost of which is not to exceed $1,000 per child per year, Renee Kathleen Vieira shall make the final decision; and

iv. the scheduling of parenting time during the children’s school vacation breaks other than as described in the Holiday Schedule paragraph of this Order, including travel within or outside of Canada for trips not to exceed two consecutive weeks (i.e. fourteen days) and the specific allotment of school vacation parenting time to accommodate same, Jayson Eugenio Vieira shall make the final decision.

(c) A., born April 25, 2007, shall remain enrolled at Sir John A. MacDonald Secondary School and M., born August 12, 2010, shall remain enrolled at St. Nicholas Catholic Elementary School unless otherwise agreed upon between the parties or addressed in accordance with sub-paragraphs (a) and (b), above.

(d) The parties shall communicate primarily through Our Family Wizard, with each party bearing his or her own user cost of such software. In the event of an emergency impacting upon either child, the parent having care of the child at the time of the emergency shall immediately contact the other parent by the most effective means available at the time of the emergency (which could include by telephone call or text message).

3. The child, M., born August 12, 2010, shall be in the care of his parents (Renee Kathleen Vieira being “Mother” and Jayson Eugenio Vieira being “Father”) on the following Regular Schedule during the academic year:

(a) Commencing Monday, September 6, 2021 and weekly thereafter, from Monday at 9:00 a.m. or the start of the school day through to Wednesday at 9:00 a.m. or the start of the school day he shall be in his Mother’s care;

(b) Commencing Wednesday, September 8, 2021 and weekly thereafter, from Wednesday at 9:00 a.m. or the start of the school day through to Friday at 9:00 a.m. or the start of the school day he shall be in his Father’s care;

(c) Commencing Friday, September 10, 2021 and alternate weeks thereafter, from Friday at 9:00 a.m. or the start of the school day through to Monday at 9:00 a.m. or the start of the school day he shall be in his Mother’s care;

(d) Commencing Friday, September 17, 2021 and alternate weeks thereafter, from Friday at 9:00 a.m. or the start of the school day through to Monday at 9:00 a.m. or the start of the school day he shall be in his Father’s care; and

(e) the parent whose parenting time is ending is responsible for ensuring M.’s delivery to school or into the care of the other parent, unless otherwise agreed between the parties in advance in writing.

4. The child, A., shall be in the care of his parents (Renee Kathleen Vieira being “Mother” and Jayson Eugenio Vieira being “Father”) on the following Regular Schedule during the academic year:

(a) he shall reside primarily with his Mother;

(b) he shall spend such exact times in the care of his Father as are consistent with the recommendations of the Reunification Therapist (Ms. Kayla Wideman, or such other professional to whom Ms. Wideman may refer the family) until Friday, January 21, 2022;

(c) commencing Friday, January 21, 2022 and alternate weekends thereafter, from Friday at 9:00 a.m. or the start of the school day through to Monday at 9:00 a.m. or the start of the school day he shall be in his Father’s care;

(d) such further and other times as the parties may agree upon in advance in writing having regard to the child’s views and preferences; and

(e) the parent whose parenting time is ending is responsible for ensuring A.’s delivery to school or into the care of the other parent, unless otherwise agreed between the parties in advance in writing.

5. The following Holiday Schedule shall supersede the Regular Schedule, which shall be suspended during such periods as follows:

(a) Every Mother’s Day, the children shall be in the care of Renee Kathleen Vieira (“Mother”) from the Saturday immediately preceding Mother’s Day at 6:00 p.m. (or such other exact time as the parties agree in advance in writing) through to Monday at 9:00 a.m. or the start of the school day, at which time the Regular Schedule shall resume.

(b) Every Father’s Day, the children shall be in the care of Jayson Eugenio Vieira (“Father”) from the Saturday immediately preceding Father’s Day at 6:00 p.m. (or such other exact time as the parties agree in advance in writing) through to Monday at 9:00 a.m. or the start of the school day, at which time the Regular Schedule shall resume.

(c) Each parent shall have two weeks of vacation parenting time (consecutive or non-consecutive) during the Summer school vacation break in each year, which weeks shall start and end on Mondays at 9:00 a.m. unless otherwise agreed between the parties in advance in writing. Mother shall have her first choice of vacation weeks in even-numbered years and Father shall have his first choice of vacation weeks in odd-numbered years. The parent with first choice shall advise the other parent in writing of his or her selected weeks by February 1^st in each year and the parent having second choice shall advise the other parent in writing of his or her selected weeks by March 1^st in each year.

(d) At Christmas, both children shall be in their Mother’s care from December 24^th at 12:00 noon through to December 25^th at 12:00 noon and in their Father’s care from December 25^th at 12:00 noon through to December 26^th at 12:00 noon.

(e) At New Year’s, both children shall be in their Mother’s care from December 31^st at 10:00 a.m. through to January 1^st at 10:00 a.m. and in their Father’s care from January 1^st at 10:00 a.m. through to January 2^nd at 10:00 a.m.

6. The children shall spend such further and other time in the care of either party and the parties may, from time to time, agree upon in advance in writing.

7. The children’s Health Cards, medications, prescribed medical or dental devices and similar items shall travel with them to and from the parties’ households unless otherwise agreed between the parties in advance in writing.

8. Renee Kathleen Marie Vieira shall be the librarian for all government and identity documents for A., born April 25, 2007 other than his Health Card. She shall be entitled to apply for and renew any such documents without the participation or consent of Jayson Eugenio Vieira, which is hereby disposed with. Any costs of such application and/or renewal shall be paid by her. She shall provide Jayson Eugenio Vieira with a notarial copy of such documents and shall update same on an ongoing basis.

9. Jayson Eugenio Vieira shall be the librarian for all government and identity documents for M., born August 12, 2010 other than his Health Card. He shall be entitled to apply for and renew any such documents without the participation or consent of Renee Kathleen Marie Vieira, which is hereby disposed with. Any costs of such application and/or renewal shall be paid by him. He shall provide Renee Kathleen Marie Vieira with a notarial copy of such documents and shall update same on an ongoing basis.

10. Commencing April 1, 2021 and on the first day of each month thereafter, support for the children shall be payable by Renee Kathleen Marie Vieira to Jayson Eugenio Vieira at the rate of $160.00 monthly for the two children of the marriage, namely A., born April 25, 2007 and M., born August 12, 2010. Such amount is based upon the parties’ 2020 annual incomes from employment, namely $100,626 for Renee Kathleen Marie Vieira and $50,000 for Jayson Eugenio Vieira and the parenting schedule for the children in accordance with sections 8 and 9 of the Federal Child Support Guidelines.

11. Effective May 1, 2021, the parties shall divide special and extraordinary expenses for the children between them proportionately to income, with Renee Kathleen Marie Vieira being responsible for 67% of such expenses and with Jayson Eugenio Vieira being responsible for 33% of such expenses.

12. For the period from January 1, 2021 through March 31, 2021, the arrears of child support and contribution toward special and extraordinary expenses are fixed in the amount of $170.50 owing by Renee Kathleen Marie Vieira to Jayson Eugenio Vieira calculated as $480.00 (being $160/month x 3 months, being January through March, 2021) less $309.50 (being 33% of the Kung Fu expense of $937.90).

13. Both parties shall maintain both children as beneficiaries of any extended medical/dental insurance available through their respective employment. A party who is reimbursed for a covered expense paid by the other party will immediately forward such reimbursed amount to the party who incurred the covered expense. The parties shall work collaboratively to maximize coverage available to the children. Any amounts in excess of the co-ordination of benefits will be divided between the parties proportionately to their respective incomes as a special and extraordinary expense.

14. Both parties shall maintain the life insurance policies currently available to them through their respective employment. Each party shall name the other as beneficiary, in trust for the children, for the minimum amount of $100,000, and each shall be free to address any life insurance in excess of $100,000 in his or her discretion. In the event that either party no longer has life insurance available to him or her through employment, he or she will immediately obtain replacement coverage for not less than $100,000. When each child reaches the age of eighteen (18) years, the parties may jointly agree to name such child as individual beneficiary of one-half of the then-existing policy (i.e. in the amount of $50,000). When both children no longer qualify for child support, the obligation to maintain life insurance coverage ends and each party may address any then-existing policies in his or her discretion.

15. SDO to issue.

F. Costs

[103] Having regard to the parties’ divided success in this matter and being mindful of the need for a period of calm and stability to encourage collaboration for the sake of the children, each party shall bear his or her own costs for the period following December 17, 2020 and inclusive of trial.

J. Breithaupt Smith, J.

Date: July 19, 2021

Appendix “A”

Divorce Act, R.S.C. 1985, c. 3 (2^nd Supp.)

16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

(h) any other relevant factor.

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

(7) In this section, a parenting order includes an interim parenting order and a variation order in respect of a parenting order, and a contact order includes an interim contact order and a variation order in respect of a contact order.

16.1 (1) A court of competent jurisdiction may make an order providing for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage, on application by

(a) either or both spouses; or

(b) a person, other than a spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent.

(2) The court may, on application by a person described in subsection (1), make an interim parenting order in respect of the child, pending the determination of an application made under that subsection.

(3) A person described in paragraph (1)(b) may make an application under subsection (1) or (2) only with leave of the court.

(4) The court may, in the order,

(a) allocate parenting time in accordance with section 16.2;

(b) allocate decision-making responsibility in accordance with section 16.3;

(c) include requirements with respect to any means of communication, that is to occur during the parenting time allocated to a person, between a child and another person to whom parenting time or decision-making responsibility is allocated; and

(d) provide for any other matter that the court considers appropriate.

(5) The court may make an order for a definite or indefinite period or until a specified event occurs, and may impose any terms, conditions and restrictions that it considers appropriate.

(6) Subject to provincial law, the order may direct the parties to attend a family dispute resolution process.

(7) The order may authorize or prohibit the relocation of the child.

(8) The order may require that parenting time or the transfer of the child from one person to another be supervised.

(9) The order may prohibit the removal of a child from a specified geographic area without the written consent of any specified person or without a court order authorizing the removal.

16.2 (1) Parenting time may be allocated by way of a schedule.

(2) Unless the court orders otherwise, a person to whom parenting time is allocated under paragraph 16.1(4)(a) has exclusive authority to make, during that time, day-to-day decisions affecting the child.

16.3 Decision-making responsibility in respect of a child, or any aspect of that responsibility, may be allocated to either spouse, to both spouses, to a person described in paragraph 16.1(1)(b), or to any combination of those persons.

16.4 Unless the court orders otherwise, any person to whom parenting time or decision-making responsibility has been allocated is entitled to request from another person to whom parenting time or decision-making responsibility has been allocated information about the child’s well-being, including in respect of their health and education, or from any other person who is likely to have such information, and to be given such information by those persons subject to any applicable laws.

16.6 (1) The court shall include in a parenting order or a contact order, as the case may be, any parenting plan submitted by the parties unless, in the opinion of the court, it is not in the best interests of the child to do so, in which case the court may make any modifications to the plan that it considers appropriate and include it in the order.

(2) In subsection (1), parenting plan means a document or part of a document that contains the elements relating to parenting time, decision-making responsibility or contact to which the parties agree.

[^1]: This matter had been originally set for trial during the three-week sittings of the Kitchener Superior Court commencing April 14, 2020 and had thereafter been in abeyance due to the suspension of court operations effective March 16, 2020. After the April 2021 sittings, the next available dates are in September 2021. When the trial started, only six days of the April 2021 sittings were available in my calendar as a result of an intervening mandatory judicial training program. On April 20, 2021, the Chief Justice issued a Notice to the Profession which suspended most virtual hearings throughout Ontario effective April 21, 2021. (The operation of this Notice to the Profession was subsequently discontinued in Central South Region, with post-COVID normal operations resuming here as of May 10, 2021.) On April 21, 2021, I extended the time to complete this trial by availing myself of the exception contained in the Chief’s April 20^th Notice that: “Subject to the discretion of the trial judge, matters that are in-progress can continue.”

[^2]: [2006] 2 S.C.R. 787, 2006 SCC 57, at paragraph 35.

[^3]: [1990] 2 S.C.R. 531, 1990 77 (SCC), at p. 546.

[^4]: R. v. Khelawon, supra note 1 at paragraph 2.

[^5]: Rules 2(2); 2(3); 2(4); 2(5)g); and 1(7.2)(f) and (i) of the Family Law Rules, O.Reg. 114/99, as. am.

[^6]: Woodhouse v. Woodhouse (1996), 1996 902 (ON CA), 136 D.L.R. (4th) 577 (Ont. C.A.) at p. 593.

[^7]: In Woodhouse, supra, the Court of Appeal referred favourably to the findings of Professor Nicholas Bala on the issue of children testifying in family matters, writing at p. 594: “To expect children to come to court to express their views as witnesses puts them in an extremely difficult emotional situation.”

[^8]: See Knapp v. Knapp, 2021 ONCA 305 in which the Court of Appeal dismissed an appeal from Madam Justice E. Chozik’s trial decision that one parent make all major decisions with respect to all medical, dental, optometrist and vaccination issues.

[^9]: Section 16.5 addresses “Contact Orders” between children and non-spouses (such as extended relatives) and sections 16.7 and onward relate to residential moves and relocations.

[^10]: Note that the Divorce Act, in its focused application to married parents and their children, uses the term “spouse”. I have substituted the word “parent” to reflect each litigant’s role vis-à-vis the children.

[^11]: Note that the IEPs consistently reference an Educational Assessment conducted in January of 2017 but same was not filed in evidence.

[^12]: Children’s Aid Society of Toronto v. L.L., J.Z. and A.B., 2010 ONCJ 48 (O.C.J.) at paragraph 15.

[^13]: Although Paternal Grandfather’s evidence was that the incident took place on March 15, 2018, that must be an error as A. continued to follow the shared-parenting arrangement until November 8, 2018 and Paternal Grandfather confirmed in cross-examination that the incident took place after the relationship between A. and Father had deteriorated.

[^14]: Rogerson v. Tessaro, 2006 15126 (ON CA).

[^15]: Rogerson v. Tessaro at paragraphs 5 and 8.

[^16]: Shoyama, R., “Citations to Wikipedia in Canadian Law Journal and Law Review Articles” (2014) Canadian Law Library Review Volume 39, No. 2 at pages 11 – 15; 2014 Docs 79.

[^17]: The Canadian Law Library Review is a journal published by the Canadian Association of Law Libraries focusing on issues arising in legal writing and research intended for Legal Information Specialists.

[^18]: See paragraph 11, above.

[^19]: I have omitted the balance of the addressee information for legibility.

[^20]: Note that there is reference to another note string in Our Family Wizard which may be from the same date but was not entered into evidence.

[^21]: Although Father testified that Mother initially asked that the appointment time be changed to accommodate her schedule and there was communication between the parties regarding the need for both to be in attendance, nothing turns on that evidence.

[^22]: 2005 1625 (ON CA), hereinafter Kaplanis.

[^23]: Kaplanis at paragraph 11.

[^24]: L.B. v. P.E., 2021 ONCJ 114 at paragraph 96.

[^25]: Mother alleges that Father has had at least three affairs, the first being a “sexting” relationship, the second leading to this altercation, and the third with Constance Walker, a woman Father dated immediately following the conclusion of the parties’ marriage. Father denies all three incidents and specifically denies entering into a relationship with Ms. Walker prior to the parties’ separation. However, as the question of marital infidelity is not relevant to an assessment of parenting issues, this information is provided as background to the family narrative.

[^26]: Note that I am including this information only as part of the overall narrative. The police records were not entered into evidence, and thus this comment, ascribed to one of the attending officers, is at least double hearsay. I am not relying upon this comment to assess Mother’s credibility or as an accurate description of the events of that date.

[^27]: per Mother’s evidence.

[^28]: Where the parties’ evidence differs on this specific point, namely Mother’s presence in Father’s room post-separation, I prefer Father’s evidence as being more credible.

[^29]: I note here that the occasions when this occurred arose as a result of unanticipated developments for the children.

[^30]: I note here the possible exception of an instance when Mother enrolled the children in Summer swimming lessons during Father’s vacation week, however I do not find that Mother did so with any intention of blocking Father’s participation in the lessons themselves.

[^31]: Di Felice v. Di Felice, 2021 ONSC 3918, (released June 7, 2021, not yet reported) at paragraphs 63 and 64.

[^32]: Kaplanis at paragraph 11.