Court File and Parties

Court File No.: FO-103/18 Date: 2021-07-21 Ontario Superior Court of Justice

Between: Joshua Shawn Waylon Morrison, Applicant – and – Tanisha Harder, Respondent

Counsel: Self-Represented, for the Applicant Mark A. Shields, for the Respondent

Heard: February 22, 23, 24, 25, 26, March 1, 2, 3, and 4, 2021

Justice R. Raikes

Reasons for Judgment

[1] The parties are the biological parents of Ainsley Elizabeth Harder born July 11, 2015 (hereafter “Ainsley”). Ainsley is now six years old.

[2] The issues in this case are decision-making, parenting time, and child support.

The Parties

Applicant Father

[3] The applicant is 28 years old. He is employed at a factory in St. Thomas as a laser cutter operator. He is working toward his pressure welding and grinder certifications which he hopes to obtain this year or next. He is already certified as a forklift driver. He works a swing shift as follows:

• Two weeks days – Monday to Friday 7 a.m. to 3:30 p.m. • Two weeks afternoons – Monday to Friday 3 p.m. to 11 p.m..

He often works mandatory overtime on Saturdays or volunteers for those shifts.

[4] Mr. Morrison has a high school education. He attended college for one year for a business program but did not wish to pursue it further.

[5] He resides in St. Thomas with his girlfriend, Amber, and her son from a prior relationship, Andrew, who is 11 years old. Mr. Morrison and Amber reside in a three-bedroom unit in a fourplex. Each child has his/her own bedroom.

[6] Amber works at the same factory on the opposite shift to ensure that one of them is home to care for the children. Andrew’s father is not involved in his life. There are no other adults residing in their home. There is a roughly 30 to 40-minute overlap in their shifts. Their mothers or siblings help with childcare to cover that period. His mother resides in St. Thomas.

[7] Ainsley has a positive and loving relationship with Andrew and Amber. According to Mr. Morrison, Amber and Ainsley are like two peas in a pod. Amber helps Ainsley with homework. Ainsley loves Amber every bit as much as she does him.

[8] There are no concerns with Mr. Morrison’s ability to care for Ainsley when she is with him. He is a good, supportive, loving father. His accommodations are satisfactory. The activities in which they engage as father-daughter are age appropriate. He encourages and fosters relationships between Ainsley and his family and between Ainsley and her maternal grandmother from whom the respondent is estranged.

[9] Regrettably, since the parties separated on June 9, 2018, the applicant has engaged in a relentless battle to paint the respondent as a neglectful parent and bad person. To that end, he has enlisted the support and aid of his mother, the respondent’s mother, and the biological father of the respondent’s eldest child. He is hyper-critical of the respondent. He has made numerous reports to CAS, as has his mother. CAS has investigated and none of the concerns, save for an untidy house, have been validated.

[10] Leaving aside the persistent rancor, poor communications with the respondent, his inability to support Ainsley’s relationship with her mother, and his failure to pay any child support, the applicant father is otherwise a devoted parent.

Respondent Mother

[11] The respondent is 26 years old. Although Harder is her legal surname, she has adopted Foster as her surname and prefers to be called Tanisha Foster. I will refer to her as “the respondent” or “Ms. Foster” in this decision.

[12] Ms. Foster has two children: Emmett and Ainsley. Emmett’s biological father is Travis Kowalenko. Emmitt is 8 years old. Ms. Foster has been Emmett’s primary caregiver since his birth. Ainsley has grown up with Emmett as her older brother. They have a close and loving relationship.

[13] Ms. Foster testified to an abusive stepfather and dysfunctional family growing up. After her mother and stepfather separated, her half-siblings went into foster care. Her mother returned to school to become a dental assistant. Ms. Foster lived for a couple of months with the Gorman family in Fingal. She had nowhere else to live. She rebelled against structure and got her own small apartment in Aylmer where she became pregnant with Emmett.

[14] Ms. Foster never cohabited with Mr. Kowalenko. He initially denied that he was Emmett’s father and delayed having a paternity test. He has had regular parenting time with Emmett since at least 2017. Mr. Kowalenko has commenced proceedings against Ms. Foster that have not yet gone to trial. It appears that Mr. Kowalenko and Mr. Morrison are in regular contact and are cooperating with one another to assist in their respective family proceedings.

[15] Ms. Foster finished high school in 2014. She completed a PSW course through Fanshawe College in August 2018. The first four months were done in classroom and the last four months were in a placement. She had subsidized childcare and a friend who assisted with drop offs and pick ups so that she could get to her class or placement while in school.

[16] Ms. Foster then worked as a PSW in 2018 until January 2019. She lost her job because Mr. Kowalenko stopped taking Emmett into his care for approximately four months. She could not afford childcare.

[17] She needed money to meet her monthly obligations and to pay for a lawyer for this litigation. I pause to note that Mr. Morrison has paid nothing in child support – ever.

[18] Ms. Foster began exotic dancing in December 2018. She stopped working as an exotic dancer in February 2020. There was a brief period in the Fall of 2019 where she was not dancing. She also worked as an escort from December 2018 to April 2019. All her work as an exotic dancer and escort was done out of town in Chatham and Sarnia.

[19] She testified that while in high school, she had “sugar daddies” – men who paid for her to spend time with them. Sex was involved. She met them through an online site.

[20] Since October 2019, Ms. Foster has taken courses to augment her high school education with a view to attending university and/or college to study to be a nurse or medical researcher. She reports having good grades. She has applied to the nursing program jointly offered by Western University and Fanshawe College. She has also applied to a general science programme through Lakehead University in Orillia. She qualifies as a mature student.

[21] The parties first met in 2014. The applicant was living with his father. The respondent and her son, Emmett, moved into a basement unit in the same building in St. Thomas. Their relationship was tumultuous and brief. The respondent testified that during their relationship the applicant physically and sexually assaulted her more than once. She testified to calling police after one such incident where he choked her.

[22] The applicant denies that he physically or sexually assaulted the respondent. He agreed that there was one incident where she was screaming at him and he put his hand over her mouth so that Emmett would not be awakened. He agrees that there was a lot of arguing.

[23] The applicant lived with Ms. Foster sporadically from August to November 2014. When they argued, which was often, he would sometimes go upstairs to his father’s unit for a time. Although they talked about getting an apartment together at another location, their relationship ended in early December 2014. By then, Ms. Foster was pregnant with Ainsley. She moved to Aylmer to live with Jim and Mary Froese. That was arranged through her pastor. The Froeses kindly renovated their basement to make a small apartment for Ms. Foster, Emmett, and eventually, Ainsley.

[24] Mr. Morrison attended the respondent’s ultrasound on December 23, 2014. They were barely speaking to one another. By that point, Ms. Foster had called St. Thomas police on Mr. Morrison and the applicant’s mother, Lisa Smith, had called CAS over alleged concerns about the state of the applicant’s apartment in St. Thomas.

[25] Mr. Morrison testified that he understood that he would be notified when the baby was born. He was not. In 2015, after he learned that Ainsley was born, Mr. Morrison started family proceedings to gain access to Ainsley. By then, Ms. Foster was living in Aylmer. He withdrew that application after she offered not to seek child support from him if he did so.

[26] Mr. Morrison did not meet Ainsley until March 2018. By then, Ainsley was almost three years old.

[27] Mr. Morrison was then working at a factory in St. Thomas. He and the respondent connected via social media. According to Ms. Foster, they had some heartfelt conversations during which Mr. Morrison apologized and took ownership for his earlier abusive conduct. She believed that he had matured and changed. She was willing to give him another chance.

[28] Ms. Foster asked if he wanted to meet his daughter and he jumped at the chance. He came to the home she was renting on Luton Cr. in St. Thomas where she was living with Emmett and Ainsley.

[29] The home on Luton Cr. was a three-bedroom bungalow with an attached garage. Ms. Foster was paying monthly rent of $1,400 plus utilities. The children had their own bedrooms. Ms. Foster made many of the decorations in their rooms. Ms. Foster and the children resided in that home until September 1, 2018. They moved from Luton Cr. to an apartment at 200 Burwell Rd. in St. Thomas and have resided there since.

[30] In the Spring of 2018, Mr. Morrison had his own one-bedroom apartment in St. Thomas. After he and Ms. Foster re-connected and he met Ainsley, he spent many nights in April and May 2018 at her home. They discussed and he agreed to move in. He gave notice to his landlord and moved his belongings to Luton Cr.. He gave her some money toward the cost of rent. The parties disagree as to how much he paid but it was less than half the rent by either account.

[31] Their period of cohabitation was again very brief. Although he was helpful with the children and did some of the cleaning in the house, he also was controlling. He was critical of how much she spent on groceries even though he had not contributed before June and he was not paying half of the cost. On one occasion, she told him to butt out of a meeting she had with a friend’s mother about budgeting.

[32] There were differences in their approach to meals. He enjoyed prepared foods while she preferred cooking from scratch. He wanted dishes done right after a meal where she was content to leave them to the next day.

[33] Mr. Morrison was fine so long as he was not angry. When he was, they argued. He yelled at her in front of the children. Ms. Foster spoke to his mother to ask that she speak to him to get him to stop yelling in front of the children. Ms. Smith threatened to take her to court to take Ainsley if she did not fix things.

[34] According to Ms. Foster, she learned soon after he moved in that he had an STD. The first time they had sex in 2018, he had asked her if she was clean. She told him that she was. She asked if he was clean and he told her he was. On June 7, 2018, she learned that he had herpes. He apologized and she went silent. She felt that he had lied to her. He was not happy that she did not accept his apology.

[35] Ms. Foster again approached his mother, Lisa Smith, who advised that she could either leave him or forgive and love him. Ms. Foster decided to end the relationship. She told Mr. Morrison to leave that day. He did not. He told her that she had no right to kick him out. He stayed in the home until June 9.

[36] Mr. Morrison denies having an STD. He agrees that they were arguing regularly about how messy the home was. He was caring for the children. She indicated to him that she had worked as an escort and wanted to continue. He was opposed to her doing so.

[37] Mr. Morrison acknowledged during his testimony that he had worked as an escort in 2017 when he was unemployed. He had his own website advertising his services. He indicated that he stopped that work when he began receiving EI benefits. Ms. Foster testified that he told her that he had been an escort and for a longer period.

[38] On June 9, 2018, the parties had a heated argument. His mother and sister were coming by to pick up the children to take them to a fair and happened upon the argument. Ms. Foster accused Mr. Morrison of inappropriately showering with Emmett.

[39] Mr. Morrison testified that Ainsley woke crying. She had defecated while sleeping and it was everywhere including in her hair. The respondent was sleeping so he took Ainsley into the bathroom to clean her up by putting her in the shower. There was no sexual touching.

[40] I need not determine whether Mr. Morrison, in fact, had an STD and lied to Ms. Foster, and decline to do so. It is undisputed, however, that they argued frequently and had very different habits regarding cleaning and meals. I accept that during April – June 2018, Mr. Morrison was controlling and not shy about telling Ms. Foster how to deal with Mr. Kowalenko, her finances, her home, and her children.

[41] Regardless the reason, they separated. Mr. Morrison moved to his mother’s home on June 9, 2018 where he resided for approximately 18 months.

[42] The parties’ communications and interactions post-separation have been characterized by immaturity, vindictiveness, and spite.

[43] This litigation began soon after they separated. To some degree, the interim orders have assisted and in other ways, those orders have served to carve out fixed lines beyond which little or no compromise has been possible.

Procedural History

[44] The applicant commenced this proceeding by Notice of Application issued July 20, 2018. From the outset, the primary issues have been custody, access, and child support.

[45] On August 10, 2018, Justice Donald ordered that Ms. Foster not remove Ainsley from Elgin County pending return of the matter before the court.

[46] On September 14, 2018, Justice Donald extended the prohibition on removing Ainsley from Elgin County and Mr. Morrison was granted interim interim access as follows:

• Thursday and Fridays from 8 a.m. to 4 p.m. • Alternating weekends starting September 15, 2018 on Saturdays and Sundays from 7 a.m. to 9 p.m. • Mr. Morrison’s access was to be supervised by an adult member of his family.

[47] On November 6, 2018, Justice Donald ordered that:

• Ms. Foster had care and custody of Ainsley. • Mr. Morrison had access with Ainsley, o Every Tuesday from 8:30 a.m. to 1:45 p.m. o Every Thursday from 8:30 a.m. to Friday at 1:45 p.m. o Alternate weekends starting November 16, 2018 so tha instead of returning Ainsley on Friday at 1:45 p.m., she remained in his care until Monday at 1:45 p.m.. • Drop offs were to be at Ainsley’s daycare.

The access times accommodated Mr. Morrison’s work schedule. He was then working the afternoon shift from 3 p.m. to 11 p.m.. His mother cared for Ainsley when he was at work.

[48] On April 26, 2019, Justice Donald ordered, inter alia, that:

• Pending return of motions brought by the parties, exchanges would occur at a Tim Horton’s in St. Thomas. • Ms. Foster could not remove Ainsley from Elgin or Middlesex counties. • She was not to transport Ainsley in her vehicle without first providing proof of insurance to her lawyer. • She was required to provide Ainsley’s birth certificate to her lawyer for safe keeping. • She was not to work at night when Ainsley was in her care.

[49] Finally, on May 27, 2019, Price J. ordered, inter alia, that:

• Child exchanges were to take place inside a Tim Horton’s (para. 2). • Ms. Foster was not to work at night when Ainsley was in her care (para. 5). • Ms. Foster could not remove Ainsley from Elgin or Middlesex counties nor could she ask the applicant to allow her to do so (para. 6). • She was prohibited from seeking a passport or NEXUS card for Ainsley without Mr. Morrison’s consent (para. 7). • If, for any reason, Ms. Foster could not care for Ainsley for a period of more than two hours, she was required to first ask Mr. Morrison if he would do so before seeking alternate care (para. 8). • Ms. Foster was not to reside with nor allow or permit Ainsley to reside with any adult male (para. 9). • Ms. Foster was prohibited from exposing Ainsley to any person connected or related to or associated with any activities she may be involved in related to prostitution or escorting services (para. 10). • Neither party would disparage the other in Ainsley’s presence or permit any other adult to do so (para. 11). • The parties were to communicate only as it related to the child and those communications were to be in writing only and responded to promptly (para. 12).

[50] The interim order of Price J. dated May 27, 2019 was in effect at trial and has continued pending release of this decision.

Law – Decision-Making and Parenting

[51] The parties never married. Accordingly, the governing statute for determining decision-making responsibility and parenting time is the Children’s Law Reform Act, R.S.O. 1990, c. C. 12, as amended (hereafter “CLRA’).

[52] The amendments to the CLRA as it relates to children mirror those recently made to the federal Divorce Act. The amendments came into force during this trial. The trial began under the old regime and finished under the amended regime. There are no transition provisions.

[53] Neither party sought to amend their existing pleadings. Thus, while the pleadings refer to custody and access, the parties were alive to the changes to the legislation and structured their evidence and closing submissions to reflect the amended legislation.

[54] Section 21(1) of the CLRA allows a parent to make an application to a court for a parenting order respecting decision-making responsibility and/or parenting time with respect to a child. In making such an order, the court is required to “only take into account the best interests of the child” in accordance with s. 24.

[55] Subsections 24(2) – (6) state as follows:

Primary Consideration

(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child's physical, emotional and psychological safety, security and well-being.

Factors

(3) Factors related to the circumstances of a child include,

(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 parent, each of the child's siblings and grandparents and any other person who plays an important role in the child's life;

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

(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 co-operate, 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 and respective whom the order would apply to co-operate 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.

Factors Relating to Family Violence

(4) In considering the impact of any family violence under clause (3)(j), the court shall take 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 behavior 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 the person's ability to care for and meet the needs of the child; and

(h) any other relevant factor.

Past conduct

(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 the person's decision-making responsibility, parenting time or contact with respect to the child.

Allocation of parenting time

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

Analysis – Decision-Making and Parenting Time

Ainsley’s Needs

[56] Ainsley is a happy, healthy six-year old girl. She is meeting all developmental milestones. Mr. Morrison agrees that Ainsley does not need any special supports. There is no evidence that Ainsley is suffering from any emotional or other psychological trauma.

[57] By all accounts, Ainsley is doing remarkably well despite the ongoing conflict between the parties. She is used to staying with Mr. Morrison for as long as two or three weeks when Ms. Foster was working out of town or went West to visit her biological father. She is happy wherever she is. She enjoys being with Ms. Foster and Emmett. She does not fight or protest being with either parent; in fact, she appears to have accepted and adapted well to going back and forth between the two homes.

Relationships with Family

[58] Ainsley has emotionally bonded with both parents. She loves both and she adores her siblings.

[59] Ainsley spends time with both grandmothers when in Mr. Morrison’s care. In 2018-19, Ainsley was regularly in Lisa Smith’s care. Mr. Morrison was living with his mother. She cared for Ainsley when he was working or sleeping. Ainsley and Ms. Smith have a close and loving bond.

[60] Mr. Morrison reached out to her maternal grandmother, Tanya Beaumont, and ensures that Ainsley gets to spend time with her and her new partner and son who is close in age to Ainsley. I was not impressed with Ms. Beaumont as a witness. It seemed to me that her evidence was coloured by her animus toward Ms. Foster. They are estranged. Theirs is a complicated and fractured relationship.

[61] Ainsley also spends time with his sister and other extended family on his side.

[62] By contrast, Ms. Foster has no relationship with extended family beyond, perhaps, her biological father with whom she has recently reconnected. He resides in western Canada. She has visited him a couple of times. Ainsley has not yet met him, and it is unclear whether she ever will.

[63] While Mr. Morrison has re-partnered with Amber, Ms. Foster has not. She started to date a bouncer from one of the clubs where she danced. She had hopes that he would move in with her but that relationship ended. Given Justice Price’s order that Ainsley not reside with another male adult, Ms. Foster has been hamstrung from moving on.

Supportive of Relationship with Other Parent

[64] The relationship between the parties is toxic. It would not be a stretch to say that each hates the other. This is reflected in their communications which are disrespectful, accusatory, aggressive, and demeaning. Add in calls to police or regular complaints by Mr. Morrison and his mother to CAS over the past three years and it is small wonder that the parties have been unable to find a basis for a cease fire.

[65] As I will outline below, Mr. Morrison has seized on every misstep, every possible complaint to try to show Ms. Foster to be an unfit parent. In doing so, he has unfortunately mischaracterized events and has lost credibility in the process. I do not suggest for a moment that Ms. Foster would be easy to deal with. She has contributed to the discord. By the same token, his actions have fanned the flames to a full blaze when they needed to be doused.

[66] Can they be supportive of Ainsley having a positive relationship with the other parent? Yes. Will they do so? I have my doubts based on their conduct to date.

[67] The parties must understand that it is in Ainsley’s best interests to have a positive, loving relationship with both her mother and father. Everyone gains, especially Ainsley, if that happens. Grandmothers need to stay out of any quarrels and simply focus on being there for Ainsley.

[68] I encourage the parties to work at better communication and to put aside their animosity for one another. Ainsley needs that to happen and deserves nothing less. Each parent must encourage Ainsley to have a good relationship with the other.

[69] Ms. Foster has been Ainsley’s primary caregiver since birth. Mr. Morrison was out of the picture until March 2018. That was a choice he made, one that he now regrets.

[70] Since Justice Price’s order of May 27, 2019, Ainsley has spent more time with Mr. Morrison than the access schedule ordered provided for. That is because Ms. Foster is required to offer to allow Mr. Morrison to care for Ainsley if she cannot do so for more than two hours. There is no reciprocal obligation on Mr. Morrison. If he is working, Amber or his mother can care for Ainsley. He always accepts the offers to watch Ainsley even if he cannot do so himself because of work. He is happy to have Ainsley in his care.

[71] Mr. Morrison tendered schedules in the form of monthly calendars of dates that Ainsley had been in his care. In cross-examination, it became clear that:

• Some of the dates marked were wrong • Some dates were only partial days per the schedule ordered • Some dates included overnights and others did not.

[72] Ms. Foster followed the order and offered Mr. Morrison the opportunity to care for Ainsley when she was working out of town. On one occasion, her car broke down while in Sarnia. Ainsley’s stay was extended at least three days while she waited for the repair to be finished. On another occasion, Ms. Foster went out West to pick up a vehicle from her father and drive it back to St. Thomas for her use. She was away for ten days.

[73] Mr. Morrison testified that Ms. Foster did not call Ainsley when she was away and that Ainsley was used to her mother going away and not hearing from her. She was content in his care. I note that elsewhere in his evidence, Mr. Morrison testified that he rarely picked up if Ms. Foster called. In those circumstances, it is not surprising that Ms. Foster did not call and only kept him updated on her return time by text through Mr. Kowalenko.

[74] Mr. Morrison relies on Ms. Foster’s requests to care for Ainsley when she had to work to show that Ainsley spent most of her time with him. He implies that the status quo favours Ainsley continuing to be in his primary care. I disagree.

[75] The order of Justice Price requiring Ms. Foster to offer to have him watch Ainsley was made in May 2019. It did not displace the status quo that existed until then. As noted, that term of the order was one-sided and was not intended to give Mr. Morrison any strategic advantage at trial. It made sense because she had no second adult at home to care for Ainsley, unlike Mr. Morrison who had his mother and later his girlfriend.

[76] Further, Justice Price did not vary Justice Donald’s interim November 6, 2018 order by which Ms. Foster was given custody of Ainsley. The access or parenting time ordered by Justice Donald was not equal to that of Ms. Foster and Justice Price’s May 27, 2019 order did not change that access except for the two-hour limit imposed. Thus, nothing in the interim orders established a status quo that amounted to equal parenting time or primary care with Mr. Morrison.

Ability to Parent

[77] Mr. Morrison asserts that Ms. Foster is a neglectful parent. He points to photographs taken of Ainsley with a cut or bruises or a sunburn. He alleges that she is not fed appropriate food and is frequently sent to school with clothing that is too small or inappropriate for the weather. In short, Ainsley is not properly cared for when in Ms. Foster’s care.

[78] Shortly after they separated and close to the date this litigation started, Mr. Morrison accused Ms. Foster of sexually assaulting Ainsley. He testified that Ainsley told him that Ms. Foster put a Cheerio in her vagina. He did not see the Cheerio. He took Ainsley to a walk-in clinic in St. Thomas, to London Health Sciences Centre – Victoria Hospital, and to see the St. Joseph’s Hospital Sexual Assault and Domestic Violence Team. Doctors found no evidence to substantiate the concern. Nevertheless, he reported the alleged sexual assault to CAS.

[79] Many of the allegations made by Mr. Morrison during this trial have at one point or another been communicated by him or his mother to CAS. None of these complaints have resulted in a finding that Ainsley was not properly cared for or needed protection.

[80] Photographs relied upon by Mr. Morrison that show Ainsley with a cut or bruising were taken by Ms. Foster. They were sent to him at work during the period in 2018 when they were attempting to rekindle their relationship. He expressed no concerns at the time he received the photographs. There were no calls to CAS then.

[81] After separation, however, those photographs and others that she sent to keep him informed became fodder for his allegations to CAS and in these proceedings that Ms. Foster does not properly care for Ainsley.

[82] There is no evidence that Ms. Foster has mistreated or abused Ainsley. Children fall down. They bump into things. They get cuts and bruises. The photographs show an otherwise healthy little girl after a typical childhood mishap.

[83] With respect to the photographs of Ainsley with a sunburn taken by Mr. Morrison, I find that that was an isolated incident.

[84] Mr. Morrison testified that Ainsley’s school lunches consist of two slices of bread and butter and a whole tomato to be eaten as an apple. He testified that Ainsley complains that she does not have enough food in her lunch.

[85] Ms. Foster testified that Ainsley prefers the lunches she makes and eats more and healthier than when Mr. Morrison prepares her lunch. He uses prepackaged foods. Ainsley does not eat everything her mother packs in her lunch, but she enjoys bread with butter and eats tomatoes like apples. Ms. Foster also gives her kolbassa, cheese, granola, fruit, and a Hersey’s Kiss.

[86] Julijana Bennett is a neighbour of Ms. Foster. She has seen Ms. Foster with Emmett and Ainsley almost daily for the past two plus years. She has been in their apartment unit and has observed what they eat for meals. She testified that they eat hearty and healthy meals. She indicated that Ms. Foster is a devoted parent. She has never seen her impose any physical punishments. She has seen Ms. Foster talk directly to her children when they have misbehaved. She teaches them right from wrong but does so in a child appropriate manner.

[87] I find Ms. Bennett’s evidence to be both credible and reliable. She was candid about her observations of Ms. Foster, her children, the untidiness of Ms. Foster’s apartment, her observation of Mr. Morrison on one occasion, and her approbation of Ms. Foster’s work choice. She was consistent and fair in her evidence.

[88] Ms. Foster will never be confused with a neat freak. By her own admission, she does not place a premium on keeping her home in pristine condition. This was the subject of discussion with CAS in the past. The evidence of Ms. Farquhar, Ms. Bennett, Ms. Keith, Mr. Gorman, and Mrs. Barbara Gorman indicate that while Ms. Foster is not as neat and tidy as some, her accommodation is safe for the children.

[89] With respect to clothing, Ainsley likes wearing dresses. She often wears leggings or jeans under her dresses. On one occasion, Ms. Foster let Ainsley pick her clothes for school. The weather turned and Ainsley was under-dressed that day. The school has raised no concerns about Ainsley being adequately clothed for the weather. Again, Ms. Bennett testified that the children are appropriately dressed when she sees them which is almost everyday. Ms. Keith of CAS investigated that complaint by Mr. Morrison and concluded there was no substance to it. I accept the evidence of Ms. Bennet, Ms. Keith and Ms. Foster as it relates to appropriate clothing.

[90] Mr. Morrison accused Ms. Foster of drinking alcohol and abusing drugs. The evidence in this regard is wholly inadequate. The children are not exposed to drug use or excessive alcohol consumption when in her care.

[91] Mr. Morrison testified to other care concerns which I have considered. I am satisfied that Ms. Foster’s care of Ainsley is appropriate. The allegations made by Mr. Morrison, Ms. Smith, and Mr. Kowalenko that Ms. Foster does not properly care for the children are entirely without merit.

[92] Mr. Kowalenko and Mr. Morrison have teamed up to help one another in their respective family litigation. It was clear that Mr. Kowalenko was prepared to say anything he could to help Mr. Morrison with an eye to his own case regarding Emmett. I did not find his evidence to be credible or reliable.

[93] Mr. Morrison raised additional concerns regarding Ms. Foster’s judgment and ability to appropriately parent. The concerns are:

• She has exposed the children to her work as an exotic dancer and/or escort. • She wanted to be exposed to COVID 19 and showed a lack of concern when a note came home from Ainsley’s school that Ainsley had been exposed to a student who had COVID. • She claimed to have special healing powers that allow her to heal herself and others using her mind. She believed that Ainsley may also have these powers. • She claimed to have visions and have bruising caused by demons. Ainsley may have been bruised by a demon in her sleep.

[94] Mr. Morrison disapproves of Ms. Foster’s exotic dancing and escort work. He maintains that the children have been exposed to same. Photographs posted on social media by Ms. Foster show the children playing with a pole in the home of a friend of Ms. Foster. Their faces are obscured but the photographs are posted on Ms. Foster’s social media account on a public setting. Ms. Foster can be seen holding up one child who was on the pole. Another photograph showed Emmett holding and playing with a wad of money. The captions by Ms. Foster referred to starting them young and that everything that she does is for them.

[95] I agree with Mr. Morrison that the children should not be exposed to exotic dancing or prostitution including the financial rewards of those activities. Ms. Foster testified that she stopped dancing in February 2020. Her dancing and escort work were done outside of St. Thomas. None was done in her home. Her testimony is that she is pursuing a different career path.

[96] The photographs and social media posts taken do not demonstrate that Ms. Foster was showing the children how to do exotic dancing nor was she glorifying such dancing or escorting as something the children should do when they grow up. They are unaware of the nature of the work she did. I do not agree that Ms. Foster has exposed the children to adult activities inappropriate to their ages. I do agree, however, that some boundaries are necessary especially if she resumes that work. I will address those boundaries below.

[97] With respect to COVID 19, Ms. Foster returned to working as a PSW in February 2020. Mr. Morrison adduced text messages sent by Ms. Foster at or about that time in which she indicated that she wanted to be exposed to the virus. Her employment was terminated very soon after. Screen shots of those texts were on the table in the meeting when she was fired. It is likely that those texts came to the attention of her employer from one of Mr. Kowalenko or Mr. Morrison.

[98] Ms. Foster acknowledged that she authored and sent the texts. She testified that they were sent at a time when there was a lot of talk on social media about getting the virus and getting over it to acquire immunity.

[99] With respect to the note from school that another child on Ainsley’s bus was COVID positive or had been exposed to someone who was, the note came home shortly before the required quarantine period would have expired. Ainsley stayed with Mr. Morrison for the Christmas holidays.

[100] I find that Ms. Foster was initially quite cavalier about the COVID virus and the risks it posed. Her text messages reflect same. Whether that was because of misinformation or a simple lack of appreciation of the risks of the virus, I cannot say. She removed the children from school and home schooled them for much of the last school year. The evidence does not show that Ms. Foster unwisely risked Ainsley or Emmett’s health by ignoring COVID protocols.

[101] I am troubled by the evidence adduced of texts and/or social media posts by Ms. Foster that she has visions, that she can heal herself and others with her mind, that she interacts with demons or spirits, that Ainsley possesses similar healing powers, and that she (Ms. Foster) can bend a spoon with her mind. These beliefs are unconventional to say the least.

[102] Ms. Foster testified that:

• She has dreams that subsequently come true. • The children have the exact same dreams as her. • She took counselling for depression and anxiety. Through that counselling she became aware of her ability to heal herself. She meditates and when she reaches a certain state of awareness, she can do things like bend an otherwise unbendable spoon. • She does not see demons or spirits notwithstanding her posts that suggest otherwise. • Ainsley is prone to throwing temper tantrums, especially after time with Mr. Morrison. She requires that Ainsley lay down and clear her mind.

[103] Ms. Foster testified that Ainsley has a pediatrician, Dr. Ndur. Ainsley has had her childhood vaccinations. Ainsley does not see Dr. Ndur often because she is healthy. Ainsley sometimes complains of tummy aches, usually after spending time with Mr. Morrison where she is allowed more junk food. Ms. Foster has Crohn’s which is triggered by junk food and is concerned that Ainsley may have inherited it. Although Mr. Morrison suffers from asthma, she did not have Ainsley tested for asthma because she does not have breathing issues. If Ainsley is ill, she will take Ainsley to see a doctor.

[104] The evidence does not go so far as to demonstrate that Ms. Foster has tried to use her “powers” to heal Ainsley or have Ainsley do so when Ainsley needs medical care. There is no evidence that Ainsley has subscribed to these beliefs. There is certainly nothing inappropriate to exposing Ainsley to meditation or to using timeouts in combination with meditation to help Ainsley calm down.

[105] Terri Keith is a child protection worker with the St. Thomas and Elgin CAS. Because of complaints by Mr. Morrison and his mother, CAS has been working with Ms. Foster and Mr. Morrison since 2018. She provided coverage early on and was assigned to the file in 2019. She has had several meetings with both parents. She testified that the Society expected to close its file very shortly.

[106] Ms. Keith is an independent witness whose role is to ensure the children are safe and properly cared for. She gave her evidence in an objective and consistent manner. She did not take sides. I find her evidence to be both credible and reliable.

[107] Ms. Keith testified, inter alia, that:

• The Society has had ongoing concern about the conflict between the parents and its impact on Ainsley. • Early on, Ainsley was clearly aware of that conflict. She told Ms. Keith that her mom did not like her dad and her dad did not like her mom. • Ms. Keith has had some concern with Ms. Foster’s maturity and what she shared with the children – a lack of age appropriate boundaries. She has exhibited some eccentric behaviour and has some “unusual views”. • Lack of maturity has been a concern with all parents involved including Mr. Morrison and Mr. Kowalenko. • Ms. Foster’s eccentricities include conveying to the children that she has powers. Where Ainsley appeared to simply accept it as a fact, Emmett is more sensitive and was more affected by it. She spoke with Ms. Foster about how confusing that was for the children. Ms. Foster was not clear about what Emmett understood or could understand at his age. She was open to discussing what would be more appropriate to discuss with a child Emmett’s age. • The parties have very different parenting styles which accounts for much of their tension. • She has no health or developmental concerns regarding Ainsley. • There are no emotional issues affecting Ainsley who is a very bright child. • She has no concern with either parent’s ability to meet Ainsley’s needs. • Ainsley would miss Emmett terribly if her relationship with him was reduced. • One of the biggest issues facing these parents is their inability to support Ainsley’s relationship with the other parent. Mr. Morrison struggles with that. He appears to be so worried about losing Ainsley that he is concerned that she will have a positive relationship with her mother and turn out like Ms. Foster. She clarified that “turn out like her mother” was in reference to her belief that she has powers etc.. • She has no nutritional concerns for the children, nor any concerns about drug or alcohol use in either home. • The Society has never expressed the need to remove Ainsley from either parent. • Ainsley is adept at manipulating her parents to get what she wants. • This litigation, the accusations made by both sides, and the parties’ lack of maturity have undoubtedly fueled the animosity between the parties

[108] I am not satisfied that Ms. Foster’s unconventional beliefs as expressed in her texts and social media posts pose a risk of harm to Ainsley, nor do they impair her ability to parent. Both Ms. Bennett and Ms. Keith from CAS testified that they have no concern with Ms. Foster’s ability to parent. It seems to me, however, that talking to children about special powers and/or visions and/or spirits or demons is not age appropriate and Ms. Foster should refrain from discussing same further with Ainsley until she is at least 18 years old.

[109] I conclude that both Mr. Morrison and Ms. Foster are capable of caring for Ainsley. Her physical and emotional needs will be met when in either parent’s care.

Child’s Views and Preferences

[110] There is no OCL report in this case. Ainsley has just turned six years old, She is too young to ascertain her views and preferences. In any event, Ms. Keith testified that Ainsley has a loving relationship with both parents and enjoys her time with each.

Spiritual, Cultural, Religious Upbringing and Heritage

[111] I have addressed Ms. Foster’s unusual beliefs above. This factor is otherwise neutral.

Plan of Care

[112] Mr. Morrison seeks to have Ainsley live full-time with him. She would be enrolled in the same school as Andrew. She has her own bedroom. He would like her to engage in extracurricular activities like baseball. He will ensure that she sees a doctor and dentist regularly. He proposes that Ainsley see Ms. Foster on alternate weekends.

[113] Ms. Foster expects to remain in St. Thomas while she attends school. She will continue to reside in the same apartment with Emmett and Ainsley. Ainsley has her own bedroom which is furnished and decorated. Ms. Foster will abide by the schedule set by the court and care for the children as she has to date.

[114] Ms. Foster initially enrolled Ainsley in a school very near her apartment. Last year, she changed Ainsley’s school to a French Immersion school located in nearby Sparta. Ainsley took a school bus to and from school. Those plans were interrupted by COVID and the on and off again suspension of in-school learning. Eventually, Ms. Foster elected to home school Ainsley for the balance of the school year. She intends to have Ainsley return to in school learning in September.

[115] Ms. Foster did not consult Mr. Morrison about what schools Ainsley would attend or her decision to home school. She did not obtain and follow the school board curriculum for home schooling. She purchased various on-line primers and established her own curriculum which she shared for the first time during this trial.

[116] I understand Ms. Foster’s concern with the uncertainty of in-school learning and the social distancing rules that were implemented by the school for the protection of students and staff. Obviously, those measures were dictated by health concerns beyond anyone’s control and derived from expert advice. It was not a normal school experience for anyone.

Ability to Communicate and Co-Operate

[117] As noted by Ms. Keith, the parties have had a very troubled history of inappropriate, aggressive, unhealthy communication. I carefully observed both parties during the trial and in their testimony. Both are intelligent. Both have demonstrated that they are able to treat others with kindness and respect, but they have failed utterly to do so in their dealings with each other.

[118] Ms. Foster has used social media to disparage Mr. Morrison. She posted pictures on Instagram of a birthday outing to a London pub with Ainsley. She wrote: “We celebrated Ainsley’s birthday today but this is all you get to see :( her dad’s a dick so this is best.”

[119] On October 17, 2020, Ms. Foster posted pictures of herself holding a sword. She quoted lyrics from a song which Mr. Morrison took to be a reference to him. They exchanged unpleasant texts. She followed that exchange with a public Instagram post in which she labelled Mr. Morrison a rapist. She included information about the car he drove and where he worked and lived. She posted his picture and again called him a rapist.

[120] These social media posts by Ms. Foster are profoundly inappropriate and disturbing. They demonstrate a lack of maturity and good judgment. I did not get the sense that Ms. Foster understood that they should not have been posted or felt any remorse whatsoever for doing so.

[121] While Mr. Morrison has not responded in kind via social media, he has made numerous baseless allegations against Ms. Foster to CAS. His mother has done the same although she retreated to the background somewhat in 2020. Further, Mr. Morrison attended Ms. Foster’s apartment building and spoke with the apartment building manager when Ms. Foster was away. I do not believe his evidence that he did so out of concern for Ainsley’s cat during Ms. Foster’s absence. I find that he has consistently tried to undermine Ms. Foster. His communication with her landlord was to cause problems for her, perhaps even to cause her to have to move.

[122] This back and forth vindictiveness with allegation after allegation is the antithesis of good parenting. Both sides have crossed the line and have done so repeatedly. Each allegation or snipe begets another and worse.

[123] Child exchanges have also proved problematic. One would hope that having the exchanges take place in a public place would quell the hostility. Unfortunately, that has not been the case. Both parties bear responsibility for this. Instead of seeing adults act like mature adults, Ainsley has seen the opposite.

[124] I have carefully reviewed the text messages and social media posts adduced at trial. I listened carefully to the evidence of the parties and other witnesses. The lack of respect, civility, consideration for the other party, and regard for the potential impact of same on Ainsley is staggering.

Family Violence and Past Conduct

[125] Ms. Foster testified that in 2014, Mr. Morrison repeatedly assaulted and sexually assaulted her. She contends that his failure to disclose that he had herpes in 2018 when they were resuming their relationship made their sexual activity non-consensual. She asserts that Mr. Morrison’s accusation that she sexually assaulted Ainsley (the Cheerio incident) is mere deflection. It is what he does if accused of something – make an accusation back.

[126] She also contends that when they were together, he was very controlling. His post-separation conduct perpetuates that effort.

[127] Mr. Morrison denies any sexual assault or physical assault of Ms. Foster. He has not been criminally charged. These events simply never happened. He contends that his conduct post-separation has been driven by Ms. Foster’s behaviour and his concerns for Ainsley’s well-being.

[128] The primary allegations of physical and/or sexual assault go back to 2014 – seven years ago. They pre-date Ainsley’s birth. Ainsley has not witnessed any physical altercations between the parties. The evidence adduced in this trial is insufficient for me to conclude that a sexual assault occurred. I am not saying that no sexual assault occurred, only that the evidence before me is insufficient. Mr. Morrison’s evidence that he put his hand over Ms. Foster’s mouth so Emmett would not wake up could be construed as an assault. Nevertheless, the allegations of violence are historic and do not impact either parent’s ability to parent.

Parties’ Positions

Mr. Morrison

[129] Mr. Morrison seeks an order giving him sole decision-making responsibility for Ainsley. Ainsley would be in his primary care every Monday to Friday, except from 4:30 p.m. to 7:30 p.m. on Wednesdays, and on alternating weekends. He or a family member will do drop offs after school.

[130] Mr. Morrison submits that Ms. Foster’s parenting time should be supervised by Merrymount until she has undergone and provided a mental health evaluation, has actively participated in treatment, and documentation of her progress has been submitted to the court. Ainsley will be in Ms. Foster’s supervised care Saturdays and Sundays on alternating weekends from 8:30 a.m. to 7 p.m..

[131] In the alternative, if I am not satisfied that supervision is needed, he proposes that Ms. Foster have Ainsley in her care on alternating weekends from Friday at 4:30 p.m. to Sunday at 7 p.m., and each Wednesday from 4:30 p.m. to 7:30 p.m., although the mid-week visit must not impede Ainsley’s extracurricular activities.

[132] He asks that paras. 5, 6, 8, 10, 11, and 12 of Justice Price’s May 27, 2019 order continue (see para. 49 above). Any schedule changes should be requested in writing on reasonable notice – preferably 24 hours notice but at the earliest convenience. With respect to holidays, he indicates that the parties will agree on holidays which will rotate.

[133] By way of ancillary terms, he also asks that Ainsley’s health card and birth certificate be in his possession. He is to have full access to her medical history. Ainsley’s surname is to be changed from Harder to Morrison.

Ms. Foster

[134] Ms. Foster submits that the parties share decision-making as follows:

a. Health: i. Either party shall be responsible for the child's health care while the child is in their care. This will apply to emergency health care or minor non-emergency health care. ii. Major non-emergency health care shall not be undertaken without the parties first consulting on the decision and after consulting on the decision, the respondent mother shall make the decision. The child's pediatrician shall be Dr. Ndur or such other pediatrician as the parties may agree to in writing. iii. The parties shall keep each other fully informed of any upcoming medical, dental, optometrist or like appointments for the child. If there is any documentation provided at such appointments, the parties shall provide copies of that documentation to the other party. iv. If the child requires any emergency medical care while she is in the care of the other party, that party shall promptly attend to the emergency and shall notify the other party as soon as possible.

b. Education: i. The child shall attend Eva Circe Cote Public School commencing September 2021 and shall remain at that school so long as the child is eligible to be enrolled in the French Immersion program or unless both parties agree in writing to the child attending an alternative school or being home-schooled.

c. Significant extracurricular activities: i. Neither party shall enroll the child in significant extracurricular activities that would have an impact upon the other’s parenting time without the other party agreeing to same in writing. The person enrolling the child in the activity shall be responsible for paying for same.

d. Religious activities: i. Either party shall be free to take the child to religious activities while the child is in their care.

[135] Ms. Foster’s proposed parenting schedule is predicated on Mr. Morrison being employed and working two weeks of afternoons followed by two weeks of days. By her proposal, Ainsley would be in Mr. Morrison’s care as follows:

a. The weekend preceding the start of his first of two weeks of afternoons, from Friday at the end of school to Monday morning at the commencement of school; b. On the weekend in the middle of his two weeks of afternoon shift, from Saturday at 10 a.m. to the resumption of school on Monday; c. On the weekend on which his two weeks of afternoon shift ends, form Saturday at 10 a.m. to Sunday at 7 p.m.; d. During the two weeks when he is on the day shift, from Tuesday after school until the commencement of school on Thursday; and e. If any of the Mondays when Mr. Morrison is scheduled to return Ainsley to school be a statutory holiday, and he is not at his employment, Ainsley will stay with him until the commencement of school on Tuesday.

[136] Ainsley would be in Ms. Foster’s care when not with Mr. Morrison. Thus, under Ms. Foster’s proposal, Mr. Morrison has time with Ainsley three out of every four weekends in addition to Tuesday and Wednesday overnight during his day shift weeks. By my reckoning, that amounts to 10 overnights with him in a 28 day period with the possibility of an extra night if Monday falls on a statutory holiday and he is not working. He has Ainsley in his care for all or most of three weekends in four. Her proposal includes provision for additional or different times as the parties may agree to in writing.

[137] Ms. Foster proposes the following with respect to holidays:

a. During the summer school holidays, the parties shall have Ainsley in their care on an alternate week basis from 4 p.m. on Friday to the following Friday at 4 p.m.. Mr. Morrison will have the first week of summer holidays in even years and Ms. Foster will have the first week of summer holidays in odd years. Summer holidays will commence on the Friday of the last week of school and end with Labour Day. b. During the Christmas school holidays, the regular pattern of parenting time shall be changed so that Ms. Foster shall have Ainsley in her care from 4 p.m. on December 23 to 4 p.m. on December 24 and Mr. Morrison shall have Ainsley from 4 p.m. on December 24 to 4 p.m. on December 25. The balance of the Christmas holidays will be divided equally between the parties with Mr. Morrison having first choice in odd years and Ms. Foster having first choice in even years. Choices are to be made and communicated by December 1st of each year c. With respect to Thanksgiving, the party having Ainsley on the Thanksgiving weekend, shall have Ainsley from the end of school on Friday, until 10 a.m. on Monday morning, with the other party having Ainsley from 10 a.m. on Monday to the resumption of school on Tuesday. d. The Easter holiday shall be divided equally between the parties with the party whose weekend it is having Ainsley from the end of school on Thursday until Easter Sunday at 2 p.m. and the other party having Ainsley from Easter Sunday at 2 p.m. to the resumption of school on Tuesday.

[138] Ms. Foster’s submission includes additional provisions dealing with communication, non-disparagement, non-alienation, day-to-day decision making, the avoidance of conflict, registration for extracurricular activities, attendance at Ainsley’s activities and access to information concerning Ainsley. Many of the terms are standard and appropriate to high conflict parenting cases as here. She also wishes to change Ainsley’s surname to Foster.

Decision-Making Responsibility

[139] The governing test for the determination of decision-making responsibility is “the best interests of the child”: s. 21 CLRA. There is no presumption in favour of joint decision-making in the recent amendments to the CLRA. That is consistent with the law as it stood before the amendments: see Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), [2005] O.J. No. 275 (Ont. C.A.); Ladisa v. Ladisa, 2005 CanLII 1627 (ON CA), [2005] O.J. No. 276 (Ont. C.A.); Patterson v. Patterson, 2006 CanLII 53701 (ON SC), [2006] O.J. No. 5454 (Ont. S.C.J.).

[140] The Ontario Court of Appeal in Johnson v. Cleroux, 2002 CanLII 44929 (ON CA), [2002] O.J. No. 1801 recognized that joint custody – joint decision-making - requires a high degree of co-operation between parents. Where, as here, the parents are unable to co-operate effectively, joint custody is inappropriate; however, one party cannot create problems with the other parent and then claim sole decision-making authority on the basis of lack of co-operation: Lawson v. Lawson, 2006 CanLII 26573 (ON CA), [2006] O.J. No. 3179 (Ont. C.A.).

[141] Although the above principles in Johnson and Lawson arose in the context of joint custody, the logic and rationale underpinning those principles applies with equal force to the new joint decision-making paradigm. As a matter of common sense, to reach consensus on major decisions affecting a child’s well-being, parents must be able to communicate effectively. Rational child-centered discussion is necessary. Parents must be able to work together in a sufficiently co-operative way to achieve favourable outcomes for the child. They need not be friends, but they must be able to put aside their animosity for one another enough to be able to discuss and work together to make important decisions for the benefit of their child.

[142] Mr. Morrison and Ms. Foster have been unable to meaningfully and appropriately communicate and co-operate to make joint decisions in Ainsley’s best interests since 2018. Here, both parties have acted childishly and inappropriately.

[143] Mr. Morrison has been inflexible to the point where compromise has been all but impossible. He seeks to control Ms. Foster’s parenting and her relationship with Ainsley. It must be on his terms. He has been unnecessarily aggressive to and over-critical of Ms. Foster. The frequent baseless complaints to CAS were made in hope of gaining some strategic advantage in this litigation and to make Ms. Foster’s life more difficult. I have the sense that Mr. Morrison wanted to punish Ms. Foster and that winning this litigation trumped working together with Ms. Foster to achieve what was best for Ainsley. That is not putting Ainsley’s interests first.

[144] For her part, Ms. Foster has been more flexible and co-operative but her temper where Mr. Morrison is concerned too often gets the better of her. Her communications with him have been infused with anger. At times, she deliberately ignored his communications. She made decisions concerning Ainsley unilaterally without any prior consultation or consideration of his views knowing that would upset him. Her social media posts were highly inflammatory and intended to hurt and annoy Mr. Morrison. She has acted indifferent to how the tension and conflict with Mr. Morrison affects Ainsley. That is not putting Ainsley’s best interests first.

[145] Both parents would benefit from counselling and education on how to better communicate and how to co-parent. I encourage them to seek such counselling and education through CAS or other providers.

[146] In the meantime, I have no confidence that the parties can effectively communicate and work together to jointly make decisions for Ainsley’s well-being. Who then should make decisions concerning Ainsley’s health, education, religion, and extracurricular activities?

[147] As indicated above, I am troubled by the evidence of Ms. Foster’s claims that she has special powers including the power to heal. That concern is tempered by 1) Ainsley’s good health and development to this point, 2) Ainsley has a paediatrician, Dr. Ndur and her vaccinations are current, 3) Mr. Morrison has access to all her medical records and providers, and 4) Ms. Foster’s testimony that if Ainsley was unwell, she would take her to see her doctor. I note that Ms. Foster wants Ainsley’s stomach issues to be looked at by a doctor.

[148] I am also concerned by Ms. Foster’s decision to remove the children from school and to home-school them without regard for the Board curriculum. She testified that she expects the children to return to school in September. She wants Ainsley to have in-school learning. Her choice of a French Immersion school for Ainsley is reasonable.

[149] I find that it is in Ainsley’s best interests that:

1. Ainsley’s paediatrician will be Dr. Ndur unless the parties mutually agree in writing to a different doctor;
2. If for any reason Ainsley needs to change doctors, the Respondent will consult the Applicant. If they cannot agree, the Respondent mother will make the final decision as to Ainsley’s doctor;
3. Either party may make an appointment for Ainsley to see Dr. Ndur during their parenting time as needed;
4. Each parent will notify the other promptly of all doctor and dentist appointments made including any testing and/or appointment with a specialist or optometrist;
5. Both parents may be present for any medical or dental appointment;
6. If Ainsley becomes ill or is injured requiring medical treatment, the parent in whose care she is will ensure that Ainsley gets immediate care and will promptly notify the other parent by text or email as soon as practicable; and
7. The parties will consult with one another concerning major health decisions and will be guided by input from the medical professionals. If they cannot agree, the Respondent mother shall make the final decision.

[150] Dr. Ndur is Ainsley’s current physician. That will likely change. Dr. Ndur may move or retire. Ainsley may need to move to a family doctor as she gets older. This is an issue about which Ms. Foster will consult Mr. Morrison. She will obtain his input. Hopefully they will find common ground. If not, she will decide.

[151] With respect to education, I find that it is in Ainsley’s best interests that she return to in-school learning at the French Immersion school she was attending for much of the last school year. Thus, when school resumes in September 2021, Ainsley will attend Eva Circe Cote Public School and will continue so long as she is eligible to be enrolled in the French Immersion program unless both parties agree in writing to Ainsley attending an alternative school. If, for any reason, Ainsley cannot continue at that school and the parties cannot agree on an alternative school, the final decision will rest with the Respondent provided it is not home schooling. Ainsley will decide which high school she will attend.

[152] Neither parent testified to any specific religious affiliation or attachment. I agree that each parent may take Ainsley to religious activities while the child is in their care.

[153] Mr. Morrison would like to enroll Ainsley in extracurricular activities. Ms. Foster did not express any opposition to those activities. She did not indicate any inclination to do so nor preference for a particular activity.

[154] Extracurricular activities are beneficial to Ainsley’s development. There is always a concern about the time commitment, whether travel is involved, whether they will take away from time with a parent, and how much they cost. I order as follows with respect to decision-making for extracurricular activities:

1. Either party is free to register Ainsley for an extracurricular activity that will take place only during his or her parenting time with Ainsley.
2. Neither party will register Ainsley for an extracurricular activity that will take place during the other parent’s parenting time without the consent of the other parent, such consent not to be unreasonably withheld.
3. The cost of extracurricular activity will be borne by the party who registers Ainsley in that activity unless the parties agree otherwise.
4. Both parties are permitted to attend Ainsley’s activities even if the activity falls during the other parent’s time with Ainsley.

Parenting Time

[155] Subsection 24(6) of the CLRA contains the same wording as found in the recently amended Divorce Act at s. 16(6). This provision does not give rise to a presumption of equal time with each parent. The amount of time that a child spends with each parent must be “consistent with the best interests of the child”. The parenting schedule must accord with the child’s best interests.

[156] Mr. Morrison’s submission that Ainsley’s primary residence be with him and her time with Ms. Foster be supervised pending a mental health assessment and treatment is not in Ainsley’s best interests. His proposal is over-reaching and is consistent with his inability to foster a positive relationship between Ainsley and her mother.

[157] Ainsley has lived with her mother since birth. She is in good health and is achieving all her developmental milestones. She has a close and loving relationship with her mother. She adores and would miss Emmett. Ms. Foster is a devoted parent capable of properly caring for Ainsley. The status quo in this case is for Ainsley to spend more than half of her time in her mother’s care.

[158] Ainsley is well cared for when with either parent. Her needs are met. She enjoys her time with each. She has bonded emotionally with the parties, Amber, her half-siblings, and her grandmothers. It would be best for Ainsley if the grandmothers stayed out of any conflict between the parents.

[159] I am concerned that Mr. Morrison not only seems unwilling but unable to promote a positive relationship between Ainsley and Ms. Foster. He has acted aggressively toward Ms. Foster in Ainsley’s presence. That is not to say that Ms. Foster has not at times been aggressive and caused conflict. Nevertheless, I find that much of the conflict that permeates their dealings has its roots with Mr. Morrison and his controlling behaviour. Ms. Foster has not handled that conflict appropriately and in some instances, she has exacerbated it.

[160] In light of their history of immature and conflicted dealings, it is in Ainsley’s best interests to minimize the number of exchanges. It is also in her best interests that terms be imposed on both parties regarding communication with each other and Ainsley.

[161] I have taken Mr. Morrison’s work schedule into account and appreciate that it may change. In setting the parenting schedule, I leave open the ability of the parties to mutually agree to change the schedule should either of their schedules warrant. That will require reasoned discussion and compromise.

[162] I find that during the school year, the following parenting schedule and related terms are in Ainsley’s best interests:

1. Based on a four-week rotating schedule during which Mr. Morrison may be on two weeks of days and two weeks of afternoons, Ainsley will be in Mr. Morrison’s care a. In week one (day shift), from after school on Monday for the remainder of that week except on Wednesday from after school until 7 p.m.. b. In week two (day shift), Monday and Tuesday until the start of school on Wednesday. c. The weekend in the middle of the two weeks of afternoon shift, from Friday after school until the start of school on Monday. If Friday is a P.D. day, the weekend will start on Thursday after school. d. Wednesdays in weeks three and four from after school until 7 p.m. if Mr. Morrison is no longer working the afternoon shift for any reason.
2. Ainsley will be in Ms. Foster’s care at all other times.
3. The parties may mutually agree to vary the schedule on a temporary or permanent basis provided that change is in writing and signed by both parties.
4. The parties will promptly notify the other of any changes to their employment and/or school and work schedule.
5. If Ms. Foster has to work after 11 p.m. on any night when Ainsley is to be in her care, she shall first offer Mr. Morrison the opportunity to care for Ainsley before using an alternate caregiver.
6. The parent in whose care Ainsley is shall make the day to day decisions for her care. Those decisions include, but are not limited to, bedtimes and bedtime routines, homework routines, discipline, meals, clothing, screen time, play time.
7. Neither party shall impose any physical discipline.
8. Neither party will disparage the other nor permit any other adult to do so in Ainsley’s presence.
9. All communications between the parties shall be by email or text using a parenting app. If they cannot agree on the parenting app to use, they will use My Family Wizard.
10. All communications between the parties shall be amicable and respectful.
11. All communications between the parties shall be child focused.
12. Neither party will send messages to the other through Ainsley.
13. The parties shall not engage in any conflict, direct or indirect, in Ainsley’s presence.
14. To the extent practicable, pick ups and drop offs will take place at the bus stop for Ainsley or at her school provided notice is given in advance to the school and other parent if at the school.
15. All other exchanges will be done at a mutually agreed upon Tim Horton’s in St. Thomas or such other location as the parties may mutually agree.
16. Neither party will discuss adult issues with Ainsley. For greater certainty, such discussions include, but are not limited to, any litigation involving Ainsley or her siblings, any current or past conflicts between the parties, any healing or special powers, visions, spirits or demons.
17. Neither party will expose Ainsley to exotic dancing, escorting, or prostitution or anyone engaged in those activities. For greater certainty, that includes discussing his, her, or the other parent’s past, current or future pursuit of such activities.
18. If either party wishes to travel outside of Elgin and Middlesex counties with Ainsley during their care time, that parent will so advise the other parent and provide particulars of accommodation, flights, the purpose of the trip, and shall provide a contact number.
19. Either party may apply for a passport for Ainsley at his or her expense. The other parent will consent to and sign such papers as are necessary for that purpose.
20. If a parent wishes to travel outside of Canada with Ainsley, he or she shall provide at least 60 days notice to the other parent together with the itinerary, accommodation and flight details, the dates of travel and location, and the activities they anticipate doing. The non-travelling parent shall not unreasonably withhold his or her consent to the trip and will execute such consent as may be needed for that trip.
21. Both parents shall keep the other informed of Ainsley’s school and extracurricular activities and any assignments etc. that may be pending. They will likewise inform the other parent of any school trips, outings, performances, meet the teacher dates etc..
22. Both parties are entitled to access information directly from third-party service providers including doctors, dentists, teachers, and counsellors. If necessary, the parties shall sign directions to such third-party service providers to facilitate the other’s access to information about Ainsley.
23. Both parents will be listed as emergency contacts with Ainsley’s school.
24. Each party shall obtain his or her own school calendar and school notices.
25. The parties shall share with each other a complete list of names and contact information of any health care provider, educator, etc. that is caring for the child.
26. Each party shall promptly notify the other of any significant information regarding the welfare of the child including but not limited to physical or mental health records, performance in school, and extracurricular activities.
27. The parties shall encourage a positive relationship between Ainsley and the other parent and shall do nothing that would estrange or alienate Ainsley from the other parent.
28. Neither parent will post any photographs of Ainsley on social media nor permit any other person to do so.
29. Neither parent will post anything on social media that is disparaging of the other parent.
30. Neither party will apply to change Ainsley’s surname.
31. If either party re-partners, he or she will promptly provide the other with a completed and signed Form 35.1 or its equivalent under the Family Law Rules.

[163] The result of the above schedule during the school year is that Ainsley will have 12 overnights with Mr. Morrison and 16 overnights with Ms. Foster in each 28-day cycle. Mr. Morrison will have two of every four weekends – the weekend in the middle of his two weeks of day shift and the weekend between the two weeks of afternoon shift. The weekends end on Monday morning when Ainsley returns to school.

[164] I turn now to holiday time. While the parenting schedule will differ for holidays, the other terms set out above will continue; for example, communicating amicably and respectfully via email or text.

[165] The regular parenting schedule is suspended and replaced with the following schedule for the holidays below:

a. Summer vacation – commencing on the Friday of the last week of school until Labour Day, Ainsley will be with each parent on a week on/ week off basis. In odd numbered years, the first week will be with the Applicant and if even numbered years with the Respondent. The week will go from Friday at 4 p.m. to the following Friday at 4 p.m.. b. March Break – March Break will begin after school on the Friday and continue to the following Sunday at 6 p.m.. The parties will divide March Break evenly between them. c. Christmas Break – Ainsley will be in the Respondent’s care from 4 p.m. on December 23 to 4 p.m. on December 24, and in the Applicant’s care from 4 p.m. on December 24 to 4 p.m. on December 25. The balance of the Christmas break will be divided equally between the parties. In odd numbered years the Applicant will have first choice of dates and the Respondent will have first choice in even numbered years. d. Thanksgiving – whichever parent is scheduled to have Ainsley in his or her care on the Sunday of the Thanksgiving weekend, the other parent will have her in his or her care on the Monday from 9 a.m. to 6 p.m. e. Easter – In odd numbered years the Applicant will have Ainsley from after school on Thursday to 9 a.m. on Easter Sunday, and the Respondent will have Ainsley from 9 a.m. on Easter Sunday until school resumes on Tuesday morning, The reverse shall apply in even numbered years.

Child Support

[166] Mr. Morrison has paid no child support for Ainsley. His income for 2018-2020 was as follows:

2018 - $31,565 2019 - $35,413 2020 - $24,296.

[167] Neither party made any closing submissions on this issue. Respondent’s counsel submitted a draft order containing the following terms regarding child support:

The Applicant shall pay to the Respondent support … from the first day of January, 2020 and on the first day of each and every month thereafter, the aforesaid support shall be in accordance with the parties’ income and shall be based upon the Support Guidelines. The aforesaid support shall be determined as soon as the parties’ 2020 tax returns are completed and in any event, the tax returns should be exchanged no later than the 30th day of April, 2021. The support shall be calculated in accordance with Section 9 of the Child Support Guidelines.

The Applicant and Respondent shall maintain the child on any extended health care benefits that may be available through their employment. Upon either of the parties receiving an entitlement to benefits for the aforesaid child, they shall forthwith notify the other of the details of the benefit coverage and will keep the other party notified of any changes to the benefit coverage.

The Applicant and Respondent shall pay the child’s special and extraordinary expenses in proportion to their incomes in accordance with the expenses outline in Section 7 of the Child Support Guidelines. The parties shall provide receipts to the other party for the expense and that party shall provide reimbursement directly to the other party within 14 days. Except in an emergency, special and extraordinary expenses in excess of $100 shall not be incurred without the consent of the parties, and such consent shall not be unreasonably withheld.

[168] There is no dispute concerning health benefits through the parties’ employment for Ainsley. Therefore, I order that the parties shall maintain Ainsley on any extended health and dental benefits available through their employment. Upon either party becoming entitled to benefit coverage for Ainsley, he or she shall forthwith notify the other of the details of benefit coverage and will keep the other party notified of any changes to benefit coverage.

[169] Child support for Ainsley was claimed in Ms. Foster’s Answer. As is evident from the draft order provided, she is seeking child support only since January 1, 2020, not earlier.

[170] Child support payable is generally based on the previous year’s income. Thus, child support for 2020 is based on Mr. Morrison’s income in 2019.

[171] Based on the Ontario Child Support Guidelines, the monthly child support payable by Mr. Morrison in 2020 was $304 based on his 2019 income of $35,413. The aggregate child support arrears payable for 2020 is $3,648 ($304 x 12 months).

[172] Child support payable by Mr. Morrison in 2021 is $192/month based on his 2020 income of $24,296. As of July 31, 2021, the arrears for 2021 will be $1,344 ($192 x 7 months).

[173] The aggregate arrears from January 1, 2020 to July 31, 2021 is $4,992 ($3,648 + $1,344).

[174] I order that commencing August 1, 2021, Mr. Morrison shall pay child support to Ms. Foster for the child, Ainsley Elizabeth Harder born July 11, 2015, in the amount of $192 monthly payable on the first day of each month based on his income of $24,296.

[175] In addition, Mr. Morrison shall pay the arrears owing ($4,992) at the rate of $200/month commencing August 1, 2021 until paid in full.

[176] Further, the parties shall pay Ainsley’s special and extraordinary expenses in proportion to their respective incomes in accordance with the expenses outlined in s. 7 of the Child Support Guidelines. The party paying the expense will provide a copy of the receipt to the other party and that party will provide reimbursement directly to the paying parent within 14 days. Except in an emergency, special and extraordinary expenses exceeding $100 shall not be incurred without the consent of the parties, such consent not to be unreasonably withheld.

[177] The parties will exchange tax returns and Notices of Assessment on or before June 10 in each year starting in 2022. Mr. Morrison’s child support payable will be adjusted retroactive to January 1 of that year based on his previous year’s line 150 income net of union dues, if any. The proportionate shares of special and extraordinary expenses will likewise be adjusted retroactive to January 1 of that year.

Conclusion

[178] For the reasons above, I order as follows:

Decision-Making Responsibility

1. Ainsley’s paediatrician will be Dr. Ndur unless the parties mutually agree in writing to a different doctor.
2. If for any reason Ainsley needs to change doctors, the Respondent will consult the Applicant. If they cannot agree, the Respondent mother will make the final decision as to Ainsley’s doctor.
3. Either party may make an appointment for Ainsley to see Dr. Ndur during their parenting time as needed.
4. Each parent will notify the other promptly of all doctor and dentist appointments made including any testing and/or appointment with a specialist or optometrist.
5. Both parents may be present for any medical or dental appointment.
6. If Ainsley becomes ill or is injured requiring medical treatment, the parent in whose care she is will ensure that Ainsley gets immediate care and will promptly notify the other parent by text or email as soon as practicable.
7. The parties will consult with one another concerning major health decisions and will be guided by input from the medical professionals. If they cannot agree, the Respondent mother shall make the final decision.
8. When school resumes in September 2021, Ainsley will attend Eva Circe Cote Public School and will continue so long as she is eligible to be enrolled in the French Immersion program unless both parties agree in writing to Ainsley attending an alternative school.
9. If, for any reason, Ainsley cannot continue at that school and the parties cannot agree on an alternative school, the final decision will rest with the Respondent, provided it is not home schooling.
10. Ainsley will decide which high school she will attend.
11. Each parent may take Ainsley to religious activities while the child is in their care.
12. Either party is free to register Ainsley for an extracurricular activity that will take place only during his or her parenting time with Ainsley.
13. Neither party will register Ainsley for an extracurricular activity that will take place during the other parent’s parenting time without the consent of the other parent, such consent not to be unreasonably withheld.
14. The cost of extracurricular activity will be borne by the party who registers Ainsley in that activity unless the parties agree otherwise.
15. Both parties are permitted to attend Ainsley’s activities even if the activity falls during the other parent’s time with Ainsley.

Parenting Time and Terms

16. Based on a four-week rotating schedule during which Mr. Morrison may be on two weeks of days and two weeks of afternoons, Ainsley will be in Mr. Morrison’s care a. In week one (day shift), from after school on Monday for the remainder of that week except on Wednesday from after school until 7 p.m.. b. In week two (day shift), Monday and Tuesday until the start of school on Wednesday. c. The weekend in the middle of the two weeks of afternoon shift, from Friday after school until the start of school on Monday. If Friday is a P.D. day, the weekend will start on Thursday after school. d. Wednesdays in weeks three and four from after school until 7 p.m. if Mr. Morrison is no longer working the afternoon shift for any reason.
17. Ainsley will be in Ms. Foster’s care at all other times.
18. The parties may mutually agree to vary the schedule on a temporary or permanent basis provided that change is in writing and signed by both parties.
19. The parties will promptly notify the other of any changes to their employment and/or school and work schedule.
20. If Ms. Foster has to work after 11 p.m. on any night when Ainsley is to be in her care, she shall first offer Mr. Morrison the opportunity to care for Ainsley before using an alternate caregiver.
21. The parent in whose care Ainsley is shall make the day to day decisions for her care. Those decisions include, but are not limited to, bedtimes and bedtime routines, homework routines, discipline, meals, clothing, screen time, play time.
22. Neither party shall impose any physical discipline.
23. Neither party will disparage the other nor permit any other adult to do so in Ainsley’s presence.
24. All communications between the parties shall be by email or text using a parenting app. If they cannot agree on the parenting app to use, they will use My Family Wizard.
25. All communications between the parties shall be amicable and respectful.
26. All communications between the parties shall be child focused.
27. Neither party will send messages to the other through Ainsley.
28. The parties shall not engage in any conflict, direct or indirect, in Ainsley’s presence.
29. To the extent practicable, pick ups and drop offs will take place at the bus stop for Ainsley or at her school provided notice is given in advance to the school and other parent if at the school.
30. All other exchanges will be done at a mutually agreed upon Tim Horton’s in St. Thomas or such other location as the parties may mutually agree.
31. Neither party will discuss adult issues with Ainsley. For greater certainty, such discussions include, but are not limited to, any litigation involving Ainsley or her siblings, any current or past conflicts between the parties, any healing or special powers, visions, spirits or demons.
32. Neither party will expose Ainsley to exotic dancing, escorting, or prostitution or anyone engaged in those activities. For greater certainty, that includes discussing his, her, or the other parent’s past, current or future pursuit of such activities.
33. If either party wishes to travel outside of Elgin and Middlesex counties with Ainsley during their care time, that parent will so advise the other parent and provide particulars of accommodation, flights, the purpose of the trip, and shall provide a contact number.
34. Either party may apply for a passport for Ainsley at his or her expense. The other parent will consent to and sign such papers as are necessary for that purpose.
35. If a parent wishes to travel outside of Canada with Ainsley, he or she shall provide at least 60 days notice to the other parent together with the itinerary, accommodation and flight details, the dates of travel and location, and the activities they anticipate doing. The non-travelling parent shall not unreasonably withhold his or her consent to the trip and will execute such consent as may be needed for that trip.
36. Both parents shall keep the other informed of Ainsley’s school and extracurricular activities and any assignments etc. that may be pending. They will likewise inform the other parent of any school trips, outings, performances, meet the teacher dates etc..
37. Both parties are entitled to access information directly from third-party service providers including doctors, dentists, teachers, and counsellors. If necessary, the parties shall sign directions to such third-party service providers to facilitate the other’s access to information about Ainsley.
38. Both parents will be listed as emergency contacts with Ainsley’s school.
39. Each party shall obtain his or her own school calendar and school notices.
40. The parties shall share with each other a complete list of names and contact information of any health care provider, educator, etc. that is caring for the child.
41. Each party shall promptly notify the other of any significant information regarding the welfare of the child including but not limited to physical or mental health records, performance in school, and extracurricular activities.
42. The parties shall encourage a positive relationship between Ainsley and the other parent and shall do nothing that would estrange or alienate Ainsley from the other parent.
43. Neither parent will post any photographs of Ainsley on social media nor permit any other person to do so.
44. Neither parent will post anything on social media that is disparaging of the other parent.
45. Neither party will apply to change Ainsley’s surname.
46. If either party re-partners, he or she will promptly provide the other with a completed and signed Form 35.1 or its equivalent under the Family Law Rules.
47. The regular parenting schedule is suspended and replaced with the following schedule for the holidays below: a. Summer vacation – commencing on the Friday of the last week of school until Labour Day, Ainsley will be with each parent on a week on/ week off basis. In odd numbered years, the first week will be with the Applicant and if even numbered years with the Respondent. The week will go from Friday at 4 p.m. to the following Friday at 4 p.m.. b. March Break – March Break will begin after school on the Friday and continue to the following Sunday at 6 p.m.. The parties will divide March Break evenly between them. c. Christmas Break – Ainsley will be in the Respondent’s care from 4 p.m. on December 23 to 4 p.m. on December 24, and in the Applicant’s care from 4 p.m. on December 24 to 4 p.m. on December 25. The balance of the Christmas break will be divided equally between the parties. In odd numbered years the Applicant will have first choice of dates and the Respondent will have first choice in even numbered years. d. Thanksgiving – whichever parent is scheduled to have Ainsley in his or her care on the Sunday of the Thanksgiving weekend, the other parent will have her in his or her care on the Monday from 9 a.m. to 6 p.m. e. Easter – In odd numbered years the Applicant will have Ainsley from after school on Thursday to 9 a.m. on Easter Sunday, and the Respondent will have Ainsley from 9 a.m. on Easter Sunday until school resumes on Tuesday morning, The reverse shall apply in even numbered years.

Child Support

48. Commencing August 1, 2021, Mr. Morrison shall pay child support to Ms. Foster for the child, Ainsley Elizabeth Harder born July 11, 2015, in the amount of $192 monthly payable on the first day of each month based on his income of $24,296.
49. In addition, Mr. Morrison shall pay the arrears owing ($4,992) at the rate of $200/month commencing August 1, 2021 until paid in full.
50. Further, the parties shall pay Ainsley’s special and extraordinary expenses in proportion to their respective incomes in accordance with the expenses outlined in s. 7 of the Child Support Guidelines. The party paying the expense will provide a copy of the receipt to the other party and that party will provide reimbursement directly to the paying parent within 14 days. Except in an emergency, special and extraordinary expenses exceeding $100 shall not be incurred without the consent of the parties, such consent not to be unreasonably withheld.
51. The parties will exchange tax returns and Notices of Assessment on or before June 10 in each year starting in 2022. Mr. Morrison’s child support payable will be adjusted retroactive to January 1 of that year based on his previous year’s line 150 income net of union dues, if any. The proportionate shares of special and extraordinary expenses will likewise be adjusted retroactive to January 1 of that year.

Costs

52. If the parties cannot agree on costs, they may make written submissions not exceeding 5 pages within 21 days hereof.

Released: July 21, 2021