COURT FILE NO.: FC-18-801

DATE: 20210721

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ADRIANA LOPEZ RAMIREZ

Applicant

– and –

GERARDO ANDRES CASTRO ESTUPINAN

Respondent

Self represented

Self-represented

HEARD: May 10, 11, 12, 13 and 14, 2021

REASONS FOR decision

Audet J.

1This trial was held to resolve parenting issues related to the parties’ son, Sebastian, who is now 9 years old.

2The Applicant mother, Ms. Lopez Ramirez (“the mother”), seeks a final order granting her the responsibility to make all major decisions related to the child, as well as a detailed parenting plan regulating all aspects of the parties’ co-parenting relationship. She seeks to change the current week-on, week-off parenting schedule so that Sebastian resides primarily with her and has parenting time with his father every Wednesday, overnight, as well as every second weekend (Friday to Monday) in addition to various holidays. Alternatively, she seeks to change the current week-on, week-off schedule to a 2-2-5-5 schedule. Finally, she seeks an adjustment of the parties’ child support obligations from the date her Application was filed (April 2018).

3The Respondent father, Mr. Castro Estupinan (“the father”), seeks the dismissal of the mother’s claims, and an order maintaining the current status quo. He also asks for a number of orders to be made to clarify the existing parenting order and alleviate the parental conflict.

4For the reasons set out below, I have maintained the week-on, week-off parenting schedule in place since 2015. However, I have shared between the parties the decision-making responsibilities, so that each of them has sole responsibility over certain specific areas of their son’s well-being, and shared decision-making responsibility over others. Finally, I have put into place a very detailed parenting plan in the hope that this will help reduce the parental conflict, minimize the need for contact and communication between the parents, and allow Sebastian to live the second half of his childhood without further court involvement and/or scrutiny.

Background

Background

5The parties’ relationship was brief. They began cohabiting in July 2012, married in August 2012, and separated on May 30, 2014. Their child, Sebastian, was born on June 6, 2013. He was not yet a year old when his parents separated. The mother alleges that the parties’ relationship was marked by incidents of family violence in the form of emotional abuse perpetrated by the father against her. She says that it is the father’s abusive behaviour which precipitated the parties’ separation. The father denies that he was ever abusive towards the mother, although he acknowledges that the relationship was fraught with conflict.

6At the time of the parties’ separation, they resided in their family home in Gatineau, Quebec. When the father left the home, the mother remained in it with Sebastian, and for the first five months or so, she refused to allow contact between the father and child. In her testimony in-chief, she explained that, because of the father’s erratic and aggressive behaviour, she received legal advice upon which she relied to deny contact between the father and Sebastian. This prompted the father to initiate legal proceedings in Quebec seeking an equal parenting regime.

7At what I understand to have been a first appearance before the Quebec Court on October 3, 2014, a temporary order was made granting the mother temporary sole custody of the child (as it was then called) with access to the father (the details of which I was not provided).

8Following a motion heard on March 20, 2015, the Quebec Court made a temporary order granting the parties joint custody of their child, and granting the father gradual increased access with him (increasing his access by one day per week every month) eventually leading to an equal time sharing regime (week-on/week-off) by August 2015. It should be noted that, at the time Sebastian transitioned to a week-on, week-off parenting schedule, he had just turned two years old.

9The mother testified that this transition to an equal time-sharing schedule was very difficult for Sebastian given his young age and his close attachment to his mother. She states that he experienced significant separation anxiety and that the transitions to and from his father’s home were very difficult. As a result, in the legal proceedings before the Quebec Court, the mother maintained her position that Sebastian should live primarily with her and have parenting time with his father.

10Following the March 2015 temporary order being made, the mother moved back to Ottawa, Ontario, where she resided prior to being in a relationship with the father. She removed Sebastian from the French daycare he was attending in Gatineau and placed him in an English daycare in Ottawa. Although these decisions were made unilaterally by the mother, the father ultimately accepted this new state of affairs. By the time the trial took place before the Quebec Court, the mother had been residing in Ottawa for almost two years and Sebastian, who at that time was almost four years old, had been sharing his time equally between his two parents on a week-about schedule for two years.

11On April 13, 2017, after the completion of a two-day trial, the Quebec Superior Court issued a final divorce order maintaining the joint custodial regime and equal time-sharing schedule established by the March 2015 temporary order. The court permitted each parent to communicate with Sebastian by phone, Skype, Facetime or other similar technology for 15 minutes on the Tuesday of the week during which the child was not in their care, and recommended that both parents participate in and complete a parenting course. The court also confirmed the parties’ agreement on the following points:

• That Sebastian would attend the First Words program at CHEO (due to his speech delay) and that both parents would engage, participate and collaborate in the program and any treatment plan;

• That Sebastian would be registered at the Corpus Christi Elementary School in Ottawa come September 2017 (kindergarten);

• That Sebastian would be registered in one extracurricular activity per session, to be chosen jointly by the parents and to take place on the Quebec side and in French.

12Provisions were also made for the payment of Sebastian’s expenses, taking into consideration the fact that at the time, the mother earned more than the father. The parties were required to exchange their income tax returns by July 1^st each year (hereinafter “the 2017 Final Order”).

The Ontario Application

The Ontario Application

13The mother initiated the within proceeding in Ontario exactly one year after the 2017 Final Order was made. In her Application dated April 28, 2018, she sought an order granting her sole custody and primary care of Sebastian. If the court deemed it appropriate to maintain the equal time-sharing arrangement in place since August 2015, she sought an order changing it to a 2-2-3 parenting schedule instead. The mother also sought an order refraining the father from removing the child from the Ottawa-Gatineau region without informing her of his plans, and an adjustment of the parties’ child support obligations.

14The mother’s stated reasons for seeking a change in the parenting regime have remained consistently the same since she filed her Application in April 2018, although some concerns have evolved over time. They can be summarized as follows:

• Since the Quebec Final Order was made, the father has continued to behave in a very hostile manner towards her making it extremely difficult to effectively co-parent;

• The parties are unable to communicate on any issue pertaining to Sebastien’s well-being. The father has openly and clearly stated his lack of desire to communicate with the mother and has refused to co-operate with the mother to make timely decisions in Sebastian’s best interest;

• The father has steadfastly refused to provide the mother with any information about issues or events occurring in Sebastian’s life while he is in his father’s care, or to notify her when he is leaving town with him;

• The father has unreasonably withheld his consent to sign Sebastian up for extracurricular activities, even when the mother has offered to pay for 100% of the expense, and has refused to take Sebastian to his extracurricular and social activities when he is under his care;

• The father is not taking Sebastian’s health needs seriously, including his need for counselling to address his anxiety issues, and will not cooperate in making timely decisions in that regard or in following up with recommended treatment plans;

• Sebastian has shown increased distress whenever it is time to return to his father’s care and has been very vocal about being fearful of his father. The father has not taken Sebastian’s distress seriously and has even retaliated against him when made aware of Sebastian’s feelings through the Office of the Children’s Lawyer;

• The father has consistently denied Sebastian the right to speak to his mother while he is in his care, including on special occasions such as holidays. He has also not provided Sebastian with the stability and day-to-day care that he needs for his long-term development.

15The mother takes the position that the above fully supports an order granting her sole decision-making responsibility for Sebastian, and a change in the long-standing week-on, week-off parenting schedule so as to allow Sebastian to have his primary residence with her and reduced, but meaningful parenting time with his father.

16As stated earlier, in his Answer to the Ontario proceedings, the father denied all of the mother’s allegations and took the position that her Ontario proceeding was essentially a disguised appeal of the 2017 Final Order. He stated that there were no material changes in circumstances justifying the mother’s attempt to vary the 2017 Final Order, and that on that basis alone, her Application should be dismissed. He explained that most of the allegations that the mother was making against him to support her request for a variation of the 2017 Final Order existed at the time that order was made and were made by the mother in the context of the legal proceeding before the Quebec Court.

17In the context of this trial, the father alleges that the mother has consistently attempted to minimize and reduce his role in Sebastian’s life. Although he acknowledges that communication between the parties is challenging, he says that this is largely due to the mother’s own behaviour, her constant criticism of his parenting, her attempts to fabricate situations that will shed him in a bad light as a father, and her unabating efforts to undermine his relationship with Sebastian and to influence his perception of his father. The father adds that the mother is constantly intruding in his private life under the guise of seeking information about Sebastian’s well-being, which has also resulted in limited and ineffective communication between them.

18He further alleges that these challenges have existed since the date of the parties’ separation and are not new. The father says that the mother largely makes decisions without consulting him and later seeks to impose those decisions. He states that the mother frequently fails to promptly inform him of issues arising in Sebastian’s life only to later accuse him of not responding quickly enough, or at all, and of not showing any interest in his son’s life.

19The father takes the position that Sebastian has become used to the current weekly parenting regime which has been in place for the past six years, that he knows his routine from week to week, that he is developing exceptionally well and that he shares a very close and loving relationship with him, which should be maintained and fostered by leaving things the way they are. This said, at the time of the trial before me, the father was prepared to accept an order which would grant the mother sole decision-making responsibility over important decisions affecting Sebastian, after having meaningful consultations with him, if the court felt that this would be in Sebastian’s best interests.

20As I will discuss in more detail immediately below, the Office of the Children’s Lawyer (“OCL”) was appointed in this proceeding and completed a s. 112 assessment in November 2018 (the report itself was completed in January 2019). After the parties attended a Settlement Conference on April 1, 2019, the matter was placed on the December 2019 trial list. At the request of the mother, which was not opposed by the father, the trial was adjourned to the May 2020 trial sittings because the mother had just become self-represented and needed more time to prepare.

21Afterwards, the pandemic struck, and the trial could not proceed. It was eventually placed on the January 2021 trial sittings. However, at the December 2020 Assignment Court, the mother, once again, sought the adjournment of the trial for the purpose of obtaining an updated OCL report. The mother’s request for another adjournment was put over to the Trial Management Conference scheduled to take place on January 15, 2021. At that time, Shelston J. concluded that the matter was not ready for trial, as neither party (then both self-represented) had made arrangements for a bilingual interpreter, contacted the author of the OCL report to testify or had exchanged all documentation required for the trial.

22Therefore, this trial was only heard in May 2021, three years after the Application was filed before the Court, and roughly 18 months after the OCL completed its investigation.

Involvement of the Office of the Children’s Lawyer

Involvement of the Office of the Children’s Lawyer

23On July 4, 2018, an order was made on consent appointing the OCL to get involved in this case. The OCL accepted the appointment and agreed to complete a s. 112 assessment by a clinical investigator, namely, Ms. Catherine Reid. Ms. Reid completed her assessment at the end of November 2018 and a disclosure meeting was held on December 18, 2018. As no agreement was achieved between the parties, the OCL report was completed on January 16, 2019 and filed with the court.

24For reasons that will be explored in more depth in the context of my analysis below, Ms. Reid recommended that the mother be granted sole custody of the child (at the time her assessment was completed, the changes to the Divorce Act, R.S.C., c.3 (2^nd Supp.), (the Act), had not yet come into force). Although she found both parties highly intellectual and well versed on healthy co-parenting, she concluded that they were not displaying an ability to manage their discord or build a solid co-parenting foundation for the sake of Sebastian. Their inability to achieve consensus on decisions with respect to their son, without much discord, in her view, militated against a joint custodial regime. She stated:

Although joint custody would be optimal, it would be remiss for this clinician to make such a recommendation given the ongoing and increasing difficulties with the parties’ ability to communicate and collaborate for Sebastian. The stress that this is causing them is affecting their ability to move forward. There is evidence that Mr. Castro is not always in agreement with Ms. Lopez’s opinion regarding Sebastian's needs and therefore delaying assessment/treatment, in particular, addressing his speech delay. Sebastian was, however, indeed diagnosed with a speech delay and underwent therapy for this.

25Ms. Reid recommended that all efforts should be made to come to a consensus for major decisions and to use a Parenting Coordinator to facilitate this. Should a consensus not be achieved, the mother could then make the final decision.

26Despite the proposed change in the decision-making process, Ms. Reid, nonetheless, recommended that the equal time-sharing regime in place be maintained, but that it be changed to a 5-2-2-5 schedule given the evidence that Sebastian did indeed have difficulties being away from his mother. Counselling for Sebastian was recommended to help him cope with his symptoms of stress and anxiety around being separated from his mother, with both parents fully participating in such counselling. The clinical investigator also made various other recommendations aimed at reducing the parental conflict and Sebastian’s exposure to it.

27Following the release of the OCL’s report, both parents filed disputes. I do not feel the need to repeat the parents’ respective objections to Ms. Reid’s conclusions, mainly because after having read both disputes, I do not agree with any of the parents’ stated objections. In my view, the clinical investigator’s assessment was thorough, her recommendations sound, and any factual mistakes she might have made were immaterial to her final recommendations. My own conclusions (and the order that I make) differ from hers only because of two main factors; the coming into force of Bill C-78, which changed the way decision-making responsibilities may be allocated between the parents, and the passage of time (more specifically, Sebastian is 2 ½ years older than he was when the assessment was completed). Ms. Reid’s testimony given during this trial played an important role in my decision-making process in relation to the parenting arrangements that would be in Sebastian’s best interest at this time.

Parenting Arrangements

Legal framework

Parenting Arrangements

28The 2017 Final Order was made under the Divorce Act. Therefore, this variation proceeding is brought pursuant to s. 17 of the Act, which provides that a court of competent jurisdiction may make an order varying, rescinding or suspending, retroactively or prospectively, a parenting order or any provision thereof, on application by either or both former spouses.

29Section 17(5) of the Act provides that before the court makes a variation order in respect of a parenting order, the court must satisfy itself that there has been a change in the circumstances of the child since the making of the initial order sought to be varied. If such a change has indeed occurred, subsection 17(3) provides that the court may include in the variation order any provision that could have been included in the original order, and the court has the same powers and obligations that it would have had when making the original order.

30Pursuant to s. 16.1(4) of the Act, when making a parenting order, the court may:

(a) allocate parenting time;

(b) allocate decision-making responsibility;

(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.

31Any order related to the parenting of a child must be made taking into account only his or her best interests, giving primary consideration to the child’s physical, emotional and psychological safety, security and well-being, in light of the following non-exhaustive factors:

(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.

Material change in circumstances

Material Change in Circumstances

32As stated above, before a court can vary a previous final order made pursuant to the Act, the court must find that there has been a change in the circumstances of the child since the making of the initial order. The recent amendments to the Act did not affect the long-standing legal principles established in relation to the need for a material change to have occurred before a party can seek to change a final parenting order (although the terminology in relation to parenting orders has changed). Those principles were recently reviewed and summarized by Justice Pazaratz in F.K. v. A.K., 2020 ONSC 3726 as follows:

48 To determine a request to change custody, access or parenting order, the court must embark upon a two-stage inquiry. Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 (S.C.C.).

49 The first step: There must be a material change in circumstances since the last order was made.

a. There must be a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet those needs.

b. The change must materially affect the child.

c. It must be a change which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order. The change must be substantial, continuing and “if known at the time, would likely have resulted in a different order.” Droit de la famille - 091889, 2011 SCC 64 (S.C.C.).

d. The finding of a material change in circumstances is a prerequisite to an examination of the merits of an application to vary an existing custody or access order.

e. If there is no material change in circumstances, the inquiry ends. The court would be without jurisdiction to vary the order. Litman v. Sherman, 2008 ONCA 485 (Ont. C.A.).

f. If there is a material change, the court must move to the second stage and consider the best interests of the child and whether to vary the original order.

50 The second step:

g. If a material change in circumstances has been established, the court then embarks on a fresh inquiry into the best interests of the child.

h. In this fresh inquiry, both parties bear the evidentiary burden of demonstrating where the best interests of the child lie. There is no legal presumption in favour of the custodial parent, or in favour of maintaining the existing timesharing arrangements. Bubis v. Jones [2000] CarswellOnt 1243 (Ont. S.C.J.), 2000 CanLII 22571 Persaud v. Garcia-Persaud, 2009 ONCA 782 (Ont. C.A.); Deslauriers v. Russell, 2016 ONSC 5285 (Ont. S.C.J.); Roloson v. Clyde, 2017 ONSC 3642 (Ont. S.C.J.).

i. The court must ascertain the child’s best interests from the perspective of the child rather than that of the parents. Parental preferences and rights do not play a role in the analysis, except to the extent that they are necessary to ensure the best interests of the child. Gordon v. Goertz; Young v. Young, 2003 CarswellOnt 63 (Ont. C.A.), 2003 CanLII 3320.

j. The child should have maximum contact with both parents if it is consistent with the child's best interests. Gordon v. Goertz; Rigillo v. Rigillo, 2019 ONCA 548 (Ont. C.A.).

k. Any assessment of the best interests of a child must take into account all of the relevant circumstances pertaining to the child's needs and the ability of each parent to meet those needs. Gordon v. Goertz.

33I am of the view that when the mother initiated her variation proceeding in April 2018, there was no material change in circumstances which would have supported a variation of the 2017 Final Order. I find that her application to vary the 2017 Final Order was, indeed, a disguised appeal of that decision, as claimed by the father. Had the trial been heard at that time, I would have dismissed the mother’s application in its entirety.

34However, three years have since passed. The passage of time and the delays incurred in bringing this matter to its due completion (for the reasons set out above) have allowed for three more years of parental history to be added on to the three years that preceded the 2017 Final Order, and the one year in between. Essentially, for nearly all of Sebastian’s life, the conflict between his parents has continued and negatively impacted their relationship with one another, and their relationship with many of the professionals involved in Sebastian’s life. The parents’ conflict and inability to communicate and cooperate effectively have made it very difficult for them to make timely decisions in relation to Sebastian’s needs and overall well-being. Sadly, Sebastian has been exposed to this conflict and has suffered as a result.

35I find that the long-standing parental discord has impacted Sebastian’s well-being and, in and of itself, constitutes a sufficiently material change in circumstances allowing for this Court to review the parenting arrangements in place between the parties. More especially, it is clear that the parents need a much more comprehensive parenting plan to help them to efficiently co-parent their child.

Analysis

Analysis

36With that in mind, I must now decide what parenting order is in the best interests of Sebastian, having regard to all the factors set out in s.16 of the Act.

37I find that both parents have much to offer to Sebastian. Both parents are highly educated and intelligent people who have been employed on a full-time basis by the Federal Government for over ten years. Although the ongoing litigation which started seven years ago has taken a significant financial toll on both parties (financial and emotional), they were nonetheless able to offer Sebastian the safety of a good home and meet all of his day-to-day needs.

38The mother is from Mexico, where her parents still reside. She does not have any brothers and sisters, and the evidence did not permit me to ascertain whether she has any extended family in Mexico other than her parents. It is clear, however, that she continues to have a very strong connection to her country of origin, and she has also made some friends and developed a small support network in Ottawa. The mother has not re-partnered, and she lives alone (with Sebastian) in a home located in downtown Ottawa.

39The father is originally from Columbia but his entire family, consisting of his parents and two sisters, live in Ontario. His parents and one sister, Maria, reside in the London/Toronto area and his other sister, Loren, lives in Ottawa. Loren and her partner, Marcel, have two twin boys (age 3) and they live in a home in Gatineau, Quebec. For several years now, the father has continuously resided with Loren and her family, in their Gatineau home. The father explained that he made the decision to move in and reside with his sister primarily for financial reasons. He also moved in because Loren and her partner Marcel have been an important source of support for him emotionally. Sebastian has his own bedroom in his aunt’s home, and he shares an exceptionally close bond with his twin cousins.

40The father is romantically involved with a woman, “Mimi”, whom he started dating in 2018. They do not live together. Mimi lives in her own home in Gatineau and occasionally, when Sebastian is in his father’s care, they will stay overnight at her place. Sebastian has gotten to know Mimi well and I have no evidence that would suggest that Sebastian is not comfortable in her company. Sebastian apparently loved to spend time with Mimi’s dog, who unfortunately passed away recently.

41The mother speaks at least three languages, but English is the language that she speaks at home with Sebastian. Sebastian is closely bonded to his maternal grandparents, who only speak Spanish. As a result, Sebastian has been exposed to Spanish and has started to learn this language from a very young age. The father also speaks at least three languages, but French is the language that is mostly used in the father’s home, and in which the father and Sebastian communicate. Loren speaks to her own children in Spanish, so Sebastian is also exposed to that language when he is in his father’s care.

42As stated earlier, when the parties separated, Sebastian was only 5 months old. There is no history of co-parenting between these parents, and no established relationship of mutual trust as it relates to their ability to parent. In addition, the evidence before me makes it clear that their very short-lived marriage was fraught with conflict and, as will be mentioned later in these reasons, some emotional abuse. Further, the parties’ co-parenting experience as a separated couple began with the mother denying the father contact with the baby for five months. After about five months of reinstated, albeit limited, parenting time between Sebastian and his father, an equal parenting time schedule was imposed by the court, on a week-on, week-off basis.

43I have no difficulty understanding that, in these circumstances, Sebastian, but to a much larger extent, his mother, struggled with the new parenting regime. The evidence before me makes it clear that, during the first five months of Sebastian’s life, while the parties were still together, the mother was Sebastian’s primary caregiver. During the five months following the parties’ separation, she was his sole caregiver. It took another ten months before the father became a truly equal caregiver to Sebastian (in August 2015, by virtue of the temporary order of March 2015), at which time Sebastian began spending a week with each of his parents in alternance. Therefore, for the first two years of his life, Sebastian’s primary caregiver was his mother.

44It is not my place to question or second-guess the decision made by the Quebec Superior Court back in March 2015. There were certainly many good reasons to implement an equal time-sharing regime for Sebastian in this case. In retrospect, however, given Sebastian’s young age and the fact that the mother had been his primary caregiver for two years, it appears that the week-on week-off regime resulted in Sebastian being away from his primary caregiver for too many days in a row, causing him some stress and anxiety when it was time to leave his mother’s care to be with his father. Perhaps at that time, a 2-2-3 or 2-2-5-5 parenting regime would have been easier for him to get accustomed to.

45In any event, the week-on week-off regime was confirmed at trial and I can only assume (I was not provided with the court’s Reasons for Judgment) that the court at that time did not feel, based on the evidence presented to it, that Sebastian was struggling with the week-on, week-off parenting regime in place. The evidence before me, however, supports a finding that, during the two years that followed the 2017 Final Order, Sebastian did struggle with being away from his mother for a whole week at a time.

46The evidence confirms that on several occasions when Sebastian was transitioning from his mother to his father’s care, he would “cling” to his mother and it would take some time (a few minutes or a few hours) for him to settle in his father’s care. I also find, based on the testimony of the father, which on this point I accept, that the mother’s behaviour at exchanges contributed to Sebastian’s anxiety. Instead of reassuring him and encouraging him to go and have fun with his father, she added to Sebastian’s stress by pleading with the father to leave Sebastian with her, and by showing Sebastian that she, too, was very stressed to leave him in his father’s care. Sebastian was exposed to his parents’ conflict and hostility at exchanges (during which third parties were sometimes present), which in turn also increased his level of stress and anxiety.

47In the context of her parenting assessment, Ms. Reid conducted observation visits in both parents’ homes, and privately interviewed Sebastian at his school. The mother relies on statements made by Sebastian during his interview with Ms. Reid to support her allegation that Sebastian is afraid of his father, that he wishes to live primarily with his mother and that the father’s aggressive and/or abusive behaviour is the cause of Sebastian’s stress and anxiety.

48When Ms. Reid interviewed Sebastian (who at that time was only five years of age), Sebastian shared with her the following:

• that sometimes his father “gets upset with him”;

• that his father “makes him scared ‘a little bit’”;

• that “sometimes, he wants to stay longer with his mother”;

• that he “gets excited when he gets toys and when he is with his mother”;

• that he is “sad when he is with his father because he misses his mother”;

• that he is “a ‘little bit’ scared of his father”;

• that he is a “’little bit’ scared when his father picks him up at school because he wants his mother to be there”;

• that when he is at school “he is ‘a little bit’ scared because he wants to be with his mother”;

• that when he was going to daycare, he “wanted to stay with his mother too”.

49While I accept that these statements, taken in isolation, may suggest that Sebastian is not comfortable in his father’s care, that he is afraid of him and that he would prefer to spend most of his time with his mother, when assessed in conjunction with the entire evidence before me, I find that they do not support such findings.

50While it is unquestionable that Sebastian has a very close and loving relationship with his mother, with whom he was definitely more closely bounded and aligned when he was younger, the evidence before me makes it clear that Sebastian also shares a close and loving relationship with his father. During the father’s observation visit, Ms. Reid observed Sebastian to be comfortable in his father’s care, resting his head on his father’s shoulder while he read him a book, wriggling around on the couch with him and playing with his father’s ears, and generally participating in activities with his father with ease and joy.

51During this trial, the father shared with the court much testimony about his time with Sebastian. He explained that they do all sorts of activities when they are together, which included biking, camping, fishing, going to the beach, gardening, going to museums and, generally, filling up most of their free time with a wide variety of activities. The father also provided fifteen pages of pictures of him enjoying those activities with Sebastian from a very young age, where you can see Sebastian clearly having a great time.

52The father’s evidence was supported by the testimony of his two sisters and his brother-in-law, all of whom I found to be very credible. They all reaffirmed how dedicated the father is to Sebastian and how they enjoy their time together. They described the close bond that they also share with Sebastian and they talked about the time they spent with him in the context of family reunions, activities and day-to-day life. Loren, in particular, seemed especially fond of Sebastian. This is not surprising since he lives with her and her family while in the care of his father. Loren has stepped in on occasions to care for Sebastian when the father could not, and it is evident that she is a great source of support for Sebastian and the father.

53By everyone’s account, Sebastian is also extremely close to his twin cousins. The mother also acknowledged the profound bond that Sebastian shares with them, and how much he enjoys playing with them, caring for them and being in their company, something, I am told, the twins reciprocate fully.

54Not only does the evidence support a finding that Sebastian enjoys his time with his father, and that he is very well cared for when he is in his care, the evidence related to Sebastian’s overall well-being strongly suggests that he is developing and adapting very well, thriving in school, and that his general behaviour does not change whether he is in his mother’s care of in his father’s care.

55By all accounts, Sebastian is a happy, intelligent and endearing boy who really enjoys school. In the context of her assessment, Ms. Reid interviewed Sebastian’s kindergarten teacher, his school principal as well as Sebastian’s extended daycare provider. A review of her interview notes confirms that Sebastian was observed to be happy to see his father when he picked him up at daycare, that Sebastian’s behaviour was consistent on each week regardless of the parent he was with, and that he was happy when observed with each parent. According to his kindergarten teacher, Sebastian was doing great and she reported no concern. She stated that Sebastian had made no comments about preferences and seemed to be happy and well taken care of all the time. According to his kindergarten report card, Sebastian was progressing well in school and had settled well into the daily routine.

56A review of Sebastian’s report cards for the three years that followed reveals that Sebastian continues to thrive in school, that his confidence has grown significantly, that he shows excitement and curiosity, that he is progressing very well, and that there are no concerns whatsoever in relation to his learning or his overall behaviour and well-being.

57Ms. Reid testified during this trial and was able to provide clarifications on her earlier conclusions and recommendations. More specifically, she provided a more detailed explanation as to why the statements made to her by Sebastian had not raised significant concerns on her part in relation to the equal time-sharing arrangements in place between the parents. She explained that Sebastian’s comments, viewed with all the other information gathered during her assessment, did not support a finding that Sebastian was afraid of his father or uncomfortable in any way in his care; it showed that Sebastian experienced stress and anxiety from being away from his mother (regardless of who, aside from his mother, was caring for him). This was supported by Sebastian missing his mother, not only while in his father’s care, but also when at daycare and at school. This, she explained, was not surprising given that Sebastian was more closely bonded with her mother (at age 5) and more closely aligned with her at the time.

58Ms. Reid explained that this is precisely why she recommended a change from the week-on, week-off schedule and the implementation of a 2-2-5-5- regime instead. She felt that by reducing the number of days during which he would not see his mother, while at the same time maintaining and fostering a healthy and strong relationship between Sebastian and his father, this arrangement would alleviate Sebastian’s anxiety. This is also why Ms. Reid recommended to the parents that they begin counselling with Sebastian, the purpose of which was to work with the parents and with Sebastian to implement strategies to help him manage his anxiety around being away from his mother.

59At trial, Ms. Reid maintained her position that it would not be in Sebastian’s best interests to move away from an equal time-sharing arrangement and to place him in his mother’s primary care. Quite the contrary, she felt that it was important for Sebastian to maintain his close connection with both parents and instead, to learn to cope with being away from his mother, including with professional assistance in the form of counselling. This is a conclusion that I share fully based on the evidence provided to me during this trial.

60However, while I agree that moving towards a 2-2-5-5 or a 2-2-3 parenting regime might have been in Sebastian’s best interests when he was 5 years old, things have changed since Ms. Reid’s assessment was completed and I do not believe that this type of arrangement would serve Sebastian’s best interests at this time. Sebastian has grown up since the assessment was completed and he is now 9 years of age. As he grew older and gained more confidence and independence, he appears to have grown out of his feelings of anxiety from being away from his mother.

61The father, as well as all the witnesses who testified on his behalf during this trial, confirmed that while Sebastian did struggle at times at the beginning of his parenting weeks with his father over the years, including after his telephone calls with his mother while in his father’s care, this has not been the case since Sebastian turned 7 or 8. The mother herself acknowledged that, at least since the beginning of the pandemic (in March 2020), things have clearly improved and Sebastian does not seem to experience stress or anxiety anymore at the time he transitions into his father’s care.

62Sebastian has followed a week-on, week-off routine since he was two years old. I accept the father’s evidence that he is well settled in that routine, which is detailed in a calendar that he and his father keep in his bedroom, and that offers him stability and predictability. I appreciate that the 2-5-5-2 routine suggested by Ms. Reid, and advocated by the mother as an alternative to her request for Sebastian to be in her primary care, would have the significant benefit of allowing each parent to register Sebastian in extracurricular activities on their own parenting time without the need to consult one another. This has been an important source of frustration and contention between the parties over the past few years.

63However, in the specific circumstances of this case, I am of the view that the disadvantages of this type of parenting arrangement outweighs its benefits. As I have mentioned previously on several occasions, and as will be explained in more detail below, the conflict between these parents has not abated. Their ability to be in the presence of each other without conflict, and their ability to communicate and cooperate with each other effectively, is minimal. Sebastian has been exposed to that conflict and it has undoubtedly affected his emotional health.

64For those reasons, it is crucial, in my view, to minimize the need for communication between these parents, and the need for them to be in the presence of each other. Being able to parent Sebastian for a whole week at a time without frequent transition to and from each parent’s homes, including mid-week, has the major benefit of limiting the need for contact and communication between the parents, which is in Sebastian’s best interests.

65For those reasons, the equal time-sharing, week-on week-off parenting regime shall remain in place.

Decision-Making Responsibilities

Decision-Making Responsibilities

66I have concluded that it was necessary for the father to retain some decision-making responsibility in relation to Sebastian’s care in order to foster and preserve his role as Sebastian’s parent, and to ensure his continued involvement in his upbringing and overall development. I come to that conclusion because I harbour significant concerns about the mother’s ability and willingness to allow the father to continue to play an important role in Sebastian’s life in the event that she is granted sole decision-making responsibility on all important aspects of his care.

67I will premise my reasoning in this regard with the following comments. I find, as a fact, that the mother is a very capable and caring parent, with excellent parenting skills. This was readily acknowledged by the father. When the mother has Sebastian in her care, he is showered with attention and it is obvious that their bond is a very strong one. Sebastian is the center of the mother’s universe and her entire life seems to revolve around him. I find that the mother has a very difficult time being separated from Sebastian, something that she seems to have had difficulty shielding Sebastian from, and I find that this has contributed to Sebastian experiencing anxiety and stress around being separated from her.

68I share Ms. Reid’s conclusion that the mother’s parenting instincts and commitment do not cease when Sebastian is not in her care. She can be hyper-vigilant, controlling and too demanding in relation to the extent of the information that she seeks from the father about Sebastian while he is in his father’s care.

69The mother’s own testimony, and the many emails adduced in evidence during this trial by both parties, confirm that the mother frequently communicates with the father during his parenting time to raise issues and concerns and to seek detailed information on how and what Sebastian is doing. These frequent communications from the mother are perceived by the father as unreasonable intrusions in his parenting time with Sebastian on non-important issues and as a result, he often he ignores them. The father testified that he became so worn-out by the mother’s constant communications during his parenting time, which are often filled with accusatory or derogatory comments, that at one point, he stopped taking the mother’s calls and insisted that all their communications be in writing.

70The father views the mother’s constant requests for information about matters big and small related to Sebastian as mere attempts by her to pathologize Sebastian to demonstrate that he is a disinterested or inadequate parent, and that she is a superior parent. In turn, the mother points to the father’s failure to effectively respond to her phone calls and emails as supporting her position that the father is unduly hostile towards her and that he simply refuses to communicate and co-parent effectively. The mother’s weekly reports of Sebastian’s progress and development while in her care are lengthy, detailed, and probably far more exhaustive than what the father cares to receive. The father’s weekly reports are significantly shorter and limited to matters which he considers important. When there is nothing important to report, there is no weekly report. The father rarely, if ever, seeks information from the mother when Sebastian is in her care.

71I find that the mother’s expectations about the extent of the information that the father should provide to her about his parenting time with Sebastian is unrealistic. As an example, the mother is of the view that the father should notify her when he enters into a new romantic relationship, even if that person does not reside with the father. She feels that as Sebastian’s mother, she should be kept appraised of what goes on in the father’s household and of any close relations he maintains with third parties. She feels that she should have been informed of the identity of the person who purchased a bike for Sebastian; who purchased him a trampoline; who cuts his hair when he is in the care of his father; and who Sebastian was with while enjoying a family vacation with his father. It is no surprise that Ms. Reid recommended to the mother that she remain focussed on what she can control and on her response to situations she is presented with, and not on achieving an illusion of text-book co-parenting.

72This said, I find that the father has, at times, been unresponsive to the mother’s legitimate concerns and/or inquiries, which has made things worse. For instance, the evidence before me reveals that obtaining the father’s prompt consent for Sebastian to travel to Mexico to visit his maternal grandparents has generally required the involvement of the mother’s counsel. Similarly, the father has, on occasion, travelled outside of Ottawa with Sebastian without notifying the mother of his plans and, when he received a slew of emails from the mother demanding to know where her son was, he has not always responded in a way that would have assuaged the mother’s concerns.

73Another of the mother’s complaints about the father is that he unduly limits her ability to communicate with Sebastian while he is in his father’s care. In his testimony, the father explained that Sebastian did not react well in the past after his telephone conversations with his mother when he was in his father’s care. The father testified that Sebastian would often become sad, tearful and withdrawn and it would take some time for him to become his normal self after his calls with his mother. The father’s testimony in this regard was supported by his sister’s evidence, as she was often present during and after the mother’s calls to Sebastian. The father explained that early on, he listened to some of the mother’s calls to Sebastian to see what was being discussed that altered Sebastian’s mood so drastically. He testified that the mother would repeatedly tell Sebastian how much she missed him, tell him not to worry, that he would see her soon; thus giving him the negative message that his time with his father, although difficult, would soon come to an end.

74As a result, from early on, and to reduce the emotional backlash associated with the mother’s phone calls to Sebastian during his parenting time, the father made the decision to stick with the strict terms of the 2017 Final Order which provided for one telephone contact per week on Tuesdays, for a maximum of 15 minutes. The mother has since repeatedly asked to be allowed to speak to Sebastian more frequently, for longer periods of time and by videoconference (Face Time or some similar platform) instead of by phone, something that the father has generally refused to allow.

75I find that the father’s refusal to allow more frequent contacts between Sebastian and his mother, or to permit video conferencing instead of telephone calls, was also motivated by other considerations. As stated earlier, the father is of the view that the mother’s constant communications and requests for information during his parenting weeks are nothing more than intrusions in his private life under the guise of seeking information about Sebastian’s well-being. He adds that any information provided to the mother is often used to criticize his parenting abilities or to fabricate situations that will shed him in a bad light as a father.

76As a result, the father experienced a heightened need to protect his privacy and minimize opportunities for the mother to access information about his time with Sebastian. In the father’s view, allowing Sebastian to FaceTime with his mother (as opposed to a simple phone call) would allow the mother to see where Sebastian was located at the time of the call, and with whom, which would then expose the father to more questions and more accusations from the mother. On the evidence before me, I can hardly blame him for having stuck to the strict terms of the 2017 Final Order in relation to phone calls between Sebastian and his mother.

77The evidence in this trial established quite clearly that the mother can be quite demeaning towards the father about his ability to care for and parent Sebastian. She is undoubtedly of the view that her parenting skills are far superior to the father’s. Despite her professed understanding of the importance of the father’s role in Sebastian’s life, in reality, she is somewhat dismissive of his role as Sebastian’s parent, and has not hesitated to assert herself as the better parent to him and to others, expressly criticizing the father’s parenting abilities in her communication with the many professionals involved in Sebastian’s life.

78The mother perceives herself as Sebastian’s primary caregiver, and as such, she has often gone to great lengths to control the information provided to third parties involved in Sebastian’s life (teachers, health professionals). For instance, while the mother alleges that the father has impeded on her ability to communicate with Sebastian’s school, instructing the school not to share information with the mother unless he was present, I find that it is actually the opposite that occurred. It is the mother who unilaterally registered Sebastian in his new school in Ottawa when she moved to Ontario with him. She is the one who filled out the registration form and she was the school’s main point of contact for Sebastian. When the mother found out that the father had scheduled his own parent-teacher meeting with Sebastian’s teacher, she sent a copy of the 2017 Final Order to the school instructing them that they were not to provide the father with information unless she was also present or copied on the same information. Despite the school’s pleas to the mother to allow them to send to each parent their own individual forms to sign, the mother has insisted that one (and only one) copy of any form be provided to the parents to ensure that both obtained the same information and signed the same forms (and, in reality, to ensure that the father would not be able to provide the school with information without her knowledge).

79Following the 2017 Final Order, Sebastian’s dental care continued to be provided by the same dentist as his father in Gatineau (Clinique Dentaire Yves Barrette). In September 2018, the father had scheduled a regular check-up for Sebastian at his Gatineau dentist and advised the school (copying the mother) that Sebastian would not be in school that morning as he had a dentist appointment. Upon receiving the father’s email, the mother (who had not been informed of the routine dental appointment) called the dentist to cancel the appointment, advising the dentist that she had not been advised of this appointment, that there was ongoing litigation which would determine where Sebastian would live on a go forward basis and that, in any event, Sebastian no longer lived in Quebec (this was not true since he continued to share half of his time there) and no longer had a Quebec health card. She also immediately wrote the following note to the school:

Sebastian Castro does not have an appointment tomorrow morning. Sebastian should be expected to show up at school tomorrow.

Mr. Castro is making again making [sic] an unilateral decision and I am requesting the school support on this matter for the wellbeing of Sebastian. I am copying the social worker from OCL who is currently leading an investigation.

80While trying to control the information provided to third parties about Sebastian’s care, the mother also took those opportunities to undermine the father’s role as a parent and to influence them negatively about the father. For instance, when the mother registered Sebastian at his new school in Ottawa, she made a point to write the following in his registration form:

Currently, Sebastian has a share custody and spends every other week with each parent. However, this situation is likely to change soon as a Court hearing is scheduled in April and the demand is likely to be accepted and giving the mother the exclusive custody, making Sebastian an Ontario resident only.

81More recently, in April 2021, Sebastian had a small bump removed below his eye (a folicularias). This was a minor surgery with topical anasthetic. Polysporin was applied to the wound and a small bandage placed. Following the surgery, Sebastian fell while riding his bicycle during his father’s parenting week. While the handlebar hit his face, and his wound bled a little, Sebastian was not hurt, and his father simply replaced the bandage after having checked the wound to make sure it was OK. This incident was by no means a serious affair nor an emergency, so the father only informed the mother of this “accident” a few days later, in the context of his weekly report at the end of his parenting week.

82The mother’s reaction to the news that Sebastian had fallen from his bike which had caused his wound to bleed is illustrative of how she can overreact and use benign day-to-day occurrences to try to undermine the father’s parenting abilities to third parties involved in his care. First, she sent the following message to the father:

Andrés,

Why I wasn’t notified of the accident earlier? I also told you to let me know if you would require the bandaid given to us by the doctor. Andrés, the type of adhesive is important when you are covering stitches!!! At the very least you should have consulted me. It would have been better not to put anything at all but I had the special bandage.

Did you wash the area, or did it get wet? This is important. Andres, taking would care of this wound was crucial to help reduce the size and appearance of the scar.

You didn’t read my email, or you ignored it. I was very clear on the instructions; those were very simple to follow yet you did the opposite. Did Sebastian hit his nose near the area of the surgery?

You were supposed to show pictures or video or call his doctor to confirm that everything was fine.

You were supposed to call me right away.

I am beyond upset, worried and concerned that something that was so delicate and crucial for Sebastian's recovery got completely neglected by you.

Please provide pictures or a video and a detailed recount of what happened in English because I will need to explain all this to Dr. Chung on Tuesday.

83Then, not being satisfied with the father’s reassurances that he had checked the wound, applied a new sterilized bandage to prevent infection, and that the bleeding was very minor and stopped a few minutes after Sebastian’s fall, the mother sent the following message to Dr. Chung, the surgeon who performed the surgery at CHEO:

I am reaching out to you because it seems that Sebastian had an accident last weekend (5 or 6 days after his surgery) and I was only notified last night. Based on the email below (in French) Sebastian hit his nose with the handlebar of his bike and apparently there was some bleeding. Also, contrary to the recommendations, the father changed the bandage and replaced it.

I haven’t seen my child (not even in videoconference) since before the accident and I was not aware of it but I am copying the father because you are in a better position to make the pertinent questions regarding the injury and to assess Sebastian’s condition. I have asked the father to submit a video or pictures of the current condition of my child but I’m still waiting. However, it would be probably more helpful if you can receive them at the same time, so we can asses to get if there is a need for a visit to CHEO or we can wait until April 7 (follow-up appointment).

The father hasn’t shared much information with me, but he cannot deny this information to CHEO since it has a direct impact on my child’s well-being.

84I cannot blame the father for limiting the amount of information that he provides the mother about his time with Sebastian as I come to the conclusion, as argued by the father, that the mother has, on several occasions, engineered situations for the purpose of undermining the father’s parenting abilities to this court, and to professionals involved in Sebastian’s care.

85For instance, the mother maintained the position throughout this litigation that the father had ignored her many requests to enroll Sebastian in speech therapy when he was younger, delaying access to this service by one year. In reality, the father was never made aware that Sebastian’s doctor had made a referral for Sebastian to attend speech therapy. The one-year delay which the mother blamed on the father’s refusal to consent was in fact the result of a long waitlist for this service, not the father’s stated objections to speech therapy. I accept the father’s evidence that he learned about the referral for the first time in the middle of the trial held before the Quebec Court in 2017. Once he became aware of this, he readily consented to it and the 2017 Final Order makes it clear that Sebastian’s enrollment in speech therapy was made on consent of both parties.

86In anticipation for the March Break 2019, during which Sebastian was to be in the care of his father, the father sought the mother’s confirmation as to whether she intended to travel to Mexico with him that year (he was prepared to forego his week to allow Sebastian to travel to Mexico to see his grandparents). The mother waited for weeks before confirming that she had no plans to travel. When the father responded that he would then take Sebastian for March Break as per the court order, the mother responded that he had not confirmed same within the time limit stated in the order, and therefore, she would keep him, making sure to let him know, in passing, that she was disappointed that he did not make Sebastian his priority.

87On August 1, 2018, the mother brought Sebastian to an emergency dentist in Ottawa because she was concerned about a black spot on one of his teeth (a “serious” cavity, according to the mother, which she blamed entirely on Sebastian’s poor dental hygiene when he is in the care of his father – something that is not in any way supported by the evidence before me). The dentist told the mother to come back the next day for a filling. She did not inform the father of any of this. It is only the next morning, while she was at the dentist with Sebastian, that the mother communicated to the father that Sebastian was having an “emergency” filling done and invited him to attend the procedure to be with and support Sebastian. When the father responded that it was too late for him to make arrangement to leave work on such short notice, the mother accused him of not putting Sebastian’s interests first.

88The mother’s testimony also contained numerous allegations against the father which were simply untrue or clear exaggerations. For instance, the mother alleged that, until the OCL released its report, the father had consistently refused to consent to Sebastian being enrolled in extracurricular activities, and that he would refuse to drive him to Ottawa for his scheduled activities on his parenting weeks. The mother’s proposals, however, sought to register Sebastian in extracurricular activities in Ottawa. At that time, the father did not have a vehicle, which made it very challenging for him to take Sebastian to activities in Ottawa during his parenting time.

89The mother also fails to mention that pursuant to the 2017 Final Order, Sebastian was to be registered in one extracurricular activity per session, to be chosen jointly, and to take place in Gatineau, in French. While the father proposed different activities in Gatineau, the mother was not agreeable. When the father registered Sebastian in soccer, in Gatineau, the mother stopped taking him to this activity within a few weeks on the basis that Sebastien did not enjoy soccer (something that the father clearly disputed).

90The mother states that after the OCL released its report, the father became more agreeable to Sebastian being registered in activities in Ottawa. The father’s testimony, which on this point I accept, is that his increased willingness to enroll Sebastian in extracurricular activities, including in Ottawa, coincided with his purchasing a vehicle.

91The mother alleged that, even when he became more agreeable to Sebastian being involved in extracurricular activities, the father would impose unreasonable terms. As an example, she testified that the father was agreeable to Sebastian taking skating lessons as long as the mother agreed not to be present during the skating lessons. The father offered more context to the mother’s testimony. He explained that in the Winter of 2020, when the mother sought his consent to register Sebastian in skating lessons, he readily accepted. However, it was only when he brought Sebastian to his first skating lessons that the father found out that the mother had enrolled herself in a skating lesson as well, thus allowing her to spend an extra hour with Sebastian during the father’s parenting week. Understandably, the father was upset about this and expressed his discontent with not having been notified, in advance, that the mother intended to register herself in a skating lesson at the same time. When cross-examined on this, the mother was adamant that there was absolutely nothing wrong with her actions in that regard. This, in my view, shows a significant lack of insight on her part as to her role in the ongoing parental conflict.

92The father testified that, to preserve his own mental health, he was forced to seek professional assistance from a counsellor who taught him strategies to reduce the parental conflict and minimize the opportunities for the mother to engineer situations to portray him in a bad light as a parent. Insisting on written communications via email, not allowing FaceTime access between the mother and Sebastian and taking 24-48 hours before answering non-urgent requests from the mother, are some of those strategies.

93Finally, I am of the view that if the mother is granted sole decision-making authority over important decisions related to Sebastian, there will be no meaningful consultation process between the parties and the mother will simply impose her unilateral decisions without consideration to the father’s views and perspectives. Despite the joint custodial regime in place pursuant to the 2017 Final Order, I find that the mother has frequently made unilateral decisions in relation to important aspects of Sebastian’s life without notice to, or consent from, the father. When notice was given, the mother often imposed her decisions without due consideration being given to the father’s objections. I find that this has not always been in Sebastian’s best interests.

94For instance, when the mother moved back to Ottawa several months after the parties’ separation, she removed Sebastian from his Gatineau daycare without the prior consent of, or notice to, the father. In 2018 she changed Sebastian’s Gatineau dentist in favour of one she located in Ottawa. She unilaterally decided, despite the father’s expressed objections, to register Sebastian in on-line learning in September 2020 as a result of the pandemic (when in-person learning was available to all students). Despite her allegation that she had health issues which made her more vulnerable if contracting COVID, the mother never provided any medical evidence confirming same, nor did she provide the particulars of her health issues during trial. I find that the father’s reasons for insisting on in-person learning were very valid, but they were given no consideration at all by the mother. I find that there was no valid reason for Sebastian to be removed from in-person schooling when it was available to him, and that it would have been in his best interest from a social perspective as expressed by his father.

95Confronted with the mother’s unilateral decisions, the father has generally chosen to sit back and accept the decisions without further debate simply to avoid endless confrontations on those issues. I find that, while the father has a genuine desire to remain involved in the decision-making responsibilities for Sebastian, and to maintain a meaningful role in his overall development and well-being, most of the time the father has chosen to accept the mother’s decision rather than to engage in endless conflict that was sure to lead to unproductive email exchanges filled with accusations and/or derogatory remarks about his parenting.

96Despite all the above, I find that it is in Sebastian’s best interests for both parents to continue to have a meaningful role in making important decisions related to his care and development. In my view, both parents are capable parents who each have very important contributions to make to Sebastian’s life. While it is important to reduce the potential for parental conflict, which negatively impacts Sebastian and interferes in his ability to access all sorts of opportunities, this must be balanced with the need for Sebastian to have his father meaningfully involved in his life, in his care and in his education. Simply put, I do not feel confident that the mother, if granted sole decision-making responsibility, will always use it in a way that will promote, preserve and foster Sebastian’s relationship with his father.

97In my view, the above concerns can be balanced by implementing a very detailed multi-directional order providing each parent with sole decision-making responsibility in relation to different areas of Sebastian’s care and upbringing, in accordance with the order that I have made below (see “Orders”). It is not necessary for me to explain at length why I have attributed a particular area of decision-making responsibility to one parent rather than to the other. Suffice it to say that, if the responsibility to make a decision was given to a particular parent, it is because I was of the view, based on the evidence before me, that that parent would adequately fulfill his/her responsibilities in relation to this aspect of Sebastian’s care.

98Finally, I have also incorporated in the detailed multi-directional order below many of the provisions that the parents, or either of them, have asked or suggested that I include in my final order, as I find that many of those provisions will assist in reducing the parental conflict.

Allegations of Family Violence

Allegations of Family Violence

99In closing, I wish to make the following comments about the impact of potential family violence on the parenting orders that I was asked to make in this case.

100Throughout this trial, much evidence was adduced by the mother to support her allegation that she suffered emotional and verbal abuse at the hands of the father during her brief relationship with him. The mother testified that, when she was pregnant with Sebastian, the parties had an argument which resulted in the father breaking the door frame, causing enough fear in the mother for her to start bleeding, and forcing her to go to the hospital to make sure the baby was fine. While at the hospital, the mother was provided with information on family violence by the nursing staff who, according to the mother, had concerns about potential family violence.

101The mother also described various incidents of angry outbursts by the father, as well as periods during which he left the home and disappeared without notice or an explanation, only to return days or weeks later acting as if nothing had happened. The mother also related the events surrounding her travel to Mexico with Sebastian when he was only a few months old, during which the father told her that he would not be joining them there (Sebastian’s Christening was planned to occur during that trip) and wanted a separation, only to tell her that he had changed his mind upon her returning to Canada with Sebastian.

102To support her evidence in that regard, the mother called, as a witness, one of the father’s previous partners, Ms. Roux, who is the mother of their sixteen-year-old child, Joel. I found Ms. Roux to be a very credible witness. She provided her evidence in an objective, unemotional manner, relating her experiences of the father without the need to be overly aggressive or accusatory, while readily acknowledging the father’s positive attributes when warranted and truthfully denying any concerns over substance or alcohol abuse by the father when raised by the mother¹.

103Ms. Roux’s evidence of her relationship with the father mirrored, in many ways, the experience of the mother, particularly as it related to the father’s sometimes erratic behaviour, disappearances without explanation, and challenges with his emotional regulation. According to Ms. Roux, the father’s behaviour was the cause of the breakdown of their relationship, and the driving force behind her decision to move back to France with Joel when he was only one year old.

104Ms. Roux explained that after she moved back to France, she always kept the door open for contact and visits between Joel and his father as well as his extended family. The father and his family did indeed travel to France on several occasions to visit with Ms. Roux and Joel. Ms. Roux even offered them free housing to facilitate and promote their ongoing involvement in Joel’s life.

105Unfortunately, and for reasons that were not explained by the father during his testimony, his contact with Joel gradually decreased – through no fault of Ms. Roux whatsoever – and by 2013, they stopped entirely. The father has been completely absent from Joel’s life since he was 7 years old, and he has ignored Ms. Roux’s requests for his consent for Joel to be adopted by her long-time partner (who has stood in the place of Joel’s father since he was very young). Ultimately, the French Court granted the adoption order, but Ms. Roux explained that this had had a very negative impact on Joel’s well-being, and to this day, he continues to wonder why his father abandoned him.

106While the father’s decision not to pursue a relationship with Joel is quite sad, and difficult to understand given Ms. Roux’ ongoing efforts to maintain that relationship, it has little to do with Sebastian. The overwhelming evidence before me is that the father’s commitment to Sebastian and his presence in his life have been strong, ongoing and did not falter since he initiated legal proceedings before the Quebec Court in 2014. He consistently exercised his parenting time with Sebastian, remained involved in his care, education and extracurricular activities, and while he has often taken a back seat on decision-making responsibilities, he has remained involved with the professionals involved in Sebastian’s care and kept himself informed of his overall development and well-being.

107As far as any alleged family violence having taken place between the father and Ms. Roux, or the father and the mother, these events took place well before the 2017 Final Order was made, and they certainly do not constitute material changes in circumstances which would support the making of a different order four years after it was made. In addition, there is no evidence whatsoever before me that would suggest that the father has engaged in this type of behaviour since the 2017 Final Order was made. Finally, the mother’s many communications to the father, and their content, make it abundantly clear that the mother does not currently feel intimidated or otherwise threatened by the father. The evidence before me, which includes close to a hundred emails between the parties, convinces me, beyond any doubt, that the mother is not afraid to speak her mind freely on any matter, big or small, related to Sebastian to the father directly or to anyone involved in Sebastian’s care.

108Section 2(1) of the Divorce Act defines family violence as including, among many other things, conduct that is violent or threatening or that causes a family member to fear for their own safety or for that of another person, including psychological abuse. In the case of a child, the direct or indirect exposure to such conduct also constitutes family violence. Section 16(3)(j) of the Act provides that when determining the best interest of a child, the court must consider 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.

109I find that, to the extent that there may have once been family violence by the father towards the mother, in the form of psychological or emotional abuse, such family violence has no impact today on the father’s ability and willingness to care for and meet Sebastian’s needs, or on the appropriateness of making an order that would require his parents to cooperate or communicate on issues affecting him.

Conclusions on Parenting Issues

Conclusions on Parenting Issues

110For all of the above reasons, the equal time-sharing (week-on, week-off) and joint decision-making regime imposed by the 2017 Final Order is maintained, but the ultimate responsibility of making decisions in various areas of Sebastian’s care has been allocated between the parents in the manner described in the multi-directional parenting order set out below. Further, I have included in my parenting order many of the provisions suggested to me by both parties, many recommended by Ms. Reid, and many more on my own based on my finding that these would be in the best interest of Sebastian.

Child Support

Child Support

111The 2017 Final Order provides that the mother has the obligation to pay to the father child support in the amount of $87.77 per month (I assume, although I do not know for sure, that this is based on the set-off formula), but that the father waived payment of this monthly child support until the expiration of the mother’s Consumer Proposal (and unless the father’s income decreased by at least $10,000). My understanding is that the parties’ income at the date of the 2017 Final Order was relatively similar, with the mother earning slightly more.

112In exchange for the father’s waiver of basic child support, the order confirms that the parties had agreed that the mother would be responsible for the payment of the costs of one extracurricular activity per session for Sebastian, and that she would assume the costs of his winter clothing (boots, mittens, snow suits etc.). The order also confirmed the parties’ agreement that they would each assume the cost of Sebastian’s school tuition, supplies and books for one year, in alternance, with the mother assuming the costs for the school year 2017-2018.

113Neither party is claiming any contributions to past s. 7 expenses. The mother, however, seeks an adjustment of the child support payable by the parties retroactive to 2018, to reflect the parties’ changed incomes over the years. The mother’s Application was filed in April 2018 and as such, her request for child support to be adjusted from 2018 is entirely proper.

114Given that the father resided in the province of Quebec throughout, his basic child support obligations are determined by the Tables applicable in the province of Quebec. Since the mother resided in Ontario throughout, her basic child support obligations are determined by the Tables applicable in the province of Ontario.

115I find that the parties earned the following income since 2018, that they were required to pay the following child support to each other during any given year (based on the “set-off” method given their equal parenting regime) and that, as a result, the father owes an adjustment of child support in the amount of $1,986 to the mother from January 1, 2018 to and including June 1, 2021).

	Father’s income	Father’s (Qc) Table amount	Mother’s income	Mother’s (On) Table amount	Difference (owing by father)
2018	$85,105	$759	$80,502	$750	($9 X12) $108
2019	$104,441	$910	$83,867	$782	($128 X12) $1,536
2020	$96,809	$852	$91,313	$842	($10 X12) $120
2021	$100,000	$877	$91,000	$840	($37 X6) $222
Total owing					$1,986

116The father’s obligation to pay this retroactive adjustment is suspended until after I have made my decision on costs.

117On an ongoing basis, and beginning on July 1, 2021, the father is required to pay monthly child support to the mother in the amount of $877 based on an estimated total income of $100,000 for 2021, and the mother is required to pay monthly child support to the father in the amount of $840 based on an estimated total income of $91,000. The net difference between the parties’ respective child support obligation is $222, payable by the father to the mother on the 1^st of each month beginning on July 1, 2021 until further changed.

118There are no adjustments of s. 7 expenses required by the parties as of July 1, 2021.

119Based on the parties’ representations, I have also made various orders related to the support of the child which are set out at length in the multi-directional order below.

Other financial issues

Other Financial Issues

120The father owes costs to the mother in the amount of $1,300, specifically: $500 on account of the costs ordered by MacEachern, J. on March 26, 2019 and $800 on account of costs ordered by Labrosse, J. on April 25, 2019. Those costs shall be set-off against the $1,500 owing by the mother to the father pursuant to paragraph 20 of the Quebec Divorce Judgment dated April 13, 2017 (via RRSP spousal rollover), which was never paid.

121These mutual debts, therefore, have been satisfied in full.

Orders

Orders

122Based on all the above, I make the following order:

Decision-making responsibilities

1. Except as specifically set out below, the parties shall have joint decision-making responsibility over all matters pertaining to their child, Louis Sebastian Castro Lopez (DOB June 6, 2013, hereinafter “Sebastian”).

2. Regardless of the parties’ respective decision-making responsibilities, both parties may make inquiries and be given full access to information by the child's teachers, school officials, doctors, dentists, health care providers, summer camp counsellors or others involved with child.

3. Despite the sole decision-making responsibilities given to each parent as set out below, both parties shall have a duty to meaningfully consult with the other parent at all times prior to making a final decision with regards to the child’s health, education, culture, religion and spirituality, and his significant extracurricular activities, and to give the other parent’s views due consideration.

4. The party with sole decision-making responsibility over a particular area of the child’s care will communicate the need for a decision to be made in accordance with the communication protocol set out at paras. 5, 6 and 7 below, and include all the relevant information regarding the decision that has to be made.

5. Except in the case of an emergency, the parent who is consulted about a decision to be made shall have seven (7) days to respond to provide their input, unless the decision is time sensitive. In the event that the decision is time sensitive, the parent with decision-making responsibility will provide a clear deadline (including day and time) by which they need a response and the other parent will provide a response before that time, failing which the parent with decision-making responsibility will make the final decision without further consultation.

6. Except in the case of an emergency, after having consulted with the other parent, and after the seven (7) day period has passed, the parent with decision-making responsibility shall make the final decision.

7. The parent with decision-making responsibility will advise the other parent of the final decision promptly.

8. Where a parent has the child in their physical care (“the residential parent”), they will be responsible to make the day-to-day decisions with respect to the child and the other parent will respect the residential parent’s ability to properly care for the child during their parenting time, without interference.

Religion and spirituality

9. In case of disagreement between the parties, the mother will make final decisions with respect to issues relating to religion and spirituality.

Medical and Dental Health

10. The mother will have final decision-making responsibility over regular (routine) health appointments and major health issues relating to the child’s medical health.

11. The father will have final decision-making responsibility over regular (routine) dental appointments and major issues relating to the child’s dental health (which includes orthodontic treatments).

12. In case of an unplanned appointment with the doctor due to the child being sick on any given day, the residential parent shall be responsible to take the child to seek appropriate medical attention. Notice of the result of the medical consultation shall be provided to the other parent within 2 hours of the end of the consultation.

13. In case of a health (medical or dental) emergency, the residential parent at the time of the emergency shall contact the other parent as soon as possible by telephone to advise them of the emergency and of the medical facility where the child has been taken. Both parents may stay with the child while he is being taken care of by health professionals.

14. The mother will schedule and attend non-emergency medical appointments for the child. The father will not be present at the medical appointment, unless specifically authorized in writing by the mother. The mother will provide the father with 15 days’ notice of a scheduled appointment and provide feedback of the appointment within 24 hours. Should the mother be unable to attend the appointment, priority shall be given to the father to attend with the child before another responsible adult is designated by the mother or the appointment cancelled.

15. The father will schedule and attend non-emergency dental appointments for the child. The mother will not be present at the dental appointment, unless specifically authorized in writing by the mother. The father will provide the mother with 15 days’ notice of a scheduled appointment and provide feedback of the appointment within 24 hours. Should the father be unable to attend the appointment, priority shall be given to the mother to attend with the child before another responsible adult is designated by the father or the appointment cancelled.

16. The child shall not be engaged in counselling or therapy without both parents’ written consent or a written recommendation to that effect from the child’s family doctor. To the extent that the parents consent to therapy for the child, or the child’s family doctor recommends it, both parents must be consulted in any intake or initial intake appointments and the parents shall alternate scheduling and accompanying the child to these appointments. Should the scheduling parent become unable to attend, priority shall be given to the other parent to accompany the child and, if the other parent is unable to attend, the appointment shall be re-scheduled by the scheduling parent.

Education

17. The mother will have final decision-making responsibility with respect to the child’s education. However, a change in the child’s current school (he is currently enrolled at Corpus Christi School) until he completes grade 6 shall require the parents’ joint written consent. The child shall attend school in-person come September 2021 unless both parents consent or a court orders otherwise.

18. The mother shall not register the child in a high school or junior high school (after grade 6) which would increase the time currently required for the father to travel from his home to the child’s school, unless agreed the father agrees in writing.

19. Both parents shall be listed as primary and emergency contacts for the child at his school, at all times. Both parents shall provide their email and contact information to the school and they will each ensure that the school has up-to-date emails, phone numbers and addresses so that they may be kept informed by the school.

20. Each party shall obtain their own school calendar and school notices and arrange for the school to communicate with them directly and separately if deemed appropriate by the school.

21. The parties may attend parent-teacher meetings separately, unless they agree to otherwise and in writing.

22. The parties shall request that they be provided their own separate copy of report cards for the child.

23. Should parents be invited to accompany their child in a school field trip or activity, the residential parent shall have first right of refusal to attend, and if he/she cannot attend the other parent shall be given priority to attend with the child.

24. The parties may attend all school functions regardless of the parenting schedule.

Extracurricular Activities

25. The parents shall be allowed to register the child in one extracurricular activity per session (Fall, Winter and Summer) which shall not exceed 2 hours per week, unless agreed to otherwise by them, in writing.

26. The mother shall be responsible for choosing and enrolling the child in extracurricular activities during odd-numbered years and the father shall be responsible to do so in even-numbered years.

27. For the purpose of paras. 25 and 26 above;

a. “odd-numbered years” means that the activity is taking place between September 1^st of the odd-numbered year and August 31^st of the following, even-numbered year (for example, from September 1, 2021 to August 31, 2022);

b. “even-numbered years” means that the activity is taking place between September 1st of the even-numbered year and August 31st of the following, odd-numbered year (for example, from September 1, 2022 to August 31, 2023).

28. The parent who is responsible to choose and enroll the child in an extracurricular activity shall:

a. be responsible for the payment of all costs related to the activity (registration, equipment, tournaments, special events);

b. Ensure that the activity is taking place at no more than a 30-minute drive from the other parent’s home (except for tournaments or special events which may from time to time take place elsewhere) and outside the parents’ work hours.

29. The residential parent shall ensure that the child attends his extracurricular activities weekly, unless he is too sick or unable to attend as a result of a special event (such as a wedding, a family gathering, a friend’s birthday party, an out of town trip or a vacation). The parent with whom the children does not reside at the time shall not attend the extracurricular activity, unless permitted to attend in writing. When a culminating event occurs (such as a competition, concert or performance intended for parents and family), both parents shall be permitted to attend without the need to obtain the residential parent’s permission.

30. In addition to the above, the parties shall be free to register the child in the extracurricular activities of their choice, so long as such activities do not fall on the other parent’s time with the child, and so long as a contribution to the cost of the activity is not sought from the other parent.

31. The parents’ duty to consult with one another prior to making a decision and to inform each other of decisions (as set out in paras. 4, 5, 6 and 7 above) applies in the context of making decisions with regards to extracurricular activities.

Communication

32. The parties shall continue to communicate in writing via email. Unless there is an emergency, the parents shall make efforts to limit their communications to one weekly report to be sent to the other parent at the end of the parent’s weekly parenting time.

33. More urgent issues/inquiries made by one parent outside of the weekly report shall be responded to by the other parent within 24 hours or an earlier established timeframe if the situation warrants an earlier response. In the case of a true emergency, the parties shall communicate by telephone or text messaging.

34. The parties shall keep each other informed of all important events in the child’s life (i.e. school events, medical and health appointments, extra-curricular activities, social functions, etc.).

35. The Mother shall keep the child’s original OHIP card, passport, birth certificate and baptismal certificate in her possession and provide a certified true copy of those documents to the Father within 20 days from this decision.

36. Within six months from the date of this order, the parties shall enroll in, and successfully complete, the Parenting Through High Conflict Separation and Divorce course offered by Family Services Ottawa (or its equivalent) and provide each other with proof of same upon completion.

Parenting Time

37. The child shall continue to reside with both parents on a week about schedule, from Friday after school until the next Friday after school/extended daycare. Pick-ups and drop-offs shall occur directly at the school/extended daycare.

38. If there is no school on any given Friday because it is a holiday or a PD day, or if the extended care service is closed on that day, the non-residential parent’s parenting time with the child shall begin on the Thursday, after school/extended care.

39. If the child is not in school on any given exchange day for any other reason, the access exchanges shall take place at 5:30 p.m. at the Canadian Museum of History (front doors) at 100 Laurier Street, in Gatineau, Quebec, unless the parties agree otherwise in advance, and in writing.

40. Each parent may have contact with the child during the week that he is not in their care via telephone, Face Time, Zoom or some similar technology, at 6:30 p.m. on Tuesdays, for up to 30 minutes. In the event that the residential parent is unable to facilitate the contact at 6:30 p.m., they shall advise the non-residential parent of same via email as soon as possible so that another time can be rescheduled either that day or the next day.

41. Each parent shall provide a quiet and private place for the child to speak to the other parent without being monitored. The parties shall respect the child’s wishes as to the items that he would like to travel between each parents’ home and shall not restrict his access to these items while at either parent’s home.

42. The parties will share equally all of the child’s school holidays including Christmas Break, March Break, Easter Break, etc. as follows:

a. Christmas Break: The Christmas school holiday will be shared equally with one parent having the first week of the school break (including Christmas Eve and Christmas Day) and the other parent having the second week of the school break (including New Year’s Eve and New Year’s Day). In even-numbered years (beginning on Christmas 2022), the Mother shall have the first week of the Christmas school break and the Father shall have the second week. In odd-numbered years (beginning on Christmas 2021), the reverse shall occur.

b. The parent who has the child in their care on Christmas Eve and New Year’s Eve shall ensure that the child has a phone call or videoconference with the non-residential parent on December 24th and December 31^st, for up to 30 minutes.

c. March Break: The parties will alternate having the child in their care for the full March Break with the mother having the child every even-numbered year, (beginning at March Break 2022) and the father every odd-numbered years.

d. The parent who has the child in their care for the March Break will be responsible for any fees associated with the child’s daycare program or March Break camp if required during that week.

e. Easter Weekend: The Easter break shall be alternated between the parents with the father having the child in his care for the full Easter weekend (Thursday after school to school on Tuesday morning) in odd-numbered years (beginning in 2022) and the mother having the full Easter weekend in even-numbered years.

f. Summer Holidays: During the summer months (July and August), the regular week on/week off schedule shall continue, with exchanges occurring every Friday with pick-ups at summer camp. If the child is not in camp, the exchanges will take place as per paragraph 38 above.

g. Each party shall be permitted to take two consecutive weeks of vacation with the child during the summer, with the dates being confirmed in writing by April 1 of each year. The father shall have first choice of weeks in even-numbered years (beginning in 2022) and the mother shall have first choice in odd-numbered years (beginning in 2023).

h. Mother’s Day and Father’s Day: The child will be in the care of his Mother for the entire weekend on Mother’s Day and in the care of his father for the entire weekend on Father’s Day, starting after school on Friday until his return to school on Monday morning.

i. Regardless of the regular schedule, the child shall be permitted to call the non-residential parent on that parent’s birthday or on the child’s own birthday, at 18h30, for up to 30 minutes.

j. Unless specifically provided above or agreed to otherwise between the parties, the regular parenting schedule continues to apply for any other holiday, long weekends and on the parties or the child’s birthday.

k. Once per year, the father will cooperate in allowing the mother to travel to Mexico with the child to visit her parents. To do so, he will exchange one of his parenting weeks with the mother’s parenting weeks to afford her two consecutive weeks with the child to travel to Mexico. To be clear, the parenting weeks will be exchanged so that upon the mother’s return or before her departure, the father will also have the child in his care for two consecutive weeks, unless he agrees to simply forego his parenting week.

l. If the mother does not travel to Mexico but her parents, the child’s maternal grandparents, travel to Ottawa, the same opportunity will be afforded to the child to spend two consecutive weeks in his mother’s care to be with his grandparents.

43. Both parties shall at all times maintain a reasonable and flexible position respecting the parenting arrangements for the child, and at all times the best interests of the child shall prevail. Accordingly, if special occasions, family birthdays/special events, extracurricular activities, holidays, excursions or other opportunities become available to the child, or to the parents, neither parent shall insist that the care arrangements set out herein cannot be modified without exception in order to allow the child to attend said important event. In the event such requests are made at last minute however, there will be no expectation for this accommodation if the residential parent already has scheduled plans that cannot be modified.

44. The parties shall ensure that they adhere to all Public Health laws, bylaws, regulations, orders and recommendations related to Covid-19 so long as they remain in effect.

Travel

45. If either parent plans a vacation with the child outside of Canada, the travelling parent shall give the other notice of the dates of travel and the destination at least 60 days before the scheduled travel. In addition, a detailed itinerary shall be provided at least thirty (30) before the holiday begins, including the name of the flight carrier, flight number, flight times, accommodations, including address and telephone number, and details as to how to contact the child during that vacation.

46. The father’s written or notarized consent shall not be required for the child to travel to Mexico with his mother, so long as the notice provisions set out above are complied with by the mother and the travel occurs on her own parenting or vacation time.

47. If the father intends to travel internationally with the child or by air, the mother shall cooperate in providing written consent to travel according to Passport Canada’s specifications at least thirty (30) days before the scheduled travel date.

48. The child’s original passport shall be provided by the mother to the father no later than four weeks prior the date of the father’s departure with the child for any scheduled international travel or national air travel.

49. Both parents shall be free to travel to all countries that are signatories to and have ratified the Hague Convention. The parties shall not refuse the other parent’s right to vacation with the child without a valid and significant reason justifying otherwise.

50. If a party plans to travel with the child within Canada but outside of the greater Ottawa/Gatineau region, he/she will notify the other parent of his/her destination and date of return including a phone number of where the child can be reached during his time away from the residential parent’s residence.

Changes in residence and relocation

51. Neither party shall relocate the child’s residence outside of the Ottawa-Gatineau region (being defined as a 30 kilometer radius from the Ottawa Parliament Hill) without providing the other parent with 60 days’ notice of the proposed move and obtaining the other party’s express written consent or a Court order.

52. If a party proposes to change their residence within the Ottawa-Gatineau region, they shall give at least 60 days’ notice of this change to the other parent with confirmation of the new address and the new telephone number (if changed).

Child Support

53. The father’s child support arrears, as of June 30, 2021, are fixed at $1,986. The payment of those arrears is suspended until such time as the issue of costs for this trial has been adjudicated upon.

54. There are no arrears or adjustments owing by either party on account of special and/or extraordinary expenses up to June 30, 2021.

55. On an ongoing basis, and beginning on July 1, 2021, the father is required to pay monthly child support to the mother in the amount of $877 based on an estimated total income of $100,000 for 2021, and the mother is required to pay monthly child support to the father in the amount of $840 based on an estimated total income of $91,000. The net difference between the parties’ respective child support obligation is $222, payable by the father to the mother on the 1st of each month until further changed.

56. The parties shall exchange their Income Tax Returns and Notices of Assessment by June 1st each year, commencing June 1, 2022 and shall therefore adjust the monthly amount of child support payable by them by July 1st of each year, effective retroactively to January 1 of that year. In the event of a material change in their previous year’s income, their ability to seek a retroactive adjustment for the previous year is also preserved. As an example, in July 2022, following the receipt of the parties’ 2021 income confirmation, the parties (or either of them) are free to seek a retroactive adjustment of the support paid for the year 2021, provided that the adjustment would lead to one party owing the other party at least $350 for the entire year.

57. The parties shall equally share any costs associated with Sebastian’s special and extraordinary expenses (section 7 expenses) not provided elsewhere in this order (such as medical/dental expenses). The net special and extraordinary expenses will be shared equally by the parties after having deducted any income tax benefit, insurance refund or subsidy received by the parent incurring the expense.

58. Special and extraordinary expenses shall be agreed to prior to being incurred. Neither party shall unreasonably withhold their consent.

59. Each party shall be responsible for the purchase and payment of the child’s winter clothing and school fees and expenses in alternance each year. The father shall be responsible for the purchase and payment of same in odd-numbered years (being defined as the period beginning on August 1 and ending on July 30, starting on August 2021), and the mother shall be responsible for the purchase and payment of same in even-numbered years (being defined as the period between August 1 to July 30, beginning in August 2022).

60. With respect to daycare, there shall be no arrears or adjustments owing to either party prior to this order.

61. With respect to childcare expenses:

a. The mother shall be responsible to enroll the child in the extended care program at school and to pay for the extend care program (including PD days) for the months of September to and including January each school year;

b. The father shall be responsible to enroll the child in the extended care program at school and to pay for the extend care program (including PD days) for the months of February to and including June each school year;

c. Each party shall obtain their own respective tax receipts directly from the extended care program for the months during which they are responsible to enroll him and pay for the expense.

d. Childcare expenses required during the child’s March Break is the responsibility of the parent in whose care the child is during that week.

62. With respect to summer camps, each party shall be responsible to enroll the child in and pay for the child’s summer camp fees during their respective parenting weeks. The parties must however notify each other of the summer camps that they intend to enroll the child in each year and shall name the other parent as primary emergency contact.

63. Medical/dental expenses shall be shared by the parties as they are incurred. Where a party incurs a medical/dental expense for the child, he or she shall provide the receipt to the other for reimbursement by their own insurer within 7 days of incurring the expense. The reimbursing party shall then provide the paying party with their proportionate share of the expense (being the total cost of the expense minus the amount that the paying parent received from their insurer) within 10 days. The reimbursing parent will then be able to claim the unclaimed portion of the expense on their own health insurance and keep the reimbursement.

OTHER

This Court declares that the following debts have been satisfied in full:

a. The cost award in the amount of $500 made by MacEachern J. against the father by order dated March 26, 2019;

b. The cost award in the amount of $800 made by Labrosse, J. against the father by order dated April 25, 2019;

c. The amount of $1,500 owing by the mother to the father in accordance with paragraph 20 of the Quebec Divorce Judgment dated April 13, 2017 (via RRSP spousal rollover).

COSTS

Costs

123The father was clearly the successful party in this trial. If the parties are unable to agree on costs, I will accept written submissions not to exceed six pages (excluding Bills of Costs and Offers to Settle) in accordance with the following timelines:

• The father to provide his written submissions by August 13, 2021;

• The mother to provide her written submission by September 3, 2021;

• The father to provide his reply, if any, by September 18, 2021.

124The parties are reminded that costs submissions must be served on the other party and filed with proof of service by email at SCJ.Assistants@ontario.ca.

Madam Justice Julie Audet

Released: July 21, 2021

COURT FILE NO.: FC-18-801

DATE: 20210721

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

ADRIANA LOPEZ RAMIREZ

Applicant

– and –

GERARDO ANDRES CASTRO ESTUPINAN

Respondent

REASONS FOR Decision

Audet J.

Released: July 21, 2021

¹ For the first time during this trial the mother raised that the father “might” have substance or alcohol abuse issues, something that was never raised before. There was no evidence whatsoever presented to me during this trial that would have supported such an allegation.