COURT FILE NO.: FS-17-416379

DATE: 20210914

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Neil Closner

Applicant

– and –

Sherri Lavine Closner

Respondent

Gary S. Joseph/Aaron Mastervick, for the Applicant

Kristen Normandin/ Joanna Hunt Jones/Jared Teitel, for the Respondent

HEARD: January 27, 28, 29, 30, 31, February 3, 4, 5, 6, 7, March 13, November 9, 10, 12, December 22 and 23, 2020 and April 6, 2021.

In person and by video conference

E.L. Nakonechny, J.

REASONS FOR DECISION

[1] This was seventeen-day trial of essentially one issue: decision making and parenting time for the child, Q., now aged 7. The parties settled the financial issues (property and retroactive and prospective child and spousal support) prior to trial.

[2] The trial started on January 27, 2020 and proceeded for ten days in person. It was adjourned in March 2020 as a result of the closure of the courts due to the COVID-19 pandemic. The trial resumed on November 9, 2020 by way of video conference. The evidence was completed on December 23, 2020. Written submissions were filed by the parties and oral argument took place by video conference on April 6, 2021. I commend the parties and counsel for their cooperation and assistance to the court in adapting to the challenges brought about by the pandemic.

[3] Since December 10, 2018, Q. has resided with both parents in a 2/2/3 schedule ordered by Shore, J. on November 29, 2018. The Shore Order does not address the issue of decision making.

[4] At trial, both parties argued they should have sole decision making for Q. The Applicant father, Neil Closner, says the current 2/2/3 schedule should continue with a review to take place when Q. is age 10 to consider an alternating week schedule. The Respondent mother, Sherri Lavine Closner, seeks an order reducing Neil’s parenting time from seven to five overnights in a two-week schedule.

[5] Both parties seek an order for a detailed holiday schedule which will override the regular schedule. Sherri wishes to change the child’s surname from Closner to Lavine Closner.

Q.

[6] At the epicentre of this lengthy and protracted litigation is the parties’ daughter. Q. was not yet three years old when the parties’ separated. In September 2021 Q. will commence grade 3 at B[…] Day School.

[7] Q. was described by all the witnesses as a bright, dynamic, outgoing, and happy child. She has a loving relationship with both parents and her extended families.

[8] Q. has experienced toileting accidents since she began junior kindergarten. Q.’s education and medical professionals gave evidence regarding Q.’s needs and the steps taken to assist her with this issue as well as her treatment, progress and regressions. In January 2019, Ms. Karen Lidor, the vice principal at B[…] Day School, contacted Jewish Child and Family Services because she was concerned that Q. was experiencing social and physical repercussions relating to her toileting which were not being addressed. At about this time, the parties agreed that Q. should meet with a counsellor and a bladder and bowel specialist.

[9] The evidence from Q’s medical and education professionals regarding the toileting issue will be referenced further.

[10] Unfortunately, this became another point of conflict and disagreement between the parents. There were disputes over meetings with the school and the medical professionals, medication, whether Q.’s nanny should attend at school to assist Q. and the severity of the toileting problem. Sherri accused Neil of inciting the conflict and not appreciating how this affected Q. Neil accused Sherri of making false claims about Q.’s regressions as a “litigation strategy”.

[11] While Neil and Sherri agree that Q. would benefit from more certainty and less conflict, they cannot agree upon how to achieve this.

Background and history of the litigation

[12] The parties began cohabiting in 2010. They married in 2011. They separated in either September 2016 (Neil’s position) or February 2017 (Sherri’s position). The date of separation was not relevant to the issue at trial.

[13] The parties resided in a condominium Neil purchased prior to marriage. During the marriage they jointly purchased a home which they were renovating at the time of separation.

[14] Neil is the founder and CEO of a medical marijuana company. He sold his interest in that company in 2018. He became CEO of another marijuana related company in 2019.

[15] Sherri is a lawyer. During the marriage she worked in private practice and later as in-house counsel and VP Legal at a real estate investment and property development company.

[16] Neil is an observant Jew. Sherri was less observant prior to their marriage. During the marriage the parties observed the Sabbath, attended synagogue, and kept a kosher home. Sherri would drive and run errands on Saturdays. Neil did not. Neil states that the parties agreed to raise Q. in an observant home.

[17] Sherri states that the parties disagreed over religious practices during their relationship and it was a source of friction between them. After separation, Sherri became less observant. Neil acknowledges that this is Sherri’s choice. He takes issue with Sherri’s conduct which he feels is an affront to his observances such as feeding Q. non kosher foods in his presence; leaving non kosher foods in the shared refrigerator during the nesting period; sending non kosher foods in Q.’s lunch bag which she brings to Neil’s home; and scheduling activities for Q. on the Sabbath. Neil’s believes Sherri discourages Q. from attending synagogue and participating in religious holidays and customs.

[18] In March 2017, after separation, Neil wanted to take Q. to Mexico for an annual family holiday with his parents. Neil says that Sherri would not permit him to take Q. alone insisted on coming with them. Sherri says she was concerned about Q. (who was aged 3) travelling alone with Neil. Neil offered to arrange a separate suite for Sherri but says she insisted on staying in the suite with him, his parents and Q.

[19] There was an incident in the suite which involved a physical altercation between Sherri and Neil’s father, Dr. Closner. Sherri alleges that Dr. Closner assaulted her when she tried to get to Q. who was crying and calling for her. At the time of the alleged assault Q. was on the other side of a bedroom door with Neil and his mother.

[20] After the incident, which Q. witnessed in part and heard in full, Sherri called hotel security and left the suite with Q. Both parties contacted their lawyers in Toronto. The result was that Sherri and Q. stayed in a different hotel that evening and returned to Toronto the next day.

[21] Sherri states that she suffered injuries from the alleged assault. She sought criminal charges and a peace bond against Neil’s father. She told Q.’s school principal and teachers about the incident and instructed them not to allow Neil’s parents to pick up Q. from school for lunch and other visits, something the grandparents had done previously.

[22] After the incident in Mexico, the situation between the parties deteriorated quickly. Neil states that Sherri prevented him from returning to the condo and withheld Q. from him. He commenced this Application on March 31, 2017 and immediately brought an urgent motion for equal parenting time. Sherri opposed the motion. She argued that equal time was not in Q.’s best interests based on her age and the parties’ parenting roles during the marriage.

[23] It is Sherri’s position that she was Q.’s primary parent and responsible for most of her care and routines during the marriage including medical care and activities. Neil was very involved in his business and travelled extensively. He deferred to Sherri on parenting decisions and assisted Sherri with parenting tasks only when he was available.

[24] It is Neil’s position that he was involved in all aspects of Q.’s care and that the parties made parenting decisions together. Neil states that he organized his schedule to ensure he was available to care for Q. He continued this involvement after separation except when Sherri limited his parenting time.

[25] From the time of separation, Neil has sought equal parenting time and joint decision making for Q. Sherri has consistently opposed this. She says that Neil’s controlling and aggressive behaviour has escalated since separation. Despite her efforts to cooperate, she cannot communicate with Neil to make joint decisions. Q requires stability, consistency, and routine that only she can provide

[26] On June 22, 2017, Croll, J. ordered the parties to reside in the condo with Q. in a nesting arrangement. Neil spent five of fourteen overnights with Q. and Sherri spent nine of fourteen overnights with Q. The order provided for equal holiday time and a right of first refusal if the residential parent could not care for Q. during their regular parenting time. Croll, J. ordered a s. 30 Assessment with the parties to share the cost equally on a without prejudice basis subject to reapportionment. Her Honour also ordered that the parenting schedule could be reviewed after the completion of the s. 30 Assessment Report.

[27] Howard Hurwitz conducted the s. 30 Assessment. He held a disclosure meeting with the parties on December 6, 2017. He released his Final Report and Parenting Plan Recommendations on January 15, 2018. The Report was filed at trial. As part of his Assessment, Mr. Hurwitz referred the parties to Dr. Olga Henderson to conduct psychological assessments of the parties and provide reports. Both Mr. Hurwitz and Dr. Henderson gave evidence at trial regarding their reports. Mr. Hurwitz gave evidence of his recommendations on decision making and the parenting schedule.

[28] In Mr. Hurwitz’s Report, which will be dealt with in more detail below, he observed that both parents had a close and loving relationship with Q. Both had good parenting skills and engaged well with Q.

[29] Mr. Hurwitz observed Q to be bright and articulate. She has good social relationships. She enjoys school. Since separation, Q. has experienced toileting issues which may be a result of her witnessing the ongoing conflict and acrimony between her parents.

[30] Mr. Hurwitz’s Report sets out his observations of the ongoing conflict between the parents and their anger and frustration with one another. He states that while both parents have contributed to escalating the conflict, each blames the other and the other’s behaviour for the problem. Sherri believes Neil is controlling and hostile. This causes her to “shut down” rather than communicate with him on parenting issues. Neil blames Sherri for the breakdown of the marriage and sees himself as a victim of her spitefulness. He lacks insight into her important role in the child’s life.

[31] Mr. Hurwitz did not recommend sole custody (now decision making) to either parent. His concern was that if either parent was granted sole decision making, they could marginalize the other parent’s relationship with the child. This would not be in Q’s best interests.

[32] Mr. Hurwitz recommended a parallel parenting/joint custody (as it then was) arrangement. Sherri would be responsible for medical and recreational decisions and Neil would be responsible for educational decisions. Religion issues were to be jointly decided with a parenting coordinator to assist if necessary. This would ensure that both parents were actively involved in decision making for the child to provide her with consistency and minimize conflict.

[33] Mr. Hurwitz recommended a two-phase schedule of residence. In Phase 1, Q. would reside with Neil for five of fourteen overnights and Sherri for nine of fourteen overnights. In Phase 2, which was to commence in August 2019, Q. would reside with the parties in a 2/2/3 schedule. Holiday time is to be shared equally.

[34] In November 2018, Neil brought a motion to vary the Croll Order to immediately implement the 2/2/3 schedule in Phase 2 of the Hurwitz Report. Sherri brought a cross motion to maintain the schedule in the Croll Order or implement Phase 1 of the Hurwitz Report. Both parties sought counselling for Q. and a schedule for Facetime calls.

[35] Shore, J. ordered the 2/2/3 schedule and other relief including that each parent facilitate private Facetime calls for Q. with the other parent every evening at 7 p.m. for 10 minutes. The Order provides that the parties shall each respect the other party’s religious observance; that they shall select a dentist for the child who is not a family member (both Neil’s father and Sherri’s mother are dentists) and that each party may register Q. for one-extra curricular activity not to take place on a Friday evening or a Saturday.

[36] Sherri brought a motion to the Divisional Court for leave to appeal the Shore Order. She also brought a motion for a stay of the Shore Order pending the hearing of the motion for leave and, if leave was granted, pending the hearing of the appeal. Wilton-Siegel, J. dismissed the motion to stay and ordered Sherri to pay costs to Neil of $9,000. Those costs were not paid at the time this trial commenced.

[37] In September 2019 Sherri brought a motion to update Mr. Hurwitz’s Assessment Report. Akbarali, J. dismissed the motion. Akbarali, J. found that the current high conflict relationship was not a change from the situation at the time of the original Report. The parties had a significant record of their dispute and Q.’s circumstances which could be put in evidence at trial. Akbarali, J. ordered Sherri to pay Neil costs of the motion of $10,000.

[38] When this trial began, Sherri had not withdrawn her motion at the Divisional Court for leave to appeal the Shore Order. The Divisional Court dismissed Sherri’s motion for leave to appeal the Shore Order on February 28, 2020. The Court ordered Sherri to pay Neil costs of $5,000.

Credibility

[39] Neil argues that, where there is conflicting evidence, I should prefer his evidence to Sherri’s because he has been sincere and truthful in this proceeding and Sherri has not. He states that Sherri is in breach of court orders, that she attempted to bully Neil’s former counsel by filing a complaint against her with the Law Society, that she has consistently interfered with Neil’s parenting time, that she discussed trial evidence with her mother (a trial witness) in breach of the trial order excluding witnesses and terminated Q.’s nanny out of spite because the nanny was supportive of Neil. On this basis, he states that her evidence should be found to be insincere and, thus, less credible: see White v. R., 1947 CanLII 1 (SCC), [1947] S.C.R. 268, at para. 10; van Staveren v. Coachlite Roller Gardens Inc., 2012 ONSC 5941, at para. 13.

[40] Sherri argues that I should prefer her evidence and draw an adverse inference against Neil for failing to call his parents as witnesses to give evidence about the incident in Mexico and other issues. She states that Neil gave nonresponsive answers, self serving answers and answers that contradicted his own evidence and documentary evidence. She also argues that Neil was reticent in cross-examination and would not concede even on matters that were not especially contentious.

[41] Sherri argues that I should prefer her evidence because she was forthright and responsive. She was prepared to admit her own shortcomings and say positive things about Neil whereas he criticized nearly every aspect of her parenting.

[42] As the trier of fact, I am charged with determining the truth. On occasion, that task can be rendered unenviably difficult when both sides of a dispute are motivated to offer evidence designed to “fit” within their specific theory of the case. In Prodigy Graphics Group Inc. v. Fitz-Andrews, [2000] O.J. No. 1203 (Ont. S.C.), at para. 46, Cameron J. offered a non-exhaustive list of traditional criteria by which the evidence of each witness, and, where appropriate, the exhibits presented at trial, ought to be assessed:

1. Lack of testimonial qualification
2. Demeanour of Witness: apparent honesty, forthrightness, openness, spontaneity, firm memory, accuracy, evasiveness
3. Bias/Interest in the Outcome (if a party, motive)
4. Relationship/Hostility to a party
5. Inherent probability in the circumstances i.e. in the context of the other evidence does it have an "air of reality"
6. Internal consistency i.e. with other parts of this witness' evidence at trial and on prior occasions
7. External consistency i.e. with other credible witnesses and documents
8. Factors applicable to written evidence: (a) Presence or absence of details supporting conclusory assertions (b) Artful drafting which shields equivocation (c) Use of language in an affidavit which is inappropriate to the particular witness (d) Indications that the deponent has not read the affidavit (e) Affidavits which lack the best evidence available (f) Lack of precision and factual errors (g) Omission of significant facts which should be addressed, and (h) Disguised hearsay

[43] I carefully listened to and observed the testimony of all the witnesses called by both parties at trial. Both parties and a number of the collateral witnesses appeared in person. Witnesses who appeared after March 2020, including Mr. Hurwitz and Dr. Henderson, appeared via zoom video conference. I also reviewed numerous exhibits relied upon by the parties.

[44] Neil and Sherri presented their evidence differently. Sherri gave her evidence in a direct manner but showed some impatience when cross examined. Neil’s evidence was, at times, emotional. He provided lengthy descriptions and was intent on providing his version of events. In cross examination Ms. Normandin sometimes had to bring Neil back to her question.

[45] To me, this difference in presentation does not make either party’s evidence less credible. It demonstrates to me the differences in how each party communicates with the other during the relationship and since separation. These differences, in part, drive the ongoing conflict between them.

[46] I agree with Mr. Hurwitz’s observation that each party still harbours hurt and anger toward the other which colours their perception of what the other does and says. I agree with Dr. Henderson’s observation that both parties can be rigid and stubborn. There are many examples of this in the numerous emails and texts between the parties in evidence and the allegations made by both parties that the other suffers from a mental health disorder.

[47] For the most part, each party’s evidence focussed on Q.’s needs and the parenting issues. Both expressed their frustrations with the other and blamed the other for the problems in their own relationship. Their evidence on some events is so opposite it is as if they were not both present at the same time.

[48] Neil says he wanted a peaceful and negotiated resolution of the issues. He does not willingly admit that his communication with Sherri may have been inappropriate and hostile. If I find it was, Neil states it is because Sherri failed to respect his role as an equal parent. Neil is reluctant to acknowledge that his swearing, overt sarcasm, name calling, obscene gestures and allegations of a borderline personality disorder may have provoked Sherri’s negative reactions.

[49] For her part, Sherri says she tried to work with Neil and consult with him on parenting decisions. But Sherri also behaved in ways she knew would anger Neil and escalate the dispute. She extended her Facetime calls with Q. well beyond ten minutes, despite repeated requests that she adhere to the court ordered time limit. She did not always provide Neil with privacy for his Facetime calls. She scheduled activities for Q. on the Sabbath. She fed Q. non kosher food in the home during the nesting period and in her lunch bag when Q. returned to Neil’s home. She obstructed Neil’s parenting and holiday time with Q.

[50] While I have concerns about both parties’ behaviour and how it has impacted Q., I do not have serious concerns about either party’s credibility. Where I do prefer the evidence of one party over the other, I will address it below.

Decision Making and Schedule for Q.

[51] The history and evidence in this case demonstrates the parties’ struggle with each other and for control of Q.

[52] The court must determine who will make future major decisions for Q. and when she will reside with each parent. A sole decision-making order will empower one parent and may result in the non-decision-making parent having a less significant role in the child’s life. A joint decision-making order requires a degree of cooperation between the parents which does not exist here. The court must draw some lines to ensure each parent has a meaningful role in the child’s life and avoid the diminishment of either parent.

[53] The Court must also decide whether Neil’s parenting time should be reduced from the 2/2/3 schedule.

Neil’s Position

[54] Neil’s position is that he should be the sole decision-making parent. He states that both Sherri and Mr. Hurwitz gave evidence that he is a very good parent. Neil says he has always acted in Q.’s best interests and that he will continue to do so to facilitate Sherri’s relationship with Q.

[55] Neil argues that Sherri should not be the sole decision making parent because she has unilaterally dictated the terms of the parenting schedule and limited his involvement with Q. Sherri “pretends” that she has acted in Q.’s best interests and sends self serving emails as a “paper trail” to bolster her false narrative that she has consulted and cooperated with Neil.

[56] It is Neil’s position that Sherri has unilaterally made poor parenting decisions such as indulging Q. rather than setting proper limits, having Q.’s nanny do homework and attend activities with Q. rather than participating herself, giving Q. chocolates and sweets as rewards for using the toilet and feeding Q. an unhealthy diet. These decisions have been detrimental to Q.’s health and well being.

[57] Neil states that Sherri has acted out of spite and anger to undermine his relationship with Q. If Sherri is given final decision-making, she will use it to further isolate him from his daughter. Although the equal time-sharing schedule has been in place for over 2 years, Sherri refuses to accept the recommendations of Mr. Hurwitz and the findings of Shore, J. that an equal parenting time schedule is in Q.’s best interests.

[58] Neil states that Sherri lashes out when she does not get her way, or someone questions her. He points to Sherri’s anger and lengthy periods of estrangement from her own parents and sister arising from family disputes.

[59] Neil references the finding of Dr. Henderson that Sherri may have a Histrionic Personality Disorder. Dr. Henderson reports that this disorder is characterized by dramatic, overly emotional and unpredictable thinking. Individuals may express frustration and anger as a tantrum or tirade. Neil argues that Sherri’s hostile and vengeful behaviour toward him and her own family is illustrative of Dr. Henderson’s findings. Sherri’s own evidence confirms that she exhibited outbursts of sarcasm and anger during the marriage.

[60] In particular, Neil argues that Sherri should not be the sole decision-making parent because she has breached numerous court orders made in this case. If granted sole decision-making Sherri will do as she wishes regardless of whether it is in Q.’s best interests.

[61] In his evidence, Neil produced videos of Facetime calls between him and Q. The Shore Order specifies that each parent shall place the call to the other parent and then give Q. privacy to speak to the other parent. The videos in evidence show that Sherri was present with Q. during some calls to her father.

[62] In the videos, Q. says things to her father that are very distressing: “You are rude”, “I hate you; and you are bad and mean and stupid and don’t know anything at all because you are a baby.” In one video Q. tells Neil she wants to “kill him”. When Neil asks why, Q. says “because you are the worst dad ever”. Q. also says that she and a boy in her class are going to “kill Neil and grandpa”. When Neil asks why, Q. says “because you are not nice and grandpa is not nice.”

[63] In another video Q. begins by yelling “1,2,3 I hate Dada.” She also says “I want to kill you. I don’t love you anymore”. In that video, Neil asks if Q.’s bedroom door is open, and she says “Because I want mama to hear. Because I don’t like you”.

[64] In another video Q. says she does not want to speak with Neil. Sherri can be seen in the room at that time. Sherri is also present in other videos where Q. is speaking rudely to her father and when Q. abruptly hangs up the phone. In some videos, she is not seen but it appears that Q. is looking to someone in the room when she speaks to her father.

[65] In one video Q. calls to Sherri and tells her that Neil is being mean to her. Neil states that he has not said anything to her. Then Q. says “Mama, I don’t like him.” Sherri replies: “Ok, well that’s between you and dada.”

[66] Sherri does not correct Q.’s behaviour in this or any of the other videos where it appears she can hear and/or see Q.’s conversation with her father. Neil states that this shows Sherri is actively influencing Q. against her father. Sherri is working to damage their relationship which is not in Q.’s best interests.

[67] Neil argues that he has always been an involved parent to Q from her birth. He cared for Q. together with Sherri, including feeding, bathing and bedtime routine, diapering, and playing with her.

[68] Mr. Ori Sher, Neil’s friend and co-worker testified that Neil was a devoted and involved father. Neil organized his work and travel schedule to maximize his time with Q. Mr. Sher’s daughter and Q. are friends and the families spent time together when they were neighbours.

[69] Q. has always been Neil’s first priority. He asked Sherri to cooperate with him and be more amicable with the schedule to allow Q. to attend family events, religious observances, school events and activities. When the event involves Sherri’s family Neil did his best to accommodate Sherri’s requests, but this is not reciprocated with his family. When Neil does not accede to Sherri’s demands he says he is accused of being hostile and difficult.

[70] Neil has continued to be involved with Q.’s school, organized activities, medical appointments, and counselling. He helps Q. with homework and plans outings and activities during their time together. When Sherri terminated Q.’s nanny, Edna Lacandazo, Neil continued to employ her to provide stability and comfort for Q. who was struggling with her parents’ separation.

[71] Neil reluctantly admitted that on some occasions, he communicated with Sherri in ways that are not cooperative or constructive. He denies any violence or aggression. Neil has met with a psychologist, Dr. Chaim Newman, since June 2017 to assist him to cope with the stress of his work, his feelings of betrayal and the breakdown of the marriage.

[72] Neil disagrees with Dr. Henderson’s Report where she states that his test results indicate an Obsessive-Compulsive Personality Disorder. He argues that this finding is based on the results of a single five to six-hour meeting where he answered a set of standardized questions with computer generated results.

[73] Dr. Newman has treated Neil for almost four years and has never made a diagnosis of OCPD or any other personality disorder. He stated that Neil did not exhibit the requisite number of criteria required to make this clinical diagnosis. Dr. Newman testified that Dr. Henderson did not contact him about the testing she conducted or her diagnosis.

[74] Neil does not agree with Mr. Hurwitz’s recommendations for joint/parallel decision making. Mr. Hurwitz recommended Neil have decision making in the area where there was not much dispute (education) and recommended Sherri have decision making in the areas where there were major disputes (health care and activities). Neil argues that Mr. Hurwitz’s recommendations for decision making will allow Sherri to continue to ignore his concerns and input.

[75] It is very important to Neil that Q. attend Camp Ramah, a Jewish sleepover camp. Neil attended this camp for ten years and worked as a counsellor there for three years. He made lifelong friends at the camp. The camp keeps kosher and observes the Sabbath. Four of Q.’s first cousins attend the camp.

[76] Mr. Hurwitz acknowledged in his evidence that camp is a recreation decision to be made by Sherri. He stated that camp was not specifically raised as an issue during the Assessment because Q. was so young at the time.

[77] Sherri told Mr. Hurwitz that she attended camp until she was about 14 but did not “enjoy the camp life”. Neil says it is essential that he have sole decision making so he can ensure Q. has a special camp experience which supports her religious training and social and cultural growth. He fears that if Sherri makes the camp decision, she will send Q. somewhere else to spite Neil and Q. will lose a wonderful opportunity.

[78] Neil opposes a change to Q.’s surname. He believes that there has been too much change and upheaval in the child’s life already. To change her name would cause additional stress.

[79] Neil states that the parties never discussed giving Q. two surnames when she was born. During the marriage Sherri used Lavine professionally and Closner socially and on her identification documents. The issue did not arise in this litigation until September 2020 when Sherri amended her Answer to claim this relief.

Sherri’s Position

[80] Sherri’s evidence is that she has always been Q.’s primary caregiver. She is in the best position to provide the care, consistency, routine, and stability Q. requires, and to assist Q. with her health and education needs. Sherri’s witnesses Ms. Brass, her friend; Dr. Lavine, her mother; and Ms. Alip, her nanny, all supported Sherri’s position that she was a caring, devoted mother. Ms. Brass and Dr. Lavine testified that Neil was unnecessarily hostile to Sherri.

[81] Sherri gave extensive evidence about the difficulties she has had communicating with Neil since separation on almost all parenting issues: Q.’s schedule, activities, school registration, attendance and events, injuries, counselling and particularly the toileting issue. Sherri states that she has been the parent to advocate for Q. to ensure that her needs are met. She states that she meaningfully consulted Neil in these discussions and deferred to his opinions where she felt it was best for Q. Her cooperation has not changed Neil’s attitude toward her which she says is rude, insulting and not child focussed.

[82] Sherri states that Neil refuses to cooperate with her to make decisions in Q.’s best interests. Neil fabricated and misrepresented versions of events, such as the incident in Mexico. He refuses to acknowledge that his behaviour toward her such as swearing and rude gestures is even partly responsible for the conflict between them or that it has caused significant stress and disruption for Q.

[83] Sherri produced numerous emails she sent to Neil to include him in meetings and discussions with the school and Q.’s medical professionals. She forwards Neil emails from the school and communicates with him regarding registration, projects and school events. Sherri states that rather than working with her, Neil uses this communication to denigrate her and further the conflict.

[84] Sherri argues that Neil is not attuned to Q.’s needs. He denies that Q. is regressing in her toileting despite the evidence of her teachers and medical professionals suggesting otherwise. This is very detrimental for Q. both physically and socially. Neil does not believe that the conflict between the parties impacts Q. and will not acknowledge that his behaviour is part of the conflict which is detrimental to his daughter.

[85] Sherri refers to Mr. Hurwitz’s Report which listed his concerns regarding the very negative comments Neil made about Sherri both during the interview process and during Mr. Hurwitz’s meetings with the parties. When Mr. Hurwitz tried to intervene, Neil continued to verbally attack Sherri. Neil did not let Sherri express her concerns and was resistant to Mr. Hurwitz’s intervention to resolve issues. Mr. Hurwitz observed that Neil refuses to acknowledge Sherri’s important role as Q.’s mother and focusses more on his need to express his anger and blame her for the separation.

[86] Mr. Hurwitz observed that Sherri showed a better understanding of how the parties’ circumstances impacted Q. and could better communicate with Neil in a child focussed way. She was able to guide, support and nurture Q. in a positive way. Mr. Hurwitz did not agree with Neil’s allegations that Sherri did not exercise good parenting judgment.

[87] Sherri does not contest the findings of Dr. Henderson’s psychological testing. She describes her Report as “fair overall”. Sherri also agreed when cross examined that during the marriage, she exhibited some of the behaviours consistent with Dr. Henderson’s finding of a Histrionic Personality Disorder including manipulation and outbursts of anger and sarcasm.

[88] Sherri states that Neil cannot be trusted to meaningfully consult with her and make sole decisions in Q.’s best interests. He has shown a pattern of hostility, and lack of insight into Q.’s needs. He has made unilateral decisions without consulting Sherri. If Neil has sole decision making authority, he will use it to punish and blame Sherri. This will only prolong the conflict which is not in Q.’s best interests.

[89] Sherri believes it is in Q.’s best interests that Q. have her primary residence with her and reduced overnight parenting time with Neil. She states that Q. has struggled with the 2/2/3 schedule since the Shore Order was made. Q.’s toileting problems got worse when the 2/2/3 schedule commenced and have not improved. Sherri argues that Q.’s best interests require a reduction in her time with her father and the stability of a primary home with her mother.

[90] Sherri seeks to change Q.’s surname to “Lavine Closner”. During the marriage Sherri used Closner as her surname socially and Lavine as her surname professionally. Since separation, she has changed her surname back to Lavine on certain documents but not her passport or health card. She is concerned there may be difficulty or confusion for Q. if they do not have the same surname.

[91] Sherri wants Q.’s surname to reflect both of her families. She does not believe that the change of name will cause any difficulty for Q.

[92] Alternatively, Sherri asked that “Lavine” be added to Q.’s middle name.

Dr. Rachel Barrett’s Evidence

[93] Dr. Barrett is Q.’s bladder and bowel specialist. The parties were referred to Dr. Barrett by Q.’s paediatrician, Dr. Mehta. Q. met with Dr. Barrett beginning in February 2019.

[94] After examining Q., Dr. Barrett reported to the parents that Q.’s bowel and bladder dysfunctions were related to both medical and behavioural issues. She observed that Q. was experiencing symptoms despite receiving medical treatment and recommended that Q. see a child psychologist to focus on behavioural issues.

[95] Dr. Barrett referred Q. to Dr. Mirisse Foroughe for ongoing therapy. Dr. Barrett observed that Q. was under extreme stress relating to the conflict between her parents and asked Dr. Foroughe to focus on this as part of her treatment of Q.

[96] Dr. Barrett spoke to Dr. Foroughe in July 2019. Dr. Foroughe confirmed that there was a strong psychological component to Q.’s toileting accidents. She was not sure at that time if the issue was related to control or the child’s anxieties related to the conflict between her parents.

[97] Dr. Barrett testified that Q.’s diet, including the food she ate in Sherri’s home, was within a normal range for a child of her age and not major cause of the toileting issues.

[98] Dr. Barrett meets with both parents and communicates with them by email.

Karen Lidor’s Evidence

[99] Ms. Lidor is the Vice Principal of B[…] Day School in the primary school, from junior kindergarten to grade 1. She communicates with both parents in person, by telephone and by email.

[100] Ms. Lidor testified that Q. has had toileting accidents since she began junior kindergarten. While there have been times when the situation improved, in December 2018 the problem became more severe. Ms. Lidor observed that it was affecting Q.’s social relationship with her peers. Q. also suffered rashes and other physical discomfort.

[101] About this time, Ms. Lidor spoke to both parties about help for Q. She was told the parties disagreed about the child’s medical care and the court would have to make an order. Ms. Lidor waited for instructions from a medical professional but did not receive any further information. She was concerned that Q. needed help beyond what B[…] could provide and was not receiving it. She reported her concerns to Jewish Child and Family Services in January 2019.

[102] There were subsequent meetings between Ms. Lidor, Q.’s teachers and the parties to report on Q.’s situation and to discuss the school’s policy as to how teachers could assist Q. When Q. began attending Grade 1 in September 2019, the situation had not significantly improved.

The Evidence of the Nannies

Edna Lacandazo

[103] Ms. Lacandazo was hired by the parties in August 2014 when Sherri returned to work after her maternity leave. Q. was eight months old. She worked for the parties during the marriage and after separation during the “nesting period” ordered by Croll, J.

[104] Ms. Lacandazo testified that she was an integral part of the home. She worked from 8:00 am to 6:00 pm. Ms. Lacandazo was involved in all aspects of Q.’s care including bathing, changing, naps, activities, and meals. She confirmed that Sherri was the parent who taught her about Q.’s routine and day to day care.

[105] Ms. Lacandazo did not receive any written criticism of her work from either party. In a Mother’s Day Card sent in May 2017, Sherri said she and Q. loved Ms. Lacandazo and thanked her for being Q.’s “second mother” and “always looking out for her”.

[106] On June 23, 2017 there was a dispute between Sherri and Ms. Lacandazo about a play date and whether Sherri’s mother, Dr. Lavine, would be driving and/or picking up Ms. Lacandazo and Q. Ms. Lacandazo testified that Sherri yelled at her in front of the other nannies which embarrassed and upset her.

[107] Later that day Ms. Lacandazo sent a text to Sherri which Sherri said she took to be Ms. Lacandazo giving notice. Sherri advised Ms. Lacandazo this would be her last day of work. Sherri did not consult Neil about this decision.

[108] When Ms. Lacandazo asked Neil for a reference for a new job, Neil offered to employ her during his parenting time with Q. He wanted to provide Q. with continuity and support. Sherri initially opposed this. She sent a text message to Ms. Lacandazo as follows: “I have not given my consent to this arrangement and think it is in Q.’s best interest to move on with a new caregiver full time. I hope you respect my wishes and do not force me to take legal action to prevent this arrangement.”

[109] Ms. Lacandazo did not respond to Sherri’s message. She began to work for Neil in July 2017. In August 2017 Sherri told Neil that she did not consent to Q. being in Ms. Lacandazo’s care or company and asked Neil not to permit this. Sherri said she felt Neil was using Ms. Lacandazo to “spy” on her but gave no specific reasons for why her position on Ms. Lacandazo changed so drastically from May 2017. Sherri did not commence legal action against Ms. Lacandazo.

[110] Ms. Lacandazo describes Q. as a bright happy girl. She testified that both parents love Q. but that they have very different parenting styles. Neil is more focussed and disciplined and Sherri is more indulgent.

[111] Ms. Lacandazo testified that she was involved in assisting the parents and now Neil with all aspects of Q.’s care including potty training.

Arlyne Alip

[112] Sherri hired Ms. Alip as Q.’s nanny in March 2018. She works from 8:00 am to 6:00 pm. Ms. Alip packs Q.’s lunch and gets her ready for school, picks Q. up from school, takes her to activities and cares for her until Sherri returns from work. She also does light housework and cooking.

[113] Ms. Alip described Q. as happy, sweet and active.

[114] Ms. Alip confirmed that Q. has had toileting issues since she began working as her nanny. Sometimes the situation improves but then gets worse. Ms. Alip does not know what causes Q. to have accidents.

Dr. Olga Henderson’s Evidence and Report

[115] Dr. Olga Henderson conducted psychological testing of both parents on referral by Mr. Hurwitz. Mr. Hurwitz sought an evaluation of each party’s personality and psychological functioning. The assessments took place in November 2017.

[116] Dr. Henderson found that Neil had adequate parenting knowledge and good control over his feelings and impulses. Dr. Henderson’s test protocols found no major mental health disorder, but one test indicated a diagnosis of an Obsessive Compulsive Personality Disorder. This may cause Neil to exert more control over the child’s behaviour and be more rigid in his reactions. Neil also lacks insight into his role in the conflict between the parties. She recommended Neil attend psychotherapy to assist him.

[117] Dr. Henderson was aware that Neil had been seeing a psychotherapist for some time but did not contact Dr. Newman about her diagnosis or any treatment recommendations.

[118] Dr. Henderson found that Sherri demonstrated sound knowledge of parenting skills. Her parenting style is supportive and reassuring. Dr. Henderson’s test protocols found no major mental health disorder, but one test indicated Sherri might be suffering a Histrionic Personality Disorder. In stressful circumstances there can be lapses in control and demanding and manipulative behaviours. Dr. Henderson recommended that Sherri continue her personal counselling to assist her.

[119] Dr. Henderson confirmed that Sherri told her she was seeing a counsellor at the time they met. Sherri conceded that she was not in counselling at the time she met with Dr. Henderson and that she did not correct this error to either Dr. Henderson or Mr. Hurwitz.

[120] Dr. Henderson found that the clinical triggers for the parents were their very different personalities, beliefs and perceptions of one another. Neil needs to be in control while Sherri needs attention and affection. Neither of them can meet the needs of the other which creates resentment and conflict. Dr. Henderson concluded that the parties are unable to resolve these differences and probably will not be able to agree on how to parent their daughter.

Mr. Hurwitz’s Evidence and Report

[121] Mr. Hurwitz last saw Q. in October 2017 and the parties in December 2017. He interviewed a number of collateral contacts including Q.’s principal and teachers, the parties’ family members and friends, the parties’ mental health and medical professionals and a worker from JFCS.

[122] Mr. Hurwitz confirmed that Q. has a close bond and a positive relationship with both parents. She is eager to spend time with each parent and looked to both of them for support, care and guidance. Both parents were appropriate, affectionate, and nurturing with Q.

[123] The Report chronicles the major difficulties between the parties in this high conflict case. Mr. Hurwitz observed that both parents used the nesting arrangement to act out toward one another and each has contributed to the escalation of the conflict between them over the years.

[124] While both parents are devoted to their daughter and her well being, Mr. Hurwitz found that their anger and frustration with one another causes them to disengage from parenting together. Q. is very aware of the acrimony between her parents. Mr. Hurwitz states that this has had a significant impact on her as evidenced by her toileting issues.

[125] Mr. Hurwitz’s Parenting Plan Recommendations are based on his significant concern that each parent could marginalize Q.’s relationship with the other parent. Each parent expressed reasons why she or he should be the sole decision making parent and why the other parent’s role should be reduced or limited. Mr. Hurwitz did not find either parent’s reasons to be justified or in Q.’s best interests.

[126] To address his concerns, Mr. Hurwitz recommends a parallel parenting/joint decision making arrangement where each parent has final decision making over a particular domain: Sherri will have final decision making over health care and recreational issues and Neil to have final decision making over educational issues. The parties will make religious decisions together.

[127] He recommends a parenting schedule that “steps up” to a 2/2/3 schedule. This schedule has essentially been in place since the Shore Order.

[128] Mr. Hurwitz recommends an equal sharing of the December and Passover School holidays and four non-consecutive one-week summer holidays for each parent or an equal division of time in one week blocks if Q. attends camp.

[129] The recommended holiday schedule also includes a sharing of specific long weekends. It provides that non-specified long weekends be spent with the parent who has had the child for that weekend.

[130] The recommended schedule specifies that Sherri have Q. every Labour Day weekend and Neil have Q. every August long weekend. If Sherri’s selected summer holiday time includes the August long weekend, Neil may select another long weekend in the year (not Labour Day).

[131] PA Days are to be spent with the parent who has Q. on that day.

[132] The Jewish holidays of Rosh Hashanah, Sukkot, Simcha Torah and Passover are specified and divided equally. There are terms for Q.’s transportation on days when Neil does not drive.

Law and Analysis

[133] Section 16(1) of the Divorce Act provides that in making an order for parenting time or decision making responsibility the court shall take into consideration only the best interests of the child. Section 16(2) states that when considering the factors in s. 16(3) to determine the best interests of the child, the primary consideration is the child’s physical, emotional and psychological safety, security and well-being.

[134] Section 16(3) sets out a list of circumstances the court shall consider in determining the child’s best interests. The list is not exhaustive:

16(3) Factors to be Considered – In determining the best interests of the child, the court shall consider all of the factors related to the circumstances of the child including:

(a) The child’s needs given the 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 the 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, amongst 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.

[135] In E.M.B. v. M.F.B., 2021 ONSC 4264 at paras. 62-63, Mandhane, J. held: “When making a parenting order, I must stay laser-focused on the child’s best interests. Parental preferences or “rights” play no role except insofar as they are necessary to ensure the best interests of the child: citing Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3 at paras. 74-77, 159 and 210”. In determining parenting time, the court must consider only the best interests of the child and give primary consideration to the child's physical, emotional, and psychological safety, security and well-being.

Decision Making

[136] I am troubled by Neil’s lack of insight into how his behaviour may have contributed to the difficulties between the parties. Neil blames Sherri’s infidelity and what he views as her lack of parenting cooperation for the conflict. He fails to consider how his own actions, including offensive communication, name calling and angry outbursts toward Sherri (some in front of Q.) may have provoked Sherri’s frustration and added to her negative reactions.

[137] Even in the joint disclosure meeting with Mr. Hurwitz, Neil made accusatory, negative comments toward Sherri which caused her to withdraw. Mr. Hurwitz tried to redirect Neil, but he persisted in his attack.

[138] Sherri, for her part, has behaved uncivilly toward Neil at times. She conceded that when there was a dispute and things did not go her way, she can become defensive and combative. When stressed, Sherri would sometimes “shut down” and not respond to Neil which caused him to send repeated, increasingly angry communication.

[139] Sherri has made efforts to communicate with Neil around parenting issues. However, she has also added to the conflict by denigrating Neil’s parenting as rigid and controlling, refusing to accommodate Neil’s special family events, preventing Neil from supporting Q. on her first day of school (to the point of blocking the child with her body), and seeking to reduce Neil’s parenting time with Q.

[140] Sherri’s Facetime calls with Q. are consistently two to three times longer than ordered by Shore, J. Sherri knows that one of Neil’s biggest concerns is that she limits his time with Q. While there may understandably be a few calls that go longer, I find this behaviour to be a deliberate provocation of Neil.

[141] The parties have very different versions of the incident in Mexico. Whatever transpired it was traumatic for everyone, especially Q. She was put in the middle of the adult conflict which was very stressful. Q. told Mr. Hurwitz this event made her feel fearful. In her video calls with her father Q. says she wants to “kill” her grandpa because he “is not nice”.

[142] When Sherri and Q. returned from Mexico, Sherri did not permit Neil to reside in the home with Q. She did not permit Q. to see her paternal grandparents for lunch or visits or pick her up from school. While Sherri was understandably shaken by the events, she reacted by putting her own needs ahead of Q.’s needs. This was distressing for Q.

[143] Both parties have told third parties including Mr. Hurwitz and Dr. Henderson that the other has a mental illness. Neil believes Sherri has a Borderline Personality Disorder. Sherri believes Neil is delusional and needs counselling. Both parties use this alleged mental illness as an explanation for why they should be the sole decision making parent and why they cannot work cooperatively with the other to make joint decisions.

[144] Dr. Henderson confirmed that the tests she gave to both parties were computer scored. She spent less than an hour in personal interviews with each party. Dr. Henderson testified that her assessment is not a definitive psychological assessment of the parties. She analyzes the test scores and uses her best judgment to make recommendations to assist Mr. Hurwitz in conducting his s. 30 Assessment.

[145] The ongoing conflict has led to hurt feelings and harsh words by both parties. The parties each gave evidence that they wished they could communicate co-operatively with one another for Q.’s sake. Mr. Hurwitz observed that Q. has a strong bond with both parents, and she engages well with both of them. Both parents are nurturing and responsive to the child’s needs. Q. would benefit from seeing her parents work together in caring for her.

[146] It is clear from the positions taken by the parties at trial that the level of acrimony between them which was escalated by the events in 2017 has not abated. Both parties are very strong willed. Both believe that they are the best parent to make decisions for Q. and that the other parent is not. I agree with Mr. Hurwitz’s observation that if either of the parties was the sole decision maker for Q. there is a very real chance that they would use this to marginalize the other parent’s role in the child’s life.

[147] In viewing the totality of the evidence and observing the parties over the course of the lengthy trial, I find that an order for final decision-making to one parent would not be in Q.’s best interests.

[148] Mr. Hurwitz’s Report recommends a divided parallel parenting regime where each parent is given separate, defined areas of parental decision-making, independent of the other. For religious decisions, Mr. Hurwitz recommends joint decision making. I agree with Mr. Hurwitz that, despite their different levels of observance, the parties can make religious decisions together, with the assistance of a parenting coordinator if necessary.

[149] I am mindful of the decision of the Ontario Court of Appeal in Kaplanis v. Kaplanis (2005), 2005 CanLII 1625 (ON CA), 249 D.L.R. (4th) 620 (Ont. C.A.). In that case, the court held that an order for joint custody may not be appropriate in cases where the parties are not able to communicate or engage in joint decision making. However, in the context of these parties and based on the religious decisions that they made together during the marriage; I find that it is in Q.’s best interests to see her parents both participating equally in her religious training.

[150] The other major areas of decision making are medical, education, and activities. In Ursic. v. Ursic, (2006) 2006 CanLII 18349 (ON CA), 32 R.F.L. (6th) 23 (Ont. C.A.) at para. 26, the Ontario Court of Appeal held that joint custody (as it then was) under a parallel parenting regime may be suitable where the court finds that both parents should continue to play an active role in the child’s life. Where the parents have difficulty communicating and agreeing on parenting decisions, it may be appropriate to allocate decision making on major matters separately to each parent.

[151] Parallel parenting has been held to be appropriate in cases in cases where neither sole decision making, nor cooperative joint decision making will meet the best interests of the children. These are cases where sole decision making could result in the other parent being marginalized and joint decision making is unworkable because the parents are distrustful and hostile: see M.(T.J.) v. M.(P.G.) (2002), 2002 CanLII 49550 (ON SC), 25 R.F.L. (5th) 78 (Ont. S.C.) at para. 20, citing Moll v. Moll. [2002] O.J. No. 4060 (Ont. Gen. Div.).

[152] Where both parties have been active and involved parents, it is beneficial to the child that they continue to participate in making important decisions. If cooperation between the parents is difficult or impossible, parallel parenting gives each parent a meaningful role in the child’s life with a buffer to the conflict. The ability to make decisions for the child, even in one area, maintains the parent’s connection and influence in the child’s upbringing.

[153] In K. (V.) v. S.(T.), 2011 ONSC 4305, at para. 96, Chappel, J. reviewed the case law in this area and set out a number factors for the court to consider when determining whether to make a parallel-parenting order:

a) The strength of the parties' ties to the child, and the general level of involvement of each parent in the child's parenting and life. b) The relative parenting abilities of each parent, and their capacity to make decisions that are in the child's best interests. c) Evidence of alienation by one parent. d) Where both parties have engaged in alienating behaviour, but the evidence indicates that one of them is more likely to foster an ongoing relationship between the child and the other parent, this finding may tip the scale in favour of a sole custody order. e) The extent to which each parent is able to place the needs of the child above their own needs and interests. f) The existence of any form of abuse, including emotional abuse or undermining behaviour, which could impede the objective of achieving a balance of roles and influence through parallel parenting.

[154] In this case, I find that both parents are closely bonded to the child. Both have been involved in major parenting decisions relating to Q.’s health, religion, education and activities. While both parents have demanding careers, they have made Q. their focus.

[155] Both parents have good parenting abilities. While their anger and hurt toward the other has sometimes clouded their judgment, I find that each of them is able to make decisions in the child’s best interests.

[156] While each parent has made unilateral decisions and the parties have not always cooperated, I do not find that either parent acted to alienate the child from the other. While there have been harsh words and actions, I do not find that either party abused the other.

[157] Both parents have behaved selfishly on occasion. However, this behaviour was driven by their strong, opposing personalities and their inability to communicate effectively with one another. Both parents are very devoted to Q.

[158] Based on this analysis, I am satisfied that giving each parent distinct decision making authority over a major decision is in Q.’s best interests. It has the benefit of giving them equal status and involvement with Q. Despite the conflict between them, both parents love Q. and should be actively involved in her life.

[159] I am mindful of the decision of Sherr, J. in H.(K.) v. R. (T.K.) 2013 ONCJ 418 where His Honour reviewed the factors listed by Chappel, J. in K.(V.) v. S.(T.). His Honour added a number of factors for the court to consider when making an order for parallel parenting at paras. 51-55:

i. The likelihood of one category of decision-making conflicting with another (the spillover effect) and the ability of the parents to navigate those conflicts. ii. Whether the parents have the ability to navigate scheduling conflicts between activities and appointments. In particular, will parallel decision making create more conflict and instability for the children. iii. Whether the parents live close enough to one another to implement the decisions made by the other. iv. Based on the dynamics of the parents, whether a parallel parenting order will de-escalate or inflame the conflict.

[160] Sherr, J. concludes that the court must be careful when making parallel-parenting orders in high-conflict cases. The order could give rise to continued disputes between the parents over logistics and responsibility. This can create delay and stress for the child. It is not in the best interests of the child to further complicate the decision-making process.

[161] I recognize that Neil and Sherri have difficulty cooperating and communicating effectively. This will not be an easy co-parenting relationship. But the difficulties between them are not sufficient in my view to require an order for sole decision making. While there are risks associated with a parallel parenting regime (as set out above) I find that these are outweighed by the benefit to Q. of having both of her parents fully engaged in her decision making and care and involved in her major life events.

[162] Both Neil and Sherri expressed the wish to parent more effectively with the other for Q.’s benefit. For parallel parenting to be successful, Neil must let go of his anger and resentment toward Sherri and show that his intention to co-operate with her is genuine. He must respect Sherri’s important role in Q.’s life. Sherri must be open to working with Neil and recognize that Q. will benefit from his equal involvement in her life.

[163] I agree with Mr. Hurwitz that Sherri shall have sole decision making responsibility for health care and Neil shall have sole decision making responsibility for education. Additional terms relating to this decision are set out in the order below.

[164] While I agree with Mr. Hurwitz that Sherri should have sole decision making responsibility for Q.’s recreational activities, there must be restrictions to ensure that the activities do not take place on Friday evening or Saturday when Q. is with Neil. I also find that Neil should have sole decision making responsibility with regard to Q.’s camp.

[165] In this case, camp is a “spillover” decision (as defined by Sherr, J.) that overlaps the area of recreational activities and religion. It is very important to Neil that Q. attend Camp Ramah. In his evidence at trial Mr. Hurwitz stated that he did not deal with the issue of camp in his Report because of Q.’s age at the time. He confirmed that camp would be an extracurricular decision for Sherri to make. He also confirmed that Neil did not address the issue of camp during the Assessment.

[166] Mr. Hurwitz’s recommendation for summer school vacation states: “The summer that Q. completes grade 1, each parent to have four consecutive one week periods with Q. during the summer period from the end of school in June until the commencement of school in September. This could be varied if Q. continues to attend day camp that summer, in which case the parents to share the remaining weeks following the conclusion of day camp on a 50/50 basis.”

[167] Mr. Hurwitz’s Report recommends that Neil “should be able to expose his daughter to the same level of religious observance that he wants. Ms. Levine needs to support this despite her becoming less observant since separation.”

[168] Camp Ramah is a sleepaway camp where Sabbath is observed, and meals are kosher. Four of Q.’s female first cousins from both extended families attend the camp. Neil believes that Q. would benefit from this camp both socially and as part of her religious observance.

[169] As part of the financial settlement, Neil agreed to pay 100% of Q.’s special and extraordinary expenses including private school tuition and summer camp. The parties agreed during the marriage that Q. would attend a private religious school. In my view it is appropriate that she attend a camp with similar religious values and that Neil be the parent to make final decisions regarding camp along with decisions regarding education.

Parenting Time Schedule

[170] Q. has lived equally with both parents in the 2/2/3 schedule since December 2018. Both parents have worked hard to provide a loving and supportive home for her.

[171] Q. is too young to have her views and preferences ascertained under s.16(3)(e). However, Mr. Hurwitz observed that Q. was happy and comfortable in both parents’ homes and interreacted well with each of them. He also observed that Q. was articulate and calm when she talked about her family using the Bear Cards. Q. chose the silly, happy and contented cards to describe herself in the context of her family. Mr. Hurwitz made his recommendations for an equal time sharing schedule based on an assessment of all of Q.’s needs and circumstances after a comprehensive review of information gathered from many sources.

[172] I have considered all of the relevant factors in s. 16(3)(a), (b), (d) and (h) and applied them to the facts as found by me in this case. I find the present residential schedule is in Q.’s best interests because it maintains her stability and routine, limits the transitions between the parents and provides maximum time with both parents.

[173] In making this finding my primary consideration is Q.’s physical, emotional and psychological safety, security and well being as instructed in the Divorce Act s. 16(2). Section 16(6) of the Divorce Act requires the court to allocate as much parenting time with each spouse as is consistent with their best interests. This does not create a presumption of equal parenting time.

[174] Q. has struggled with toileting issues. Mr. Hurwitz and Drs. Barrett and Foroughe opined that this issue may be caused more by Q.’s anxiety and emotional reaction to the conflict between her parents than a physical cause.

[175] Consistency and stability are important for Q. Maintaining the shared schedule which has been in place since December 2018 will meet Q.’s need for structure and routine in both parents’ homes. Both parents are nurturing, responsive, supportive and loving with Q. There is no compelling evidence before me to reduce Neil’s parenting time with Q.

[176] I do not agree with Mr. Hurwitz’s recommendation that Q. reside with Sherri every Labour Day weekend and Neil every August long weekend. The recommendation states that if Sherri’s summer holiday time includes the August long weekend, Neil may choose another long weekend in the year.

[177] The Labour Day weekend usually attaches to the first day of school. This is an important day for both parents to participate in. In the past, Neil and Sherri have had conflicts on this day and were not able to share the special event with Q. It is not a solution to remove Neil from the first day of school entirely. This is especially so when Neil is the parent making final decisions on education and paying 100% of the private school costs.

[178] The Labour Day weekend shall be alternated each year. The parent who has Q. for that weekend shall be responsible to prepare Q. to return to school and take her to school on the first day. The other parent may attend the school on the first day to greet Q. but shall do so in a brief and positive manner only.

[179] I agree with the equal sharing of summer holiday time as recommended by Mr. Hurwitz in his Report but find that the parents should each have more consecutive holiday time with Q. during the summer. This is an opportunity for Q. to spend less structured time in each parent’s home, away from the city or with extended family.

[180] Commencing in 2022, the parents may take two of their summer holiday weeks consecutively. The arrangements for summer vacation shall be made by April 1 of each year. Neil shall have the first pick of weeks in even numbered years and Sherri shall have the first pick of weeks in odd numbered years.

[181] If Q. attends sleepaway camp, the remaining weeks of the summer shall be shared equally by the parents.

[182] Mr. Hurwitz recommends daily Facetime calls of 10 to 15 minutes in length continue. At the time of the assessment, Q. was not yet 4. At that age, frequent contact with each parent was important and age appropriate.

[183] The daily Facetime calls have been a flashpoint for conflict. Q. will be 8 in December. At this stage, I find that scheduled calls every second day that Q. is with the other parent are age appropriate. The call should be for a maximum of 10 minutes. If Q. wishes to call the other parent on a day when a call is not scheduled, the parent who is caring for Q. shall facilitate the call at Q.’s request.

[184] Both Neil and Sherri must attend their own counselling to deal with their emotional issues arising from the breakdown of the marriage and their negative emotions toward the other. Parallel decision making requires some level of communication and cooperation, even where each party has final decision making in a major area. As set out in H. v. R., parents must communicate to schedule and implement decisions made by the other.

[185] Neil and Sherri are highly intelligent and have significant financial resources. Their daughter will benefit from both of them being integrally involved in her care. Cooperation will not be easy, but it is what is best for Q.

Q.’s surname

[186] Subsection 5(5) of the Change of Name Act states that the Court shall determine an application to change the name of a child in accordance with the best interests of the child. The change of name should not be done merely for convenience. The onus is on the parent wishing the name change to demonstrate that the child will benefit from the change: Herniman v. Woltz (1996), 1996 CanLII 8087 (ON SC), 22 R.F.L. (4th) 232 (Ont. S.C.) at para. 7.

[187] In Cuthbert v. Nolis, 2018 ONSC 4643, Goldstein, J. adopted the factors set out in Wintermute v. O’Sullivan (1985), 1985 CanLII 1363 (AB KB), 48 R.F.L. (2nd) 276 (Alta. Q.B.) in determining whether the change of name would be in the child’s best interests (citing Davies, Family Law in Canada (1984) at p.32):

(a) The welfare of the child is the paramount consideration. (b) The short and long term effects of any change in the child's surname. (c) Any embarrassment likely to be experienced by the child if its name is different from that of the parent with custody or care and control. (d) Any confusion of identity which may arise for the child if his or her name is changed or is not changed. (e) The effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage. (f) The effect of frequent or random changes of name.

[188] I agree with Goldstein, J. that there is no longer a presumption that children automatically take the surname of their father. However, here, both parents agreed on Q.’s name at the time she was born. Sherri was using Lavine professionally and did not raise using two surnames at that time.

[189] The professionals involved with Q. all gave evidence that she is aware of the parents’ conflict and that it has caused her distress. Changing Q.’s name would not only change her identity but it would further demonstrate that her parents’ dispute continues and involves something that is essential to her: her name.

[190] Applying the factors in Cuthbert, I find that there is unlikely to be any embarrassment or confusion of identity if Q.’s surname remains Closner. In my view, a change of surname is more likely to have a negative effect. Sherri has not met the onus of proving that Q. will benefit from the name change or that it is in her best interests.

[191] Order to go

i. The parties shall have joint decision making/parallel parenting of Q, born [...], 2013 pursuant to the terms set out in Howard Hurwitz’s Parenting Plan Recommendations in paragraphs 1 to 14 of his Report, dated January 15, 2018, as amended below. ii. The amendments to Mr. Hurwitz’s Report are: i. Sherri shall hold Q.’s health card. Neil shall hold Q.’s passport. Each party shall provide the original document to the other party as required. Each party shall return the original document to the holder at the conclusion of use. The parties shall share equally the cost of passport renewals including photos. ii. Sherri shall make major decisions regarding Q.’s recreation and activities except summer camp. Sherri shall not schedule Q. in a programme or activity which falls on a Friday evening (starting one hour before sundown) or anytime on a Saturday. iii. Neil shall make decisions regarding Q.’s attendance at summer camp commencing for the summer of 2022. Camp registration must be completed before April 1 in each year. Neil shall advise Sherri of the camp dates prior to April 1 so that each party can schedule their summer holiday time with Q. iv. The current 2/2/3 parenting time schedule shall continue. The exchanges shall take place at school. If an exchange day is a holiday or a PA Day, on Mondays the parenting returning Q. shall drop her off at school on Tuesday or the other parent’s home at 9: a.m. if school is not in session. If Friday is the holiday, the parent who had Q. overnight on Thursday shall return Q. to the other parent at 6:00 p.m. on Friday. If it is a Jewish holiday and Neil is unable to drive, Sherri shall pick up Q. from Neil’s home. v. The Labour Day weekend shall be alternated each year. In even numbered years Q. shall reside with Neil and in odd numbered years Q. shall reside with Sherri. The weekend shall begin at 6 p.m. on Friday to return to school Tuesday morning. The parent who has Q. for that weekend shall be responsible to prepare Q. to return to school and take her to school on the first day. The other parent may attend the school on the first day to greet Q. but shall do so in a brief and positive manner only. vi. If the first day of school is not the Tuesday following Labour Day, the parent who has Q. shall return her to the other parent at 6 p.m. on Labour Day Monday and the regular 2/2/3 will commence on Tuesday. The parent who has the child on the morning of the first day of school in the regular schedule shall take the child to school on that morning, regardless of which parent had the child for Labour Day weekend. The other parent may attend the school on the first day to greet Q. but shall do so in a brief and positive manner only. vii. Commencing in 2022, each parent may take two weeks of their summer holiday time consecutively. The arrangements for summer vacation shall be made by April 1 of each year. Neil shall have the first pick of weeks in even numbered years and Sherri shall have the first pick of weeks in odd numbered years. viii. There shall be no right of first refusal and no make up parenting time. ix. The parties shall retain an agreed upon parenting coordinator to assist them with joint decision making of religious issues and issues where neither party has final decision making authority. The parties shall share the cost of the parenting coordinator equally. The parenting coordinator may reapportion the cost of parenting coordination. x. Q. shall continue to attend closed counselling at the recommendation of her counsellor. xi. Both parties shall attend their own counselling to deal with their emotional issues arising from the breakdown of the marriage and their negative emotions toward one another. xii. Each of the parents may initiate one Facetime or webcam call with Q. on the second day she is in the other parent’s care. The call shall take place between 7:00 and 7:30 p.m. for a maximum of 10 minutes. If Q. wishes to call the other parent on a day when a call is not scheduled, the parent caring for Q. shall facilitate the call at Q.’s request until she is old enough to make the call on her own.

[192] Neither party shall change the child’s name.

[193] If the parties cannot agree on costs, Neil shall serve and file submissions on costs within twenty one days from the release of these Reasons. Sherri shall have twenty one days thereafter to serve and file her submissions. The submissions shall be no more than three pages, exclusive of any costs outline, case law, and offers to settle. Neil may serve and file Reply submissions of two pages fourteen days after Sherri’s submissions have been served. Submissions may be served between the parties by email and sent to my clerk, Patrizia.Generali@ontario.ca

E.L. Nakonechny, J.

Released: September 14, 2021