B.M. v. A.M., 2021 ONSC 6807

COURT FILE NO.: FC-18-FS000383-0000

DATE: 2021-10-15

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

B.M.

Applicant

– and –

A.M.

Respondent

Emily Carroll, Counsel for the Applicant

Raymond Wrubel, Counsel for the Respondent

HEARD: September 8, 9, 10, 13, 14, 15, 17, 20, 22 and the morning of September 23, 2021

Amendment Notice: Amendments made on March 8, 2022. To prevent the identification of the parties in this matter, due to a restriction on the publication of the names of one or more of the parties in a related criminal court matter, this decision has been amended to remove the full names of the parties and participants and those name as well as school names have been replaced with their initials.

THE HONOURABLE MADAM JUSTICE D. PICCOLI

AMENDED REASONS FOR DECISION

[1] This court heard a 9.5 day trial. I was asked to decide the following issues:

1. What should the parenting schedule be during the school year?

2. What should the parenting schedule be during Christmas and the summer?

3. What school should the children attend?

4 Where shall the children be picked up and dropped off at the beginning and end of a parent’s parenting time?

5. How will decisions be made about the children’s education?

6. What amount of child support is to be paid and by whom from January 2018 onwards?

[2] At the commencement of the trial, the Respondent (“Mother”) brought a motion and the Applicant (“Father”) brought a cross-motion asking the court to determine the issue of what school the children would attend on a temporary basis and pending my final decision. The parties were able to resolve the issue on a temporary without-prejudice basis that the children attend school online.

[3] During the course of the trial, the parties were able to resolve some of the holiday issues and they agreed to use Our Family Wizard (“OFW”) to communicate with respect to the children, as reflected in minutes of settlement, dated September 13, 2021. They also agreed that the Father would be provided with notarized copies of the children’s important documents.

[4] In closing submissions, the parties were able to resolve other issues, including how health decisions for the children should be made, the enrollment of the children and the payment of extracurricular activities, the issue of what constitutes a section 7 expense and how those expenses would be paid, and the sharing of the equivalent to spouse credit, should I order a parenting schedule such that each parent has the children in his or her care at least 40% of the time.

[5] These consents are reflected in the Orders Made section of this decision.

Witnesses and Evidence Generally

[6] Seven witnesses testified in total and for the balance of these reasons I will, where possible, identify each based on their relationship to the children:

a. the Father;

b. the Father’s partner, M.W.;

c. the Paternal Grandmother, S.M.;

d. the Paternal Aunt, D.H.R.;

e. Christine Taylor, the clinician appointed by the OCL;

f. the Mother;

g. S.P.; the Mother’s former co-worker and friend;

h. B.D.; the Mother’s family friend;

[7] The Mother did not call as a witness her partner, R.L., nor the maternal grandfather, B.C.

[8] As the trial was conducted via videoconference in its entirety, we were careful to ensure that neither child was able to hear or see the proceedings.

Credibility

[9] Both counsel requested that I find the other party to not be credible. There were times when I preferred one parent’s evidence over the other and I refer to those instances in this decision.

[10] All of the other witnesses were credible. Ms. M.W., in particular, provided the court with a clear, concise picture of the Father’s relationship and routine with the children. Her evidence corroborated that of the Father.

Background

Agreed Statement of Facts

[11] By way of Agreed Statement of Facts, the parties were able to agree on the following basic facts:

1. The Father was born December 2, 1983.

2. The Mother was born November 21, 1977.

3. The parties started living together in February 2006. They were married on July 21, 2007, and separated on March 29, 2016.

4. The parties are the biological parents of two children, namely L.K.M. (male), born March 17, 2009, and A.K.M. (female), born August 30, 2012.

5. The Mother has a child from a previous relationship, namely A.R.P. (male), born February 11, 2001.

6. The parties executed a separation agreement, dated April 7, 2017.

7. Pursuant to Paragraph 4.1 of the separation agreement, the parties were to share joint custody (terminology changed to “decision making”) of the children, namely L.K.M. and A.K.M., and the children were to have their primary residence with the Mother.

8. Since November 2016, the Father has had the children, L.K.M. and A.K.M., in his care 40% of the time.

9. The Father has continued to pay $400 per month in child support to the Mother since the execution of the separation agreement.

10. The Father was criminally charged with two sets of charges against the Mother for offences that allegedly occurred during the marriage. The first set of charges – three counts of sexual assault – went to trial, and the Father was acquitted in May 2021. The second set of charges – assault – remain outstanding.

11. The children, L.K.M. and A.K.M., attended school at F.G.P.S, Ontario, until June 2021. The children attended virtual schooling as a result of the COVID-19 pandemic since December 2020.

12. The Father has moved from his residence in Tavistock, Ontario, to a new residence in New Hamburg, Ontario, effective July 2021.

13. The Mother has moved from her residence in New Hamburg, Ontario, to Waterloo, Ontario, effective February 2021.

Further Background

[12] The separation agreement provided the Mother with the final say over medical decisions in the event of a dispute between the parents. It also provided for how the parties were to communicate.

[13] When the parties separated, L.K.M. had just turned seven and A.K.M. was four.

[14] The parties were divorced by order of Sloan J. of August 18, 2017. This divorce order does not incorporate any of the terms of the separation agreement.

[15] At the date of separation, the Mother remained in the matrimonial home in New Hamburg. In May 2016, she changed the locks on the matrimonial home without notice to the Father.

[16] Following the sale of the matrimonial home, the Mother moved temporarily to Plattsville (for seven to eight months) and then to a rental home in New Hamburg. The Father moved to Tavistock. The children remained in F.G.P.S.

[17] As a result of the criminal charges, the Father did not see the children for three weeks in 2018, and then again for six weeks when the assault charges (alleged to have occurred during the marriage) were laid in 2020.

[18] The Office of the Children’s Lawyer’s (“OCL”) involvement was requested by order of Broad J. of October 15, 2018. The original assigned clinician left her employment, and the matter was reassigned to Ms. Christine Taylor on October 7, 2019. The original clinician had already completed some of the work but for unexplained reasons her notes were not provided to Christine Taylor. Accordingly, Christine Taylor commenced her investigation afresh.

[19] At the time the OCL clinician completed her investigation, L.K.M. was 10 and A.K.M. was seven.

[20] At the time of this trial, L.K.M. was 12 and A.K.M. was nine.

[21] In December 2020, the Mother was given notice by her landlord that the home she was living in in New Hamburg was being sold. She states that as a result of the holidays, she received the notice in January 2021.

[22] Both parents are competent and caring – this fact is not disputed. They clearly love their children and have made the children a priority. Unfortunately, almost immediately following the signing of the separation agreement, problems ensued. The children have been part of the conflict and this has impacted them. It is hoped that with the release of this decision the parties can move forward, focus on parenting these children and respecting each other as a parent.

[23] It is encouraging that these parents have finally agreed to use a communication App; this is something that should have been agreed to years ago. Although neither parent sought this relief, I strongly encourage the parents to attend communication counselling.

Legal Test to be Applied

[24] The parties agree that s. 16 of the Divorce Act governs the matter. The Mother also states that sections 56(1) and (1.1) of the Family Law Act apply. Both parties agree that the test is not a material change in circumstances.

The Family Law Act Sections

[25] Sections 56(1) and (1.1) of the Family Law Act are as follows:

56(1) In the determination of a matter respecting the education, moral training or decision-making responsibility or parenting time with respect to a child, the court may disregard any provision of a domestic contract pertaining to the matter where, in the opinion of the court, to do so is in the best interests of the child.

(1.1) In the determination of a matter respecting the support of a child, the court may disregard any provision of a domestic contract pertaining to the matter where the provision is unreasonable having regard to the child support guidelines, as well as to any other provision relating to support of the child in the contract.

The Divorce Act Factors

[26] Although the text of the governing legislation has changed in many important ways, the sole focus remains on the best interests of the children.

[27] As set out by Breithaupt Smith J. in her decision of Viera v. Viera, 2021 ONSC 5029, at para. 23, the new language of the Divorce Act:

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

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

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

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

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

[28] Sections 16.1-16.4 and 16.6 are new to the Divorce Act and applicable to this family’s situation.

[29] The factors for consideration, distilled from the balance of the above-listed sections, are:

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

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

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

d. the history of care for the child;

e. each child’s views and preferences;

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

g. any plans for the child’s care;

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

i. any plans for the child’s care;

j. the ability and willingness of each person to care for and meet the needs of the child;

k. the parents’ ability to communicate and co-operate with one another;

l. an assessment of family violence, taking into account:

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

ii. any pattern of coercive or controlling behaviour;

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

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

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

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

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

viii. any other relevant factor;

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

n. the impact, if any, of family violence on the parents’ co-operation moving forward;

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

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

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

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

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

t. the means by which information regarding each child’s health and education is to be sourced, i.e. whether as between the parents or from third parties directly;

u. the existence of a parenting plan submitted jointly by the parents to the court.

Parenting Schedule During the School Year

[30] According to the separation agreement, the Father's parenting time with the children was as follows: (i) alternate weekends from Friday after work until Sunday at 7:00 p.m.; (ii) Tuesday and Wednesday overnights – the Father was to drop the children off at school on Wednesday and Thursday mornings; (iii) at least two non-consecutive weeks in the summer; (iv) other holiday times as set out in paragraphs 4.4 to 4.16. The children were to be in the Mother’s care at all other times (see paragraph 4.2(v) of the separation agreement). The maternal grandfather was noted as providing after-school care for the children as well as on PD days when both parents were at work. The Father was to pick up the children at the Mother’s home after work for his parenting time. The Father was to text the Mother if he was aware that he was going to be more than 15 minutes late.

[31] Since the separation agreement was signed, the following, among other things, have occurred:

1. the Father moved to Tavistock and now lives in New Hamburg;

2. the Mother now lives in Waterloo;

3. both parents have re-partnered and both live with their current partners. The Father started living with his partner in August 2017 and I find, despite the Mother’s testimony that her partner, R.L., started living with her in 2021, that it is clear from the OCL report and her pleadings that R.L. was living with her since at least June 2018;

4. the OCL became involved;

5. the Father was charged and, following a trial, acquitted of three counts of sexual assault against the Mother; and

6. the Father has one outstanding charge against him for assault against the Mother.

[32] The Mother's position in her Answer dated June 27, 2018, and her Amended Answer dated January 10, 2019, is that the parenting schedule set out in a separation agreement should continue. Her assertion during the trial is that “there has been no change”. Despite this, her preferred outcome is that the court adopt the recommendations of the OCL, which are set out below.

[33] The Father's position at trial is that the children be in his care on an equal basis, on a week-about basis, or in the alternative on a 2-2-5 basis. He states this is in the best interests of the children as this allows them equal time with each parent and allows the exchanges to take place at school.

[34] For the reasons that follow, I order that the current schedule will remain in place with some modifications so that the parents have clarity and so that, as much as possible, the children's pick-ups and drop-offs will be at their school. The schedule during the school year will be: the Father has the children in his care every Tuesday from after school, or 3:30 p.m., as the case may be, to Thursday to school, or 9:00 a.m., as the case may be. In addition, the children shall be in his care on alternate Fridays from after school, or 3:30 p.m., as the case may be, to Monday to school, or 9:00 a.m., as the case may be.

The OCL Report

[35] The Mother asks the court to rely heavily on the recommendations of the OCL.

[36] Ms. Taylor conducted two interviews with the children, met with each parent twice for one to one and a half hours, had an observational visit of approximately one and a half hours in each parent’s home, spoke with extended family and contacted other collaterals including the school and doctors. Her investigation was completed and separate disclosure meetings were held in December 2019. In her formal recommendations she recommended:

1. the Mother have sole custody;

2. the Father have access on alternate weekends from Friday evenings at his earliest convenience to school on Monday morning, or to Sunday at 6:00 p.m.;

3. drop-offs should be facilitated by a third-party such as B.C. whenever possible;

4. L.K.M. should attend individual counseling related to his memories of exposure to domestic violence and ongoing support about his sense of being caught in the middle of post-separation issues;

5. if A.K.M.’s behavioural episodes did not subside with the reduction in transitional stress moving between homes and anger management/managing feelings, a group program was recommended; and

6. the Mother should sign consents allowing the Father independent access to information on all health, educational, and extracurricular professionals involved in the children's lives.

[37] Although the Father did not file a formal dispute to the report, he made it known as early as the disclosure meeting that he did not agree with the OCL’s recommendations.

[38] In addition, and although not part of the recommendation section of the report, the OCL recommended that the children be enrolled in the after-school program on the Father’s mid-week access days so that he could pick the children up from the after-school program. This would avoid the disruptive exchanges and avoid the children having to meet their Father 100 metres down the street. The Father agreed with this.

[39] Although not in the formal recommendations, the OCL recommended the parties use a communication app such as Our Family Wizard (OFW). The Father agreed with this.

[40] The OCL recommendations were based in part on the children’s wishes; namely the schedule proposed by L.K.M. (see page 11 of OCL report) and the fact that A.K.M. expressed an intention to spend more time at the Mother’s house as she feels she is “never there” and “Daddy makes me upset a lot”. Both children disclosed that the Father asked them questions about their meetings with the OCL and what is happening in the Mother’s home.

[41] The OCL also based these recommendations in part on the difficulty with transitions, the no contact order that was in place as a result of the criminal charges, and the high level of conflict, which prevented continuity regarding issues of homework, school matters and health matters.

[42] Both children also expressed that they wanted fewer evening extracurricular activities. This is not surprising as the parents could not even agree on consistent activities in a consistent location such that each parent registered the children in activities on his or her time in different jurisdictions and, other than A.K.M.’s dance classes, neither party attended activities while the child was in the care of the other parent.

[43] The OCL noted that it is clear that both parents love L.K.M. and A.K.M. and are committed to ensuring the best for their childhoods (page 13 of the OCL report), however, they had been unsuccessful in shielding the children from the adult conflict. This exposure to adult conflict was reported to CAS. The OCL went on to state that “it is of paramount importance that they are not exposed to direct or indirect conflict between the parties and that the transitional stress between the homes is minimized.”

[44] Both observation visits were noted as positive. The children were comfortable and content in both homes. In oral evidence, the OCL indicated that the children felt that the Father’s home was more of a second home.

[45] The OCL clinician found that the Mother had been L.K.M. and A.K.M.’s consistent primary caregiver pre- and post-separation (page 14 of the OCL report). I do not agree. She stated that “there is no evidence that [A.M.] is unable to make responsible custodial decisions for the children. For this reason and the aforementioned barriers to communication between the parties, it is recommended that [A.M.] assume sole custody for the children.”

[46] Unfortunately, neither party requested that the OCL update the report with the passage of time. Given some significant changes in circumstances, which include the Father being acquitted of the sexual assault charges, the Mother’s move to Waterloo, and the Father’s move to New Hamburg, it may be that the children’s views and preferences have changed.

[47] During the examination by the Mother’s counsel, Ms. Taylor was asked why she concluded that the Mother should have sole custody and what she considered to be the barriers to communication. In response to the latter, she identified the no contact order, and the parties deep dislike, resentment and mistrust of each other, which resulted in almost zero effective communication. When probed by the Mother’s counsel as to whether her recommendations regarding custody would have changed if there were no outstanding charges and there was not a no contact order in place, her response was “it is impossible to say that because if that were the case then I think it would have changed the whole context of what was going on at that time”. As a result, she was not comfortable commenting.

[48] The OCL’s recommendations are not determinative; they are but one piece of the overall analysis. The court cannot delegate its function and simply follow such recommendations. It is up to the court to render the decision: see Woodhouse v. Woodhouse (1996), 1996 CanLII 902 (ON CA), 29 O.R. 3d 417, at p. 593.

Status Quo

[49] The Mother asserts that she was the primary caregiver to the children, both during the marriage and after their separation. She refers to paragraph 4.1 of the separation agreement, which states, “[B.M.] and [A.M.] will have shared custody of the children, who will have their primary residence with [A.M.]” (emphasis added). She also points to page 14 of the OCL report, which states, “[A.M.] has been [L.K.M] and [A.K.M.]’s consistent primary caregiver pre- and post-separation.”

[50] The Mother indicates that the OCL has had more time to explore and make this finding that she was the primary care parent. I do not agree. This court heard evidence over nine days.

[51] It is clear from the evidence that, although the Mother took the lead on scheduling issues and took maternity leaves, these parents were both involved in caring for the children. Both parents cared for L.K.M. when his lung collapsed. The Father took a short paternity leave after A.K.M. was born and worked continental shifts, which made him available during the week to care for the children. He was also unemployed for a period of between eight months (according to the Mother) and one year (according to the Father) while the Mother worked from 9:00 a.m. to 5:00 p.m. There is no dispute that when the Father was not working he cared for the children, that when both parents were home they shared childcare and household responsibilities and that when both parents were working and until her death in 2018, the maternal grandmother cared for the children and the parties paid her.

[52] Furthermore, in her amended answer, and in support of her request for child support for A.R.P., Mother stated that the Father was extensively involved in A.R.P.’s speech therapy, that as the Father did not work for one and a half to two years he was A.R.P.’s primary caregiver while the Mother was at work, that as A.R.P.’s step-father he had the ability to and did numerous pick-ups and drop-offs for A.R.P. at school, that he took A.R.P. to eye exams and dental appointments, transported him to Scouts, participated in karate and attended parent-teacher night and school activities. For the Mother to suggest that the Father was less involved with L.K.M. and A.K.M. is untenable. He was a very involved parent and often the primary caregiver while the Mother was at work and he was not.

[53] I find that during the marriage, both parents were equally involved in parenting the children and that neither parent was the primary caregiver.

[54] The Mother’s position is the fact that since the separation agreement provides that she has primary residence of the children it must mean something. She states it means that her home is the home base. The Father submits that, given that “primary residence” is not defined, it likely refers to the fact that the Father’s parenting schedule is particularized, whereas the Mother has the children all other times.

[55] The Mother, in her pleadings, notes that the children are thriving in the shared custody of their parents.

[56] The parties agree that post-separation, the children have been in Mother’s care a greater percentage of the time. Since November 2016, the Father has had the children in his care 40% of the time. The Father states that immediately following the separation in March 2016, the Mother dictated the schedule and thereafter changed the locks to the matrimonial home and therefore he had no choice. The Mother states that she had no choice in changing the locks as the Father would attend the home whenever he wanted, and this was disruptive.

[57] The Mother took a leave of absence from work from March 2016 for a number of months.

[58] Until the COVID-19 pandemic, the children had returned to the Mother’s home after school on both Tuesday and Wednesday evenings.

[59] The interpretation of when the Father’s parenting time ended on Thursdays led to many arguments. The Mother’s interpretation changed regarding whether the Father’s periods of care ended on Thursdays at 9:00 a.m. or after school.

[60] Since March 2020, the children have been in the Father’s care from after school on Tuesday, namely 4:00 p.m., to Thursday at 4:00 p.m., as well as alternate weekends from Friday at 4:00 p.m. to Sunday at 7:00 p.m.

[61] There is no evidence that the children are not doing well. In fact, their report cards show that L.K.M. consistently does well in school; A.K.M.’s performance now reflects her Individual Education Plan (“IEP”) – she is doing well in school.

[62] Neither parent testified that the current schedule is not working for the children. The issues for the Father are the exchanges and the lack of clarity; the issue for the Mother is that she does not want her time with the children eroded. The schedule may not be working for the parents and each parent feels it is unfair – but that is not the test – the test is what is in the children’s best interests. Given that these children have had many changes, and that L.K.M. in particular does not like change, I will not change the Father’s mid-week parenting time. The children require the consistency and stability. The Father’s time will end on Thursdays at 9:00 a.m. It will be extended on alternate weekends to Monday morning – in this way the children do not lose time with their Father and the exchanges, which have been problematic, can occur at the school.

Exchange Problems and Location

[63] As per the separation agreement, the maternal grandfather was to provide childcare after school and on PA days when both parents are working. As noted, he was not called as a witness.

[64] On July 2, 2017, the Mother sent the Father an email indicating that the maternal grandfather would no longer be watching the children and that the Father was to find his own childcare for his days. She reiterated this in an email dated August 29, 2017. By October 2017, the Mother had contacted the daycare and deregistered the children. The Mother admits that when she told the Father to find his own childcare, she was angry. She insisted that the maternal grandfather provide the after-school care. The Mother’s insistence that the Father continue to pick up the children at her home despite the clear problems that presented is not child-focused. As described by the OCL, the children would finish school, go to the Mother’s home, start to unwind, and then would have to pack up to go to the Father’s home. To do this, they would have to walk at least 100 meters to get to his car because of the no contact order. This was difficult for the children. The Mother’s decision to insist that the maternal grandfather continue to provide after-school care is not child focused, particularly after the OCL recommended they be enrolled and picked up at the after-school program at F.G.P.S. – she stated that the exchanges at the Mother’s home and on the street “should cease whenever possible as it greatly increases transitional stress for the children.”

[65] The Father attempted to pick up the children directly from school. He gave the Mother notice. She attended to pick up the children anyway. She then also called the police. This is not child-focused.

[66] The Mother’s statement that it was school policy that only members of her household pick up the children proved untrue when tested on cross examination. It was because she provided the separation agreement to the school and specifically noted that the children were to return to her home after school each day that the school thereafter did not allow the Father to pick up the children.

[67] I accept the Father’s evidence that the maternal grandfather would “give him the finger”, which happened as recently as the week before the trial, and make other inappropriate comments to him in front of the children. When the Mother explained why the maternal grandfather was not testifying at this trial, she stated that she was worried about the amount of stress it would cause him and that “he would focus on the sexual assault” and “not these issues”. His animosity toward the Father is clear.

[68] For these reasons, in so much as possible, the children shall be picked up and dropped off at school. Where that is not possible, namely where the school is shut down and during holidays, the parents will alternate the driving such that the Mother will deliver the children to the Father’s home at the commencement of his parenting time and the Father will deliver the children to the Mother’s home at the commencement of her parenting time. In this way, the children will receive the message that the parents are supportive of the parenting schedule. Also, as the Mother has moved, she should share in the driving.

Efforts to Improve Communication

[69] The Father states that the parents have only had one civil conversation with each other since the date of separation. Mother agrees that the parties cannot communicate.

[70] The Mother, by way of correspondence dated November 8, 2017, agreed to the Father’s suggestion to use By Peaceful Waters. The Father completed the intake form and paid his retainer. The Mother’s position then changed. She states she could not afford to attend as she had spent $30,000 in legal fees.

[71] The Father suggested the parties use OFW in his pleadings. The Mother would only agree to use OFW if the Father paid for it fully.

[72] The Father saw his doctor bi-weekly at minimum to discuss problems with communication as early as 2016.

[73] The Father attended communication counselling with a counsellor for eight months in 2018-2019. The counsellor assisted with drafting emails and communication.

[74] There was no evidence led that the Mother attended any form of communication counselling.

[75] The Mother states she did not and does not feel she can communicate with the Father – she cites her past experience with him during the marriage and that following the separation, she would ask him for contributions towards expenses and he would never consent. She did not provide any emails or letters corroborating these requests.

[76] The Mother’s failure to immediately start using some form of communication App or attend communication counselling is not child-focused.

[77] Furthermore, I agree with the Father that the Mother has attempted to marginalize him and that she did not attempt to improve their communication so as to avoid conflict. Examples include:

• Failing to engage in communication counselling.
• Insisting on the maternal grandfather providing care.
• Enrolling the children in a new school without the Father’s consent.
• Not allowing the Father to have an extra summer week of vacation so he could take the children to Port Elgin to spend time with his parents.
• Calling the police as a result of the Father attending the school to pick up the children in 2020 after he left and even though she was given advance notice both by the Father and the Father’s lawyer.
• Advising the pharmacist on or about September 20, 2017, that “Dad does not have authority to pick up or refill prescriptions as per child’s mother”.
• Not providing the Father with information regarding dentist and doctors in a timely fashion or at all.
• Allegations of the Father overholding as a result of COVID-19 testing in March 2021.
• Providing L.K.M. with the subscription for his glasses, who then insisted that the Father obtain said glasses.
• Speaking to L.K.M. about court documents when she was served.

[78] The Mother, to her credit, offered the Father make-up time when he missed parenting time with the children as a result of COVID-19 testing and also resumed the parenting time when his bail conditions ended.

[79] The Father has not been blameless. For example, he refused to speak to the Mother regarding the maternal grandmother’s funeral. Although I accept that he was concerned with breaching the no contact order, he could have asked for particulars through his lawyer. His call to CAS when L.K.M. was left alone at home because of a miscommunication between the Mother and the maternal grandfather was also unnecessary in light of the fact that the Mother accepted responsibility and the Father attended to care for L.K.M. immediately. His failure to assist in paying for A.K.M.’s tutoring is not child-focused. Despite his assertion that he was not advised of the identity of the person or the cost, this information could have been obtained through his lawyer.

[80] The Father, to his credit, did not raise the Mother’s suicide attempt in 2018. He agrees that she is a good mother.

Family Violence

[81] The Mother provided very little evidence regarding family violence. She said that regardless of the criminal trial judge’s finding, the Father did sexually assault her during their relationship. S.P. testified that the Mother advised her of the sexual assaults in 2016.

[82] The Father testified to four incidents where he states the Mother was abusive towards him. The first was on July 21, 2007, the wedding night. He provided a date-stamped picture of his black eye (which he also provided to the OCL) and detailed evidence of what occurred once the Mother discovered he had been at a strip club. The Mother’s response, that she did not even notice the black eye until Father pointed it out to her, is not plausible. I accept this incident happened. He states that the second incident occurred in winter 2007 or early 2008 when the Mother pushed him down the stairs. The Mother states that she understood that he fell while moving. The third incident occurred in February to March 2016 when the Father confronted the Mother because he thought she was having an affair. The Mother explicitly denies this. Although B.Y. was present for part of the incident, and is the person who took the children home with her, neither parent called her as a witness. The Father states that the fourth incident occurred in March 2016 and involved the Mother’s half brother – he asserts that something sexually inappropriate happened and that he was assaulted by the Mother and members of her family. The Mother agrees that the Father made allegations on that date but denies that the Father was assaulted by any of her family members. Due to the Father not calling corroborating witnesses, coupled with his failure to make mention of any of these incidents in any of his pleadings, including his Form 35.1 affidavit, I decline to make a finding in respect of the other three incidents.

[83] The Mother admits she hit the Father twice during their relationship: once when he was dragging her upstairs by her hair and the other time in the middle of a sexual assault.

[84] Both parents reported that the other committed domestic violence. The OCL was unable to substantiate the allegations made by the other and noted that the Father’s criminal trial was outstanding.

[85] It is clear that there was family violence during the relationship and that the parties have an acrimonious relationship. Although there has been no physical violence since the separation, the continued conflict is harmful for the children. Although each parent is able to meet the needs of the children, those needs would be better served by more effective communication.

Schooling of the Children – Where and Who Decides

[86] It is unfortunate that the parties were unable to resolve the issue of where the children would attend school for the 2021 year, particularly given that both parents agree that the children should be in school in-person and that online schooling is not beneficial for A.K.M. given her issues with reading and writing.

[87] The Mother’s position that the children change schools is rooted in her position that, as she is defined as the parent who has primary residence of the children, and given her position that she has made schooling decisions in the past, the children should go to school in her catchment area – L.K.M. to C.P.S. and A.K.M. to K.P.S. According to the Mother, C.P.S. is a five-minute walk from her home and, although K.P.S. is not far from the Mother’s home, A.K.M. would be bused. The Mother was unable to advise how long the bus ride for A.K.M. would be.

[88] The Mother asserts that driving the children to and from New Hamburg to F.G.P.S. would make it impossible for her to work.

[89] The Mother states that she is the parent who has been primarily responsible for getting the children to and from school, coordinating with the school regarding educational issues and picking the children up from school if they are ill. Although this may be the case, I find that in part it is so because of the no contact order and the Mother’s refusal to allow the Father to go to the school to pick up the children.

[90] It is the Father’s position that the children should continue to attend F.G.P.S. He states that this is the only school the children have attended, that the school has been the one consistent, stable factor in their lives since the separation, and that remaining at the school is in the children’s best interests. The Father states that the children are very involved at the school and have formed lasting and healthy relationships with their peers and their teachers. He provided the example that one teacher delayed her retirement so that she could teach A.K.M. junior kindergarten/senior kindergarten.

[91] The Father states that L.K.M. is a sensitive child, that the children have been through a lot and that A.K.M. would not adjust well to being without L.K.M. Any changes would not be in either child’s best interests. If they remained at F.G.P.S., they would have two more years in the same school together.

[92] For the reasons that follow, I order that the children continue attending F.G.P.S. I further order that, for so long as the Father resides in the jurisdiction of F.G.P.S., he will decide which school the children attend. All other major schooling decisions will require the joint consent of the parties.

[93] On January 21, 2021 (20 days before the move), the Mother’s lawyer wrote to the Father’s lawyer. The letter advises of the Mother’s move, provides her new address and some basic information about the neighbourhood association. The letter states in part:

My client is content to have the children remain in their current school until the end of the academic year, and then will be switching their school to Waterloo – I will provide you with the name of the schools when it is available to me.

Kindly contact me if you have any issues or concerns.

[94] On February 5, 2021, the Father responded through his lawyer with respect to a number of issues. In relation to the schooling, the letter states:

It is quite concerning that your client continues to make unilateral decisions with respect to the children; in breach of the parties’ Separation Agreement. It is obvious your client has a complete disregard of the best interests of the children, or my client’s role as their Father. My client will not be consenting to the children changing schools to a school in Waterloo, that has not even been researched by your client. His preference is for them to continue at their current school, but if that is not possible, he proposes they attend school in Tavistock in September.

[95] Paragraphs 4.22 to 4.24 of the separation agreement deal with the issue of schooling. Paragraph 4.22 speaks to the intention of the Mother to purchase a home in the Township of Wilmot, which is the township where F.G.P.S. is located. That paragraph goes on to state that if she is unable to purchase a home in the Township of Wilmot, she is to discuss the potential move and school location with the Father before making an offer on a home and she is to obtain his consent. The Mother states this provision was put in the agreement because the Father was concerned that she would move “back home” to Sudbury. That is not what the agreement states.

[96] Paragraph 4.23 states: “[B.M.] and [A.M.] agree that the choice of school, special education and changing of schools will require mutual consent.”

[97] Paragraph 4.24 states “[B.M.] and [A.M.] agree to follow the Dispute Regulation Plan herein should they be unable to come to a consensus on the choice of schools.”

[98] The Dispute Resolution section of the agreement is found at paragraph 6. It is standard in its wording in that it requires the parties to attempt to resolve the issues as between themselves or with their counsel first, and if not possible, to attend before a parenting coordinator. If the parties are unable, with the assistance of a parenting coordinator, to resolve the matter, then they may have the issue resolved by a court.

[99] The Mother enrolled the children in the schools in her catchment area without the Father’s consent in May 2021.

[100] The Mother states that she would have preferred to stay in New Hamburg at F.G.P.S., but she could not find a home. She looked for homes in New Hamburg, Tavistock, Kitchener and Waterloo. She viewed seven homes in total. I accept that she chose this home because it was the better of the homes she looked at and it had five bedrooms, which was what was needed for her blended family. Further, she states that because of her financial situation (for which she blames the Father) she could not pick and choose where she lives. This is an odd statement given that the rental home she chose costs $3,000 per month.

[101] Despite the Dispute Resolution section in the separation agreement, the parties did not attend with a parenting coordinator until June 2021, after the Father advised that he had purchased a home in New Hamburg in the jurisdiction of F.G.P.S.

[102] The parties were unable to reach an agreement on the schooling issue through the parenting coordinator.

The Law

[103] The parents have both referred me to a number of cases that deal with schooling issues. The Mother also relies on a number of mobility cases for the proposition that the decision of the primary care parent should be afforded deference. On that point it is important to note two things: first, this is not a mobility case; second, the amendments to the Divorce Act regarding relocation have been significant. I will not delve into those changes as they are not relevant for this case but I note the changes as they may have resulted in a different order for the cases cited by the Mother.

[104] Broad J., in a recent decision of Dauber v. Dauber, 2021 ONSC 5489, summarized the law with respect to the guiding principles on the choice of school. In that decision, at paras. 14 and 15, he quoted from Piper v. Hare, 2021 ONSC 2139, which quoted Thomas v. Osika, 2018 ONSC 2712, as follows:

[14] In the case of Piper v. Hare, 2021 ONSC 2139 Tobin, J. confirmed the following at paras. 19-23:

(a) where a child will attend school is an incident of parental decision-making responsibility;

(b) in a case like the case at bar, where there is no temporary or final order granting either parent this responsibility, the court may be called upon to determine the particulars of the children’s education;

(c) the jurisdiction to make this decision is found in the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”) s. 28(1)(b) which provides that the Court “may by order determine any aspect of the incidents of the right to decision-making responsibility”;

(d) This decision is to be made by taking into account only the best interests of the children: CLRA, s. 24.

[15] The general principles guiding the court in deciding where a child shall attend school when the parties disagree were very usefully set out by Audet, J. in Thomas v. Osika, 2018 ONSC 2712 (S.C.J.) at para. 37 as follows:

The decision as to the choice of school that a child should attend, when the parents disagree, is ultimately a matter of judicial discretion. However, a number of general principles have emerged from the caselaw to assist the decision-maker in making the decision in the child's best interests. They can be summarized as follows:

a. Sub-section 28(1)(b) of the Children's Law Reform Act specifically empowers the court to determine any matter incidental to custody rights. The issue of a child's enrollment in a school program must be considered as being incidental to or ancillary to the rights of custody (Deschenes v. Medwayosh, 2016 ONCJ 567 (Ont. C.J.));

b. It is implicit that a parent's plan for the child's education, and his or her capacity and commitment to carry out the plan are important elements affecting a child's best interests. In developing a child's educational plan, the unique needs, circumstances, aptitudes and attributes of the child, must be taken into account (Bandas v. Demirdache, 2013 ONCJ 679 (Ont. C.J.));

c. When considering school placement, one factor to be considered is the ability of the parent to assist the child with homework and the degree to which the parent can participate in the child's educational program (Deschenes v. Medwayosh, 2016 ONCJ 567 (Ont. C.J.));

d. The emphasis must be placed on the interests of the child, and not on the interests or rights of the parents (Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] S.C.J. No. 52 (S.C.C.);

e. The importance of a school placement or educational program will promote and maintain a child's cultural and linguistic heritage (Perron v. Perron, 2012 ONCA 811 (Ont. C.A.);

f. Factors which may be taken into account by the court in determining the best interests of the child include assessing any impact on the stability of the child. This may include examining whether there is any prospect of one of the parties moving in the near future; where the child was born and raised; whether a move will mean new childcare providers or other unsettling features (Askalan v. Taleb, 2012 ONSC 4746 (Ont. S.C.J.);

g. The court will also look to any decisions that were made by the parents prior to the separation or at the time of separation with respect to schooling (Askalan v. Taleb, 2012 ONSC 4746 (Ont. S.C.J.);

h. Any problems with the proposed schools will be considered (Askalan v. Taleb, 2012 ONSC 4746 (Ont. S.C.J.);

i. A decision as to the choice of school should be made on its own merits and based, in part, on the resources that each school offered in relation to a child's needs, rather than on their proximity to the residence of one parent or the other, or the convenience that his attendance at the nearest school would entail (Wilson v. Wilson, 2015 ONSC 479 (Ont. S.C.J.));

j. Third-party ranking systems, such as the Fraser Institute's, should not factor into a Court's decision. These systems of ranking do not take into consideration the best interest of the particular child in a family law context (Wilson v. Wilson, 2015 ONSC 479 (Ont. S.C.J.));

k. If an aspect of a child's life, such as school placement, is to be disrupted by an order of the court, there must be good reason for the court to do so. Thus, before a court will order a child to transfer schools, there must be convincing evidence that a change of schools is in the child's best interests (Perron v. Perron, 2012 ONCA 811 (Ont. C.A.);

l. Custodial parents should be entrusted with making the decision as to which school children should attend. When a sole custodial parent has always acted in the best interest of a child, there should be no reason to doubt that this parent will act in the best interest of the child when deciding on a school (Adams v. Adams, 2016 ONCJ 431 (Ont. C.J.));

m. Those cases are very fact-driven. The courts are not pronouncing on what is best for all children in a general sense but rather deciding what is in the best interests of this child before the court (Deschenes v. Medwayosh, 2016 ONCJ 567 (Ont. C.J.)).

[105] In addition, Askalan v. Taleb, 2012 ONSC 4746, set out other factors, namely assessing any impact on the stability of the child and examining how many years the child has attended his or her current school.

Analysis

[106] The parties moved to New Hamburg in 2009, prior to the birth of the children. At that time A.R.P. was in school in Waterloo. The parties drove A.R.P. to and from New Hamburg to Waterloo until the start of the next school year (eight months).

[107] Following the separation and when the Mother changed the locks on the matrimonial home in May 2016, the Father lived with his sister in Waterloo.

[108] The Father lived in Tavistock from March 2017 to July 14, 2021. It took him 15-20 minutes to drive the children to school from his home.

[109] The Mother remained in New Hamburg until the matrimonial home was sold. For seven to eight months following the sale of the matrimonial home, the Mother lived in Plattsville and the children were driven to F.G.P.S. by both parents. The Mother then returned to live in New Hamburg.

[110] The children have attended F.G.P.S. for their entire lives. L.K.M. is now in Grade 7 and A.K.M. is in Grade 4.

[111] The Father’s undisputed testimony is that the children really like F.G.P.S.; they recognize themselves as F.G.F.; they have built relationships with other students and teachers; and that L.K.M. confides in his friends, especially about the separation.

[112] Both parents agree that the children (prior to the COVID-19 pandemic) were involved in the school activities and the school itself.

[113] The children’s dentist and optometrist are in New Hamburg and their family doctor is in Wellesley.

[114] At the time of the OCL investigation, the children’s school was not at issue.

[115] The children spoke fondly of their school and their friends in New Hamburg (page 14 of OCL report).

[116] L.K.M. has close friends at the school – since his parents’ separation he has sought their comfort and advice. He performs well academically and is liked by his teachers and his peers (see the OCL report and report cards).

[117] The Father describes L.K.M. as a child who likes structure and routine.

[118] A.K.M. gets along with her peers and, although quiet, does participate. She works really hard at school despite not being at the same level in reading and or math as her grade (see page 21 of the OCL report).

[119] A.K.M. has an IEP, which was created while at F.G.P.S. Although I was not provided with a copy of the IEP, both parents agree A.K.M. requires assistance in reading and writing.

[120] The Mother has confirmed that she permanently works from home. She has advised that her schedule is very flexible. The Father has confirmed that until January 2022 he will work from home and that, although not set in stone, it is expected that he will continue to work from home given that his employer has reduced its physical footprint.

[121] The Mother made much of the fact that the Father moved to New Hamburg two months before the trial in an effort to bolster his position at trial. I do not accept that he moved to bolster his position at trial. I accept that he moved so that the children could remain at F.G.P.S.

[122] The Father stated that it was always his intention to return to New Hamburg. Ms. M.W. confirms this. The initial move contemplated by both parties to Tavistock until the Mother’s deal “fell through” also makes sense. Further, the Father stated that he did not move back to New Hamburg earlier because New Hamburg is a small town and he did not want to risk breaching his no contact order if, for example, he and the Mother were at the grocery store at the same time. It is irrelevant when the Father formulated his intention to return to New Hamburg. His move back to New Hamburg allows the children to remain in their same school. This is in the children’s best interests – the Mother’s attempts to cast aspersions on the Father’s decision depict the significant level of mistrust between the parties.

[123] The Mother notified F.G.P.S. of her move when she first moved. She provided her postal code to the school, and they told her which schools were in her new catchment. She was given the transfer forms in June 2021 but did not provide a copy to the Father.

[124] The Mother struggled to answer the question of what was better about the schools in her new catchment area. She states the nice thing about C.P.S. is it is a senior elementary school that teaches Grades 7 and 8 and, as such, it will be better preparation for high school for L.K.M. She asserts there is nothing L.K.M. cannot obtain from C.P.S. that he receives at F.G.P.S. She also states that C.P.S offers different technology than F.G.P.S., and technology is something L.K.M. enjoys.

[125] With respect to A.K.M., the Mother states that she has made plans to transfer her IEP to the new school. A.K.M. will not miss out on the things she needs at K.P.S. In cross examination, the Mother, as an afterthought, stated that A.K.M. was not getting what she needed from F.G.P.S. This was not mentioned at any other time nor was there any expansion of the meaning of this.

[126] The Mother does not understand why the Father is opposed to the new schools. She posits that the drive to Waterloo is not much farther for him than the drive from New Hamburg to Tavistock, a drive he had been doing since March 2017. She is prepared to assist Father with after-school care either by continuing to provide that care or by agreeing for A.K.M. to attend an after-school care program. Until this point, and save and except for a period of one month in 2017, she refused to allow the children to attend after-school care despite the OCL recommending it.

[127] The Mother also asserts that the different start times at each proposed school (8:20/8:30 a.m. vs. 9:20 a.m.) and end times (2:40/2:55 p.m. vs. 3:30 p.m.) should not pose a problem for the Father, as she can assist by having the children go back to her home, or by A.K.M. attending an after-school care.

[128] Nothing in the separation agreement states that the children go to school in the Mother’s area. Because she is the primary resident parent, she assumed she could change the schools. This is not the case. She enrolled the children in their new schools in May 2021. She did not discuss this with the Father – just like she did not discuss the move with the Father.

[129] The Mother took L.K.M. for a walk to the new school but insisted that she did not tell him he would be attending. The Father insisted that he did not tell the children they would be staying at F.G.P.S. I do not believe either of them on this point. A change in schools would surely be the subject of conversation in both homes.

[130] The drive from the Mother’s home in Waterloo to F.G.P.S. is 20-25 minutes. The children have become accustomed to being in a car for that long for schooling purposes.

[131] The Mother asserts that it would not be feasible for her to drive back and forth to New Hamburg but also asserts that it should not be a problem for the Father. This assertion is disingenuous in light of the fact that she emphasized the flexible hours with her new employment, that she would rarely have to go into the office (only for special meetings which would happen infrequently) and that she basically makes her own work hours.

[132] The Father's concerns regarding the different start times for the two schools as well as the Mother's concerns regarding the driving time to school if I ordered the children to attend F.G.P.S. are issues of convenience for the parents and do not factor into my decision.

[133] I find that both parents are involved with the children's schooling. They were both involved in A.K.M.’s IEP; they both arranged for activities at the school; they both do homework with the children; they both assist A.K.M. with her reading and writing, albeit in different ways; and they both attend parent teacher conferences. At times, as a result of the outstanding criminal charges and the Mother's requirement that the Father not be able to pick the children up from school, which on one occasion resulted in police involvement, the Father’s ability to be at the school has been limited. I do not find this is the Father's fault and it should not be held against him.

[134] I find that the Father’s approach and behaviour with respect to the choice of schools is more child-focused and as such he should make the decision of where the children should go to school. Other schooling decisions (not including day-to-day issues) will require joint consent.

[135] When I asked the lawyers to identify what schooling decisions (other than the choice of schools) the parents expected to make, they identified: (i) needs for A.K.M. – it is clear that both parents were involved in and co-operated with her IEP; (ii) the children’s participation in different clubs at school – this has not been an issue in the past as it pertains to school activities; and (iii) the Father moving – which is not anticipated but in which case I have ordered that if Father moves outside of the F.G.P.S. catchment area then the decision of where the children attend school shall be made jointly and if the parties are unable to do so then they should continue to follow the dispute resolution set out in the separation agreement.

[136] Applying the facts to the law, I find as follows:

(a) Pursuant to the separation agreement, both parents have been provided with decision-making responsibility regarding the children’s schooling;

(b) A.K.M. has an IEP – F.G.P.S. has met her needs since they were identified. Other than the Mother’s off-handed comment in cross examination, neither parent has expressed any concern regarding F.G.P.S. A.K.M. is comfortable and doing well in school;

(c) L.K.M. is comfortable at F.G.P.S. – he does well, is involved in the school and is bonded with his peer group;

(d) Both parents can and have assisted the children with their homework and have been involved in the children’s schooling and activities associated with schooling;

(e) The convenience or inconvenience of the parents is not a factor that weighs into the best interests of the children analysis, particularly when the drive is short, and it does not impact a parent’s ability to parent;

(f) The children have been accustomed to driving to and from school from the Father’s home; a drive to and from school from the Mother’s home is no different;

(g) Remaining at the F.G.P.S. allows for consistency and stability;

(h) Both parents made efforts to keep the children at F.G.P.S. even when both parents were outside of the jurisdiction of the school;

(i) New Hamburg is the school and community where the children were born and raised;

(j) There have been no problems or issues identified with F.G.P.S.;

(k) There is no good reason for me to disrupt the schooling aspect of the children’s lives; and

(l) There is no convincing evidence that a change in schools is in the children’s best interests.

Summer and Christmas Holidays

[137] It is the Father’s position that the summer and Christmas holidays be shared equally so that the children can maximize their time with both parents. He points out that much of his family lives in Port Elgin and that, as a result, he will have to drive approximately two hours each way to see his family.

[138] It is the Mother’s position that the status quo should continue. When asked to identify the status quo, the Mother stated that, save and except the first year where the Father only had the children for two weeks, each parent has had the children for three weeks each summer. Otherwise, the regular parenting schedule has applied.

[139] For the reasons that follow, I order that the children share their parenting time with their parents on an equal basis during the summer and Christmas break. For summer this shall be done on a week-about basis. For Christmas, the Mother’s suggestion of dividing the days equally after subtracting the major holidays has been consented to.

[140] There have been issues with the summer periods of care since the first summer when the Father asked for more than two weeks and the Mother declined. He wanted the children to spend one week with his parents in Port Elgin, something they have done as a family since birth. The next summer the Mother wanted three weeks and as a result it was agreed that the Father would also have the children in his care for three weeks. This has continued.

[141] Both parents complain that they were unable to enroll the children in various activities and camps over the summer because the other parent does not co-operate. There has also been the ongoing problem of when the Father’s parenting time starts on Tuesdays and ends on Thursdays and the problematic exchanges.

[142] A reduction in transitions is in the children’s best interests.

[143] Summer should be a time for children to relax and enjoy themselves, to visit family and unwind with friends. These children have been through a lot in the five years since their parents’ separation. I find it to be in their best interests that the summer period of care be alternated, commencing the Friday of the week of the last day of school, and ending the Friday of the week before school commences, on a week-about basis. The parent in whose care the children are in can enroll those children in whatever activities he or she chooses and can visit extended family in the Province of Ontario without requiring the consent of the other. This information will be communicated through OFW. This will also reduce the number of exchanges.

[144] In her closing statements, the Mother advised that she would be prepared to share the Christmas period equally if I order the schedule recommended by the OCL. She proposes that the Christmas Break be evenly divided after consideration of the important days already agreed to (Christmas Eve, Christmas Day, and Boxing Day) and alternate each year as to which parent has the first part and the second part of the holiday break.

[145] Despite that I have not ordered the schedule recommended by the OCL, I have ordered that Christmas be divided as suggested by the Mother. The children should be entitled to uninterrupted time with both parents and extended family and should not be shuffled back and forth between homes.

Summary

[146] In applying the Divorce Act factors to this matter, I find:

(a) It is agreed that both parents can meet each child’s needs.

(b) It is undisputed that the children have a good relationship with each parent, extended family members and the Father’s partner.

(c) I find that both parents struggle to support the other’s role in their children’s lives. I find that since at least the signing of the separation agreement, the Father has made more of an effort. He has attended communication counselling, suggested OFW early on, reached out to advise of pick-ups, etc. The Mother has frustrated those overtures.

(d) I find that both parents provided care to the children during the marriage; since November 2016, the children have been in the Mother’s care more than in the Father’s care.

(e) The children expressed their views and preferences almost two years ago and much has changed. I cannot place much weight on those views and preferences.

(f) Both parents have good plans for the children. However, I find that the Father’s plan regarding schooling is more child-focused.

(g) Both parents are able and willing to meet the children’s needs.

(h) The parents do not communicate well: see Viera v. Viera. The Father has conceded that the Mother should continue to have the final say regarding health and I have ordered that the Father will choose the schools. Both parents have agreed that there are no issues regarding religion, and they have reached a consent regarding extracurricular activities.

(i) During the relationship family violence occurred. The harm to the children is the continued acrimony between the parents. A clear schedule, the use of OFW and reducing the number of personal exchanges should reduce the animosity.

(j) I have made numerous statements regarding past conduct and how it has impacted the parents’ participation in decision-making.

(k) Day-to-day decisions will be made by the parent whose care the child is in.

(l) I have set out why the Father should make the decision regarding the children’s schooling.

(m) The schedule I have put in place allows for consistency and stability while maximizing the children’s time with each parent as is consistent with his and her best interests.

Child Support

[147] The Mother’s position at the start of trial was that child support should be retroactively readjusted from January 1, 2018. Her position was that despite the Father having the children in his care 40% of the time, he should pay full guideline support. By the end of the trial the Mother’s position was that if the Father’s parenting time remained at 40% or more of the time, the Father should continue to pay $400.00 per month. If I ordered a schedule where he had less than 40% of the time, he should pay full guideline support based on his income. The Mother asserts that the court does not have enough evidence before it to conduct a Contino analysis as it only has each party’s financial statements sworn in 2018 and in 2021. It is her position that s. 56.1.1 of the Family Law Act requires some change in circumstances. She continues to seek reimbursement for the loss of Child Tax Benefit (CTB) and Ontario Child Benefit (OCB). She also seeks reimbursement of the equivalent to spouse benefit that she lost.

[148] The Father’s position is that child support should be readjusted retroactively to June 2018 when he started his Application. He asserts the Mother should be paying him set-off support from that date onwards. He states that he had no control over Canada Revenue Agency reapportioning CTB and OCB. Additionally he states that the Mother’s loss of the equivalent to spouse benefit was a result of her own failure to refile her tax return.

[149] For the reasons that follow, I order that there will be no retroactive readjustment of child support and there shall be no ongoing payment of child support.

[150] The separation agreement acknowledges that the Father has had care of the children not less than 40% of the time since November 2016.

[151] The separation agreement required the Father to pay retroactive support, which he did.

[152] Paragraph 5.5 of the separation agreement states: “Commencing February 1, 2018 and on the 1^st day of each month thereafter, [B.M.] will pay to [A.M.] child support, inclusive of daycare costs, in the amount of $400.00 per month until a terminating event under the termination section or a change in child support under the sections that follow” (emphasis added).

[153] Paragraph 5.9, under the special or extraordinary expense section, states that childcare (for work related purposes) is a section 7 expense.

[154] Paragraph 5.7 of the separation agreement indicates that “[A.M.] will be responsible for the purchase of all of the children’s clothing and will provide enough clothing for the children’s visits with [B.M.].”

[155] Paragraph 5.4 states that in setting the amount of child support, the parties have considered the table amounts for each parent, the increased costs of shared custody, including housing, transportation, and the duplication of toys, equipment and clothes and the condition, needs, means and other circumstances of each parent and the children.

[156] Paragraph 5.17 of the separation agreement indicates that the parties are to exchange income tax returns each year by June 1 and that this information will be used to adjust child support – both the table amount and section 7 expenses. Any change in the table amount or section 7 expenses will commence July 1 each year following the execution of the agreement. This would be July 1, 2018.

[157] There is no provision in the separation agreement as to what factors are to be considered in the yearly review of child support.

[158] Paragraph 5.9 of the separation agreement states “[B.M.] and [A.M.] agree that [A.M.] will continue to receive the Child Tax Benefit, the refundable GST/HST credits, and the Ontario Child Benefit for both [L.K.M.] and [A.K.M.] These benefits or credits will not affect the Table amount of child support in this agreement.”

[159] The separation agreement is flawed.

[160] The Father understood he was paying $400.00 per month in consideration of his portion of the daycare and clothing costs and because the Mother would not have signed the agreement otherwise. Although the Mother does not dispute that she was to provide clothing and childcare, she states that she agreed to a lower amount of child support so that the Father could purchase his home in Tavistock. She also states that she expected child support to increase the year following the signing of the separation agreement. The agreement was premised on her receiving the CTB and OCB benefits. The Mother also expressed that she felt pressured to sign the agreement but offered no evidence in that regard and she does not seek to set aside the agreement. She instead seeks to uphold the child support provision.

[161] I find that the payment of $400.00 per month was based on:

(a) The Mother paying for all of the children’s clothing and providing the Father with enough clothing for the times the children were in his care;

(b) The maternal grandfather providing the after-school childcare and childcare on PD days when the parents were working;

(c) The Mother receiving the OCB and CTB; and

(d) Father’s income of $55,000 per annum and Mother’s income of $62,763 per annum.

[162] Since the agreement was signed:

(a) the Mother did not provide enough clothing and stopped providing any clothing by 2018;

(b) the maternal grandfather stopped providing for childcare during the Father’s parenting time in March 2020;

(c) the Mother lost the OCB and CTB;

(d) the parents’ incomes have changed – the Mother now earns over $80,000 per annum while the Father earns approximately $66,000 per annum; and

(e) both parents started living with new partners.

[163] Almost immediately after separation, issues ensued with clothing and childcare, and then in August 2017 the Mother received notice that the Canada Revenue Agency was reassessing her eligibility for benefits based on information they received that a shared custody arrangement was in place for L.K.M. and A.K.M.

[164] The parties acknowledge in the separation agreement that the Father’s 2015 Income Tax Return was being reassessed due to additional daycare costs. In the process of this reassessment, the Canada Revenue Agency sought, and the Father provided, a copy of the separation agreement. Once received, the Canada Revenue Agency adjusted the provision of the CTB and OCB. The Father is not to be blamed for this. This court cannot override the jurisdiction of Canada Revenue Agency : see Nixon v. Nixon, 2014 SKQB 264; Silverman v. Silverman, 2015 BCSC 157. This is distinguishable from an order of the court which requires the repayment of benefits: see Chaltaf v. Dawood, 2019 ONSC 5097.

[165] The Father received $9,966.94 and, according to her, the Mother lost $17,629.70 in a combination of the CTB and OCB. The Mother acknowledges that as of 2018 she was earning too much to receive the OCB. Neither party led any evidence of the impact of the Mother re-partnering on the CTB.

[166] The Mother’s loss of the equivalent to the spouse benefit cannot be blamed on the Father. If, as Mother states, Father refused to tell her which child he claimed for equivalent to spouse which resulted in both of them claiming the same child, she could have refiled and claimed the other child.

[167] By March 2020, the Father was not receiving clothes or daycare and should not have been paying child support. From March 2020, to and including October 2021 (18 months), he paid $400 per month or $7,200. In addition, from June 2018 to March 2020 (20 months), the Father was purchasing his own clothing, which he estimates cost $80.00 per month or $1,600 over this period of time.

It is impossible for the court to complete precise calculations when the proper evidence has not been led. Given the facts and circumstances, it is reasonable to off-set the Father’s receipt of the CTB and OTB with his overpayment of child support.

Go Forward Child Support

[168] As there is no dispute that the Father’s parenting time from November 2016 to the trial exceeded 40% of the time, and as by virtue of the parenting order the Father’s time with the children has increased, this matter is governed by s. 9 of the Child Support Guidelines (“Guidelines”).

[169] The Supreme Court of Canada in Contino v. Leonelli-Contino, 2005 SCC 63, [2005] 3 S.C.R. 217, made the following significant comments regarding the interpretation of s. 9 and the manner in which child support calculations should be approached in shared parenting scenarios.

1. In shared parenting arrangements there is no presumption in favour of the parent who has less time with the child paying the table amount of child support, rather the court must determine the quantum of child support in accordance with the three factors listed in s. 9.

2. A finding that shared parenting exists does not automatically dictate a deviation from the table amount of child support. In some cases, a careful review of all of the factors set out in s. 9 may lead the court to conclude that the table amount remains the appropriate figure.

3. In determining the appropriate quantum of support, none of the three factors listed in s. 9 prevail over the others. The court must consider the overall situation of shared custody, the cost to each parent of the arrangement and the overall needs, resources and situation of each parent. The weight to be afforded to each of the three factors will vary according to the particular facts of each case.

4. The purpose of s. 9 is to ensure a fair and reasonable amount of child support.

5. In adopting s. 9 of the Guidelines, the legislature has made a clear choice to emphasize the need for fairness, flexibility and the actual conditions, means, needs and circumstances of each parent and the child, even if this meant sacrificing to some degree the values of predictability, consistency and efficiency.

6. The simple set-off approach may be a useful starting point (s. 9(a)). This is particularly so in cases where parties have provided limited information and the incomes of the parties are not widely divergent. However, the court emphasizes that the simple set-off approach has no presumptive value in carrying out the support calculation. It cautioned against a rigid application of the set-off approach noting that that may not be appropriate when a careful examination of the respective financial situations of the parties and their household standards of living raise concerns about fairness of a drastic reduction in child support to the recipient.

7. The court held that the judge has discretion to modify the simple set-off where “considering the financial realities of the parents, it would lead to a significant variation in the standard of living experienced by the children as they move from one household to another, something which Parliament did not intend.” The court should strive for a result that avoids the child experiencing a noticeable decline in their standard of living as they move between households.

8. One of the considerations in carrying out the s. 9 analysis is whether one parent is actually incurring a higher standard of the child’s costs than the other, such as costs relating to clothing and activities.

9. Subsection 9(b) recognizes that the total global cost of raising the child in a shared custody arrangement may be higher than a primary residence arrangement. It requires the court to consider the total additional costs attributable to the situation of shared custody. In carrying out this analysis, evidence of necessary duplication of fixed costs arising due to shared parenting may be important.

10. Not every dollar spent by a parent who has the child more than 40% of the time is a dollar saved by the recipient parent. In absence of evidence to the contrary, it is possible to presume that the recipient parent’s fixed costs have remained the same and that their variable costs have only marginally decreased by the other parent’s increase in time with the child.

11. Financial statements and/or child expense budgets are necessary in order for the court to properly carry out the child support analysis pursuant to s. 9(b). The judge should not make assumptions regarding additional costs attributable to shared parenting in the absence of any evidence relating to the issue.

12. The court’s discretion under s. 9 is sufficiently broad to bring a parent’s claim for s. 7 expenses into the analysis under that section, taking into consideration all of the factors outlined in s. 9.

Analysis

[170] On the first factor under s. 9 of the Guidelines, the parties agreed by way of statement of agreed facts that the party’s income has been as follows:

The Father’s Line 150/15000 income for the following years is:

a. 2017: $60,074

b. 2018: $63,179

c. 2019: $62,248

d. 2020: $64,488

The Mother’s Line 150/15000 income for the following years is:

a. 2017: $68,308

b. 2018: $77,674

c. 2019: $74,591

d. 2020: $96,125*

*The Father has agreed that for the year 2020 the Mother’s income will not include the payout of the University of Waterloo. As such her income in that year for child support purposes is $79,327.

[171] Based on the party’s income and the process laid out in the separation agreement that the prior year’s income would be used in calculating support, the set-off would generate the following payments starting in 2018:

2018: ($1041 - $916) $125.00 per month payable by the Mother to the Father

2019: ($1,177 - $963) $214.00 per month payable by the Mother to the Father

2020: ($1,138 - $949) $244.00 per month payable by Mother to Father

2021: ($1201- $982) $219.00 per month payable by Mother to Father

[172] No evidence was led on the second factor in s. 9, namely the increased costs of shared custody. As the parties have enjoyed shared parenting since 2016, and the children have been set up in each parent’s respective home for some time, albeit the Mother moved in February 2021, it is difficult to understand what the increased costs could be, save and except that the Mother will have increased gas costs to pick up and drop off the children at school. The Mother acknowledges there was no increased cost for after-school snacks. In reference to the maternal grandfather providing childcare, I accept that although she did not pay him money, she met his needs.

[173] The third factor to consider encompasses the conditions, needs, means and other circumstances of each spouse and of any child for whom support is sought. The following evidence was adduced:

(a) Both parents had similar budgets in 2018. The first indication of a change in expenses was when the Mother moved to Kitchener in February 2021, in which case her expenses went up significantly.

(b) Both parties currently live in similar sized homes, although the Mother’s is a few hundred square feet larger, and the Father’s home is four bedrooms while the Mother’s is five.

(c) The Father lives with his partner, who earns approximately $80,000 per annum. The Mother lives with three other adults. The first is her son, A.R.P, who works full time and has since January 2020. The second is her partner, who works full time. His income was not before the court and should have been. The best evidence is that he earns between $50,000 and $55,000 per annum. According to the Mother, he started to contribute $750.00 per month since they made things official in March 2021. The third is the maternal grandfather, who is in receipt of Canada Pension and contributes $650.00 per month. The Mother states her son A.R.P. does not contribute to the household as he is saving funds (40% of his income) so that he can buy a house.

(d) Neither party takes extravagant vacations – their vacations are limited to Ontario.

(e) The Mother filed a consumer proposal in February 2020; she references her $62,000 in legal fees as the problem and blames the Father for this.

(f) The Father’s current yearly expenses total $69,078.60, but he acknowledges that his partner pays 50% of the property taxes, groceries and meals outside the home. His actual current budget is closer to $60,000 per annum. Further, he listed nothing for clothing or personal items for himself, except hair care of $20.00 per month, which includes haircuts for L.K.M.

(g) When the line of credit debt and mortgage are reduced by 50% to have regard to the fact that both of these debts are joint with his partner, the Father’s net worth is $276,699.64. He credits this increase in net worth to the sale of his home in Tavistock during the COVID-19 pandemic.

(h) The Mother’s current expenses exceed $120,000, which she acknowledges are largely made up of rent for a five-bedroom home, the increase in utilities because of the larger home, her payment towards her consumer proposal and payment in reference to a trailer she and her partner purchased.

(i) The Mother’s net worth is stated as $33,468.89; this includes a debt of $32,500 in reference to her consumer proposal. Her net worth in 2018 was $14,310.42.

(j) The Father contributes $50.00 a month into an RESP.

(k) The Mother’s rent is high. Her evidence is that rent has increased significantly and that she needed a five-bedroom home so that each of the three children could have their own room and her father could have his own room. I do not fault her choice, but this factor cannot be taken into account as there was no evidence of the cost of a three-bedroom home. Furthermore, although I do not fault the Mother’s choice, it is her decision not to have her son A.R.P. contribute financially to the household expenses despite his full-time income.

(l) Section 7 expenses for the children are minimal.

(m) The Mother rents her home and the Father owns his home with his partner.

[174] Both parties live in similar homes. The children have their own bedroom in each home. There is nothing extravagant or glamorous about either party’s lifestyle. I decline to find that the household standards of living are different.

[175] Having considered the overall situation of shared custody, the costs to each parent of the arrangement and the overall needs and resources and situation of each parent, I find that it is unreasonable for the Father to continue paying child support to the Mother in the circumstances where he has the children more than 40% of the time, he is supplying clothing, he will, going forward, be paying for the child care costs for the child(ren) if necessary, as well as for summer camps and extracurriculars and his income is now approximately $14,000 less than the Mother’s. Further, both parents have the benefit of sharing expenses with new partners and in the Mother’s case, her father contributes financially as well. Child support will end this month.

[176] Taking into account all of the factors, as I am required to do under section 9 of the Child Support Guidelines, I find that this is a case where neither parent should pay child support to the other. That is reasonable and allows the children to enjoy a similar standard of living in both homes. Further, I order that each parent will be responsible for the expense associated with the children when those children are in his and her care. These expenses include clothing, childcare and summer camps. These expenses do not include other section 7 expenses, which the parties have already agreed will be shared in proportion to income saved, and except tutoring for A.K.M., which the parties have agreed will be shared equally.

Retroactive s. 7 Expenses

[177] The Mother seeks $780.00 in retroactive s. 7 expenses but provides no proof of the expenses, nor evidence that she sought the Father’s consent. In addition, the Mother agrees that the Father paid expenses without contribution from her.

[178] I decline to make any order for retroactive section 7 expenses.

Orders

[179] I make the following orders on consent:

1. The parties shall utilize the application “Our Family Wizard” to communicate with respect to the children. The parties will sign up for the application within 15 days. They shall each pay for their own use of the application.

2. The parties shall share all holidays with the children equally. The parties shall have the children in their care and control in accordance with the following holiday schedule, which will supersede the regular parenting schedule:

Christmas

a. In even-numbered years, the Mother shall have the children in her care from Christmas Eve, December 24^th at 9:00 a.m. to Christmas Day, December 25^th at 12:00 p.m., and the Father shall have the children in his care from Christmas Day at 12:00 p.m. to Boxing Day, December 26^th at 5:00 p.m.

b. In odd-numbered years, the Father shall have the children in his care from Christmas Eve, December 24^th at 9:00 a.m. to Christmas Day, December 25^th at 12:00 p.m., and the Mother shall have the children in her care from Christmas Day at 12:00 p.m. to Boxing Day, December 26^th at 5:00 p.m.

Family Day

c. The party that has the children for Family Day weekend shall keep the children in their care until their return to school on Tuesday morning.

March Break

d. The parties shall alternate March Break with the children from the end of school on the Friday until the start of school on the Monday, with the Father having the children in odd-numbered years and the Mother having the children in even-numbered years.

Easter

e. In even-numbered years, the children will be in the care of the Mother from Thursday at the end of their school day until Saturday at 5:00 p.m., and with the Father from Saturday at 5:00 p.m. until the start of school on Tuesday morning.

f. In odd-numbered years, the children will be in the care of the Father from Thursday at the end of their school day until Saturday at 5:00 p.m., and with the Mother from Saturday at 5:00 p.m. until the start of school on Tuesday morning.

Mother’s Day

g. The children will spend every Mother’s Day with the Mother from 9:00 a.m. until Monday at the start of school, regardless of whose weekend it is.

Father’s Day

h. The children will spend every Father’s Day with the Father from 9:00 a.m. until Monday at the start of school, regardless of whose weekend it is.

Thanksgiving

i. In odd-numbered years, the children will be in the care of the Mother from Friday at the end of their school day until Sunday at 12:00 p.m., and with the Father from Sunday at 12:00 p.m. until the start of school on Tuesday morning.

j. In even-numbered years, the children will be in the care of the Father from Friday at the end of their school day until Sunday at 12:00 p.m., and with the Mother from Sunday at 12:00 p.m. until the start of school on Tuesday morning.

3. The Mother shall immediately provide the Father with notarized copies of the children’s passports, birth certificates, SIN cards and health cards.

4. Neither party shall schedule extracurricular activities for the child(ren) during the other party’s parenting time without that parent’s prior written consent.

5. Neither party shall be required to contribute more than $250.00 per child per year towards the cost of the children’s extracurricular activities (examples are sports, music).

6. Tutoring, to a maximum of $1,000 per year per child, necessary medical-dental expenses not covered by a parent’s plan of insurance to a maximum of $1,000 per child per year (this maximum excludes braces as the parties agree that if the child(ren) need braces the amount not covered by a plan of insurance will be shared by the parties in proportion to income) and counselling to a maximum $1,000 per year per child shall be considered section 7 expenses. The parent incurring the expense will upload the receipt for said expense onto Our Family Wizard and the other parent shall have 15 days thereafter to pay his or her proportionate share of said expense.

7. When faced with a medical decision about the well-being of the child(ren), the parties shall confer and consult with each other, as well as seek the advice of a third-party professional where applicable. In the event of a disagreement regarding the children’s medical well-being, the parties shall follow the directions of the relevant third-party professional involved in the care of the child(ren). If that does not resolve the dispute, the Mother shall have the final decision-making with respect to medical decisions.

8. The parents will each claim one child as equivalent to spouse; the Mother will claim A.K.M. and the Father will claim L.K.M. When one child “ages out”, the equivalent to spouse will be alternated between the parties.

9. The parties shall maintain the children on their extended health benefits, available to them by way of their employment or otherwise.

10. The parties shall proportionately contribute to all agreed-upon special and extraordinary expenses of the children except for childcare, pursuant to section 7 of the Child Support Guidelines, such consent not to be unreasonably withheld. The Father’s proportionate share shall be forty five percent (45%) in accordance with his 2020 income of $64,488.00 and the Mother’s proportionate share shall be sixty five percent (65%) in accordance with her 2020 income of $79,327.00.

[180] The following orders are made not on consent:

11. The Father shall have the children in his care during the school year every Tuesday from after school, or 3:30 p.m., as the case may be, to Thursday to school, or 9:00 a.m., as the case may be. In addition, the children shall be in his care on alternate weekends from Fridays after school, or 3:30 p.m., as the case may be, to Monday to school, or 9:00 a.m., as the case may be. The children shall otherwise be in the care of the Mother.

12. The parties shall share the children’s Christmas school holidays equally. In even numbered years, the Father shall have the first week of the holiday break (save and except Christmas Eve, Christmas Day and Boxing Day) and the Mother shall have the second week of the holiday break (save and except Christmas Eve, Christmas Day and Boxing Day). The reverse shall occur in odd numbered years..

13. The parties shall share the summer holidays equally. The parent in whose care the children are to be in on the weekend following the last day of school shall have the children in his or her care from the Friday after school until the following Friday at 5:00 p.m. This week-about schedule shall continue until the weekend before the children are to return to school. The parent who has care of the children may enroll the children in summer camps or other activities without the need to obtain consent of the parent, so long as said activities take place in the province of Ontario. The parent enrolling the children in activities during his and her week of summer care shall be fully responsible for the cost of said activity without contribution from the other parent.

14. On days that the exchanges are not on school days, the Mother shall deliver the children to the Father at the commencement of his parenting time and the Father shall deliver the children to the Mother at the commencement of her parenting time. Should the parties move a farther distance than they currently reside from each other, this provision shall be reviewed.

15. For so long as the Father resides in the catchment area of F.G.P.S., the Father shall make the decision as to where the children attend school. All other major decisions involving education shall be made jointly by the parties. In that regard, the parties shall confer and consult with each other, as well as seek the advice of a third-party professional where applicable.

16. If childcare is needed during a parent’s time with the child(ren), the parent in whose care the child(ren) are in is responsible to provide and pay for the childcare.

17. The parent in whose care a child(ren) is in shall be responsible for the cost of pizza day/milk day and any such expenses should that parent chose to enroll the child in such an activity.

18. If the child(ren) are supplied chrome books or electronic aids or teaching tools, the children shall take these items back and forth to their parents’ homes.

19. Effective October 31, 2021, there shall be no child support payable by either party to the other.

20. There shall be no retroactive payment or readjustment of child support, which includes section s. 7 expenses.

21. There shall be no repayment of the OCB or CTB.

[181] Both parties seek costs. If the parties are unable to resolve the issue of costs, which I encourage them to do, the Father may file written submissions on costs within 21 days. The Mother may file responding written submissions within 14 days thereafter. The Father may provide brief reply submissions seven days thereafter. Submissions are not to exceed five pages, plus a detailed bill of costs and copies of any offers to settle. There shall be no extension of these timelines without my permission. If a party does not provide submissions respecting costs in accordance with these deadlines, there shall be no costs payable to that party, although costs may still be awarded against that party.

Piccoli J.

Released: October 15, 2021

COURT FILE NO.: FC-18-FS000383-0000

DATE: 2021-10-15

ONTARIO

SUPERIOR COURT OF JUSTICE

B.M.

Applicant

– and –

A.M.

Respondent

AMENDED reasons for JUDGMENT

Piccoli, J.

Released: October 15, 2021