COURT FILE NO.: FS-18-19208

DATE: 20211122

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

A.R.N.

Applicant

– and –

M.A.P.

Respondent

Deborah L. Severs and Georgette Makhoul, for the Applicant

Daniel G. Katzman, for the Respondent

HEARD: October 28, 29, 30, 2020; November 9, 10, 12, 13, 2020; February 17, 18, 19, 26, 2021; March 17, 18, 29, 30, 31, 2021; and April 12 and 13, 2021

REASONS FOR JUDGMENT

Hebner J.

[1] The applicant, Dr. N., was born in November 1979. She is currently 42 years of age. The respondent, Mr. P., was born in June 1969. He is currently 52 years of age. Dr. N. and Mr. P. were married on November 8, 2014. They have two children: N. born in 2015 and L. born in 2017. N. is currently five years of age and L. is currently four years of age.

[2] Dr. N. and Mr. P. separated on July 3, 2018.

[3] The applicant commenced this proceeding by way of application issued September 27, 2018. On August 30, 2019, Carey J. ordered a trial of the issues of custody and access (now parenting time and decision-making). The trial took place before me on the dates identified above. These are my reasons for judgment.

[4] I note that both parties have made financial claims against the other. Those claims, including the issue of child support, will be tried separately.

Background Facts

[5] Dr. N. is a medical doctor. She is employed at Windsor Regional Hospital as an emergency room physician. Dr. N. was born and grew up in LaSalle and continues to live there to date. She resides in the former matrimonial home located in LaSalle, Ontario. Dr. N. is the sole owner of the home. She purchased the home prior to her relationship with Mr. P. Dr. N.’s father is deceased. Dr. N.’s mother, Mrs. N., lives in the same neighbourhood as Dr. N. Mrs. N. continues to be employed part time as a salesperson at The Bay in Windsor. Dr. N. has a younger brother, R.N., aged 35, married to L. R.N. and L. live close to the applicant. Dr. N. is Italian in heritage.

[6] Mr. P. is a pharmacist. He owns his own pharmacy in Windsor called A.D.M. Mr. P. grew up in Windsor. His father is deceased. Mr. P.’s mother died of cancer at the age of 83 shortly before the commencement of this trial. Mr. P. is one of six children. He has five brothers: P.A., J., J.J., S., and T. Mr. P. is the second youngest in the family. Mr. P. described his family as a large, close-knit family. They continue to celebrate special occasions together. Mr. P. is Croatian in heritage.

[7] Mr. P. was previously married to P.P. in September 1995, and they have a son, J.P., currently 20 years old. Mr. P. and P.P. separated in 2005 when J.P. was four. J.P. was approximately 11 years old when Mr. P. and Dr. N. met. Initially, Mr. P. had parenting time with J.P. every Tuesday and Thursday after school overnight, on alternate weekends from Friday after school to Sunday after church, and on alternate Sundays from after church to Monday morning. The Tuesday and Thursday overnights were changed to evenings only to accommodate J.P.’s bus to school.

[8] J.P. is a talented athlete and plays baseball in the spring/summer and hockey in the fall/winter both at the competitive level. Mr. P. attended all of J.P.’s practices and games. At the time of the trial, J.P. was pursuing an education at the University of Windsor and played baseball for the Windsor Lancers.

[9] After the parties married, Mr. P. sold his home and moved into Dr. N.’s home in LaSalle. Dr. N. worked full time at the hospital for at least 12 eight- to ten-hour shifts per month. Before the children were born, she worked extra shifts. Mr. P.’s pharmacy was open daily, Monday to Friday, from 9:00 a.m. to 6:00 p.m. It was open on Saturday from 9:00 a.m. to 1:00 p.m. and it was closed on Sundays. The hours of opening remain the same to date. During the marriage, Mr. P. worked every Monday and Wednesday and every other weekend, on Friday and Saturday. His work hours on Monday and Wednesday and alternate Fridays were 9:00 a.m. to 6:00 p.m. His work hours on alternate Saturdays were 9:00 a.m. to 1:00 p.m. He hired another pharmacist to work the other days of the week. Mr. P.’s work hours remained consistent throughout the trial.

[10] Dr. N. stopped working approximately three weeks prior to N.’s birth. After N. was born, Mr. P. experienced some depression and anxiety. He took six months off work and returned in June 2016.

[11] After approximately six months following N.’s birth, Dr. N. went back to work on a part-time basis, working six to seven shifts per month. Mrs. N. worked at Hudson’s Bay on Tuesdays and Wednesdays. Dr. N. scheduled her shifts on other days so that Mrs. N. was available to care for N.

[12] The parties had difficulties in their marriage in February 2017. Dr. N. went to her mother’s house and took N. with her. She stayed there for a week and then returned to the matrimonial home. After her return, the parties attempted marriage counselling. They saw Dr. Chris Carreira monthly. The last counselling session took place when Dr. N. was 38 weeks pregnant with L. During a counselling session, an argument took place between the parties and harsh words were spoken. Dr. N.’s evidence was that it was at that moment she decided to terminate the marriage.

[13] L. was born in 2017. After L.’s birth, the marriage continued to deteriorate.

[14] The parties planned L.’s christening in January 2018. The families of both parties were expected to attend. Mr. P. had some difficulty with Dr. N.’s brother, R.N. Apparently, R.N. had purchased Mr. P.’s home at the time Dr. N. and Mr. P. were married. There was a dispute over the value of items Mr. P. had left in the basement of the home. Mr. P. felt that R.N. owed him $20,000. The week of the baptism, Mr. P. told Dr. N. that if R.N. did not give him $20,000 by the Wednesday before the baptism, then R.N. would not be welcome at the baptism. This caused Dr. N. a significant amount of stress. In the end, the $20,000 was not paid, but Mr. P. allowed R.N. to attend the baptism.

[15] Dr. N.’s evidence was that she provided the bulk of the parenting for L. and N. after L.’s birth. She was the parent who got up during the night with L. Mr. P. did not disagree with this assertion. Mr. P. continued to work his regular hours at his pharmacy and continued to attend all of J.P.’s sporting events including AAA baseball games and practices.

[16] Dr. N. returned to her work at the hospital on June 7, 2018. Even after she returned to work, Dr. N. continued to be the primary caregiver for both children. This caused a significant strain on their relationship. Dr. N. asserted that the two children were never a priority for Mr. P. and that Mr. P.’s priorities were his work and J.P.

[17] Dr. N. retained counsel, Ms. Severs, who prepared a letter for Mr. P. The letter was dated July 1, 2018 and suggested that Mr. P. vacate the matrimonial home by July 31. Dr. N. left the letter on the kitchen counter for Mr. P. Mr. P. did not acknowledge the letter. Up to that point, the parties had slept in separate rooms since their return from the hospital following L.’s birth. Primarily, Mr. P. slept in J.P.’s room. After he received Ms. Severs’s letter, Mr. P. came into the master bedroom and said, “as long as I live here I’m sleeping here.” The very next day, Dr. N. arranged for a locksmith to attend and place a lock on the bedroom door.

[18] According to Dr. N., Mr. P. did not assist with caring for the house or the children. He came and went from the house at will without regard to the children’s needs. Dr. N.’s mother cared for the children while she went to work. The arguments continued. To describe the situation in the home as tense would be an understatement.

[19] The situation became worse in the home after Mr. P. was served with the issued application. According to Dr. N., Mr. P. became increasingly belligerent.

[20] N. was to start pre-school in September 2018. The parties agreed to enrol him in M. School two days per week, Mondays and Fridays. Originally, they agreed to each pay one half of the cost. After Mr. P. was served with the issued application, he changed his mind about the M. School. Mr. P. did not work every other Friday and wanted N. to be with him on those days. Mr. P. refused to pay his one-half share of the tuition. N. attended the M. School until December following which he was withdrawn.

Interim Parenting Order

[21] On November 16, 2018, Bondy J. ordered the following on consent:

1. A custody and access assessment was to be completed pursuant to s. 30 of the Children’s Law Reform Act by Dr. Philip Ricciardi.

2. Dr. N. was to have interim exclusive possession of the matrimonial home and Mr. P. had until December 1, 2018 at 6:00 p.m. to vacate the home and remove his items.

3. The parties were to have shared interim custody of the children, with each parent to pick up the children at the beginning of their scheduled time (with 15 minutes grace allowed to each party) as follows:

a) with the respondent from Monday, December 3, 2018 at 7:00 p.m. to Tuesday at 7:00 p.m.

b) with the applicant from Tuesday at 7:00 p.m. to Wednesday at 7:00 p.m.

c) with the respondent from Wednesday at 7:00 p.m. to Thursday at 7:00 p.m.

d) with the applicant from Thursday at 7:00 p.m. to Sunday at 2:00 p.m.

e) with the respondent from Sunday at 2:00 p.m. to Monday at 8:00 a.m.

f) with the applicant from Monday at 8:00 a.m. to 7:00 p.m.

g) with the respondent from Monday at 7:00 p.m. to Tuesday at 7:00 p.m.

h) with the applicant from Tuesday at 7:00 p.m. to Wednesday at 7:00 p.m.

i) with the respondent from Wednesday at 7:00 p.m. to Thursday at 7:00 p.m.

j) with the applicant from Thursday at 7:00 p.m. to Friday at noon

k) with the respondent from Friday at noon to Sunday at 2:00 p.m.

l) with the applicant from Sunday at 2:00 p.m. to Monday at 7:00 p.m.

[22] The cycle was to then repeat itself.

[23] The schedule set out in the consent order accommodated Mr. P.’s work hours and provided for equal parenting time between the parties. According to the applicant, she consented to the parenting terms as set out in the order so as to avoid the possibility of an order for a weekabout schedule. The applicant is able to structure her work hours around the children’s schedule.

Following the Order

[24] The respondent was required to vacate the matrimonial home within two weeks by the terms of the order. There was no discussion between the parties as to the division of the contents or the articles that the respondent would take with him. The night before the deadline, November 30, 2018, the applicant heard the respondent moving items in the house. At 5:00 a.m. on December 1, the applicant looked to see what the respondent intended on taking. The television was off its bracket on the wall, and the appliances were gone. The respondent called the police, who said it was a civil matter and refused to attend the home.

[25] At 7:00 a.m. on December 1, 2018, the applicant discovered that the stroller she had purchased was missing from the garage. She confronted the respondent and an argument ensued. The police were called again. Police officers attended the home and instructed Mr. P. to return the stroller. On the advice of the police officers, Mr. P. left at that point.

[26] After Mr. P. had left, the applicant, her mother, and her brother looked through the home. They discovered that the electrical wires providing power to a bar that the respondent had built in the basement and power to a storage room had been cut. In addition, the applicant discovered that all of the diamond and jewelry the respondent had purchased for her during the course of their relationship had been taken out of the boxes, and the boxes were left empty. The respondent took lightbulbs out of sockets because, he said, he had purchased them.

[27] After Mr. P. vacated the matrimonial home, he moved into the home of his brother, Dr. T.P. Dr. T.P. is a dentist and lives in Windsor in east Riverside. The travel distance between Dr. T.P.’s home and Dr. N.’s home is approximately 20 to 30 minutes depending on the traffic.

[28] Dr. N.’s mother frequently provided care for the children before and after Mr. P. left the home. She attended the home almost daily to help with the children after N.’s birth.

Financial Issues

[29] The difficulties in the parties’ marriage were many and included financial issues. Mr. P. had decided to invest in a greenhouse operation in 2017. He agreed to loan $1.6 million on a short-term basis at a high interest rate, specifically 25 percent. His plan was to obtain a $750,000 loan from the bank, using his business as collateral, and withdraw $650,000 from his pharmacy corporation. He was short the sum of $200,000.

[30] Approximately a week after Dr. N. returned to the matrimonial home with N. after their brief separation in early 2017, Mr. P. asked Dr. N. to provide the $200,000. Dr. N. said that she drained her savings account and gave Mr. P. the full amount requested. I understand the investment was not successful, and Mr. P. has not been repaid. The money became an issue between the parties. As of the last trial date, Mr. P. had not yet repaid the money to Dr. N. I understand that issue will be dealt with when the financial issues between the parties are tried.

[31] Dr. N. asserts that she paid all of the expenses for the matrimonial home. She asserts that Mr. P. refused to contribute any monies towards the household bills. She asserts that Mr. P., instead, purchased himself numerous vehicles including a Corvette, a Hummer, a Challenger, and a Cadillac Escalade. She asserts that two weeks before Mr. P. purchased the Cadillac Escalade, he asked Dr. N. to give him $23,000 to pay interest on the debt described above. According to Dr. N., she paid for all of the children’s needs. Mr. P. points out that many of his vehicles were purchased before the marriage.

[32] The parties had a joint bank account. Dr. N. contributed to the account. Mr. P. did not.

[33] Mr. P. points out that he paid for significant projects at Dr. N.’s home. He paid her mortgage of $85,000 when they were married. He paid for the renovations to the home including a pool shed, a bar in the basement, and an office in the basement. He purchased life insurance: a $2 million last-to-die policy that cost him $75,000 per year. Considering it was a last-to-die policy, the life insurance benefited the children. The policy has not been in place since the parties separated.

[34] Mr. P. points out that he paid for vacations including a family trip to the Bahamas taken with both Mr. P.’s mother and Dr. N.’s mother.

[35] The loan that remains unpaid, and Dr. N.’s payment of the household and the children’s expenses created significant conflict in the parties’ marriage.

Exchanges

[36] The exchanges of the children have been problematic since the interim parenting order was made following the parties’ separation. Pursuant to the order, Dr. N. was required to attend at Mr. P.’s home to pick up the children at the beginning of her parenting time, and Mr. P. was similarly required to attend at Dr. N.’s home to pick up the children at the commencement of his parenting time.

[37] According to Dr. N., she routinely would arrive at Mr. P.’s residence five to ten minutes before 7:00 p.m. The children were generally not ready to go, and Dr. N. would knock on the door and wait on the porch for up to 20 minutes. She could see Mr. P., the children, and Dr. T.P.’s family through the window, but nobody would acknowledge Dr. N.’s presence. Dr. N. said that Mr. P. would not bring the children outside until at least 7:07 p.m.

[38] When it was Mr. P.’s time to pick up the children, he was frequently late. On one occasion, he did not arrive until 7:45 p.m., causing a disruption to the children’s bedtime.

[39] Exchanges have become a consistent problem. Mr. P. often uses the exchange of the children as an opportunity to make insulting and derisive comments to Dr. N. Some examples are detailed below. Dr. N. has taken to ensuring that her mother attends with her when she is required to pick up the children from Mr. P.’s home. There tends to be less conflict when a third party is present. In addition, Dr. N. had a camera installed in her car in an attempt to deter Mr. P.

[40] The repeated conflicts that occur during the exchanges in the presence of the children cannot help but negatively affect them. Dr. N. gave evidence to the effect that exchanges are triggering the boys, and particularly N. N. swears, hits his brother, and tries to get attention. Exchanges interfere with the children’s bedtime, which impacts their well-being.

Tire Incident

[41] A significant event occurred during an exchange in the course of the trial. Dr. N. attended Dr. T.P.’s home to collect the children on Tuesday, November 17, 2020. Her mother was in the passenger front seat. Dr. N. parked on the road parallel to Dr. T.P.’s home, with the passenger side facing the front door. Dr. N. went to the door, knocked, and waited for 15 minutes. The children finally came to the door. L. ran to the door, fell, and hit his head. After the door opened, Dr. N. picked him up to comfort him. L. had a goose egg on his head and was upset. Dr. N. put L. in his car seat.

[42] When N. came out of the house, and before N. was put into his car seat, Mr. P. called out to Dr. N. that she had a flat tire. Dr. N. asked Mr. P. if he had a compressor to fill the tire so that she could drive the children to her home. Mr. P. located a portable compressor to fill the tire. He gave it to Dr. N. and went back into the home. It did not work. Mr. P. found another compressor and Dr. N. tried that. This time, the compressor worked and the tire was filled. By this point, almost an hour had passed and the children were becoming irritable. L. remained in the car, and N. had run back into Mr. P.’s home.

[43] After the tire was full, Dr. N. tried to collect N. Mr. P. refused to exchange N., saying the car still was not safe. The comment was nonsensical, as L. was already in the car and it was Mr. P.’s compressor that filled the tire. When Dr. N. pointed that out to Mr. P., he said that N. wanted to stay with him. Dr. N. responded and said he could stay, and Mr. P. could take him to school the next morning. Mr. P. refused and said that Dr. N. would have to drive back in the morning and take N. to school. He said, “it’s not my problem.” This suggestion was nonsensical as Dr. N. would need to have the tire fixed in the morning. Mr. P. did nothing to help calm N. down and get him in the car. At the same time, he refused to take N. to school the following morning if N. were to have stayed overnight.

[44] The extended family became involved in the dispute. Dr. T.P. made comments about the vehicle being unsafe. Mr. P. became disrespectful to Mrs. N. by calling her “old lady”, accusing her of causing problems, and questioning why she attended during access exchanges. The altercation became physical at one point. Dr. N. was in Mr. P.’s doorway calling to N. Mr. P. put his hands on Dr. N.’s shoulders and pushed her out.

[45] Dr. N. contacted her neighbour who attended with Dr. N.’s brother to change the tire. N. continued to cry saying he wanted to stay and sleep at Mr. P.’s house. Dr. N. asked Mr. P., again, if N. could stay overnight and Mr. P. could take him to school the next morning so that Dr. N. could tend to the necessary repairs to the tire. Mr. P.’s response was, “no – your problem – you put him in school.” Eventually, sometime after 8:30 p.m., Dr. N. was able to put N. in the car.

[46] This entire incident was most unfortunate. The process of filling the tire with air took 45 minutes only for Mr. P. to decide that the vehicle was still unsafe. There was no offer on the part of Mr. P. or Dr. T.P. to assist in changing the tire. Mr. P. said he had CAA at the time (Dr. N. did not), but he made no offer to call them for help. Clearly N. was extremely upset by the entire event. I have difficulty understanding why Mr. P. would not agree to take N. to school the next morning when he did not have to be at the pharmacy until 9:00 a.m.

Conflict

[47] The conflict between the parties, both during the marriage and after the separation, was apparent by the evidence of both the applicant and the respondent. The conflict sometimes included members of extended family. It was also described by the applicant’s mother. I set out some examples:

a) Mrs. N. described many arguments between the parties when Mr. P. would use vulgar language and call Dr. N. vulgar names.

b) Before L. was born, Dr. N. wished to set up his nursery. She asked Mr. P. to do it, but he did not or would not. The room earmarked for L.’s nursery was being used to store some of Mr. P.’s belongings. Shortly before L.’s birth, Dr. N. hired movers who moved Mr. P.’s belongings to the basement. Dr. N. texted Mr. P. to let him know what had happened. Mr. P. came home and, as described by Mrs. N., he “was livid.” Mrs. N. said she was afraid to leave the parties’ home, as she was worried about her daughter’s safety.

c) The removal of Mr. P.’s belongings from L.’s nursery caused further conflict in the following weeks. The Sunday after, Mrs. N. attended the parties’ home to accompany them to a birthday party. She said she saw Mr. P. yelling at Dr. N. Mr. P. was in Dr. N.’s personal space. Mrs. N. told Mr. P. to leave her daughter alone. His response was “mind your own f – ng business.”

d) Mrs. N. said that Mr. P. frequently used foul language in the presence of the children. N. in particular was influenced and would repeat the foul language.

e) On a day when the parties were in court, Mrs. N. cared for the boys. She was at Dr. N.’s home with them in the backyard where the boys were playing. Apparently, when Mr. P. arrived, Mrs. N. and the boys were not aware. There were text messages back and forth, and in the end, Mr. P. arrived shortly after 6:00 p.m. with his brother. Mrs. N. said Mr. P.’s brother videotaped their exchange. She said that Mr. P. was very upset and yelled at her. Mr. P.’s brother made several rude gestures towards Mrs. N.

f) Mrs. N. described ongoing conflicts during exchanges. Mr. P. continued to be disrespectful toward Mrs. N. and complained about her presence at exchanges. He has called her an “old lady” in front of the children. He has told her “everybody hates you” and that his “marriage failed because of you.” Again, many of these comments were made in the presence of the children.

[48] Mrs. N. said that Mr. P. was frequently disrespectful and abusive to her. He told her “you are crazy like A. – that’s where she gets it.” He told her “your deceased parents are ashamed of you.” Mrs. N. admits that she may have said disrespectful and abusive things to Mr. P.

[49] What is clear from all of this evidence is that, unfortunately, conflict between the parties, and particularly the aggression from Mr. P. towards Dr. N. and Mrs. N., has expanded to include the extended family. The conflict continues to negatively impact the children. N. calls Mrs. N. “old lady” and tells her to “go home.”

[50] It was clear from Mrs. N.’s evidence that she has a poor opinion of Mr. P. There is clearly a great deal of animus between Mrs. N. and Mr. P. from both sides. Nonetheless, I accept Mrs. N.’s evidence in its entirety. Much of it was consistent with the evidence of Dr. N. and, indeed, with the evidence of Mr. P. himself.

Housing

[51] The respondent moved to the home of his brother, Dr. T.P. Mr. P. continues to reside with his brother, citing financial issues (described above) and this outstanding litigation as reasons why he has been unable to obtain a home for he and the children.

[52] Dr. P. is a dentist. At the time he gave evidence at the trial, he was divorced. Dr. P. has four children of his own, N., M., S., and C. Dr. P. and his ex-wife have equal parenting time of their children.

[53] Initially, when Mr. P. attended Dr. P.’s home, all of the bedrooms were in use. Mr. P. stayed in his brother’s room, where he and Dr. P. shared the master bed. Both N. and L. slept in the same bedroom in cribs. The children did not have their own private space. This situation continued until June 2020 when N. was given a bed in the room earmarked for J.P.

[54] By the time the trial finished, Mr. P. was still residing in his brother’s home. He and Dr. P. continued to share the master bedroom and bed. Dr. P.’s two children, S. and C., live with him 50 percent of the time. N. continued to sleep in the room he shares with J.P. L. continued to sleep in the master bedroom in a crib.

Sleep Apnea

[55] A significant area of conflict between the parties during the course of their marriage was Mr. P.’s sleep apnea condition. According to Dr. N., she went to sleep most nights between 9:00 and 10:00. Mr. P. did not go to sleep until much later. He struggled with his CPAP machine and stopped using it entirely when N. was approximately four months of age. Mr. P.’s condition caused him to snore loudly. Dr. N. arranged for a sleep study by a colleague and a neighbour, Dr. Dhar. Dr. Dhar diagnosed Mr. P. with severe obstructive sleep apnea. Mr. P.’s refusal to use the CPAP machine created a great deal of conflict between the parties.

P.P.

[56] Mr. P. married P.P. in 1995 and separated in 2005. The separation was amicable. Their son J.P. was in junior kindergarten at the time. Initially, the arrangement was that Mr. P. would have parenting time with J.P. on Tuesday and Thursday overnight and alternate weekends. The schedule changed shortly after separation in order to accommodate J.P.’s schooling. Thereafter, J.P. resided primarily with his mother and spent time with his father every Tuesday and Thursday after school and on alternating weekends, with no overnights during the school week.

[57] Mr. P. and P.P. were able to share time with J.P. amicably. They attended parent/teacher interviews together. They attended medical appointments together. They attended the same church on Sundays and on Mr. P.’s weekends, J.P. was returned to his mother after church. They shared Halloween together. They shared all holidays equally. They continued to vacation together. Their extended family attended events involving J.P. without any difficulty. The relationship that Mr. P. had with P.P. is starkly different than the relationship he has with Dr. N.

COVID-19

[58] Tragically, P.P.’s father, B.T., was the first COVID-19 victim in Essex County. P.P. took her father to the hospital emergency room on March 23, 2020. He never returned home. He died on April 9, 2020. His death was reported in the Windsor Star on March 17, 2021.

[59] The evidence of P.P. was that she did not know where or how her father contracted COVID-19. At the time, N. and L. were travelling almost daily between Mr. P.’s home and Dr. N.’s home. J.P. was travelling regularly between Dr. P.’s home, where Mr. P. lives, and the home of his mother, P.P. B.T. lived with P.P. Dr. P.’s four children were travelling regularly between Dr. P.’s home and their mother’s home. The risk to everyone in March 2020 is obvious.

[60] Much evidence was called during the course of the trial regarding the parties’ actions at the time of the COVID-19 outbreak and their reactions to the threat of the virus. The following timeline in 2020 emerges in the evidence in respect of B.T.:

• J.P. visited with Mr. P. at Dr. P.’s home according to his usual schedule on Tuesday, March 24. J.P. told Mr. P. that his grandfather was hospitalized. According to P.P., B.T. suffered annually from a mucousy cough, which was usually treated with antibiotics. In 2020, the antibiotics did not help.

• On Wednesday, March 25, Dr. N. sent a lengthy Our Family Wizard communication to Mr. P. She raised the issue of the pandemic and the increased risk to their family given that the children were moving between the two homes and given both of their employment. She raised the option of having the children live with her mother and requested Mr. P.’s thoughts. She raised the issue of J.P.’s elderly grandfather and the increased risk to him. She said “also, if anyone in your home has any symptoms of fever, cough, runny nose, sore throat etc., I need to be informed immediately. Obviously the same if that happens with me and my house.”

• On March 26, Mr. P. provided a derisive response. He said “it is encouraging, yet disheartening, that it took a crisis like this for you to finally practice appropriate post work hygiene. Since you, presently and in the future, put our children at extreme risk due to your occupation, we should plan for you to isolate yourself from our children…”. There was no mention of P.P.’s father having been admitted to hospital three days earlier with a cough.

• Also on March 26, J.P. visited with Mr. P. at Dr. P.’s home in accordance with the usual schedule. B.T. had a negative COVID-19 test result but had a low-grade fever and his cough had turned into a dry cough. He was retested.

• On March 29, P.P. was notified by hospital staff that her father tested positive for COVID-19.

• Also on March 29, Dr. N. advised Mr. P. that L. was coughing, sneezing, and had a low-grade fever. She suggested that L. and N. stay at home with her. Mr. P. immediately responded with “I am on my way now. No one’s here. We self-isolated since Thursday. You can start today.”

• On March 30, P.P. was contacted by the health unit and was told to quarantine with her husband, his children, and J.P. starting on March 23 when B.T. was hospitalized.

• On March 31, J.P. told Mr. P. about his grandfather’s positive diagnosis for COVID-19. Dr. N. developed a fever and chills late in the evening.

• On April 1, several other family members developed symptoms, including N. Dr. N. was tested and retested the next day.

• On April 4, Dr. N. was advised that she tested positive. Dr. N. was the first positive case of a physician in Windsor Essex.

• On April 5, Dr. N. messaged Mr. P. through the Our Family Wizard platform. She advised that she had tested positive for COVID-19, but she had not been working for eight days prior to the commencement of her symptoms on March 31. She said “it appears that I have community acquired transmission. I had only been around the boys and my mom.”

• On April 6, Mr. P. messaged Dr. N. through the Our Family Wizard platform advising that the children should stay with her and they could revisit the issue in one week.

• On April 7, Dr. P. tested positive for COVID-19.

• On April 20, Mr. P. messaged Dr. N. advising that his quarantine was completed and he would be picking up the children the next day as scheduled. In that message, Mr. P. criticized Dr. N. for the one-day delay in advising him of her positive diagnosis.

[61] In the April 20 message, and in subsequent messages from Mr. P., it is clear that he blamed Dr. N. for the infection. Mr. P. did not advise Dr. N. that Dr. P. tested positive until April 21. Mr. P. did not, at any time, tell Dr. N. that J.P.’s grandfather had tested positive and died from COVID-19. Dr. N. learned of these events when she read the Windsor Star almost a year later on March 17, 2021.

[62] The lack of communication on the part of Mr. P. is concerning. The family was at a heightened risk of infection because of a number of factors: Dr. N. was working as an emergency physician at the hospital; Dr. P. was working as a dentist; Mr. P. was working as a pharmacist; N. and L. were moving between Dr. N.’s and Mr. P.’s homes; J.P. was moving between Mr. P.’s home and his mother’s home, where B.T. lived; Dr. P.’s four children were moving between his residence and his former wife’s residence. In the face of the heightened risk, Dr. N. suggested transparency to try to keep the family safe. Mr. P. ignored the suggestion and refused to provide information. Dr. N. was acting in the children’s best interests; Mr. P. was not.

Schooling

[63] N. was to start junior kindergarten in September 2019. The parties could not agree on where he would attend school. The matter was brought to motions court before King J. on September 6, 2019. Dr. N. wanted N. to attend junior kindergarten at H.C.S. in LaSalle. H.C.S. was a school in the catchment area of Dr. N.’s residence. Mr. P. wanted N. to attend school at St. John Vianney Catholic Elementary School located in the Riverside neighbourhood where Mr. P. lived in his brother’s home.

[64] At the time the motion was heard by King J., the custody and access issues were on a trial list for the week of September 25, 2019. Mr. P. took the position on the motion that N. should not attend any school until a final order on the parenting issues was made after a trial. King J. found that it was in N.’s best interests to start school forthwith and he ordered that N. attend H.C.S., the school closest to Dr. N.’s residence.

[65] The schooling issue came before the court again in September 2020. At the time, parents were required to choose whether their children would attend school in person or online. N. was starting his senior kindergarten year. Dr. N. wanted N. to attend school in person. Mr. P. wanted N. to attend school online. Dr. N. took N. to school on the days that he was in her care. Mr. P. refused to take N. to school on days that he was in Mr. P.’s care.

[66] On September 13, Dr. N. sent a message to Mr. P. advising that N. was to start school the next day, Monday, September 14. She advised that she would attend to pick the children up at 7:30 a.m. rather than 8:00 a.m. to ensure N. arrived at school on time. On September 14, 2020, at 2:03 a.m., Mr. P. responded to the message in a disparaging manner. He pointed out that there was a pandemic. He said, “I thought you would know what that means as you always refer to yourself as a “medical specialist” and everyone else around you knows nothing. Wow. I can’t believe you!! You would rather risk our child’s life, health and safety for his ‘social well-being’.” He made the recurring threat of taking custody of the children.

[67] Dr. N. arrived to collect N. at 7:30 a.m. She waited at the doorstep for 30 minutes before the children were sent out, and N. was 20 minutes late for his first day of school. The same thing happened the next Monday morning pick up two weeks later.

[68] On September 29, 2020, the school issue came before King J. on yet another motion brought by Mr. P. for an order that N. attend school online. King J. dismissed the motion. He said in his endorsement, “[t]he respondent father has not satisfied the court that there is compelling evidence to rebut the general presumption that it is in N.’s best interests that he is in school in person.”

Monday Mornings

[69] With N. attending school, the parenting schedule set out in the order of Bondy J. became a problem every other Monday. Every other weekend, the boys were to be with Mr. P. from Sunday at 2:00 p.m. to Monday at 8:00 a.m. Mr. P. took the position that Dr. N. was required to pick N. and L. up at 8:00 a.m. and take N. to school. He refused to take N. to school himself. Dr. N. took the position that Mr. P. should take N. to school and drop L. off at her home. N. began his school day at 8:10 a.m. This became an ongoing dispute.

[70] On Monday, September 16, 2019, the first affected Monday, Mr. P. took N. to school and L. to Dr. N.’s residence. On Monday, September 30, the second affected Monday, Mr. P. took N. to school and L. to Dr. N.’s residence. The third affected Monday was Thanksgiving weekend, and Monday was a holiday. The fourth affected Monday was October 28. Mr. P. messaged Dr. N. through Our Family Wizard at 8:38 p.m. the night before and told her to pick up the boys at 7:45 a.m. and take N. to school. Dr. N. responded at 9:38 p.m. and said that as N. was with Mr. P. overnight on Sunday night, it was his responsibility to take N. to school on Monday morning. Otherwise, she said, the exchange of the children can take place on Sunday night. Mr. P. refused.

[71] The next morning, October 28, Mr. P. went to work and left the children at home with his brother, Dr. P. Dr. N. drove to Dr. P.’s home, picked up the children, and took N. to school.

[72] After October 28, Dr. N. drove to Mr. P.’s home on the affected Monday mornings and picked the boys up. She drove back across town and took N. to school. She often did this after having worked at the hospital overnight. She said that when she arrived at Mr. P.’s residence at 7:45 a.m., the children often were not ready to go.

[73] The issue came before me in motions court on December 15, 2019. At Mr. P.’s request, I adjourned the motion to January 10, 2020, but ordered that, in the meantime, Mr. P. was required to drive N. to school on his Monday mornings and drop L. off at Dr. N.’s residence. On January 17, 2020, the motion was returned before Howard J., and my order respecting the Monday morning drop-off was continued.

School Bus

[74] Dr. N. made arrangements for N. to take the school bus to and from school when he attended school from her home. She said the bus arrived at 8:01 a.m. and the bus stop was across the street. L. was often still sleeping when the bus arrived. Dr. N.’s morning routine became one in which she left L. sleeping in his crib when she took N. to the bus stop. She took the monitor with her.

[75] Mr. P. did not agree with the arrangements. On December 13, he attended Dr. N.’s home and parked down the street to watch Dr. N. attend at the bus stop to collect N. Mr. P. called the Windsor-Essex Children’s Aid Society and filed a complaint. Mr. Kyle Harding, a child protection worker, attended Dr. N.’s home to investigate. Mr. Harding found that “the concern is not verified as you have taken measures to ensure that L. is always supervised, such as the use of a Wi-Fi video monitor, or support from your mother.”

L.’s Tooth

[76] An incident took place during Mr. P.’s parenting time on February 10, 2019. Dr. N. attended Dr. P.’s home to pick the children up at the beginning of her parenting time. The respondent told her that L. had knocked out his tooth. The respondent said he had noticed a crack in one of L.’s teeth. He called his brother, Dr. P., who looked in L.’s mouth and said it was fine for Mr. P. to put them to bed. In the morning, a piece of tooth was in the crib.

[77] After Dr. N. drove to her home with the boys, she looked in L.’s mouth and saw that the tooth had shattered, the piece remaining in the socket was grey, and another piece was barely attached. The tooth next to it was cracked. Dr. N. contacted a pediatric dentist she was acquainted with, Dr. Mariano, and was able to take L. in for an emergency appointment. Both teeth were removed.

[78] Dr. N.’s evidence was that she was not concerned about the cracked teeth, as accidents happen. Rather, her concerns were as follows:

• Dr. N. felt she should have been contacted immediately once Mr. P. noticed that L. had a broken tooth.

• Mr. P. did not address the incident adequately. The tooth needed to come out in the hospital.

[79] L. had a follow-up appointment with Dr. Mariano six months later. When Dr. N. contacted Dr. Mariano’s office to confirm, she discovered that Mr. P. had cancelled the appointment and instructed that all L.’s dental records be transferred to Dr. T.P. Mr. P. made these arrangements without discussing them with, or informing, Dr. N.

Extracurricular Activities

[80] Dr. N. said that she tried to ensure N. had structured activities to attend. She arranged for N. to attend his swimming classes from the time he was three years old. She arranged for N. to attend nature class on Wednesday mornings.

[81] Dr. N. found a 12-week pre-school soccer class on Thursdays at Malden Park in Windsor. The timing of the class was 5:30 p.m. to 6:50 p.m. The children are always with the respondent on Thursdays until 7:00 p.m. Dr. N. sent Mr. P. a text message on May 21, 2019 informing him of the pre-school opportunity for N. She said, “do you think you would be willing to take them and we can exchange the kids at the soccer class? It starts next week for 12 weeks. Please let me know ASAP so I can register him before it fills up. I think he’ll have a great time.” Mr. P.’s response was “the soccer is not going to happen.”

[82] Dr. N. found a Saturday morning soccer class in LaSalle. She signed N. up and took him on weekends that he was in her care. When L. became old enough, Dr. N. arranged for L. to attend as well. Both boys attended soccer Saturday mornings when they were in Dr. N.’s care until soccer was cancelled due to the COVID-19 global pandemic. The boys did not attend soccer on the Saturday mornings that they were in Mr. P.’s care.

Holidays

[83] There have already been several orders dealing with parenting time during holidays. It appears the parties are unable to resolve such issues without the intervention of counsel and, on occasion, the court.

Easter 2019

[84] Ms. Severs sent a proposal for Easter weekend in late February 2019. There was no response. A motion was brought by the applicant. On April 12, 2019, Howard J. ordered parenting time over the Easter long weekend as follows:

a) with Mr. P. from Good Friday at noon to Saturday at 8:00 p.m.; and

b) with Dr. N. from Saturday at 8:00 p.m. to Monday at 7:00 p.m.

[85] The order was on consent; however, the fact that it had to be made is reflective of the lack of cooperation between these two parties on scheduling and specifically the lack of response from Mr. P.

Mother’s Day/Father’s Day 2019

[86] Mother’s Day and Father’s Day have caused problems for the parties. In May 2016, Dr. N. asked Mr. P. if she could spend Mother’s Day with the children and suggested that he have Father’s Day. Dr. N. had the children for Mother’s Day, but Mr. P. did not respond to the suggestion for Father’s Day. Dr. N. attended Mr. P.’s home on Father’s Day at 2:00 p.m. to collect the children in accordance with the court-ordered schedule. Mr. P. kept the children and, when Dr. N. messaged Mr. P., Mr. P. reminded her that it was Father’s Day. Dr. N. felt she had been “played.” She said that Mr. P. generally spent Father’s Day with J.P. at his baseball games. She felt that Mr. P. had left the arrangements open on purpose so that if it did not rain, the children would be collected at 2:00 p.m. and he would attend J.P.’s baseball game. As it turned out, it rained, there was no baseball game, and Mr. P. kept the children for the day without informing Dr. N. of his intentions. Dr. N. was upset and contacted the police who contacted Mr. P.

Thanksgiving 2019

[87] On Thanksgiving Sunday in 2019, Mr. P. was scheduled to collect the children at 2:00 p.m. At 9:58 a.m., Mr. P. messaged Dr. N. through Our Family Wizard and told her that the children would be picked up at 2:00 p.m. by an aunt. Dr. N. answered saying that the children would not be released to the aunt and that Mr. P. could come later in the day if he was unavailable at 2:00 p.m. There were several further communications between the parties during the day, which caused the conflict to escalate. Mr. P. called the police. The police attended Dr. N.’s home but otherwise did not become involved. At 2:59 p.m., Mr. P. messaged Dr. N. saying that J.P. was playing in an important baseball game and Mr. P. would be home late. He said he would pick the children up at his next scheduled pickup on Monday at 7:00 p.m.

[88] There are two issues about this event that are concerning. Firstly, Mr. P. insisted that the children be with his extended family, instead of Dr. N., on Thanksgiving Sunday when he was not available. Secondly, Mr. P. pressed the issue to the point of police involvement causing increasing stress to both Dr. N. and the children.

Thanksgiving 2020

[89] On Thanksgiving in 2020, Mr. P. had the children on Sunday and Dr. N. was to pick up the children at 8:00 a.m. on the Monday based on the usual schedule. Mr. P. wanted to keep the children until 4:00 p.m. on Thanksgiving Monday. Dr. N. responded saying no; she had to work at 8:00 p.m. and wanted the children for the day. The disagreement resulted in derisive messages from Mr. P. where he said:

Oh I see how it’s going to be. We dealt with the same type of issue last year on Thanksgiving. No different than you have treated me with any other holiday so far and that is with no compromise and equal sharing of the kids. My bad, why change now when you have been so self-centred and selfish from day one of our marriage and that’s one of the major reasons for your demise, now and in your past.

Mother’s Day/Father’s Day 2020

[90] In the three days leading up to Mother’s Day in 2020, the parties exchanged 12 messages disputing how the day was to be handled. Dr. N. wanted to keep the children that day. Mr. P. would only agree if Dr. N. committed to Mr. P. having Father’s Day weekend commencing on the Saturday at 3:00 p.m. Dr. N. agreed to Father’s Day but not the Saturday prior thereto. When Mother’s Day arrived, Mr. P. ignored the special day, attended Dr. N.’s home to pick up the children at 2:00 p.m. and, at 2:15 p.m., sent a message through the Our Family Wizard platform alleging a breach of the order.

[91] When Father’s Day arrived, Mr. P. insisted on having the children the Saturday night before the Father’s Day at 7:00 p.m. Dr. N. offered for Mr. P. to pick the boys up Sunday morning at 9:30 a.m. More messages ensued with Mr. P. taking the opportunity to make derisive comments about Dr. N.’s brother. When Father’s Day arrived, Mr. P. attended Dr. N.’s residence to pick the children up at 7:50 a.m., when the members of the household were still asleep. When Dr. N. was putting the boys in Mr. P.’s car, Mr. P. took the opportunity to make another personal attack on Dr. N.

Naps and Sleep Schedules

[92] A regimented and consistent sleep schedule for both N. and L. was important to Dr. N. Mr. P. did not agree. He frequently took the children to his siblings’ residences causing the children to miss their naps or their bedtime. According to Dr. N., the children became very difficult when they were overtired.

[93] Within a week after the order of Bondy J. was made, Dr. N. realized that the exchange time on Sunday at 2:00 p.m. caused significant interruption to L.’s nap time. L. generally had his nap from 1:00 p.m. to 3:00 p.m. Dr. N. asked Mr. P. to change the Sunday exchange time to 3:00 p.m. The response from Mr. P. was, “[y]ou know the schedule. Start planning your days accordingly. Stop using the phrase what’s best for kids when you’re unable to plan your day accordingly. I’ll see you at 2.”

[94] According to Dr. N., L. was very tired as a result of the disruption to his sleep schedule. Dr. N. brought up the issue again in January 2019 and May 2019. Mr. P. refused to adjust the schedule.

[95] According to Dr. N., there were two occasions when the children were particularly exhausted following time with Mr. P. One occasion followed the children’s attendance, with Mr. P., at a Croatian banquet. The second occasion was the first Super Bowl Sunday following the separation.

[96] Mr. P.’s family had a Super Bowl party each year. There were many parties that Mr. P. attended and many that he hosted. In February 2020, the children were in Mr. P.’s care for Super Bowl Sunday. He took them to the Super Bowl party at the home of his brother, Joe. Mr. P. insisted that he left the Super Bowl party at half time and put the children to bed approximately 9:00 to 9:30 p.m. In any event, the children did not have a good sleep. N. fell asleep at school the next day.

Disrespect

[97] Dr. N. asserts that Mr. P. is disrespectful to both her and her mother at the time of exchanges.

[98] Mr. P. took every opportunity during exchanges to disrespect Dr. N. in front of the children. He called her a “so called professional.” When she knocked on his front door, he said she was “knocking like a caveman.” During an exchange following a court date, he told her she was reckless, he threatened to take the children from her, and he said, “this is not over.”

[99] On one occasion, Mr. P. told Dr. N. she acquired her medical degree “from a cracker jack box.” When Dr. N. said, “not in front of L.,” Mr. P. said, “he doesn’t understand.”

[100] Mr. P. has called Dr. N. “Pinnochio” on a number of occasions. He has used the name in a pejorative sense, as an allegation that Dr. N. is an individual who does not tell the truth. On November 9, 2020, during the course of the trial, Mr. P. attended Dr. N.’s home to pick the boys up for his parenting time. The boys were put in the back seat. As they were leaving, the back window came down and N. shouted, “hey mommy daddy is going to show us Pinocchio tonight.” The incident was clearly an attempt by Mr. P. to insult and aggravate Dr. N.

Pinching

[101] An incident occurred during the course of the trial. On March 11, 2021, Dr. N. attended Mr. P.’s home to pick up the children at a regularly scheduled time. In her usual fashion, Dr. N. went to the front porch and knocked on the door. She could see the foyer through the windows. N. ran into the foyer and she heard him say “what the F – ING S – T is this” and run away. Mr. P. then came to the door with both of the children.

[102] Dr. N. saw Mr. P. trying to put on L.’s jacket. N. continually poked and aggravated his brother. Mr. P. pinched N.’s chest and N. fell to the ground. N. said, “why did you hurt me daddy?”

[103] After Dr. N. drove L. and N. home, she examined N.’s chest. There was a distinct red mark where he was pinched. The red mark faded into a bruise two days later. Pictures of the mark were made exhibits at the trial.

[104] Mr. P. said he did not pinch N. on purpose. He said N. was falling and he reached out to grab him. I do not accept Mr. P.’s explanation for the mark. The mark is consistent with a pinch. I find that Mr. P. became frustrated with N.’s behaviour, and his reaction was to pinch him.

Spelling of L.’s Name

[105] The morning after L. was born, and while Dr. N. was still in the hospital, Dr. N. completed the birth registration form. The parties had agreed on L.’s name. That morning, Mr. P. said he wanted L.’s name spelled with a “K” which is apparently the Croatian spelling for the name. Dr. N. disagreed and completed the paperwork spelling L.’s name with a “C.” According to Dr. N., the parties agreed on the spelling.

[106] Thereafter, Mr. P. could not come to terms with the spelling of L.’s name. He wants L.’s name changed so it is spelled with a K. He took and continues to take every opportunity to spell his name with a “K”, often in front of L. He spelled L.’s name with a K on his birthday cake, on every card, on every sign, and on every communication.

[107] The different spelling of L.’s name can only be confusing for L. A person’s name goes to their very identity.

Dr. N.’s Mother/Fake Ferrari

[108] Mr. P. has been incredibly disrespectful towards Mrs. N. He repeatedly calls Mrs. N. “elderly”, knowing that it bothers Dr. N. Mrs. N. is 62 years of age. During access exchanges, Mr. P. takes the opportunity to make derisive comments. On one occasion, he told Mrs. N. that she “should be ashamed at how she raised her daughter.” In a message on the Our Family Wizard platform, dated August 26, 2020, Mr. P. attacked both Dr. N. and Mrs. N. ruthlessly. Among other things, he accused Mrs. N. of being “hateful”.

[109] There is one particular incident where Mr. P. took the opportunity to hurt Mrs. N. deeply. Dr. N.’s father had built a Ferrari as a hobby. The project was from a kit and apparently, when built, very much looked like a real Ferrari. N. enjoyed playing in the Ferrari, calling it “no-no’s car.” The Ferrari is on blocks in Mrs. N.’s garage. On one occasion after the separation, N. told Mrs. N. that the car was “not a real Ferrari.” He told her it was a fake. Mr. P. had taken it upon himself to inform N. of the difference. Mr. P. said he did so because he was annoyed when N. talked about the Ferrari. Mrs. N. took it as a sign of disrespect of her late husband’s memory. In my view, this was an incredibly selfish, vindictive, and insensitive thing to do.

Communication

[110] Communication between Dr. N. and Mr. P. has been a problem since prior to their separation. On September 20, 2019, Howard J. ordered that the parties communicate through the online “Our Family Wizard” program. A complete record of the Our Family Wizard communications was marked an exhibit at the trial. I make the following comments on the communications:

1. Mr. P. used the Our Family Wizard platform to berate and denigrate Dr. N. He used the platform to complain to Dr. N. about the conduct of her lawyer. He accused her of “telling tales.” He accused her of “playing dumb.” He called her “ignorant and selfish.” He told her she should be ashamed of herself.

2. The use of the Our Family Wizard platform did not assist the parties in co-parenting. As an example, Dr. N. arranged for the children to have their meningitis B vaccinations and faxed a prescription Mr. P.’s pharmacy. She asked Mr. P. to obtain the vaccination shots. Mr. P. did not respond and did not fill the prescription.

3. Mr. P. used the platform to berate Dr. N. on her parenting of the children. For example, on one occasion in August 2020, the children fell asleep in Mr. P.’s car after he picked them up from Dr. N.’s home, which elicited the following response on the communication platform:

Hey A., you are truly a piece of work! It’s evident that you once again do opposite to what a good parent should be doing. You pretend to care and do what is in the best interest of our kids but you clearly do not know how or do it on purpose to try to prove something to me at the risk and expense of our children’s safety or health. Your example of your complete disregard to L.’s nap once again today as he fell asleep in my car, coming home to my house after I picked them up from your house. Were the kids up late last night again?? (as they were 2 Saturdays ago) because you had to entertain your boyfriend and his 2 kids at the expense of our children’s health and well-being?… I get it, you lack parenting skills but I thought you would know better being an ER doctor. Maybe you should try pretending you are at work and act as if you were at work…”.

The children falling asleep in the car was a recurring issue. This simply illustrates that the schedule disrupted the children’s sleep habits and they were exhausted.

4. On July 20, 2020, Mr. P. sent a message to Dr. N. through the online platform that was incredibly condescending and patronizing. The message can only be described as bullying. The message was sent to Dr. N. after L. fell asleep in Mr. P.’s car. The message accused Dr. N. of “brainwashing and manipulating” the children. The message accused Dr. N. of having a “lack of parenting skills.” Mr. P. took the opportunity to lay out numerous complaints about Dr. N. and her parenting of the boys.

[111] These are just a few examples of the manner in which Mr. P. communicates with Dr. N. through the Our Family Wizard platform. There are many occasions where Mr. P. is accusatory, derisive, and insulting. The attacks on Dr. N. as well as Dr. N.’s mother and brother are numerous. He threatened Dr. N. with a loss of custody “because of your last reckless, inappropriate and unsafe behaviour with our kids.” To say that Mr. P.’s communications with Dr. N. are uncivil would be a gross understatement.

[112] Mr. P. continued with his derogatory and insulting communications with Dr. N. in person, particularly during exchanges. Many of these derisive communications took place in the presence of the children. Some examples are as follows:

1. Dr. N. was scheduled to pick up the children on Christmas night in 2019 at 9:00 p.m. She asked that Mr. P. have the children ready for bed and in their pajamas. The children were not ready for bed and were not in their pajamas when Dr. N. picked them up. Moreover, Mr. P. left Dr. N. waiting on the front porch for 30 minutes. When he finally took the children out for the exchange, he told Dr. N. that she was a “moron.”

2. In June 2020, following Mr. P.’s birthday, Dr. N. picked the children up at Mr. P.’s home on a Monday morning at 8:00 a.m. In front of the children, Mr. P. told Dr. N. that she was “a piece of work” because she had arranged a birthday party for her boyfriend’s daughter on the Saturday. Mr. P. said, “we’re going to court and I can’t wait to rip you to shreds.”

3. The same thing happened the following Sunday, June 14, when the children were exchanged. Mr. P. took the opportunity to say, in front of the children, “I can’t wait to go to court to expose the lies.”

Assessment

[113] Dr. Ricciardi is a psychologist. He received his PhD in psychology in 1987. He has had an independent practice of clinical psychology from 1988. He has conducted numerous (40 to 50) custody and access assessments over a span of 25 years. In addition, he has conducted approximately 30 to 40 parenting capacity assessments. Dr. Ricciardi has impressive credentials and was qualified to give expert evidence in this case. Dr. Ricciardi was the expert chosen by the parties to conduct a custody and access assessment.

[114] Dr. Ricciardi met with Mr. P. on four separate occasions during the months of January and February 2019 for a total of approximately eight hours. Dr. Ricciardi met with Dr. N. on five separate occasions during January and February 2019 for a total of approximately seven hours. Separate home visits with the children and both parents were conducted on March 4, 2019 (with Dr. N.) and on March 28, 2019 (with Mr. P. and Mr. P.’s son J.P.). The home visits lasted approximately one-and-a-half hours each. In addition, numerous affidavits in the continuing record were provided to Dr. Ricciardi.

[115] In the course of his assessment, Dr. Ricciardi had the parties complete several tools such as the parenting stress index and a parent-child relationship inventory.

[116] I have no doubt that, with all of these resources, Dr. Ricciardi had a thorough understanding of the family dynamics.

[117] In his report, under the heading “opinions and recommendations”, Dr. Ricciardi included the following comments:

For Mr. P.

• Mr. P. tended to present himself in a consistently favourable light, and as being relatively free of common shortcomings to which most individuals will admit. He appears reluctant to admit to miner faults and may be uncritical of his own behaviour and insensitive to negative consequences associated with his behaviour.

• Mr. P.’s self-concept appears to involve a fixed, rather negative self-evaluation. He is likely to be self-critical and to focus upon past failures and lost opportunities. He may be more troubled inwardly by self-doubt and misgivings about his adequacy than is apparent to others.

• One area of concern noted on the A-API measure involved Mr. P.’s understanding of family roles within the context of being a parent that suggests that he may tend to believe that children make life better by providing love, assurance and comfort. Parents displaying a similar low score are sometimes reported to exhibit low self-esteem, poor self-awareness, and poor social life.

• The results of the CAP suggest that Mr. P. responded to the items in a manner in which he was attempting to present himself in a positive light, that is “faking good” and that he appeared to attempt to avoid admitting to or acknowledging minor foibles or answering in a forthright manner.

• During his interviews Mr. P. was able to identify his strengths and needs as a parent as well as those of Dr. N. Mr. P. did, however, demonstrate the persistent position that it was not possible to work collaboratively with Dr. N. as he characterized her as extremely controlling.

• Mr. P. struggles in his communications with Dr. N. around parenting issues.

• The overall results of the assessment with respect to Mr. P. did not reveal any indicators of serious clinical psychopathology. However, a number of findings raised some concerns in terms of their impact upon the manner in which Mr. P. sometimes may misperceive the actions of others, the impact of his own actions on the functioning of others, and the effect of his apparent minimization and denial of issues upon his ability to function optimally as a parent.

• Mr. P. consistently minimized the seriousness of his diagnosed sleep apnea and seemed to attribute the provision of the diagnosis to his wife being a physician and a colleague obliging her by supporting her suspicions or concerns. However, two sleep studies (one without the CPAP machine and one with) indicated that Mr. P. experienced 33 “awakenings” an hour without the CPAP machine and one “awakening” an hour with the CPAP machine.

For Dr. N.:

• Dr. N. presents as a caring parent who has a good grasp of her sons’ strengths and needs. There were no indications of significant psychopathology. Dr. N. as a self-concept involves a generally stable and positive self-evaluation. She is normally a confident and optimistic person who approaches life with a clear sense of purpose and distinct convictions allowing her to be resilient and adaptive in the face of most stressors.

• Dr. N.’s interpersonal style is characterized as self-assured, confident, and dominant. She is likely to be characterized by others as ambitious and having a leader-like demeanor. She is comfortable in social settings.

• Dr. N. appears to have an appreciation of normal developmental expectations for her sons.

[118] As for the parties’ relationships with N. and L., Dr. Ricciardi said the following:

It is very evident that each of these parents cares very much for their sons and are prepared to provide them with a caring and nurturing environment. Each has his/her own individual and specific relationship with their children. Observations of Mr. P. during the home observation reflect a positive and reciprocal relationship with each of his sons. Dr. N. also has a positive relationship with each of her sons and they appear to share special times and occasions together. Their relationships appear to be typical of a mother – son relationship and it would seem that N. and L. are very comfortable in their mother’s presence.

[119] Dr. Ricciardi did not recommend a shared residential arrangement. He noted that Mr. P. and Dr. N. live 25 km apart from each other and require at least 30 minutes of travel time. He noted that Mr. P. would not consider moving to LaSalle to be closer to his children so that he could participate in various activities and reduce the amount of transportation required.

[120] Dr. Ricciardi recommended that Dr. N.’s home be designated as the “primary” residence for N. and L. He made the following specific recommendations, among others:

1. Primary residence of both children be with Dr. N. and the children attend the school in Dr. N.’s catchment area.

2. Mr. P. have parenting time on alternating weekends from Friday afternoons to Sunday evening at 7:00 pm.

3. There be no midweek overnight access.

4. Consideration be given to midweek contact on Tuesdays and Thursdays from approximately 5:00 pm to 7:00 pm.

5. The parties have “joint custody” with “parallel parenting”. Dr. N. ought to be responsible for decisions relating to the children’s education and medical care. Mr. P. could be responsible for decisions relating to the children’s spiritual upbringing. Mr. P. should be primarily responsible for extracurricular activities.

6. A strict communication protocol be put in place, to include the use of an online service such as “Our Family Wizard”.

[121] Dr. Ricciardi noted that the children’s needs will evolve over time requiring changes in the parenting regime.

[122] In his evidence, Dr. Ricciardi used the phrase “ease of commerce.” He described the phrase as relating to the ease of business and transactions between separated parents so as to continue to act in the children’s best interests. He used an example that where a child is with one parent, has a math test the next day, but has his math book at the other parent’s home, the parents must troubleshoot these circumstances. If they are able to do so, then they have an “ease of commerce” between them. Dr. Ricciardi said that there is no ease of commerce between Mr. P. and Dr. N. In fact, Dr. Ricciardi said that there was a complete breakdown of communication between the parents.

[123] Dr. Ricciardi explained, in his evidence, that for a shared parenting arrangement to be successful, the parents need to be able to cooperate, communicate, and collaborate with each other. He said there was no evidence in this case that Dr. N. and Mr. P. had an ability to cooperate, collaborate, and communicate. Dr. Ricciardi said that he tried to provide Mr. P. with strategies that would facilitate problem-solving between he and Dr. N., but Mr. P. “displayed a degree of intransience in his decision making.”

[124] Dr. Ricciardi described the parties’ relationship as “highly conflictual.” He said there were a number of conflictual incidences that occurred during the course of his investigation and report. He mentioned the tooth incident, the effect of the parenting schedule on L.’s nap, and Mr. P.’s insistence on spelling L.’s name with a “k”, all of which were described above.

[125] Dr. Ricciardi said that Mr. P. minimizes the status of his sleep apnea. He reviewed the results of the sleep studies and said that Mr. P.’s “diagnosis is more significant than he portrayed.” He suggested that “Mr. P. undergo further consultation in order to update his assessment and perhaps provide him with a different CPAP machine that may be more comfortable and that he can utilize on a regular basis.”

[126] Dr. Ricciardi made several other recommendations. On the issue of travel, Dr. Ricciardi said the onus of travel ought to be on the adults as opposed to the children. He said that the children’s extracurricular activities ought to take place in LaSalle, where he recommended they have their primary residence with Dr. N. He said that L. and N. should have the same schedule so that there are no hard feelings between the brothers if they were treated differently and so as to foster the inter-sibling bond.

Weight to be Given to the Assessment

[127] I found Dr. Ricciardi’s evidence to be helpful. His insight into the dynamics of this family is entirely consistent with the evidence that I heard. I agree with his conclusion that communication between the parties is completely broken down. I agree with his conclusion that there is no ease of commerce between the parents. I agree with his conclusion that the parties cannot cooperate and collaborate with each other.

[128] I have two reservations about Dr. Ricciardi’s report.

[129] First, on June 27, 2019, Mr. Katzman, counsel for Mr. P., wrote to Ms. Severs advising that Mr. P. planned to take N. and L. to J.P.’s baseball tournament in Columbus, Ohio. At the time, it was scheduled to take place from Thursday, July 11 to Sunday, July 14. The children were scheduled to be with Dr. N. on Thursday, July 11 overnight to Friday, July 12. Mr. P. proposed that Dr. N. trade this overnight for an overnight the following week. Mr. Katzman went on to say, “if Dr. N. does not agree to this arrangement then Mr. P. will simply miss a portion of the tournament and leave on Friday, July 12 and return Sunday, July 14 with the children.” Mr. Katzman said that Mr. P. required a note from Dr. N. authorizing the travel across the border and that he required an answer the next day failing which a motion for such an order would be brought.

[130] The letter from Mr. Katzman to Ms. Severs was sent after Dr. Ricciardi had completed all of his interviews with the parties, his visits with the parties and the children and testing, and before he finalized his report. The letter was brought to Dr. Ricciardi’s attention by Dr. N. Dr. N. contacted Dr. Ricciardi at 4:15 p.m. on June 27 by email. She explained in her email all of the reasons why she was opposed to the trip.

[131] On June 28, 2019, Dr. Ricciardi sent a letter to Ms. Severs and Mr. Katzman setting out his views on the proposed trip. He said, “I have received a request from Dr. N. to speak to an issue recently arisen with respect to the attendance of N. and L. at their older half-brother J.P.’s baseball internment in Columbus Ohio.” Dr. Ricciardi went on to explain why L. and N. ought not to go. As a result of that letter, Mr. P. conceded the issue.

[132] The difficulty I have with the manner in which this incident was handled is the failure of Dr. Ricciardi to reach out to Mr. P. before coming to his conclusions. Mr. P. clearly felt that he was treated unfairly and did not have the opportunity to present his side of the story to Dr. Ricciardi before Dr. Ricciardi gave his opinion.

[133] The second reservation involves collateral contacts. The parties were given an opportunity to provide collateral contacts for interview by Dr. Ricciardi. Dr. N. arranged for her mother to be interviewed. This interview took place on February 14, 2019. Mr. P. requested that Dr. Ricciardi contact his brother, Dr. T.P., and his ex-wife, P.P. Dr. Ricciardi did not attempt to contact P.P. until July 23, 2019, when he sent her an email at 11:26 a.m. He said, “is there anything that you would like to add or think is important for me to know in terms of Mr. P. as a dad and a parent?” He suggested that she respond via email. Dr. Ricciardi did not attempt to contact Dr. T.P. until July 23, 2019. He contacted him by text at 12:08 p.m. on July 23 and asked if he could call him that day. On the same day, July 23, 2019, at 1:38 p.m., Dr. Ricciardi wrote an email to both Mr. Katzman and Ms. Severs indicating he was near completion of his report and expected to provide it to them the next day. On the same day, July 23, 2019, at 2:01 p.m., Dr. Ricciardi sent an email to the family bar explaining that he would no longer be completing custody and access assessments for the near future. Dr. Ricciardi then sent his report to Ms. Severs and Mr. Katzman on July 24, 2019 without any input from Dr. P. or P.P.

[134] Mr. Katzman took the position that Dr. Ricciardi did not attempt to obtain meaningful input from Dr. T.P. and P.P. before he completed his report. I tend to agree. The sequence of events described above leads me to the conclusion that Dr. Ricciardi completed his report. He then reached out to Mr. P.’s collateral contacts as an afterthought. He released his report without providing sufficient time for Dr. T.P. and P.P. to return his call/email. Once again, Mr. P. felt as though he was treated unfairly.

[135] Mr. Katzman suggested that these two issues respecting Dr. Ricciardi’s report indicated bias on the part of Dr. Ricciardi. I would not reach that conclusion. Rather, I see it as poor judgment on the part of Dr. Ricciardi. In my view, Dr. Ricciardi ought not to have weighed in on the baseball tournament while he was in the process of writing his report, and certainly not without making an attempt to speak to Mr. P. to obtain his version of events. Similarly, having interviewed Dr. N.’s mother, Dr. Ricciardi ought to have made a more timely attempt to reach Mr. P.’s collateral contacts. At the very least, he should have given those collateral contacts a reasonable opportunity to respond to his communications before releasing his report.

[136] Dr. Ricciardi’s insight into the factual matrix of this family was remarkable. It was entirely consistent with the evidence and my own conclusions. Although I must consider my two reservations when I assess Dr. Ricciardi’s evidence, I nonetheless find his report and evidence to be helpful. His use of the phrase “ease of commerce” and his explanation for the need of ease of commerce in a joint parenting relationship was astute.

[137] I understand that Dr. Ricciardi has not been paid in full for his work. Mr. P. refuses to pay his share because he disagrees with the assessment. Moreover Mr. P. attacked Dr. Ricciardi in affidavit evidence on a motion after the report was released. He alleged that Dr. Ricciardi had a “cognitive impairment”. Sections 30(12) and (13) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, provides that:

(12) The court shall require the parties to pay the fees and expenses of the person appointed under subsection (1).

(13) The court shall specify in the order the proportions or amounts of the fees and expenses that the court requires each party to pay.

[138] I order that the parties each pay one half of Dr. Ricciardi’s total fees for all of his work in this case, including his attendance at the trial to provide evidence.

Plans of the Parties

[139] Mr. P. would like to purchase a home for he and the children. However, he indicates he is unable to obtain necessary financing for two reasons. Firstly, any lending institution requires that the financial issues between he and Dr. N. be resolved by way of separation agreement or court order. Secondly, Mr. P. borrowed $650,000 from the bank for his investment, and all that money has been lost. His loan payment is approximately $8,000 monthly. In addition, Mr. P. asserts that his firm’s business has been impacted by the COVID-19 pandemic. He said that the foot traffic from the walk-in clinic next door to the pharmacy had decreased during the time that the clinic was closed.

[140] As of the end of the trial, Mr. P. continued to work from 9:00 a.m. to 6:00 p.m. on Mondays, Wednesdays and every other Friday and from 9:00 a.m. to 1:00 p.m. on alternate Saturdays. Mr. P. hired a pharmacist to cover on the other days the pharmacy is open.

[141] Mr. P. said that, if he was successful in his parenting schedule, he would work every Wednesday and Thursday such that he would not be required to work when the children were in his care.

[142] Dr. N. plans to continue to work as an emergency physician at Windsor Regional Hospital. She currently schedules her work hours around the parenting schedule. Any necessary childcare is provided by Mrs. N. There was no evidence that Dr. N. plans to move her residence away from her current residence in LaSalle.

Positions of the Parties

Respondent

[143] The respondent proposes the following order:

1. The parties have joint decision-making for the children.

2. The parenting schedule for the children be equal, based on a 2/2/5/5 schedule as follows:

a) Monday morning, Dr. N. delivers the children to school or the respondent’s residence;

b) Wednesday morning, Mr. P. delivers the children to school or to the applicant’s residence;

c) Friday morning, the applicant delivers the children to school or the respondent’s residence;

d) the following Wednesday morning, the respondent delivers the children to school or the applicant’s residence;

e) the following Monday morning, the applicant delivers the children to school or the respondent’s residence;

The schedule to repeat.

3. Holidays be shared equally;

4. Each party have two non-consecutive seven-day periods each summer on 60 days written notice to the other party;

5. The parties be entitled to travel overseas with the children for 21 consecutive days, on 90 days notice;

6. Each party have the right of first refusal if the other parent is required to travel.

7. The parties continue to use Our Family Wizard as a communication protocol.

8. The parties jointly appoint a parenting coordinator to assist in resolving any dispute with the cost of the coordination services to be shared equally.

[144] The respondent agrees that the children continue to attend H.C.S. Initially, this position was conditional on the children not being bussed to school on the applicant’s parenting days and eating lunch at the home of the applicant or the maternal grandmother on the applicant’s parenting days. This initial position was an obvious attempt by Mr. P. to control the applicant’s parenting of the children while they were in her care.

Applicant

[145] The applicant requests that I accept Dr. Ricciardi’s recommendations with certain exceptions. The thrust of the applicant’s proposed order is as follows:

1. The parties have decision-making responsibility as follows:

a) The applicant be responsible for decisions relating to the children’s education in all aspects of their medical, dental, and any other healthcare matters;

b) The respondent be responsible for decisions relating to spiritual upbringing and extracurricular activities;

c) The applicant and respondent consult with each other to obtain the other’s input and views on decisions under which each party has responsibility, however, the final decision shall be with the parent charged with such responsibility;

2. The children have their primary residence with the applicant and attend school in the catchment area of the applicant’s home;

3. The respondent have parenting time on alternate weekends from Fridays at 3:30 p.m. to Sundays at 6:30 p.m. and one evening per week from 3:30 p.m. to 7:00 p.m.;

4. Holidays be equally shared;

5. Summer school holidays be equally shared;

6. There be a right of first refusal in the event either the applicant or respondent is required to travel, including vacation;

7. The parties continue to use the Our Family Wizard platform for their communications;

8. L.’s name be spelled “L.” at all times.

[146] The applicant provided her suggested order at the beginning of the trial. The applicant points out that, given the evidence at trial, it is open to me to make any order that is in the children’s best interests. In other words, I am not bound by either party’s requested order. It is not a matter of choosing one or the other, but rather what is in the child’s best interests based on the evidence I have heard.

Analysis

Credibility

[147] In Baker-Warren v. Denault, 2009 NSSC 59, Forgeron J. noted that credibility assessment was not an exact science, at para. 18:

It is not always possible to “articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events:” R. v. Gagnon 2006 SCC 17, para. 20. I further note that “assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization:” R. v. R.E.M., 2008 SCC 51, at para. 49.

[148] Dr. N. gave her evidence in a straightforward and thorough fashion. She was not shaken on cross-examination. Much of her evidence was corroborated by the evidence of others and the record of written communications between the parties. I found Dr. N. to be a credible witness.

[149] Mr. P. was evasive, non-responsive and, at times, argumentative when giving his evidence. He refused to acknowledge any facts that put him in a negative light. However, he took every opportunity to paint Dr. N. in a negative light. Moreover, Mr. P. was not well behaved during the course of the trial. He glared at Dr. N. while she was giving her evidence and mouthed the word “wow” at her repeatedly. He was clearly trying his best to antagonize and/or intimidate Dr. N. To her credit, Dr. N. was not intimidated and was able to proceed with her evidence while ignoring the antics of Mr. P.

[150] Where their evidence differs, for these reasons, I accept the evidence of Dr. N. over the evidence of Mr. P.

Legislative Framework

[151] The application included a claim for a divorce. The parties are divorced by order of Thomas J. dated November 27, 2019. Their claims respecting the parenting issues are therefore governed by the provisions of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.).

[152] Section 16 of the Divorce Act provides for orders respecting parenting time and/or decision-making responsibility. The salient parts of that section are reproduced here:

Best interests of the child

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

Primary consideration

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

Factors to be considered

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

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

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

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

• (d) the history of care of the child;

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

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

• (g) any plans for the child’s care;

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

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

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

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

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

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

Parenting order

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

(a) either or both spouses; or

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

(4) The court may, in the order,

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

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

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

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

Parenting time consistent with best interests of child

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

Parenting time – schedule

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

Day-to-day decisions

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

Allocation of decision-making responsibility

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

Entitlement to information

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

[153] What are the appropriate arrangements for parenting of these children? What is the appropriate order for decision-making?

[154] The best interests of the children are the only consideration in this analysis. In E.M.B. v. M.F.B., 2021 ONSC 4264, at para. 62, Mandhane J. held as follows: “When making a parenting order, I must stay laser-focused on the child’s best interests: Divorce Act, s. 16(1). Parental preferences or “rights” play no role except insofar as they are necessary to ensure the best interests of the child: Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at paras. 74-77, 159, 210.” In determining parenting time and decision-making responsibility, the court must consider only the best interests of the child and give primary consideration to the child’s physical, emotional, and psychological safety, security, and well-being.

[155] The respondent requests a joint parenting order while the applicant requests that she be the primary parent, both as to decision-making and as to parenting time. A series of factors to be considered in determining whether or not to make a joint custody order (now a joint parenting and decision-making order) are set out by Shelston J. in Switzer v. Switzer, 2021 ONSC 5760, at para. 25:

a. The parties need not consent to an order for joint custody but before ordering joint custody the court must have some evidence that the parties are able to communicate effectively with each other. (Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), 2005 CarswellOnt 266 OCA).

b. Simply relying on allegations of conflict will be insufficient to preclude a joint custody order. The analysis must be what is the nature, extent and frequency of conflict such of conflict impacts are as likely to impact on the well-being of the child if the evidence is that the parties have been able to shelter the child from the conflict reasonably well and put the child’s interest ahead of their own,an order for joint custody may be appropriate. (Ladisa v. Ladisa, 2005 CanLII 1627 (ON CA), 2005 CarswellOnt 268 OCA).

c. One parent cannot create problems with the other parent then claim custody on the basis of a lack of cooperation (Lawson v. Lawson, 2006 CanLII 26573 (ON CA), 2006 Carswell on 4789 OCA).

d. Where it is necessary to preserve the balance of power between the parties, particularly cases [where] both parties are caring and competent parents but one party has been primarily responsible for the conflict, joint custody versus sole custody may be appropriate. (Khairzad v. Macfarlane, 2015 ONSC 7148 and Fraser v Fraser, 2016 ONSC 4720).

e. In determining whether a reasonable measure of communication and cooperation is in place and is achievable in the future the court must consider the source of the conflict, consider whether one parent is creating the conflict and engaging in reasonable conduct, impeding access, marginalizing the other parent or by other means and then claim sole custody on the basis of lack of cooperation [and] communication. (Khairzad v. Macfarlane, 2015 ONSC 7148).

[156] I turn to the factors set out in section 16(3) of the Divorce Act.

(a) The children’s needs, given the children’s ages and stage of development, such as the children’s need for stability

[157] N. and L. are five and four years of age, respectively. I accept Dr. N.’s evidence that a structured schedule and consistent bedtimes are important for N. and L. Moreover, N. and L. require stability in order to thrive. The evidence leads me to conclude that Dr. N. is better able to provide stability and a structured schedule. Dr. N. has both a stable home and consistent support from the maternal grandmother. Mr. P.’s housing situation remains uncertain. Dr. N. has displayed a consistent awareness of N. and L.’s need for stability, consistency, and sleep. Mr. P. has not. Dr. N. has consistently prioritized the need for regular attendance at school. Mr. P. has not.

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

[158] N. and L. have a strong relationship with both Mr. P. and Dr. N. They also have a strong relationship with their maternal grandmother, Mrs. N.; their half-brother, J.P.; their aunts and uncles on both sides; and their paternal cousins. In this respect, N. and L. are blessed – they have love and support from many family members on both sides.

(c) Each spouse’s willingness to support the development and maintenance of the children’s relationship with the other spouse

[159] Mr. P. has not demonstrated a willingness, or indeed an ability, to support N. and L.’s relationship with Dr. N. He has frequently maligned Dr. N. and the maternal grandmother in the presence of the children. He has frequently badgered Dr. N. about her parenting decisions.

[160] Dr. N. has not been perfect in this category. Her decision to call the police on Father’s Day in 2019 was an incident of poor judgment on her part. Dr. N. also recorded Mr. P. and/or the children in the early months of the separation, which only served to escalate the conflict between the parties. However, Dr. N. has not called Mr. P. derogatory names or belittled Mr. P. in the presence of the children. The same cannot be said for Mr. P.

(d) The history of care of the children

[161] Prior to the separation, the children were primarily cared for by Dr. N. and her mother. Since the separation, the children have been cared for equally by the parties.

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

[162] I am unable to ascertain the children’s views and preferences.

(f) The children’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage

[163] N. and L. have access to a rich cultural heritage on both sides. Dr. N.’s family is Italian. Mr. P.’s family is Croatian. I have no doubt that both parties will ensure that the children benefit from their combined heritage.

(g) Any plans for the children’s care

[164] I have outlined the plans of the parties above. Dr. N. has the superior plan. She has stable housing for N. and L. where they have their own space. She has a plan for the alternate care of the children in the form of the maternal grandmother. Mr. P.’s plan is lacking in these respects.

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

[165] In this category, I consider issues such as education, medical, and activity needs. I also consider the parties’ respective ability to put the needs of the children ahead of their own needs.

[166] Dr. N. has shown a willingness and ability to prioritize education. She has consistently taken steps to ensure that N. was registered in, and attended, school whenever possible during the pandemic. Mr. P. has not prioritized education. At times, he did not take N. to school until he was ordered by the court.

[167] Dr. N. has historically taken care of all the children’s medical needs. The one time there was an emergency following the separation, Mr. P. did not adequately handle the issue. Dr. N. recognized the problem immediately and ensured dental care for L. forthwith.

[168] Dr. N. has arranged for the children to have structured extracurricular activities. Mr. P. has not and has refused to cooperate such that N. could not take part in soccer.

[169] I also have some concern with Mr. P.’s ability to care for the children on a long-term basis. The pinching episode described above indicates that Mr. P. can become frustrated when caring for these two active boys. When that happens, there is a risk that Mr. P. will resort to improper means to bring them into line.

[170] Dr. N. has consistently considered the needs of the children and put them before her own needs. Mr. P. has not done so in a number of respects. An example is Mr. P.’s dogged insistence on spelling L.’s name with a “K”. The fact that Mr. P. is not willing to spell L.’s name as it appears on his birth certificate is a clear indication of an inability to consider L.’s needs over his own. Another example is Mr. P.’s actions when he was ordered to vacate the matrimonial home. These were the actions of an angry, vengeful man who did not consider the needs of the two infant children still living in the home.

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

[171] Mr. P. has not shown any willingness whatsoever to communicate and cooperate with Dr. N. on matters affecting the children. Dr. N. has, on many occasions, tried to cooperate and communicate with Mr. P. An example is her request for a change in the exchange time to accommodate L.’s nap. Mr. P. refused and took the opportunity to lash out at Dr. N.

[172] Another very stark example is the time when the entire family became infected with COVID-19. At the beginning of the pandemic, Dr. N. communicated with Mr. P. and urged transparency. She sought Mr. P.’s cooperation to ensure that they did everything they could to limit the risk of infection and the spread of the virus. Mr. P. was derisive in his response. He did not, at any time, tell Dr. N. of B.T.’s infection despite the obvious ramifications for the entire family. Moreover, Mr. P. blamed Dr. N. for the infection when there were clearly other potential causes.

[173] To use Dr. Ricciardi’s term, there is no ease of commerce between Dr. N. and Mr. P. I find that Mr. P. is mostly to blame. Dr. N. has tried to communicate and cooperate with Mr. P. She has made efforts to find that ease of commerce necessary for a joint parenting arrangement to be successful. She has put the children’s needs ahead of her own feelings in doing so.

[174] Mr. P. has made no efforts to find that ease of commerce. Instead, Mr. P. has allowed his anger and hatred for Dr. N. to take priority.

[175] In my view, the last two factors set out in subsections (j) and (k) are not relevant to this case.

[176] Having considered the factors set out in s. 16(3) of the Divorce Act, I move on to consider the issues of decision-making and parenting time. I point out that my focus is the best interests of the children and not the best interests of the applicant or the respondent.

Decision Making

[177] Section 16.3 of the Divorce Act provides for the allocation of decision-making responsibility. It reads as follows:

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

[178] The applicant and respondent do not trust each other. They appear to not like each other. The children are in the middle of this parental conflict. The children need stability in decisions regarding their welfare. This is not one of those cases where the parties can make joint decisions. Moreover, this is not one of those cases where a parenting coordinator will assist the parties. The conflict and lack of cooperation and coordination are so pervasive that, if there were joint decision-making, every single decision, no matter how small, would likely be referred to the parenting coordinator and, pending a resolution, the children would be in limbo.

[179] The recommendations of Dr. Ricciardi included a division of decision-making responsibility. In essence, Dr. Ricciardi suggests a type of parallel-parenting order, or split decision-making order, where each party is given separate, defined areas of decision-making.

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

a) The strength of the parties’ ties to the child, and the general level of involvement of each parent in the child’s parenting and life.

b) The relative parenting abilities of each parent, and their capacity to make decisions that are in the child's best interests.

c) Evidence of alienation by one parent.

d) Where both parties have engaged in alienating behaviour, but the evidence indicates that one of them is more likely to foster an ongoing relationship between the child and the other parent, this finding may tip the scale in favour of a sole custody order.

e) The extent to which each parent is able to place the needs of the child above their own needs and interests.

f) The existence of any form of abuse, including emotional abuse or undermining behaviour, which could impede the objective of achieving a balance of roles and influence through parallel parenting.

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

i. The likelihood of one category of decision-making conflicting with another (the spillover effect) and the ability of the parents to navigate those conflicts.

ii. Whether the parents have the ability to navigate scheduling conflicts between activities and appointments. In particular, will parallel decision making create more conflict and instability for the children?

iii. Whether the parents live close enough to one another to implement the decisions made by the other.

iv. Based on the dynamics of the parents, whether a parallel parenting order will de-escalate or inflame the conflict.

[182] Dr. N. and Mr. P. do not have the ability to navigate scheduling conflicts between activities and appointments. Mr. P. has outright refused to even make the attempt.

[183] Dr. N. and Mr. P. do not have the ability to navigate conflicts. Conflict between the parties has been a problem from before the parties even separated. My concern is that any division of decision-making responsibility will only escalate that conflict.

[184] At the same time, where one party has complete decision-making authority, there is a risk that the other parent will be marginalized. Dr. Ricciardi explained that both parents need to be involved and engaged in their roles as parents. but at the same time further conflict must be prevented.

[185] In this case, I consider each of the major decision-making categories, namely education, medical, extracurricular, and religion.

[186] Dr. N. must have decision-making authority over education decisions. She is the parent who has prioritized education and recognized its importance.

[187] Dr. N. must have decision-making authority over medical issues. She is the parent who has been primarily responsible for the children’s medical issues and she is the parent who acted quickly and responsibly when action was needed after L. suffered a dental injury.

[188] On the issue of extracurricular activities, it seems to me that the parties ought to have the right to arrange for such activities to take place during times that the children are in their respective care. Dr. N. ought not to be entitled to arrange for such activities on Mr. P.’s time and vice versa. However, as the children get older and should they become involved in activities at a competitive level, that may not be possible. To the extent that one party needs to be able to make decisions on extracurricular activities, that parent ought to be Dr. N. She has shown a willingness to arrange for structured extracurricular activities for the boys while Mr. P. has shown no such willingness.

[189] Dr. Ricciardi recommended that Mr. P. have decision-making authority over the children’s spiritual upbringing. It seems to me that the children will attend church with the parent they are with on any given Sunday should that parent choose to take them. However, I expect that as the children grow older, decisions will have to be made respecting their spiritual education. Mr. P.’s evidence was that the church is a consistent part of his life and the life of his extended family. I agree with Dr. Ricciardi that Mr. P. ought to have decision-making responsibility in this area.

[190] The conflict between the parties and Mr. P.’s continued disrespect and disdain for Dr. N. has become the landscape of this family’s reality. That must change. I am hopeful that the division of decision-making responsibility in this fashion will bring some modicum of peace and stability to this family.

Parenting

[191] I turn, then, to the appropriate order for parenting time. Once again, my only consideration is the best interests of the children.

[192] When considering the appropriate parenting time, I take into account the following:

• The current parenting schedule is not working for these children. The frequent exchanges cause stress on the entire family, and the children are often over tired.

• The timing of the exchanges is problematic. A 7:00 p.m. pick-up time interferes with the children’s bedtime. It would, over time, interfere with the children’s involvement in extracurricular activities. Indeed, it already has.

• Dr. N.’s pickup of the children at Mr. P.’s home is problematic. Mr. P. has instructed everyone in Dr. P.’s home to ignore Dr. N. when she stands on the doorstep waiting for her children. When Mr. P. finally brings the children to the door, he often makes a derisive comment to Dr. N. The children ought not to be put in the position where they witness their father being disrespectful to their mother in such a manner.

• Dr. Ricciardi identified the distance between the two households as requiring a 30-minute drive. He said that the proximity of the two households precluded shared residency. He said that the back-and-forth between the two households would be very taxing on both L. and N. and would affect their nap times and disrupt their routines. He said that N. and L. need to have more established routines when younger.

• Dr. Ricciardi spoke of the tendency for N. and L. to fall asleep in the car on drives between the two homes. Indeed, that has happened frequently. When the children have fallen asleep in Mr. P.’s car, he has lashed out at Dr. N. and accused her of disregarding nap times.

• There is no cooperation and collaboration between the applicant and the respondent. There is no history of cooperation and collaboration. There is no ease of commerce.

• Mr. P. has not supported N.’s schooling. Many times he has simply refused to take him to school in the morning. Dr. N. has had to bring the matter to court to obtain orders that N. attend school.

• Dr. Ricciardi recommended that mid-week access not occur during the school year at this time.

• Mr. P. has worked the same schedule at his pharmacy for many years, since J.P. started junior kindergarten. Mr. P.’s work schedule has been inflexible. Dr. N. and Mrs. N. have accommodated Mr. P.’s work schedule throughout. Dr. N. has arranged her work schedule around Mr. P.’s work schedule, and Mrs. N. has arranged her work schedule around Dr. N.’s schedule. In this manner, the two women have ensured that the children are always cared for. Although Mr. P. claims to be able to change his schedule, he has historically not done so.

• Mr. P. has shown frustration when the boys are uncooperative with him.

[193] Mr. P. has consistently insisted on having equal time with N. and L. The general tenor of Mr. P.’s evidence indicates that he views his role in the boys’ lives being based, in part, on his claim to parenting rights. He may believe that N. and L.’s interests coincide with his parenting rights, but this is inconsistent with an appreciation of N. and L.’s right to a fulsome relationship with both parents. The best interests of L. and N. must be measured by the effectiveness of different parenting abilities, skills, and schedules that best suit their needs for a balanced upbringing.

[194] A higher degree of cooperation and mutual respect is needed to make an equal parenting arrangement work effectively. Parents need to be able to coordinate medical and health issues concerning their children. They need to be able to coordinate extracurricular activities that will become more important as the children grow older. There should be some level of consistency in the two homes if an equal parenting schedule is going to work. There should be some level of mutual respect and an ability to give the other parent the benefit of the doubt. None of those elements are present here.

[195] In Elliott v. Loewen (1993), 1993 CanLII 16261 (MB CA), 44 R.F.L. (3d) 445 (Man. C.A.), the Manitoba Court of Appeal made it clear that children’s needs change and will change frequently. Parenting orders should reflect those changes. The Court wrote the following, at paras. 6-7:

The needs of a child in relation to each of his parents change frequently over the years from infancy to adulthood. No court order can be crafted to address those ever-changing needs and the concerns of separated parents as they relate to their child; thus, the need for variation. Ideally, variation will occur by the consent of the parties, who are in the best position to recognize the best interests of their developing child. Where the parties agree on the needs of the child and the need for ongoing flexibility regarding custody and access, court intervention is happily avoided. At this state of this child’s life, periods of access should be regular and meaningful in light of this child’s needs in relation to nap times, day care involvement and home routine.

[196] I must consider what parenting schedule is in the best interests of N. and L. right now. I agree with Dr. Ricciardi that a more traditional parenting schedule is, at this time, in the children’s best interests for all the reasons set out above. The children need consistency and stability particularly during the school week, and Dr. N. can provide that. I agree with Dr. Ricciardi that the children should continue to spend alternate weekends with each parent. However, in my view, there must be some contact between Mr. P. and the children during the time between his scheduled weekends.

[197] In my view, the interests of N. and L. would be best served by having parenting time with Mr. P. alternating weekends, to coincide with the weekends that Mr. P. is not working. In addition, the children ought to spend one evening with Mr. P. each week. I choose Thursday evening for two reasons. Firstly, Mr. P. does not work on Thursdays. He is able to pick the boys up directly from school. Secondly, on the Thursday before Mr. P.’s weekend, Mr. P. does not work on the Friday. The children ought to be able to stay overnight that Thursday night with Mr. P. driving them to school on Friday morning.

[198] On the issue of transportation, I find that Mr. P. should pick up the children and return them after his parenting time for several reasons. Firstly, Mr. P. ought to pick the children up directly from school and return the children directly to school whenever possible so as to minimize the conflict between the parties. Secondly, Dr. N.’s collection of the children at Mr. P.’s home has been problematic due to Mr. P.’s behaviour and cannot continue. Lastly, Dr. N. as the primary residence parent will spend much time transporting the children to school, appointments, and activities. She ought not to be required to transport the children for Mr. P.’s parenting time as well.

Disposition

[199] For the reasons set out herein, I make the following orders:

1. The applicant, Dr. N., and the respondent, Mr. P., shall each pay one half of Dr. Ricciardi’s total fees in connection with his investigation and report, including his fees to attend court to give evidence. In the event one of the parties pays more than one half, that party shall be reimbursed by the other party.

2. The applicant and respondent shall have the following areas of responsibility and decision-making for the children, N. born 2015 and L. born 2017:

a. The applicant shall be responsible for decisions relating to the children’s education, all aspects of their medical, dental and any other health care, and extracurricular activities;

b. The respondent shall be responsible for decisions relating to spiritual upbringing;

c. In the event a decision needs to be made that does not fit into any of the above categories, the applicant shall be responsible for making it; and

d. The applicant and respondent shall consult with each other to obtain the other’s input and views on the decisions under which each party has their responsibility; however, the final decision, if in dispute, shall be with the parent charged with such responsibility.

3. The children shall have their primary residence with the applicant. The children shall attend school in the catchment area of the applicant’s home, or as determined by the applicant.

4. Except as detailed below, the respondent shall have parenting time with the children as follows:

a. Alternating weekends from Thursday after school (or at 9:00 a.m. if no school) until Sunday at 7:00 p.m. (or Monday at 7:00 p.m. in the event of a long weekend not otherwise dealt with herein) with the weekends to be consistent with the weekends that the respondent is not working. The respondent shall pick the children up at school on Thursday (or at the applicant’s residence if the children are not at school) and return the children to the applicant’s home at 7:00 p.m. on Sunday.

b. On alternating Thursdays before a non-parenting weekend, from after school (or at 9:00 a.m. if the children are not at school) to 7:00 p.m. The respondent shall pick the children up at school (or the applicant’s home if the children are not at school) and return them to the applicant’s home at 7:00 p.m.

At all other times, the applicant shall have parenting time.

5. Each party shall have three non-consecutive weeks with the children in each summer. The weeks shall be from Friday to Friday or Sunday to Sunday, as the case may be, and shall not include the other parent’s weekend, so as not to interfere with the alternating weekend schedule. The weeks shall be determined as follows:

a. In even numbered years the applicant shall have first choice. She shall provide her chosen weeks to the respondent by April 1. The respondent shall provide his chosen weeks to the applicant by May 1.

b. In odd numbered years the respondent shall have first choice. He shall provide his chosen weeks to the applicant by April 1. The applicant shall provide her chosen weeks to the respondent by May 1.

6. Holidays shall be as follows:

a. The special days during the Christmas school holidays shall be shared as follows:

i. In odd numbered years, the applicant shall have the children from December 24 at 9:00 a.m. to December 25 at noon and from January 1 at noon to January 2 at noon; the respondent shall have the children from December 25 at noon to December 26 at 7:00 p.m. and from December 31 at noon to January 1 at noon;

ii. In even numbered years, the schedule shall be reversed;

iii. The regular schedule shall be followed for the balance of the Christmas school holidays;

b. March break shall be alternated between the parties as follows:

i. The respondent shall have the children in even numbered years commencing in 2022;

ii. The applicant shall have the children in odd numbered years commencing in 2023;

iii. March break shall be from Friday to Friday or Sunday to Sunday, as the case may be, and shall not include the other parent’s weekend so as not to interfere with the alternating weekend schedule.

c. Easter weekend shall be shared equally as follows:

i. In odd numbered years, the respondent shall have the children in his care from Thursday after school until Saturday at 7:00 p.m., and the applicant shall have the children in her care from Saturday at 7:00 p.m. until Monday at 7:00 p.m.;

ii. In even numbered years, the schedule shall be reversed.

d. The children shall be with the applicant on Mother’s Day and with the respondent on Father’s Day from 9:00 a.m. until 7:00 p.m.

e. The children shall be entitled to spend three hours with the applicant on her birthday each year and three hours with the respondent on his birthday each year. If the parties are unable to agree, the timing shall be from 3:30 p.m. until 6:30 p.m.

f. If Thanksgiving falls on the respondent’s alternating weekend, he shall return them to the applicant on Monday at 10:00 a.m. If Thanksgiving falls on the applicant’s alternating weekend, the respondent shall have the children in his care on Monday from 10:00 a.m. to 7:00 p.m.

g. The parent who does not have parenting time on N.’s birthday and L.’s birthday shall be entitled to contact with the children by Zoom or FaceTime. Similarly, the parent who does not have parenting time on Halloween shall be entitled to contact with the children by Zoom or FaceTime.

7. Every effort shall be made to ensure that the children attend special occasions, such as weddings, funerals, religious ceremonies, or other special family occasions. If the event impinges on the parenting time of the other parent, the requesting parent shall give to the other as much notice as possible. The accommodating parent shall be provided with make-up time.

8. The respondent shall provide transportation for pickup and drop off. He shall pick the children up at school where possible. Otherwise, he shall pick the children up from and return the children to the respondent’s home.

9. In the event that either the applicant or the respondent is required to travel or be out of the city for any reason whatsoever, including vacation, work, or other commitments, the other parent shall be given the first opportunity to care for the children. This provision applies if the travelling parent will be gone for 18 hours or more. The travelling parent shall provide as much notice as possible to the other parent.

10. Both parties shall be entitled to take the children across the border to the United States for day trips without requiring the other party’s permission. The travelling party shall provide notice to the other party to include an itinerary and contact information.

11. Each party shall be entitled to travel with the children out of the County of Essex during their time for vacation purposes. The travelling party shall provide a detailed itinerary with contact information indicating how the children can be reached by the other parent at all times. The other party shall cooperate in providing any necessary authorization to travel as soon as possible. If more time is needed for travel, the other party shall cooperate and shall receive makeup time.

12. In the event either parent intends to take the children outside of the country, they shall ensure that both children have the necessary travel health insurance.

13. The respondent shall sign passport renewals for the children as required until such time as parental signatures are no longer required. The applicant shall provide the children’s passports to the respondent when necessary for travel, and the passports shall be immediately returned to the applicant for safekeeping.

14. The applicant shall maintain possession of the children’s health cards and shall ensure that the respondent has updated copies.

15. The parties shall follow the following communication and behaviour protocols:

a. The applicant and respondent shall use the Our Family Wizard online platform for all communication between the parties pertaining to the children. The communications must be child focused, nonpersonal, and businesslike in nature and relate to information only pertaining to the children.

b. The parties shall not use either child as a messenger to communicate back and forth between each other.

c. Schedules are to be shared and exchanged using the online calendar or in writing through the Our Family Wizard website.

d. Both parties shall be entitled to obtain copies of all information, schedules, reports and calendars from the children’s school and extracurricular activities.

e. The applicant and respondent shall respect the privacy of the other parent and shall refrain from engaging N. and L. in any discussions or questioning about the other parent’s personal life, health, or social activities.

f. No personal information is to be shared between the parties in any form whatsoever.

g. The parties shall keep each other apprised at all times of their home address and phone number. If either party intends to change their residence, they shall notify the other as soon as practicable of the change of address and/or phone number and expected date of such change.

h. Neither party shall arrange activities for the children during the other party’s scheduled time without the other party’s written consent.

i. Both the applicant and respondent may attend all school and extracurricular activities and scheduled events regardless of the parenting schedule. The applicant and respondent shall keep each other advised of any upcoming school and extracurricular activities and events.

j. The children shall be permitted to take any personal item, toy, gift, or article of clothing between the applicant’s and respondent’s homes, without restriction.

k. The parties shall immediately advise the other of any medical emergency or hospital attendance required by either child while in his or her care.

16. The parties shall not take any steps to change the children’s names and shall always spell L.’s name with a “c.”

17. In the event the parties are unable to agree on costs, they may make written submissions to include a costs outline according to the following timeline:

a. The applicant shall have 20 days;

b. The respondent shall have 20 days thereafter;

c. The applicant shall have 10 days thereafter for any reply.

Original signed by Justice Pamela L. Hebner

Pamela L. Hebner

Justice

Released: November 22, 2021