ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FC-20-00000031-0000 (Napanee)
DATE: 20211126

BETWEEN:

MICHAEL MACDONALD
Applicant

– and –

MELISA SUE CANNELL
Respondent

Beth Ambury, for the Applicant

Lucienne MacLauchlan, for the Respondent

HEARD: October 18, 19, 20 and 21, 2021, at Napanee (by videoconference)

ROBERTSON J.

judgment

This decision follows a 4-day trial.

Issues for Determination

[1] The issues for determination are decision-making authority, time sharing during the school year for the 5-year-old child Ryker Liam MacDonald (born August 17, 2016), ongoing child support, and costs.

[2] The parties filed partial minutes of settlement at the start of the trial. They agree on some custodial incidents, shared holidays, and imputed incomes of $76,000.00 for the Applicant father, Michael MacDonald, and $30,000.00 for the Respondent mother, Melisa Sue Cannell.

[3] The Applicant father seeks joint or shared decision-making responsibility. He proposes to continue the equal time share schedule on a 2-2-3 rotating basis as it has since November 2019. His strong belief is that Ryker should have equal time with both parents. In the alternative, he seeks sole decision-making responsibility. He commits to consultation with the Respondent mother. He asks to pay less child support than the set off based on s. 9(c) of the Ontario Child Support Guidelines, O. Reg 391/97 (the “Guidelines”) due to differences in the parties’ means, needs, and circumstances. He argues that the Respondent mother benefits by shared home ownership with her own mother. While the Applicant father acknowledges earning more than double the income of the Respondent mother, the father has care of his older children from his prior marriage. By agreement with his ex-wife, he does not receive child support. His alternative claim is a set off payment.

[4] The Respondent mother seeks an order that she be solely responsible for making the important decisions for Ryker, including decisions about his education, healthcare, and extra-curricular activities. She commits to consulting the Applicant father and promises to consider his input and opinion. She seeks primary residence during the academic year with the father parenting Ryker on alternate Fridays at 2:30 p.m. to Monday at 9 a.m. and in the alternate/off week from Wednesday at 2:30 p.m. to Friday at 9 a.m. The mother disagrees that equal time share is working in Ryker’s best interests. The mother asks to reduce the transitions between the 2 households. She claims Ryker craves more time with her and struggles with frequent changes. She wants Ryker with her instead of a third party’s care when the father is away working. She seeks Guideline child support.

[5] Put plainly, the issues are:

a. Who should be the decision tie breaker if they disagree after mutual consultation;

b. Should the time division be 7/14 or 5/14 nights during the school year; and

c. Should the Applicant father get a child support discount?

Background and Law

[6] The parties never married. The Children’s Law Reform Act (the “CLRA”), R.S.O. 1990, c C.12, as amended, provides the statutory framework for their parenting issues. They agree that the only consideration is Ryker’s best interests from his vantage point.

[7] Parenting cases evaluate short-term and long-term plans for the future care of a child. This entails more than parental love and a lip service commitment to consultation, communication, and best interests. This is fact-driven with considerations of human behaviour, family relationships, communication patterns and good judgement. Joint decision-making authority is appropriate where parents have the ability and willingness to work together, to plan and to problem-solve for the benefit of the child efficiently and amicably. Although willing, I find these parents lack the capacity at present to do so in the event of a conflict. Joint decision-making authority is not appropriate where the absence of clear decision-making authority will lead to indeterminable power struggles, impasse and delay. The absence of a “tie-breaking vote” can have devastating consequences for vulnerable children who don’t want to – and shouldn’t have to – get caught in the middle. See: Bennett v. Burns, 2018 ONSC 5443.

[8] Joint decision-making authority is more than just a “feel-good” label. It is well settled law that it should not be ordered in the hope that communication will improve or because it will make parents feel better. It works where parents share the same beliefs, with a good history of co-operation. The father’s counsel nicely stated the issue: is a reasonable measure of communication and co-operation in place, and achievable in the future? I find it is not. I have compared the past, current and proposed parenting plans. Both parents have flaws and both parents have strengths. Each requires new strategies to improve their communication patterns. Unchecked, their scuffles will hinder Ryker’s growth into a functional adult. I find it necessary to assign a final decision-maker. This will assist in minimizing conflict. Decisions must be made quickly, properly and uneventfully. I have concerns that a joint parenting order would perpetuate conflict, indecision, and power struggles. I find that that Ryker’s best interests are served by granting the mother final decision-making authority.

[9] I agree with the father’s submission that children benefit from both parents’ involvement in making decisions for them post-separation, absent extenuating circumstances. Decision-making entails mutual rights and mutual responsibilities. It is only in the case of a disagreement that custodial authority is required. When parents reach a stalemate, third parties, such as schools or doctors, need clarity. I find that the mother has demonstrated that she is most even-handed, fair and mindful of Ryker’s ongoing needs. I also find that she will promote Ryker’s relationship with his father. I find Ryker’s best interests are served if the mother is in charge of final decision-making with consultation in advance with the father. Authorizing the mother to make major decisions for Ryker includes a duty to exercise those obligations fairly having regard to Ryker’s needs. In entrusting her with this authority, she must be responsive in a timely way to the father’s concerns, even if it is to acknowledge his inquiry and advise him of a response time. He may be overly sensitive or demanding for reply but that is who he is, and she must deal with him “as is”. Delaying her response adds stress and impacts Ryker.

[10] The parties agree on many core values. There do not appear to be cultural or religious disputes. Rather, there seem to be different parenting styles. Small tasks, such as buying a backpack turn quickly into a larger issue than necessary.

[11] While the father and his witnesses gave examples of how the mother fell beneath his requirements, there was little if any evidence as to how he compromised to share the mother’s ways or address her concerns. Because Ryker is half of each parent, they need to sort out a common family culture.

[12] The father characterizes the mother’s position as not wanting to communicate with him, rather than being unable to communicate about Ryker. I disagree. To be clear, this order does not permit her to exclude the father from tough discussions because the mother finds him difficult to deal with. She needs to step up her communication skills with him. If she lacks the skills, find a new plan or get some help. This order won’t fix their problems. Neither parent’s plan had a component to effectively address their communication deficits. Ryker’s best interests are best served if they do so. The father has extended benefits available to him through his employer and I urge him to take advantage to arrange some communication counselling for them to be able to discuss issues regarding Ryker. Hopefully, it will be covered by his benefits.

[13] The burden of proof in a civil matter lies on the person asserting the claim. Here, both parents seek an order for the parenting arrangement that they allege is in Ryker’s best interests. I find that both parents bear an evidentiary burden in establishing his best interests. The standard of proof in this trial is the ordinary civil standard of balance of probabilities. Finding that a fact is proven on a balance of probabilities means that it is more likely than not to have occurred. It means that it is probable – i.e., the probability that some event happens is more than 50%.

Circumstances, Analysis and Findings

[14] The parties were together for three years; from a few days after Ryker was born on August 16, 2016, until they separated on October 12, 2019. They never married. The father is 40 years old and the mother is 38. They conceived Ryker soon after they started dating. The mother was sick during much of the pregnancy. She has a history of depression and mood issues. There were some prenatal worries which fortunately resolved. Ryker is healthy.

[15] The parties remained financially separate. The mother contributed to groceries and other expenses. She received maternity employment insurance benefits.

[16] The parties lived in separate houses on the same street until Ryker’s release from the hospital NICU. The father bought a crib and set it up at his house. He insisted that Ryker live in his house. The mother yielded. The father made it clear that she could leave, but Ryker would live in his home. She stayed. Before separation, the CLRA, s. 20 afforded the father equal custody. He could take that position. Neither parent initiated a court proceeding then.

[17] The father wanted to take paternity leave after Ryker was born, but instead he worked hard supporting his children. The mother’s career path was secondary. The father wanted more financial help from her, and this was an additional source of friction.

[18] The mother took maternity leave after Ryker’s birth. She did not return to her job because the hours and on-call shifts were incompatible with her obligations in the home. The father told her that she would have to pay for the daycare if she worked, so it was hard to find that a job that made it worthwhile. By separation, the mother had a receptionist job at Quick Lube. Ryker attended a subsidized daycare. They both benefitted by cutting corners in government program applications. The father’s contact prepared their tax returns. The mother faces repayment responsibility.

[19] The father paid his house expenses. The mother rented out her house – to her financial and practical disaster. Her bad tenants failed to pay rent, damaged the home, and delayed their eviction. This further limited her options to leave. When the parties finally separated, the mother left Ryker with the father. The father would not let her take Ryker. Her house was uninhabitable. She certainly couldn’t take a baby to live in the mess made by the tenants. The maternal grandmother paid for a motel so that the mother could have a suitable place to spend time with Ryker until she could find proper housing. She always wanted to parent Ryker. I find leaving the child with the father rather than take him to an unsafe house evidences the mother’s ability to prioritize Ryker’s safety and needs above her own. It was not abandonment. I find it was good judgment to refrain from caring for Ryker at her house while it was in a state of disrepair.

[20] All witnesses agreed that the parties’ relationship was untested, insecure and rocky from the beginning. They have a history of poor communication and different conflict management approaches. There is no evidence that their differences in lifestyle, communication or conflict management have ever changed. They were a poor match as a couple. They were unsuccessful as a blended family. The father’s 2 teenagers from a previous marriage and the paternal grandmother didn’t get along with the mother then or now. Elijah, age 17, lives primarily with the father, spending alternate weekends with his own biological mother. Elijah has Asperger’s syndrome, and this can be challenging. Daughter Alicia, age 18, lived with the parties. Alicia now lives with grandparents and attends St. Lawrence College. She has a room at her father’s house but hasn’t used it much, even on Thanksgiving weekend. She made alternate plans. There is some ongoing family friction, but the reason is unidentified. All the father’s witnesses were indirect about it. It seems unrelated to Ryker or the mother.

[21] Both Alicia and Elijah love Ryker, and the 3 children share a positive relationship. There is no dispute that it should continue. Alicia is free to contact the mother and arrange separate visits if she chooses during the mother’s time. The mother is responsible to initiate and encourage regular contact between Alicia and Ryker, particularly when the father is working away.

[22] I find the mother is a competent, child focused parent with the ability and willingness to care for and meet the needs of Ryker. She described an appropriate daily routine for Ryker including proper hygiene, play time, quiet time, meals together at the table, age-appropriate bedtime, activities and a daycare plan. Her support system includes her mother and her long-time friend. I found the maternal grandmother and this friend’s evidence to be even-handed and credible. Neither exaggerated when they had the opportunity to do so. The friend did not hesitate when she described the mother’s housekeeping as cluttered.

[23] The father is also a competent parent. He also includes appropriate hygiene, play time, plenty of outdoor activities, nutritious meals and age­appropriate activities. He has stopped consuming alcohol. His support network includes his two children, his mother who resides with him, and a step grandparent. Alicia is no longer available as an in-house caregiver for Ryker.

[24] During the relationship, the father was a hard working, hard drinking man with high expectations of what the mother should do. He had a firm leadership style and was in charge at his house. He presented as high energy and intense. His mother explained: “Mike can come off as tough because he is a big guy, he has a physically demanding job, and he works outdoors a lot. However, he is very gentle and patient with his kids”.

[25] The father was highly critical of the mother and dissatisfied with her parenting, housekeeping, energy level or career plan. It fell beneath his standard. His teenaged children did not adjust well to this new family constellation he imposed on them. Collectively, the father and his witnesses paint a picture of the mother as lazy, unengaged in the care of her newborn, with a disregard for frequent diaper changes, unable to properly breast feed her baby, and unable to prepare meals. Alicia testified she doled out healthy lunch snacks and counted bread slices. The paternal grandmother said she witnessed the mother once dividing one strawberry into 8 pieces and two blueberries each into four pieces as Ryker’s only lunch. There was no evidence that the paternal grandmother disclosed her observation to the father or took any action to remedy the problem. The father’s witnesses described the mother as mean to Alicia and Elijah, unable to keep house, and, all in all, an incompetent person.

[26] There was no evidence that Ryker was underweight or unhealthy, despite regular medical appointments. The evidence is that while the father held very high housekeeping standards, the work was mostly done by the children, mother or grandmother.

[27] Notwithstanding the father’s assessment of the mother as inept, he entrusted all three of his children to her care for extended periods of time during his absences from the home for work or leisure purposes, such as hunting and golf with his friends. He was regularly consuming quantities of alcohol at the time. He testified he banked considerable money in trust for his children. Despite this resource, he purportedly failed to ensure sufficient groceries for his children. If the characterization of the mother as failing to provide food is correct, then he failed to protect Ryker and his other two children from her neglect. That would lead to a conclusion of his own bad parental judgment. I doubt that the paternal grandmother would stand by while her grandchildren went hungry. There was no evidence Alicia disclosed the food shortage to her father or biological mother, with whom she had regular contact. I find on the whole of the evidence, that Alicia did experience bread/ snack shortage as she described on that occasion. What surprised me is why she didn’t ask her father, grandmother or her own mother to intervene, and if she did ask, why they did not fix it? The father seemed unable to identify, hear and address their concerns.

[28] I find the responsibility for this issue should be directed to Alicia’s parents, not a stepparent. As noted by the Applicant father in his submissions, “given her limited income during the relationship, it is difficult to see how the Respondent mother paid for any majority of the parties’ groceries or purchases during their relationship”. I prefer the mother’s evidence on this point that on that occasion, she wanted to make sure the groceries lasted the week. I find that Ryker would not suffer food security issues in her care.

[29] On the whole, I prefer the mother’s evidence. Her claim, plan, story and actions match. Credibility is a function of truthfulness and reliability. When assessing credibility, I look at what the parents did, and not just what they now say they will do. This helps determine reliability. I have had the opportunity to hear both parties, and in reaching my decision, I have considered the credibility of their witnesses, including the adult child of the father, his ex-wife, one of his former common law partners, 3 grandparents, and friends of both parties. I find the mother is more credible. I found her to be truthful. For the most part, I find that her plan adds to her credibility. It is child focused.

[30] I found the father to be evasive at times. When asked something uncomfortable, he was vague. He had difficulty answering questions that he knew would be unhelpful to his case. Though not untruthful, at times he gave unclear responses and couched his evidence in ambiguity. The father’s financial statement did not disclose approximately $10,000 in savings. He wrote N/A on his financial statement, asserting he holds these funds in trust for all three children at the CIBC. This lack of disclosure was wrong. It is relevant. I require him to provide disclosure of those accounts at separation and since separation, at trial including the statements showing how the funds were accumulated during their relationship and how much was used for Alicia’s post-secondary expenses.

[31] I find the paternal grandmother unbalanced in her opinions resulting in reduced credibility. The grandmother testified that it was a shorter drive for Alicia to attend college if she lived at the other grandmother’s house. This is false. She was aware of the distance. No other witness held that view. Alicia testified that she wanted quiet, freedom and independence. She is a college student. This is completely reasonable. While I appreciate trials can be emotional, that she loves her son and grandson, the paternal grandmother demonstrated a pattern of disregard for Ryker’s relationship with her mother. I am concerned she will undermine Ryker’s relationship with his mother and will persist in proving her perspective that her son is the better parent and that the mother is an incompetent parent. I urge the father to guard against this interference.

[32] I find the father’s witnesses collectively vague about when and why Alicia moved out of his home. Alicia's mother inadvertently disclosed that Alicia was residing with her grandparents. This differed from the opening statement or from Alicia's affidavit sworn a month earlier. She updated the information in her testimony, stating she moved to her grandparents' home in Yarker after she swore the affidavit. The Applicant’s mother testified she thought the date of Alicia's move was early summer. The Applicant's step mother with whom Alicia now resides testified that Alicia has lived with her since May, 2021; however, she has no idea why Alicia moved into her home. The Applicant father's response to why Alicia has moved out of his home was "you will have to ask her". If the father is truly unaware of Alicia's reasoning for her retreat from his home, he is not connected to his child and her needs.

[33] At the start of their relationship, the mother owned her own home and vehicle. She was independent. She held a secure job as By-Law Officer. She has degrees in Early Childhood Education and in Office Administration. Her freedom quickly eroded. The father frequently worked away, and she became somewhat of an unpaid nanny to his children. She helped to care for chickens/ducks/turkeys on their rural property. He drank daily and I find she was correctly concerned about his misuse of alcohol. He was hypercritical of her, disrespectful, demanding, and dissatisfied with her homemaking and care of his 2 teenaged children. The mother testified that she could never please the father or his mother. She lived in a state of his chronic disappointment. I find that he tracked her through GPS, sent frequent invasive texts, and called often to check up on her. The father’s friend corroborated that he spoke of the mother crudely and called her names.

[34] The mother described a pattern of the father’s dominating decision-making behavior where she eventually caved in. For example, the mother wanted to hyphenate Ryker’s surname with hers. The father objected, so Ryker was given his surname. He did not want her to take Ryker to her house overnight, so she did not do so. The father disputes a pattern that he bullied her into submission when making decisions. I find that that he often persisted in arguments until he got his way. I find that he exerted financial authority.

[35] The mother’s friend described her homemaking as clean but cluttered, with dishes in the sink. On the whole of the evidence, I find that the mother’s housekeeping and childcare style were relaxed, but within acceptable community standards. Her housework fell beneath the father’s expectations. I find she should upgrade her housekeeping practices to enhance Ryker’s cultural continuity between the two homes. It is not only the father who needs to compromise.

[36] It is hard to pinpoint every reflection but in determining Ryker’s best interests, I have carefully considered s. 24(3) of the CLRA, as recently amended. In assessing each party’s parenting ability, I have specifically considered the factors listed to meet the primary consideration of Ryker’s physical, emotional, and psychological safety, security and well-being, including any relevant violence and abuse.

[37] Neither disputes the love and affection that they each have for him, or the capacity to care for Ryker. Neither claims that they intend to erase the other from Ryker’s life. Both parents promise to support the relationship between Ryker and the other parent. Since separation, both parties have moved to different houses, but still live on the same school bus route for the benefit of Ryker.

[38] Although there was no agent of the Office of the Children’s Lawyer, both parties agree that Ryker loves both parents, his step siblings and grandparents. Ryker’s school report card was very positive and complimentary of his social and academic skills. Much of his junior kindergarten year academic program happened online, and both parents did their job supporting his curriculum.

[39] In the pleadings and in the evidence, both parties disputed the extent of the pre- and post- separation role of the other parent in decision-making for Ryker. I find that both parents were involved in making substantial decisions for Ryker and parenting him prior to separation, although the process was bumpy and unsatisfactory. Post-separation, they eventually agreed on most major decisions, although their communication at times was hard. They coordinated his medical, dental, and speech therapy appointments. They agreed to enroll him at The Prince Charles School for junior kindergarten in September 2020. It was the only school that enabled two bus stops for them.

[40] The father criticized the mother for filling out a school form to his dissatisfaction. He wanted his name to be equally prominent, so he went to the school to sort it out to his satisfaction. I carefully reviewed all of the evidence on this point. I find that his concern relates to his perception of his personal fairness and was not child focused. I also find that the mother should have known that delaying disclosure of the document would upset him. The father wanted to see it and had asked for a copy. I reject her reason for the delay. She might have been overwhelmed at the time, but she should have responded to acknowledge his request. A failure to reply is also a decision.

[41] Similarly, the father complained that the mother moved without giving him an address. I find that she did give him details, but not in the timeframe he desired. The father was pestering her at the time, and it was completely reasonable of her to delay releasing those details. The father’s buddy and manager of her condo complex testified that he leaked details to the father about an opportunity for the mother to sell that house. I find that the mother was doing the best she could on extremely limited funds under extreme pressure. I find that the father was making life difficult for her. His numerous nuisance texts would have supported a restrictive order against him had the mother pursued it. She chose to focus on moving forward. I find that her delay in giving him residence particulars was reasonable. In future, however, both need to advise the other of who lives their home and to pre-empt any concerns, must disclose any criminal or child protection issues.

[42] The father’s behavior towards the mother at separation was poor. He paid nothing to help her or Ryker. I recognize the limited link between custody and child support but there is a consequence felt by children when a parent struggles economically. This is an example where the father did not prioritize or value the child over his own needs.

[43] The father cut the mother off from his medical benefit coverage soon after separation. He knew that Ryker would benefit from the mother taking prescribed mood regulating medication. The father did not pay child support or provide any transitional allowance or spousal support to help her get set up. He resisted giving her items from his house because she missed a deadline for removal. While he now consents to an order for child support arrears, her cash flow was modest at the time and her pre-relationship house was unavailable due to tenant damage.

[44] Her drug expenses are $200.00 per month for a thyroid condition, an anti depressant mood regulator and a drug to combat herpes she acquired from him. His pleadings recognized that “the Respondent mother has a history of mental health issues including depression and threats of suicide. As long as she supports her mental health with proper treatment, I do not believe that this interferes with her ability to make decisions with me in Ryker's best interests”. Terminating her benefit coverage meant she either lived medically unregulated which he knew was a risk to Ryker, or trimmed expenses elsewhere, impacting the lifestyle she could provide to Ryker.

[45] While I can accept that conduct proximate to separation can be petty as families uncouple, I find it continues. At a dentist appointment, the father publicly insisted the mother pay the entire uninsured fee balance, even though her income was less. She acquiesced. Recently, as admitted in his cross examination, he posted old baby shower gifts to a social media sale site with his new girlfriend Lisa. These were small dollar items. He did not plan to give or even share the proceeds with the mother. By unrelated coincidence, a witness described his attendance and behaviour at the baby shower. The witness described it as uncomfortable. He was aloof from guests and watched the mother. It was clear to me that he was not there to be a joint gift recipient. The point is that his perception of fairness and right/wrong is at odds with the mother’s and with mine.

[46] I find that the father has a history of misuse of alcohol. He admits to a history of regular and significant alcohol consumption. This was corroborated by other witnesses. He denied that it was a problem. He is wrong. It was a big worry for the mother. He disputes that alcohol abuse is a current issue. He testified he stopped drinking all alcohol about 2 months before the trial for no reason. His mother, who lives with him, corroborated this, stating that there is no alcohol in their home. When questioned, she could not explain a reason for the change. I find that his pattern of alcohol consumption was negative on Ryker and his other children. I accept the undisputed evidence that he drove Ryker after overconsuming alcohol. I accept that the mother telephoned 911 on one occasion to report her worries about him driving with the child. I accept her evidence that she drove his other children to various activities and part-time jobs when he had consumed alcohol and further, that he would drink on the way home from work.

[47] The mother is worried that the father continues to abuse alcohol. He submits that during the relationship she consumed alcohol too. There is no evidence or allegation she has a drinking problem, in the past or currently.

[48] I find that the father took steps to change. I find there is no evidence that the father currently abuses alcohol. I find that he is well aware of the negative impact of substance abuse on parenting, and I accept his evidence that he now maintains sobriety. Courts have authority to make abstaining orders as incidents of parenting orders. For instance, a court ordered a parent to abstain from using alcohol while a child is in the care of the parent: Gibson v. Battison, 2012 CarswellOnt 6253; Gaudet v. Dietz, 2010 CarswellOnt 8751. I do not find that that is necessary here, because I accept his evidence that he has completely stopped consuming alcohol or having alcohol in his home. Decisions are made on proof, not feelings or fear. This order is premised on the father’s ongoing sobriety. It shall constitute a material change in circumstances if he chooses to over consume alcohol again.

[49] There was much evidentiary ado concerning two photos of Ryker. This is relevant to the parties’ mutual perception and ability to communicate. The father posted a picture of Ryker, at age three, holding a real gun in a hunting setting. The father testified that the gun was unloaded, and essentially described it as a safety teaching moment. The father then posted it on social media. I can appreciate that he was very proud to introduce Ryker to a sport he loved and show off the child. The problem that I have with his evidence is the spin he put on it that somehow, it benefited Ryker. I reject that this was an educational opportunity. He was just a proud Dad, and in that context, I have little issue. Contrasted with this, the father’s case included a complaint that the mother consented to a photographer posting Ryker’s photo on her webpage without his consent. It was a professional photo in an autumn setting. The grandmother complained in her testimony that Ryker was only wearing a shirt without a jacket, his hair was damp, and he had a cold. The father’s complaint is evidenced in the exhibits of texts. Of the two photo incidents, I find the father’s behaviour more egregious than the mother’s. It evidences how the father over-filters the mother’s actions negatively, and also how critical and overly involved the grandmother is.

[50] The current time-sharing arrangement for Ryker is a 2-2-3 schedule since shortly after separation. The father was co-operative in dividing time sharing, but adamant that they share time equally with the child. The mother pleaded with him for a different arrangement.

[51] I recognize that courts hesitate to change a long term status quo unless compelling circumstances dictate otherwise; see Ceho v. Ceho, 2015 ONSC 5285 and the cases cited therein, including Batsinda v. Batsinda 2013 ONSC 7869, Green v. Cairns, 2004 9301 (Ont. S.C.J.) and Papp v. Papp, 1969 219 (ON CA), [1970] 1 O.R. 331 (C.A.).

[52] At law, it is not a status quo if one party imposes a regime. Status quo is found where parties have agreed to a time-sharing arrangement they assess to be in the best interests of the children. Still, the pattern of time share is an important factor for the court to consider. Courts rarely change interim patterns before testing competing versions of truth. Multiple changes of arrangements can result in less stability for a child. I have now had the opportunity to hear the evidence as tested through cross-examination. I find that the mother accepted but did not agree this arrangement was best for Ryker. Rather, it was the best that she could negotiate at the time. Much of this litigation occurred during the pandemic when the court system was struggling to embrace a virtual world. Urgent matters were prioritized and at law, this was not one of them. It would have been unlikely to get an interim motion heard in those circumstances. The concept of status quo must but placed within that context. The fact that she did not bring a motion to change the arrangement was a realistic litigation choice on a temporary basis given her financial picture and the court’s limited availability.

[53] The law requires me to consider maximum contact between the child and both parents if it is in their best interests. The best interests of the child is an all-encompassing principle. I have reviewed and compared the current and proposed competing plans presented for Ryker by each party.

[54] The mother explained her plans for Ryker including:

a. Maintaining his current educational plan in the French Immersion program at The Prince Charles Public School;

b. A back-up plan if future educational assistance in the French language as necessary;

c. Obtaining employment with hours that align with Ryker's school hours, to reduce the time the child is in a third party’s care;

d. Seek the advice of medical professionals to assist her in making medical decisions on behalf of Ryker; and

e. Consult the father and give due consideration to his opinions prior to making decisions. She testified that sometimes his opinion is better than hers.

[55] At only 5 years old, Ryker needs stability and consistency. I find that the mother’s plan is child focused and maximizes her availability with little third-party care. The child has shown some resistance during transitions between the parents. I find that the mother has encouraged the child to attend. I find that the father was insensitive to the child when he forced the child from the mother’s arms and called him "mommy's boy" because he was resisting the transition. I find that the present time sharing arrangement has too many transitions for Ryker at this time. I accept the mother’s evidence of "tantrums" and poor behaviour on the mornings of the transitions. When she sought help from the father about this behaviour, he chose to criticize her rather than offer help. She was correct to ask the father for help. I do agree with the father that Ryker has had too many late slips to school while in the care of the mother. I require her to get him to school on time unless there is a valid excuse such as illness.

[56] I find that during the school year, the mother’s plan best meets Ryker’s needs. For the summers, the parties have agreed Ryker should be in shared parental care. Starting in September, 2023, the father shall have an additional overnight, giving him 6/14 nights if he is available. If they cannot agree on the day, the mother shall choose, factoring in any activities for Ryker and work schedules for both parties.

[57] The father did not give specific evidence about a plan of care for the child. His focus was to share time 50/50. When he is available, I have confidence in the father’ s ability to provide the physical care, education and medical attention that Ryker might require. For example, he testified how he would go about considering vaccination for Ryker, including research and consultation. That seemed reasonable and open minded.

[58] The father is back to work through the union. It is uncertain if his new business continues. It was unclear who would actually be living in the home and who would care for Ryker when he was working away.

[59] Ryker should remain in the care of the mother if the father is unavailable. I find that his daughter Alicia, who had been a reliable caregiving support by the father’s account, had in fact moved out of his house at the time she swore her affidavit to the contrary. There was no evidence that Elijah serves as Ryker’s carer.

[60] The grandmother lives with the father, but she dislikes and disapproves of the mother. She should not be an alternative caregiver if the mother is available. I am concerned her attitude will negatively influence Ryker. There is no doubt she loves Ryker and is an attentive grandmother.

[61] During the trial, a fuzzy picture emerged of the father’s plan. His new girlfriend, Lisa, is in the process of moving in. The father and grandmother’s evidence in this regard were vague. It is hard to believe that a new woman would move into his house without the knowledge of this resident grandmother. If that is true, frankly it is worse that he would impose a new woman on the scene to live with Elijah and the grandmother, especially since the last time he did so, with the Respondent, things turned out poorly. If his plans changed proximate to trial, it should have been corrected. The impression is they are waiting for the trial to end for Lisa to move in. I have had no opportunity to assess if this will impact Ryker. Lisa might well be a stabilizing force, but I was not afforded an opportunity to assess this. The limited information the father provided about Lisa related to her assistance with selling Ryker’s baby shower items.

[62] The father is a very avid outdoorsman. When the father is at home, he spends considerable leisure time pursuing personal activities while relying on others to care for Ryker. I accept his evidence that he will include Ryker in chores and activities as age-appropriate. Now that he has abandoned alcohol, it would be my expectation that it would be safe for Ryker to participate.

[63] Comparing the two plans, I find that the mother’s plan offers more stability for Ryker. The father’s plan has gaps.

[64] The father’s work history pattern requires him to be away from home for extended periods. He has relied on others to care for his children – such as his former partners, including the mother or previous girlfriends/ partners, his daughter Alicia who is no longer available in the home, his mother and step mother, and maybe his new partner, Lisa.

[65] If the father is away overnight, the mother should be notified and offered the right to have that extra time with Ryker rather than leave him in the care of a relative or girlfriend. Parental availability is an important feature of consistency. The father has a pattern of bringing in partners as caregivers. The best example of this is the mother. During the father’s absences, she quickly became a caregiver to his older two children. The evidence from Alicia and the grandmother is that this was a bad decision on the part of the father.

[66] Similarly, the father has significant periods of unemployment and during those times, if the conflict can be handled, some extra time with the father would be acceptable. This is not an order but a recommendation to the mother. The fact is that Ryker’s dad is often away. The mother will need to ensure he sees his father beyond any schedule I can draft here. By extra time, I am not anticipating a 50/50-time share. Rather, for example, perhaps the father could pick up Ryker after school and take him to swimming lessons or dinner.

[67] Similarly, if the father is working out of town for weeks, then they will need to accommodate Ryker seeing the father on the weekend and develop a plan for extra phone or video contact. Phone/Zoom communication must be child focused and convenient. It is not an opportunity to interrogate Ryker about the mother’s habits. This does not mean the father has Ryker every weekend. It means there must be a visit arranged. An overnight would be helpful but not mandatory, depending on the parties’ own schedules. This will require give and take. Flexibility does not come easily to these parties, but they will need to be reasonable and adjust. The father’s work historically includes periods of travel and periods of layoff. If Ryker better adjusts to transitions and if the father’s communication becomes professional, then additional midweek time could be in Ryker’s best interests during layoffs when the father is more available. I cannot order it now because there are too many unknowns. The most I can do is recommend that the parties consider schedule changes suitable to the various situations. To be clear, the father’s hour by hour replacement vision is not an option.

[68] The amendments to the CLRA require me to address factors relating to family violence, and specifically include whether there is a pattern of coercive and controlling behaviour in relation to a family member. I find no evidence of physical violence. The father exhibited coercive and controlling behavior during the relationship and since the separation. Examples include:

a. Frequent texts/calls/ communication to determine the mother’s whereabouts, including use of the GPS tracking feature on the car she drove;

b. Asking that the mother be accompanied by a household member when she left the home to run errands;

c. Post-separation, inappropriate questioning about the mother’s personal life;

d. Demanded immediate answers from the mother;

e. Criticized the mother for delaying 2 weeks to send him the school registration in February, when school did not start until September;

f. Setting conditions of the mother's employment, including the hours she could work and requiring her to pay for daycare for Ryker if she did work;

g. Notwithstanding the significant disparity in incomes, exerting financial control as follows:

i. He applied for 50% of the Child Tax Credit (CTC) for Ryker, yet he paid no child support;

ii. He terminated the mother’s benefits through his employment, knowing that she had significant prescription medication costs;

iii. He demanded that the mother pay the uninsured dental costs for Ryker; and

iv. He applied for and received the Covid-19 Benefit for Ryker on at least 2 of 3 opportunities.

[69] The CLRA, s. 24 outlines the relevance of past conduct. I find the father’s previous positive parenting history is relevant conduct to his ability to parent Ryker. His clear and unequivocal position is he would be an active and dedicated parent to Ryker. I find he has done so with his two older children. He had primary care for their upbringing for nine years. He was responsible to ensure their care, even when he worked away for periods of time. He had managed their care with help from the grandmothers and a series of partners over the years. When absent for work, he spoke with his older children daily. He ensured that they saw their mother on alternate weekends, even when he moved the children 400 kilometers away. From all accounts, his two older children turned out fine. They have part-time jobs and activities, and Alicia in in college. His ex-wife and daughter Alicia testified positively about his parenting attributes.

[70] There was no evidence of conflict between the father and his ex-spouse or his other former common law partners over the years. The father clearly has an ability to get along with some previous partners. An ex-wife and ex-girlfriend testified positively about his parenting. Both spoke of his devotion to his children. Neither spoke of his conflict management skills, and neither was asked. He filed his prior separation agreement. His former wife relinquished her claims to spousal support, disclosure, and his pension, and she entrusted him with primary care of their children. As part of their deal, she did not pay child support for Elijah and Alicia and she agreed the children could move 400 km away to enable him to live with a new partner. That new relationship ended about a year later. I conclude that he was able to get along well with that former spouse. He honoured that agreement. There was no evidence of any post-agreement quarrels.

[71] So far, the father’s ongoing relationship with Ryker’s mother has been less successful. The text exhibits and oral testimony support my finding that the father’s communication style with the mother has been crude, rude, personally invasive, demanding, critical and unacceptable. At times, the mother communicated in a brief or frustrated style, or was slow to respond to him but I find she was generally within an appropriate range. The father’s verbal abuse will adversely affect Ryker's treatment of people, especially women, as he grows and develops. As Ryker’s primary male influence, Ryker’s interests require the father to develop a professional tone. A parent is a role model for a child. Children learn their behaviour from their parents.

[72] While the father has demonstrated co-operative parenting with his ex-wife, he has not had the same outcome with Ryker’s mother. I urge the parties to develop a protocol to exchange ideas. For example, the mother might de-escalate conflict by responding quickly to reasonable requests about Ryker. The father might improve his communication tone, especially through written communication and only text for relevant child issues. Without some therapeutic coaching for both parents to find new ways, I find that joint decision-making authority is unworkable. The father is overbearing and the mother is acquiescent. This is less of a value judgment than a recipe for ongoing problems. They need to become a team or co-allies for the sake of Ryker.

Child Support

[73] The parties consented to some terms of a child support order.

[74] On their consent, commencing in the year 2022, and each year thereafter, on or before the 1st day of June, the parties shall exchange a copy of their Income Tax Return and Notice of Assessment. Effective July 1st each year, the parties shall adjust child support based on the following factors:

a. The Applicant father’s Line 150 income (less union dues), or $76,000.00, whichever is greater; and

b. The Respondent mother’s Line 150 income or $35,000.00, whichever is greater.

[75] The issue for determination is the prospective table child support obligations based on the parenting schedule.

[76] The father is employed as a union Millwright. Sometimes he travels for work and is away during the week. He has a pattern of layoffs. His income varies. He also started a business. This makes it difficult to predict his income with certainty.

[77] After maternity leave, the mother found employment with hours compatible to the family. That job ended. She is in receipt of Employment Insurance, but those benefits end very soon. She is currently hopeful to secure a dental receptionist job. This would give her predictable hours and a steady income.

[78] Commencing November 1, 2021, the father shall pay table amount child support of $709.00/month based on the agreed upon income of $76,000.00. Additionally, he shall pay his proportionate share of s. 7 expenses, including daycare.

[79] In their minutes of settlement, the parties addressed an adjustment in the support for 2022 but not for 2021 once incomes are known. If the father’s income for 2021 is greater than $76,000, he will adjust the child support forthwith and pay any deficit by March 1, 2022.

[80] Although the current schedule results in the father having Ryker less than 40% of the time, I anticipate he will reach that threshold in 2022.

[81] It is the annualized parenting schedule including shared holidays and extra time increases due to his availability that may result in Ryker being in shared parental care over 40% of the time in 2022. Certainly, it would be over 40% in 2023 after an extra overnight is added.

[82] In determining the quantum of child support, I have used s. 9 of the Guidelines on the expectation that he qualifies to make a claim for a S. 9 consideration. The onus is the father as the party claiming s. 9 reduction. There is no automatic table support reduction for Shared Custody. In determining child support, I have carefully considered the factors pursuant to s. 9 of the Guidelines, the caselaw, including Aguirre v. Aguirre, 2016 ONSC 5498, all three factors as required in Contino v. Leonelli‑Contino, 2005 SCC 63, [2005] 3 SCR 217, and the Divorce Mate calculations.

[83] I started my s. 9 analysis with the set off. The father’s income of $76,000.00 results in a monthly support obligation of $709.00. The mother’s income of $30,000.00 results in a monthly support obligation of $256.00.

[84] The father asks to decrease to the set-off due to the differences in the parties’ means, needs, and circumstances. In the alternative, he submits that the straight set-off is appropriate. The father asks to decrease the straight set-off amount under s. 9(b) and/or 9(c) of the Guidelines because:

a. He is the sole provider for his two older children, who reside primarily with him;

b. Their biological mother does not pay child support pursuant to the terms of their parents’ separation agreement;

c. The mother has more resources available to Ryker in her home than the father does;

d. The mother has no other dependents;

e. The mother made a significant profit of approximately $100,000 on the sale of her townhouse in 2020; and

f. The mother has much more disposable income than the father, as evidenced by her expensive purchases for Ryker including a high-end playset, a trampoline, and a pool.

[85] I find the father’s claim is without merit because:

a. Alicia does not reside with him. She lives rent free with grandparents. She has two jobs plus attends school full time. There was little evidence of her need, budget or his contribution to her support except that he testified some of the savings were used to help Alicia buy a car;

b. There was no evidence of any request by him or by Alicia for contribution from her biological mother, who testified at the trial. No one asked her to disclose her income or whether she helps Alicia. The evidence is the father and his ex-wife entered into a separation agreement years ago trading property and support issues. Child support is a right of the child. Ryker should not have less than his proper share of his father’s resources now because the father chose to make a deal years ago. I have no way of determining if his retention of his entire pension or release from any spousal support to obligation by him was a fair trade. Certainly, Ryker should not pay for that choice;

c. The father has saved $10,000.00 for the children. He failed to disclose the details of the savings. He has not established a budget or need for Alicia’s education costs. He should not be permitted to reduce his current statutory obligation of child support for Ryker so that he can amass savings for the future of his three children. In particular, Alicia’s future has arrived;

d. The fact that the mother chose to invest in a trampoline and playset for Ryker to enjoy now is legally irrelevant to the issue at hand. It does not prove she needs less child support. The parties made different choices how to spend their money. The father invested in the future and the mother invested in the present;

e. The father’s girlfriend Lisa is in the process of moving in. There was no evidence of her income or any planned contribution to the household expenses;

f. The parties each owned homes on the same street when they started their relationship. While the mother turned a profit from the sale of her home, the father sold his home and reinvested in another property. There was no appraisal or evidence supporting a finding that he has not similarly benefitted from the real estate market increase;

g. The maternal grandmother chose to help the mother. She may do so. That is not a reason for the father to pay less support. The paternal grandmother lives with the father and pays him rent of $400.00 or $300.00 - the evidence varied. There was no evidence as to how this sum was determined or if it is a reasonable contribution. There was no evidence whether the maternal grandmother had been asked to help the father with the purchase of his home as he complained the mother did;

h. There was no evidence that Ryker’s standard of living varies in the two homes; and

i. This year, the father’s income is more than double the mother’s income. The father is now back to work and I expect his already superior income to increase even more. The income pattern during the relationship was:

Father:

Mother:

2017

$136,924

2017

$15,595

2018

$119, 515

2018

$10,431

2019

$89,938 [year of separation]

2019

$18,769

2020

$33,613, including business and rental losses [COVID-19 and a new business start]

2020

$30,198

[86] I have reviewed both parties’ financial statements and looked for actual spending patterns and particularly, looked for any child expense budget items. While there may be some increased costs of shared parenting, they are not significant. The parties share transportation and meet at a mid-point between their homes for exchanges that cannot occur at school by the school bus. They each own homes. Shared parenting is expensive for both. Many costs are fixed.

[87] I find the father is better able to bear any increased costs of shared custody because he earns a much higher income than the mother. Much of her income is spent on meeting very basic costs. I am unable to find that a set off or a set- off decrease is warranted for him under s. 9(b) or (c) assuming he reaches a 40% time share. Because I have already considered his request, reaching 40% time share is not a material change in circumstances for him.

Endorsement

[88] The Respondent mother, Melisa Sue Cannell, shall have sole decision making for the child, Ryker Liam MacDonald (born August 17, 2016), including decisions with respect to education, healthcare, and extra-curricular activities.

[89] Prior to making any major decision on behalf of the child, the Respondent mother shall consult with the Applicant father, Michael MacDonald, and consider his input and opinion.

[90] During the academic term (September through June), Ryker shall be in the care of the father on alternate weekends from Friday at 2:30 p.m. to Monday at 9 a.m.; and in the alternate week from Wednesday at 2:30 p.m. to Friday at 9 a.m.

[91] Starting September, 2023, the father shall have an additional overnight, giving him 6/14 nights if he is personally available. If they cannot agree on the day, the mother shall choose, factoring in any activities for Ryker and work schedules for both parties.

[92] Ryker will also be in the care of the father at other times that the parties agree. If the father is unavailable to spend time with Ryker due to out of town work commitments, the mother shall offer some alternate time. If they cannot agree on those terms, the mother shall choose, factoring in any activities for Ryker and work schedules for both parties.

[93] If there is any change either party’s place of residence, phone number, email address, place of employment, or hours of work, then they shall, within 48 hours of any such change, provide written notice of the change and updated information to the other.

[94] If there is a change in the person or persons with whom either party is residing, then within 24 hours of any such change they shall provide written notice to the other of such change, including the person's name and whether such person or persons have ever been convicted of a criminal offence or have ever been involved with Family & Children's Services (or any other similar Children's Aid Society).

[95] Both parties shall be entitled to make inquiries and to receive information as to the health, education and welfare of the child, Ryker Liam MacDonald (born August 17, 2016), directly from the child’s service providers, including but not limited to the child’s teachers, school principal, doctors, dentists, counsellors, and others.

[96] The parties shall have care of the child, Ryker Liam MacDonald (born August 17, 2016), pursuant to the following holiday parenting schedule, which shall suspend and replace the regular parenting schedule:

a. Spring Break: The parties shall each have care of the child for half of the Spring Break each year, either the first half from Friday at 12:00 p.m. until Wednesday at 12:00 p.m. or the second half from Wednesday at 12:00 p.m. until Monday at 12:00 p.m. The party whose usual weekend falls on the first weekend of Spring Break pursuant to the regular parenting schedule shall have the first half, and the party whose usual weekend falls on the second weekend of Spring Break pursuant to the regular parenting schedule shall have the second half.

b. Easter: In the alternating even-numbered years, the child shall be in the care of the mother from Friday at 12:00 p.m. to Sunday at 12:00 p.m. and in the care of the father from Sunday at 12:00 p.m. to Tuesday at 9:00 a.m. In the alternating odd-numbered years, the child shall be in the care of the father from Friday at 12:00 p.m. to Sunday at 12:00 p.m. and in the care of the mother from Sunday at 12:00 p.m. to Tuesday at 9:00 a.m.

c. Thanksgiving: The party whose weekend falls on the Thanksgiving long weekend pursuant to the regular parenting schedule shall have care of the child from Friday at 12:00 p.m. until Monday at 12:00 p.m.

d. Christmas: In even-numbered years, the father shall have care of the child from 12:00 p.m. on Christmas Eve to 12:00 p.m. on Christmas Day, and the mother shall have care of the child from 12:00 p.m. on Christmas Day to 12:00 p.m. on Boxing Day. In odd-numbered years, the mother shall have care of the child from 12:00 p.m. on Christmas Eve to 12:00 p.m. on Christmas Day, and the father shall have care of the child from 12:00 p.m. on Christmas Day to 12:00 p.m. on Boxing Day.

e. Child’s Birthday: Regardless of the regular parenting schedule, both parties shall provide the other with the opportunity to spend time with the child on the child’s birthday for a minimum of two (2) hours.

f. Mother’s Day: If it does not fall on the regular schedule, the mother shall have care of the child each Mother’s Day from 10:00 a.m. until return to school on Monday, at which point the usual schedule resumes.

g. Father’s Day: If it does not fall on the regular schedule, the father shall have care of the child each Father’s Day from 10:00 a.m. until return to school on Monday, at which point the regular schedule resumes.

h. Summer: During the child’s summer break from school each year, the parties shall have care of the child on an alternating week basis (7 days each) with exchanges to occur on Fridays at 4:00 p.m. This summer schedule shall commence at 4:00 p.m. on the first Friday immediately following the last day of school, and the parent whose weekend falls on the first weekend after the last day of school pursuant to the regular parenting schedule shall have the first week of parenting time.

i. Labour Day: If the child is not otherwise in the father’s care, the parties shall ensure he is in the father’s care on Labour Day Monday for the Labour Day parade in Kingston each year from 8:30 a.m. to 1:00 p.m. at a minimum.

j. Halloween: If the child is not otherwise in the mother’s care, the parties shall ensure the child is in the mother’s care on October 31, 2021, each year from 2:30 p.m. to 7:00 p.m. at a minimum.

[97] Parenting exchanges for the child, Ryker Liam MacDonald (born August 17, 2016), shall occur at 12:00 p.m. or at a time they agree to in writing. The parent commencing parenting time with the child shall be responsible for picking him up from school wherever possible. On days the school is not available, exchanges shall occur at the Napanee Canadian Tire at 12:00 noon, unless otherwise agreed by both parties in writing.

[98] The child, Ryker Liam MacDonald (born August 17, 2016), shall have telephone/video contact with the parties as follows:

a. During the academic year parenting schedule, the residential party having care of the child shall facilitate his telephone/video contact with the non-residential party on Saturday between 4:30 and 6:30 p.m., and as such other times based on the child’s wishes.

b. During the summer holiday parenting schedule, the residential party having care of the child shall facilitate his telephone/video contact with the non-residential party on Tuesday between 4:30 and 6:30 p.m., and as such other times based on the child’s wishes.

c. If the Applicant father is working out of town, extra telephone/ video contact shall be made available.

[99] Neither party shall move the residence of the child, Ryker Liam MacDonald (born August 17, 2016), farther than 50 km from the Napanee Town Hall without written consent of the other party or a court order.

[100] The child, Ryker Liam MacDonald (born August 17, 2016), shall continue attending The Prince Charles School in Napanee, unless otherwise agreed by both parents in writing or changed by further court order.

[101] The parties shall keep each other advised of information affecting the child, Ryker Liam MacDonald (born August 17, 2016). They shall communicate in a respectful, child focused manner and the communication shall be restricted to child-related issues. In the event of an emergency or time-sensitive issue involving the child, including but not limited to a hospital visit, the parties shall immediately advise the other by telephone.

[102] Regardless of the parenting schedule, both parties may attend activities and appointments for the child, Ryker Liam MacDonald (born August 17, 2016). A party that makes an appointment or schedules an activity for the child shall promptly notify the other party to give the opportunity to plan to attend.

[103] Both parties shall ensure that the child, Ryker Liam MacDonald (born August 17, 2016), attends all extracurricular activities during their parenting time. The parties shall consult prior to enrolling the child in extracurricular activities that conflict with the other party’s parenting time.

[104] Both parties shall refrain from making disparaging remarks about the other parent or their family within hearing of the child, Ryker Liam MacDonald (born August 17, 2016), and shall not tolerate others doing so.

[105] Neither party shall remove the child, Ryker Liam MacDonald (born August 17, 2016) from the Province of Ontario without notifying the other party. If either party plans to travel with the child outside of the Province of Ontario, the travelling party shall provide the other party with a detailed itinerary at least 30 days or other reasonable notice before the date of departure, including the name of any flight carrier and flight times, accommodation, including address and telephone numbers, and details as to how to contact the child during the trip.

[106] In the event that either party plans a trip with the child, Ryker Liam MacDonald (born August 17, 2016) requiring international travel during his or her parenting time, the non-travelling party shall provide the travelling party with a Consent to Travel letter at least 14 days in advance of the departure date. Neither party may withhold their consent for the other party’s travel during the travelling party’s parenting time. Notification of the travel is still required pursuant to Paragraph 13, above.

[107] The parties shall cooperate in completing any identification documentation or renewals required for the child, Ryker Liam MacDonald (born August 17, 2016), and shall equally share the cost of obtaining same, except for the cost of the passport as otherwise provided in this Order.

[108] The mother may apply for a Canadian passport for the child, Ryker Liam MacDonald (born August 17, 2016), at her expense. Within seven (7) days of the mother’s request, the father shall sign any necessary documents required for the application process. The mother shall have possession of the passport. The mother shall provide it to the father as requested at minimum 7 days in advance of his departure date, and the father shall return the passport to the mother within 48 hours of the end of the travel.

Financial Issues

[109] On consent of the parties, the Applicant father's income shall be imputed for 2021 at $76,000.00 and the Respondent mother's income shall be imputed for 2021 at $30,000.00.

[110] Commencing November 1, 2021, and on the first day of each month thereafter, the father shall pay table amount child support of $709.00/month based on the agreed upon income of $76,000.00. Additionally, he shall pay his proportionate share of s. 7 expenses, including daycare.

[111] If the father’s income for 2021 is greater than $76,000, he will adjust the child support forthwith pursuant to the proper guideline table amount and pay any deficit by March 1, 2022.

[112] The parties shall share the extraordinary expenses of the child, Ryker Liam MacDonald (born August 17, 2016) proportionate to their respective incomes and in accordance with Section 7 of the Child Support Guidelines. The parties shall consult with each other and shall agree to any extraordinary expense in advance. Neither party shall unreasonably withhold his/her consent. The following expenses are deemed to be an extraordinary expense for which the parties shall contribute their proportionate share:

a. Educational costs such as school trips, tutors, etc.

b. Uninsured medical and/or dental/orthodontic services.

c. Daycare costs.

[113] If the Respondent’s income for 2021 is greater than $30,000, she will adjust the s. 7 expenses for child support forthwith pursuant to the proper percentage and pay any deficit by March 1, 2022.

[114] Commencing in the year 2022, and each year thereafter, on or before the 1st day of June, the parties shall exchange a copy of their Income Tax Return and Notice of Assessment. Effective July 1st each year, the parties shall adjust child support based on the following factors:

a. The Applicant’s Line 15000 income (less union dues), or $76,000.00, whichever is greater.

b. The Respondent’s Line 15000 income or $35,000.00, whichever is greater.

[115] If either party has extended healthcare and/or dental benefits available through his/her employment, then he/she shall maintain the child, Ryker Liam MacDonald (born August 17, 2016), under such benefits plan and shall provide the other parent with such information and documentation as is required to permit submission of claims to the benefits plan and/or coordination of multiple plans. If a party is seeking reimbursement for a child's special or extraordinary expenses, the party shall deliver proof to the other party of having incurred the expense, and the party from whom reimbursement is requested shall provide such payment within 10 days of receiving such proof. In determining a party’s proportionate contribution to the expense, the parties shall first deduct any income tax benefit or other subsidy received by either of them for that special or extraordinary expense, including any direct reimbursement received by a party from the benefits provider. If a party is directly reimbursed by a benefits plan for an expense incurred on a child's behalf, that party shall, within five (5) days, reimburse the other party in such amount as is required to ensure proportionate contributions pursuant to this paragraph.

[116] The Applicant father shall be responsible for arranging routine dental appointments for Ryker. He shall pay the amount of any uninsured portion at first instance. That uninsured portion shall be considered to be a s. 7 expense and allocated as set out above.

[117] The Applicant father shall pay to the Respondent mother child support arrears for the period ending October 31, 2021, fixed in the amount of $11,000.00. This lump sum shall be paid as follows:

a. $3,000.00 on or before November 30, 2021;

b. $4,000.00 on or before December 30, 2021; and

c. $4,000.00 on or before January 30, 2022.

[118] The claims of the mother for spousal support and contribution to the overpayment of the Canada Child Benefit shall be dismissed.

[119] The father shall forthwith provide full disclosure of the funds he holds in trust for each of the three children, including the current amounts, sums used for Alicia’s education and bank statements showing the contributions since the commencement of the parties’ relationship. He must do so in advance of filing any costs submissions.

[120] The issue of costs shall be agreed upon within 14 days, failing which the father will provide written submissions on costs, served and filed within 7 days thereafter, to be comprised of no more than 3 pages, one sided single spaced, plus a bill of cost, and any relevant Offers to Settle. The mother has the opportunity within seven days thereafter to serve and file responding submissions on the same terms. Any reply shall be filed within 7 days thereafter.

[121] Unless the support order is withdrawn from the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the support order shall be paid to the Director, who shall pay them to the person to whom they are owed. Support deduction order shall be issued.

[122] This Order bears post-judgment interest at the rate of 2% per annum effective from the date of this Order. Where there is default in payment, the payment in default shall bear interest only from the date of default.

Madam Justice Cheryl Robertson

Date: November 26, 2021

COURT FILE NO.: FC-20-00000031-0000 (Napanee)
DATE: 2021126

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MICHAEL MACDONALD
Applicant

– and –

MELISA SUE CANNELL
Respondent

JUDGMENT

Robertson J.

Released: November 26, 2021