COURT FILE NO.: FC-19-469
DATE: 2022-05-20
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Brooke Elizabeth Davis Applicant
– and –
Jason Donn Robert Eby Respondent
Counsel: Matt Milczarczyk, counsel, for the Applicant Juliet Montes, counsel (agent for Gloria Ichim), for the Respondent
HEARD: April 19, 20, 21, 22, 26, 27, 28, of 2022
REASONS FOR JUDGMENT
Justice r. f. MacLeod
Introduction
[1] The Applicant (“Brooke”) and the Respondent (“Jason”) separated in August of 2019 after four years of dating and an additional four years of cohabitation. They are the parents of Dezmond, aged three and a half as of the trial.
[2] Brooke seeks primary care and sole decision-making authority for Dezmond and a child support award based on an income imputed to Jason. In addition, she asks that Jason’s time with the child be supervised by an adult suitable to her until Jason can establish that he is free of non-prescription narcotics.
[3] Jason seeks shared parenting and joint decision-making. He also seeks additional time with the child to make up for the time he feels has been denied to him since separation. He denies any need for supervision of his parenting time. He is prepared to have a full-time minimum wage income imputed for child support.
Key Facts
[4] Brooke admitted at the very outset and throughout the trial that Jason is a good father and has a strong bond with the child.
[5] The central fact in contention is whether Jason’s drug use is under control.
[6] Jason was a heroin addict in his teens. He has abused cocaine, crystal meth, fentanyl, and street methadone as an adult. When he met and started dating Brooke, he was enrolled in a methadone program.
[7] Brooke was aware of his past struggles with drugs. She was supportive of his efforts to maintain sobriety. Together, they managed well as a couple, and Jason’s addiction seemed to be under control until 2018.
[8] Brooke suspected Jason was slipping in the months of her pregnancy with Dezmond and the months leading up to the separation on August 1, 2019. Jason’s behaviour was suspicious, and she found drug paraphernalia in their home.
[9] Jason testified that he was in a methadone program throughout the majority of his relationship with Brooke. He needed methadone regularly to avoid withdrawal symptoms. When unable to attend the methadone clinic, he would buy street drugs to prevent withdrawal. He acknowledged the withdrawal symptoms were severe if he did not use methadone or street drugs.
[10] Jason stopped attending the methadone clinic in the months leading up to the separation (likely in April of 2019). However, immediately after Brooke advised him that she was leaving on August 1, 2019, Jason re-enrolled in the methadone clinic. The notes and records of the methadone clinic (OATC records) for August 1, 2019, confirm that Jason told the clinic that he had been using fentanyl daily while away from the methadone program.
[11] Jason produced seven clean urine samples from separation to October 2019.
[12] Jason has not provided any evidence of sobriety since October 2019.
[13] Jason left the methadone clinic in October 2019.
[14] Jason claims to be a recovered drug addict, but he could not give any reasonable timeframe for when he last used street drugs. He claims to have forgotten the date he last used street drugs (his sobriety date) because of the stresses of this separation, this litigation, and the war he feels is being waged against him by Brooke and her family.
[15] Given his previous struggles with withdrawal, Jason could not explain his ability to avoid withdrawal symptoms from October 2019 forward.
[16] Jason was ordered to provide the OATC records by Justice Walters on June 25, 2021. Jason fought that order and launched an appeal which was later abandoned.
[17] The records were filed with the court in advance of the trial. However, at trial, Jason claimed to be unaware of what was in his OATC records.
[18] The OATC records directly contradicted Jason’s testimony in chief when he stopped using street drugs.
Jason’s Forged Hair Follicle Test
[19] Jason tendered at trial a hair follicle drug screen report dated October 7, 2020, which showed “negative” across the board. This document was uploaded as CaseLine master number B17.
[20] Jason gave evidence that he had obtained a hair follicle test kit from EasyDNA, had followed their instructions with the assistance of his mother, and had mailed in the kit as required. He asserted that the results, being document B17, were sent to his mother and e-mailed to him.
[21] B17 was entered as exhibit 17.
[22] However, exhibit 17 does not match B17. Document B17 changed when the Registrar downloaded the document and saved it as an exhibit.
[23] The underlying document exposed in making B17 an exhibit showed that the result of the hair follicle test was not negative but that the sample was of insufficient quality to allow an accurate result.
[24] A search of all documents uploaded to CaseLines confirmed that this newly exposed document was nowhere in the record. Therefore, it could not have been made an exhibit by mistake. The only source for the revealed document was B17 itself.
[25] I explained to counsel that this development caused me great concern as it appeared that a layer had been removed from B17 in making it an exhibit and that there were very few possible explanations for how that layer might have come to be part of B17.
[26] I requested that Jason immediately re-take the stand to give evidence in chief on this problem with the understanding that he would be subject to cross-examination on the topic the next morning.
[27] Jason’s attempt at an explanation was poor. He admitted that the first result he got from EasyDNA was the underlying document – an insufficient sample designation. He then begged them for another test for free so that he could complete the testing. He suggested the result shown on B17, the negative result, was the second test result.
[28] When asked where the original hard copy was of B17, he alleged it was somewhere in his possession, but he couldn’t find it for trial.
[29] This explanation was destroyed on cross-examination.
[30] Both B17 and exhibit 17 have the same sample number, test date, and report date. This would not be the case if the negative test were from a second sample.
[31] Jason’s mother had previously testified that she had helped Jason with one hair sample kit, not two, as Jason was now saying.
[32] Overnight, counsel for Brooke had obtained e-mails from EasyDNA confirming their entire interaction with Jason. They confirmed that Jason sent in the first kit, that it was determined to be an insufficient sample, and that they had sent a second kit to Jason. They never received a second kit back from Jason.
[33] While acknowledging the truth of the information from EasyDNA, Jason insisted that there was more information that they had failed to provide.
[34] The only reasonable conclusion is that Jason submitted a document to the court, knowing it was false. Jason meant to convey proof of a clean drug screen which he knew was untrue as there was never a negative result from this testing firm.
[35] Given Jason’s testimony before discovering the fraudulent document, it is clear that he had pre-trial custody of the electronic version of this document. He was the one who provided it to his counsel for trial. Therefore, Jason is probably the author of the forgery. It is indisputable that he knew it was a forgery when he offered it to the court.
[36] To summarize:
a. Jason is a drug addict;
b. Jason experiences significant withdrawal symptoms when not using methadone or street drugs;
c. Jason has not been attending the methadone clinic since October 2019;
d. Jason has not provided any evidence of a clean drug screen since October 2019;
e. Jason fought to prevent the disclosure of the OATC records that proved his fentanyl use and discredited his claim of being drug-free for over three years;
f. Jason has not suffered any withdrawal symptoms since October 2019.
[37] It is reasonable to assume Jason is actively using street drugs until he proves otherwise.
[38] Shortly after the separation, Jason was caring for the child at his home when he allowed his cousin to stay with him. At the time, Jason was aware that his cousin had overdosed just weeks earlier. Despite this, he had made arrangements for the cousin to stay with him while he got himself sorted.
[39] The cousin overdosed on fentanyl while in the home with Jason and the child. Jason administered Narcan to his cousin and revived him. However, this positive action does not negate that Jason made a bad parenting decision by inviting an active drug addict to live with him.
[40] This incident caused Jason’s parenting to be supervised as Brooke immediately brought the matter to court and obtained an interim order to that effect. The supervisor since that date has been Jason’s mother.
[41] Jason’s mother gave evidence that this supervision requirement is very onerous for her. It is a considerable time commitment. She did not understand this requirement would be in place for so many months when she agreed to be the supervisor under the interim order.
The Law
[42] Justice Himel summarized the law in Bressi v. Skinulis 2021 ONSC 4874, beginning at paragraph [17]:
PARENTING ORDERS UNDER THE CHILDREN’S LAW REFORM AND THE DIVORCE ACT
[17] On March 1, 2021, the parenting provisions contained in the Children’s Law Reform Act, R.S.O 1990 c. 12 (CLRA) came into force and the amended provisions apply to the motion before me. These are the same as those contained in the Divorce Act.
Parenting orders
[18] As stated by Mandhane J. in the recent decision of E.M.B. v. M.F.B., 2021 ONSC 4264 at paras. 54 - 56.
Section 16.1(1) of the Divorce Act allows me to make an order providing for exercise of parenting time or decision-making responsibility by either parent. Parental “decision-making responsibility” is defined in s.2 as the “responsibility for making significant decisions about a child’s well-being, including in respect of: (a) health; (b) education; (c) culture, language, religion and spirituality; and (d) significant extra-curricular activities.
“Parenting time” is defined as time that a child spends in the care of either parent, whether the child is physically with that person during that entire time.
“My powers under s.16 are broad and purposive. I can allocate parenting time and decision-making authority between the parents, impose a schedule, provide for the means of communication to be used by the parents, and make any other orders that I consider appropriate to secure the child’s best interests.” Divorce Act, ss. 16, 16.1, 16.2
“Circumstances of the child”
[19] The CLRA calls on to courts to engage in a rigorous assessment of the child’s specific situation as part of determining their best interests. Section 24(3) sets out the factors related to the “circumstances of the child”, which include, but are not limited to, the following:
(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;
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.
“Best interests of the child”
[20] E.M.B. v. M.F.B., 2021 ONSC 4264 explains the judge’s role at paras. 62-63:
“When making a parenting order, I must stay laser-focused on the child’s best interests: 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.
According to the Divorce Act, to judicially determine the child’s best interests, the court must “give primary consideration to the child’s physical, emotional and psychological safety, security and well-being”, while considering “all factors related to the circumstances of the child.”
Maximal contact
[21] There is no presumption in favour of joint parenting and the term “maximal contact” is no longer found in the CLRA. The legislation states in that: “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.”
[22] Clearly the idea of a presumption in favour of one type of parenting order is anathema to the court’s unrelenting focus on the child’s “best interests.” The most one can say is, all things being equal, the child deserves to have a meaningful and consistent relationship with both of their parents.
The Parenting Time Schedule
[23] Sherr J. reviewed the caselaw respecting parenting time schedules in D.G. v. A-G.-D., 2019 ONCJ 43, and states as follows:
[130] A starting point to assess a child’s best interests when making a custody or access order is to ensure that the child will be physically and emotionally safe. It is also in a child's best interests when making an access order that his or her caregiver be physically and emotionally safe. See: I.A. v. M.Z., 2016 ONCJ 615.
Analysis
Is ongoing supervision necessary?
[43] Jason has been lying about his drug use. He hid his relapse to fentanyl use in 2019 from Brooke and his mother. He refused at trial to acknowledge that his drug use continued to be an issue, insisting that Brooke and her family were sabotaging his case and making the issue a bigger deal than it ought to be. He insisted drug problems were in his past and that the court should have no concerns about drugs. He doubled down on this position when he was caught tendering a forged negative drug screen as evidence in this case.
[44] Jason’s possible drug use is a serious concern. It is particularly serious because of the often deadly nature of the drugs he has admitted to using recently, including fentanyl. It would not be in the best interests of a child of this age to be cared for by a user of potentially deadly street drugs. The possibility of an overdose, an adverse event, or simply a lapse of parental attention is significant.
[45] Section 24(3)(h) of the CLRA demands an assessment of the ability of Jason to meet the needs of the child. He cannot meet the needs of his child if he is not free of street drugs.
[46] Jason’s parenting time should be supervised by an adult satisfactory to Brooke until he has established that he is free of street drugs. In discussions with counsel, it was determined that the methadone clinic that Jason attended could provide regular drug tests, whether or not Jason is enrolled in the program.
[47] If Jason is clean, no supervision will be necessary.
[48] The level of supervision required is not “eyes-on 24/7.” Still, the supervisor should be in his general vicinity, close enough to interact with Jason and the child within seconds if desired or required. This is quite demanding, but this requirement is only in place if Jason has not established that he is drug-free.
Decision Making and Parenting Time
[49] Jason seeks shared parenting and equal time with the child.
[50] Jason has not worked since the child was born. He alleges the stress of the separation, this trial, and his recent diagnosis of ADHD are all contributing factors to his inability to work.
[51] At separation, he purchased Brooke’s interest in their home and has expended much effort to improve that property.
[52] Since separation, he has lived off of a gift from his grandmother of an undisclosed amount and regular payments from his mother.
[53] He has also refinanced his home and has used up most of the equity that existed at the separation.
[54] At separation, the mortgage on the home was less than $300,000. It is now $695,000. The lender is not a conventional lender. The term of the existing mortgage is one year. The interest-only monthly payments on the mortgage are $4500. Half of this amount was paid in advance from the loan proceeds, so Jason’s monthly obligation is about $2300.
[55] Jason’s mother gives him the money for the mortgage each month, and Jason pays the mortgage. Jason’s mother is not on the title, and she is not liable for the mortgage. However, she expects to be repaid by Jason for the money she has advanced to him, which she says is over $50,000.
[56] The mortgage expires in February 2023.
[57] Jason believes he will be able to get a conventional mortgage to pay out the existing mortgage in 2023. Jason’s plan for income is to start his own renovation business. He believes he can earn up to $40,000 annually from self-employment.
[58] Jason’s mother stated that she would not go on the title and would not become liable for any future mortgage on this property. She candidly said she couldn’t keep contributing as she has been.
[59] Jason believes his ADHD does not impede his future success as a contractor. Jason told his psychiatrist, however, that it was a significant source of struggle for him. He described having a very short attention span, getting easily distracted, lacking attention to detail, trouble listening, frequently forgetting and misplacing items, frequently being late, needing to constantly move and feeling restless, trouble sitting still, verbal impulsivity, poor organization and planning, procrastination, starting lots of projects but not finishing them because of distractions and spending excessive time doing tasks because of inefficiencies.
[60] Jason testified that his ADHD disappears when he is with his son. His symptoms become a problem only when he is not focused on his son.
[61] Jason confirmed many times that he currently has no money. The gift from his grandmother and the proceeds from the refinancing is gone.
[62] I asked Jason how he expected to qualify for a conventional mortgage in 2023 on a self-employed income of, optimistically, $40,000. He answered that his mother would help him, asserting that she would never let him lose the house. Her evidence did not support Jason’s assertion.
[63] Jason does not have a viable plan.
[64] His business plan is vague. It does not take into account the difficulties attributed to his ADHD. There is every reason to expect that Jason, who stated he couldn’t work because of the stress of the separation and trial, will struggle to overcome his challenges and immediately launch a successful venture.
[65] Even if his expectations come to pass and he earns $40,000 annually, his belief that he will be able to keep his house is misguided. It is not reasonable to assume he will qualify for a conventional mortgage for $695,000 on a self-employed income of $40,000. And even if he did obtain a $695,000 mortgage, his mortgage payments would be $3700 monthly (assuming a 4% interest rate over a 25-year amortization.)
[66] Jason entertained no alternative theories. There is no plan B.
[67] As outlined above, the starting point in determining the child’s best interests is to ensure physical and emotional safety of both the child and the parent. Jason’s physical and emotional stability is heavily reliant and dependent upon his perceived success as a parent and as a provider. He repeatedly emphasized that his child was his source of strength and motivation. Jason’s lack of a viable plan is of great concern when assessing the prospects of his ongoing emotional and physical safety. What will happen if he loses his home and/or cannot establish a profitable business? The likelihood of one or both of these outcomes is very high.
[68] Brooke has a solid plan. She has stable employment and housing. She is financially independent. She has the support and assistance of her parents, who live relatively nearby. She has arranged suitable daycare and has backup plans in place. In addition, she has arranged for the child’s schooling and medical care.
[69] Her parenting to date has been faultless. She has attempted to involve Jason in parenting decisions to the best of her abilities. Jason asserts that Brooke has been unilateral in her parenting and has marginalized Jason, but the evidence suggests otherwise. Brooke consistently raised parenting issues with Jason promptly and invited his comments. This was the case with school choice and choosing a speech therapist.
[70] Jason feels Brooke and her family are on a mission to ruin him and isolate him from the child’s life. He points to various incidents of conflict between him and Brooke’s family, in particular the incident of September 1, 2019.
[71] On September 1, 2019, the parties had recently separated, but there was not yet an order or agreement regarding parenting. The child was in Brooke’s care, and she was reluctant to release the child to Jason without some form of agreement as to when the child would be returned.
[72] Brooke’s counsel obtained an understanding from Jason, which was confirmed by e-mail, that Jason would have the child for the afternoon and that the child would be returned to Brooke. In addition, it was understood that Brooke’s father, Chad, would be doing the exchange of the child.
[73] When Jason received the child, he refused to give him back. Brooke’s father engaged with Jason. The police were called. The police allowed Jason to leave with the child as there was no formal agreement or court order, and they had no legal reason to remove the child from Jason.
[74] The incident was videotaped.
[75] Jason asserts that this incident shows Chad's anger and improper behaviour towards Jason. It does not. Chad was animated and angry during the incident, but he was never threatening or violent. He behaved exactly as one might expect when they felt betrayed and failed in their role as protector of the child.
[76] In reviewing the video and the texts and e-mails relating to the incident, it is clear that Jason was aware that Chad would be exchanging the child, and he was aware that the agreement was for him to return the child to Chad. Jason breached the agreement purposefully. He had no justifiable reason to do so.
[77] It is also telling that after this incident, Jason kept the child in his care for three weeks until the court made an order on an emergency basis.
[78] Regarding Chad, Jason has attempted to paint Chad as a very negative influence on Brooke and the child. He refers to Chad as a drug addict and criminal. He says Chad, and his drug use, are a danger to the child. Jason frequently stated that Chad’s drug problems must be considered as they are current, whereas Jason’s drug issues are in the past. Jason seeks an order that Brooke is prohibited from leaving the child with Chad in the future.
[79] Chad gave evidence. He admitted that he had a lengthy criminal record as a young man. He spent some time in prison. He received a full pardon for all charges many years later. After he straightened out his life, he was fully employed until retirement. He has been an upstanding, productive member of society for over 40 years. He admitted that he has severe back pain, for which he takes Oxycontin. He admitted he is dependent upon Oxycontin for pain relief. He described how careful he is in his home when handling his medicine.
[80] On average, Chad and his wife spend an hour or two a week with the child.
[81] There is no evidence that Chad’s Oxycontin use or past criminal history is relevant to this proceeding. There is no evidence that Chad is anything other than a positive influence on the lives of Brooke and the child. Jason’s focus on Chad, bordering on obsession, is unreasonable and reflects poorly on Jason’s ability to identify and address real parenting issues.
[82] Jason’s antagonistic approach to Brooke and her family is a significant factor when analyzing his ability and willingness to communicate and cooperate with Brooke and her family as required under s. 24(3)(c) and (i) CLRA.
[83] Jason has no self-awareness of his role in causing his current circumstances. He blames Brooke and her family for his inability to work and his financial difficulties. He accuses them repeatedly of “pulling a motion on me” as if Brooke’s repeated motions were brought with the sole purpose of causing Jason harm. There is no understanding of the reality that each of Brooke’s motions was necessary due to actions taken or not taken by Jason. He refused to return the child after September 1, 2019. His cousin overdosed in his home while he had the child in his care. He refused to produce his OATC records. He refused to provide proper disclosure. He declined to file a financial statement until the commencement of the trial. Jason’s refusal to accept responsibility for his circumstances and his preference to blame Brooke and her family does not predict successful cooperation going forward.
[84] This is not a case for shared parenting. Jason struggles in life. He has no money, and his housing situation is not stable. His business plan is vague and does not address his ADHD-related challenges. He does not cooperate with Brooke or her family. He blames Brooke and her family for his difficulties. He is a drug addict who has not confirmed his use or non-use since 2019.
[85] A shared parenting regime requires stability and cooperation to be successful. Jason’s stability is yet to be established. His lack of cooperation is known. It would be folly to place the child into a shared parenting regime with such a high possibility of failure.
[86] The parenting schedule proposed by Brooke is, essentially, an alternate weekend regime with significant holiday time for Jason. Her reluctance to entertain an extended weekend for Jason or more mid-week overnights stems from her experience with Jason since separation. He is constantly late, forgetful of timelines and dismissive of strict schedules. This may relate to his drug use or his ADHD symptoms. The child is approaching school age, and he and his mother are entitled to have a reliable, stress-free routine. That would not be the case if Jason were responsible for regular pick-ups and drop-offs at school or daycare.
[87] Jason’s financial viability depends on the success of his new business venture as a self-employed contractor. Having his weekdays completely free of after-school and overnight childcare responsibilities will allow him to maximize his business efforts. He will have the best opportunity to overcome his acknowledged ADHD symptoms. The child’s best interests are maximized when each parent is financially viable and independent. Maximizing Jason’s available weekday working hours is in the child’s best interests at this time.
[88] This is not a case for joint decision-making. While there is little that the parents seem to disagree about in terms of the big decisions for the child, those issues that have arisen have not been handled well by Jason. Brooke raised the issue of where the child would go to school and the issue of the need to choose a speech therapist. Jason’s responses were unfocused, untimely and ultimately unhelpful. Jason raises these exchanges as examples of Brooke’s mistreatment of him, but, again, he is unaware of his role in the problems that are caused.
[89] There is no confidence that Jason would not use joint-decision-making authority as a weapon in the future.
[90] There is every confidence that Brooke appropriately prioritizes the child's best interests and that she will responsibly make decisions for him. She has also established a willingness to be as informative and inclusive towards Jason as can be expected. There is no evidence that she purposefully shuts Jason out of anything relating to their child.
[91] Having regard to all of the circumstances of the child, it is in this child’s best interests to primarily be in the stable, competent, independent care of his mother. It is important that his positive relationship with his father be enabled to flourish. In this case, that means implementing a schedule which is predictable and which minimizes the effect of the father’s lack of timeliness and adherence to deadlines. It means a schedule which will not impair the father in establishing his business venture.
Child Support
[92] Jason volunteers a minimum wage income for support purposes. However, he currently earns no income and has no savings. There is little utility in making a support order that will fall immediately into arrears, even if Jason’s reasons for unemployment are weak. If Jason is to obtain financial independence, it would be beneficial to him and, hopefully, for Brooke and the child to have no child support burden at this time. It is appropriate in this matter to provide a grace period to allow Jason to get his business off the ground. It is also appropriate to set a time period to put the onus on Jason to disprove the income attributed to him. Seven months is a reasonable window to allow him to make his business profitable.
[93] Arrears of child support have accrued under interim orders. Without excusing Jason’s failure to earn any income since separation, the arrears will be set aside on a practical basis. Jason cannot pay them, and the goal is to give him the best possible start for his new business venture.
[94] Jason has had significant costs ordered against him throughout this litigation. Those orders will not be set aside. Jason flaunted the rules, took unreasonable positions and failed to organize his case correctly. There is no justification to absolve him of the costs properly awarded against him.
[95] Concerning the costs of this trial, there is no need to seek submissions from counsel. Brooke has been entirely successful on all of the main issues. Jason’s minor victories are not sufficient to offset a cost sanction. Most importantly, Jason’s litigation conduct is egregious. Jason attempted to deceive the court on the most critical issue – his sobriety. He entered into evidence a document that he knew to be a forgery. This conduct is inexcusable and attracts the highest possible condemnation from the court. In this case, the highest condemnation takes the form of an award to Brooke for her reasonable costs on a full-indemnity basis.
[96] Counsel for the OATC made submissions regarding costs incurred during a disclosure motion. They are properly before the court and referred to the trial judge. Jason opposed the disclosure of his OATC records. His opposition was unreasonable. Any costs associated with that unreasonable position are his to bear. The Bill of Costs submitted by OATC is reasonable and proportional.
Orders:
a. The Applicant shall have sole decision-making responsibility for the child Dezmond J Eby born August 22, 2018 (“Dezmond”), with primary residence to continue with the Applicant.
b. Dezmond shall be enrolled in school in the residential catchment area where the Applicant resides.
c. Both parties shall have the same access to information from any third parties regarding Dezmond, such as doctors, schools, hospitals, and daycare providers.
d. Parenting time of Dezmond with the Respondent shall be at the absolute discretion of the Applicant and supervised where such supervision is reasonably deemed necessary by the Applicant. A mutually agreed-upon supervisor shall supervise all parenting time.
e. Subject to the Applicant’s exercise of her discretion, the Respondent shall have parenting time as follows:
i. every other weekend from Friday at 6 p.m. to Sunday at 6 p.m.
ii. for one half of the Christmas school break;
iii. on alternate March school breaks;
iv. for two non-consecutive weeks during the summer school break.
f. The sole issue determining supervision is the Respondent’s drug-free status. If the Respondent’s ongoing drug tests and rehabilitation records establish a drug-free status, then the Respondent’s parenting time is expected to be unsupervised.
g. Commencing January 1, 2023, the Respondent shall pay child support to the Applicant for the one child of $272 monthly based on an imputed income of $32,000 annually.
h. Commencing January 1, 2023, the Respondent shall be responsible for his proportionate share of any section 7 expenses incurred on behalf of the child, provided that he has consented in writing to the payment in advance, such consent not to be unreasonably withheld.
i. The existing arrears of child support are fixed at nil.
j. The interim costs awarded against the Respondent in this proceeding are confirmed and fixed in the total amount of $4943.76.
k. The Respondent shall pay OATC their costs relating to the disclosure motions in this matter of $3,500 plus H. S. T.
l. The Respondent shall pay the Applicant her reasonable costs of this trial on a full indemnity basis. If the parties cannot agree on the quantum of said costs, submissions of no more than one page plus Bills of Costs shall be submitted via Simcoe.Superior.Court@ontario.ca on or before June 17, 2022.
“R. F. MacLeod”
Justice R. F. MacLeod
Released: May 20, 2022
COURT FILE NO.: FC-19-469
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Brooke Elizabeth Davis Applicant
– and –
Jason Donn Robert Eby Respondent
REASONS FOR JUDGMENT
The Honourable Mr. Justice R. F. MacLeod
Released: May 20, 2022