COBOURG COURT FILE NO.: FC-18-243

DATE: June 2, 2022

SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: Michael E. Smith, Applicant

and

Jessica Lynne Clarke, Respondent

BEFORE: The Honourable Mr. Justice S. McLeod

COUNSEL: D. Tobin for the Applicant

A. Touchette for the Respondent

HEARD: November 29, 2021

Via ZOOM

REASONS FOR JUDGMENT

[1] The Application before the court requires the court to determine where the child, Noah John Douglas Smith (“Noah”), born June 14, 2017, should primarily reside. Once that determination is made, the Court must determine what the parenting time should be for the other party.

BACKGROUND

[2] The Applicant, Michael E. Smith (“Michael”), was born on 27 February 1980. The Respondent, Jessica Lynne Clarke (“Jessica”), was born on 28 September 1989.

[3] The parties commenced their relationship on 15 August 2015. They were never married and separated on a final basis on 5 June 2018. Noah is the only child born of their relationship.

[4] Michael is also a parent to a child from a previous relationship. The child’s name is Anderson Smith (“Anderson”), born 15 March 2010.

[5] Jessica is a parent to two children from a previous relationship. They are Landon Clarke-Stevens (“Landon”), born 7 October 2011, and Lilyana Clarke-Stevens (“Lily”), born 11 July 2013.

[6] Michael has a new partner, Ruth White (“Ruth”). It would appear that the couple will soon be cohabitating. Jessica currently lives with her partner, Marty Hrncier (“Marty”). Both of the new partners also have children from their previous relationships.

[7] Michael resides on a farm property located in Desboro (outside of Owen Sound). He has owned this property since 2012. Jessica and Marty live in Harwood, Ontario. They have co-habited since the summer/fall of 2019.

[8] The parties live approximately four hours away from one another.

[9] Noah will commence school in September 2022 and as a result the “week about” arrangement cannot be maintained during the academic year. Accordingly, the primary issue for the court to resolve is that of Noah’s primary residence. In determining this issue, an analysis of s. 24 of the Children’s Law Reform Act (“CLRA”) is necessary.

Relevant Previous Orders

[10] On 9 April 2019, Justice Ingram ordered, on consent, a s. 30 assessment by the Kawartha Family Court Assessment Service and ordered that Noah was to have week about parenting time with the parties.

[11] The s. 30 assessment was prepared by Mr. David Tonge of the Kawartha Family Court Assessment Service. It is dated 27 November 2020.

[12] On 19 September 2021, a consent final order was made by Justice Gunsolus. The order contained the following terms:

1. The Applicant, Michael E. Smith, and the Respondent, Jessica Lynne Clarke, shall have joint decision-making responsibility with respect to the child, Noah John Douglas Smith, born June 14, 2017.

2. Except for Noah’s choice of school, which shall be determined by the parent with whom Noah is primarily resident, the parties will jointly make decisions for Noah. If the parties cannot agree on a particular decision, they shall defer to the recommendation of the relevant third parties professionals.

3. Spousal support claims were also resolved on a final basis by way of a $1,000 lump sum payment to the Respondent.

Positions of the Parties

[13] Michael requests an order pursuant to s. 21 of the Children’s Law Reform Act that Noah shall primarily reside with him, and that Noah shall have parenting time with Jessica on the second and fourth weekend of each month after school on Friday until Sunday evening at 8:00 p.m. Should those weekends be flanked by a holiday or holiday Friday or a day on which Noah does not have to attend school (Thanksgiving, Easter, Labour Day, or PA days) then Noah would continue to reside with Jessica from after school on the last day of school before the long weekend until 8:00 p.m. the evening before Noah returns to school.

[14] Jessica accepts the recommendations set out in the s. 30 assessment. The recommendations contained in the s. 30 assessment were as follows:

1. Noah Smith be placed into the joint custody of his parents, Michael Smith, and Jessica Clarke.

2. The current week about time sharing schedule to remain in place until September 3, 2021.

On September 3, 2021, Noah to be placed into the primary care of his mother, Jessica Clarke, this to allow Noah to attend school in his mother's jurisdiction.

Beginning on September 3, 2021, Michael to have Noah in his care alternate weekends from after school on Friday through to Sunday afternoon. If the Fridays of Michael's weekends are non-school days, such as PD days, the weekend will be from Thursday to Sunday. The travel between the parents' home to continue to be shared with the exchange location continuing to be the Go Transit station in Brampton. The school summer vacation break to return to a week about time sharing schedule. The parent on whose weekend falls on the first weekend of the school summer vacation (according to the alternate weekend schedule} [sic], to mark that parent's first summer week. If it is the first weekend of the summer vacation period is regularly scheduled to be Michael's weekend than his first week will amount to 9 days. If the first weekend of the summer vacation period is Jessica's regularly scheduled weekend, then her first week will be 9 days. The exchanges to occur Sunday afternoon at the Go Transit station in Brampton. During the 9-week summer vacation period, one parent will have Noah for an extra week.

3. Sharing of Special Times:

a) School Christmas Vacation Period

The school Christmas vacation period to be shared equally between the parents, with each parent having one full week of the Christmas vacation period. Christmas Eve, Christmas Day, and Boxing Day to be alternated annually between the parents.

b) March Break

Noah to be in his father's care every March Break beginning on the Thursday or Friday once school is released, through to the Sunday afternoon prior to Noah's return to school.

c) Thanksgiving, Easter, Family Day, and Civic Holiday

These longs weekends, Noah to be with the parent of whose weekend the long weekend falls. If it is scheduled to be Michael's weekend with Noah, his weekends to be extended to include the holiday Monday.

4. All communication should be through the software program 'Our Family Wizard'. It is also recommended that Noah have facetime with his father on a regular basis, such as each Tuesday and Thursday evenings. A set time should be established and maintained for these facetime visits.

[15] Both parties have made similar, but not identical submissions as to what the other party’s parenting time should look like for holidays and summer vacation.

[16] In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional, and psychological safety, security and well being.

Review of The Evidence

[17] A Statement of Agreed Facts was filed as Exhibit 6 to this proceeding. That document indicates that Michael’s 2020 income for support purposes is $274,262. Jessica’s income for 2020 is $22,104. The parties will need to exchange their 2021 income tax returns and notices of assessment in order to properly calculate the ongoing child support and the child support as varied once primary residence is established (September of 2022).

[18] Each of the parties and their respective partners gave evidence at the trial.

[19] Mr. David Tonge of Kawartha Family Court Assessment Service also testified.

Ruth White’s Evidence

[20] Ruth is the partner of Michael. At the time of the hearing Ruth and Michael did not cohabitate but spent considerable time together.

[21] Ruth has observed the interactions between Michael and Noah which she describes as strong, lovely and one of mutual respect.

[22] Ruth has also seen the interactions between Noah and Anderson (Michael’s child from a previous relationship). Ruth indicates that the two boys have “a special bond”.

Marty Hrncier’s Evidence

[23] Marty testified that Jessica and Noah have a loving relationship and that Jessica “never yells and is very patient with Noah”.

[24] Marty has two adult children of his own. Marty describes their relationship with Noah as being meaningful and positive.

[25] Marty has observed the interactions between Noah and Lily and Landon (Jessica’s two children from a former relationship).

[26] Marty describes Landon and Noah’s relationship as akin to a typical big brother/best friend relationship and that they are excited when they spend time together. Marty testified that Lily’s relationship with Noah is meaningful, and that Lily takes on a motherly role with Noah.

[27] The evidence of Ruth and Marty echoed the evidence of Michael and Jessica who testified that Noah’s relationships and interactions with Anderson, Landon and Lily are loving and meaningful and that maintaining these relationships is in Noah’s best interest.

Michael Smith’s Evidence

[28] Michael and Jessica began dating when Jessica was working in Cobourg. At the time, she had her two children in her care. Both of those children have special needs and at that time the children were visiting with their father three weekends per month.

[29] Michael was then residing in Desboro.

[30] Michael testified that there were considerable logistics involved with traveling between Jessica and the children’s father so as to keep Jessica’s children’s parenting time intact. Michael testified that he either did all of the driving necessary or facilitated it.

[31] Michael indicated that matters “came to a head” in July of 2016. The central issue was the logistics of maintaining all of the contact. Michael indicated that unless they could figure out the “logistics” the relationship would have to end. In his words, he felt overextended.

[32] In September of 2016, the parties decided that they would work on the relationship and went for a trip to Quebec. Fourteen days later Jessica advised Michael that she was pregnant (with Noah). The couple decided to remain in the relationship and to support the unborn child.

[33] Michael testified that he believed Jessica had “deceived him”. He believes that she had planned the pregnancy. During his testimony, Michael stated that whatever took place in the past is in the long past and he holds no resentment. He stated that it is not relevant as to how he sees Jessica’s ability to parent.

[34] Following Noah’s birth, Michael was working in Pontypool, which was relatively close to Jessica’s home. Michael continued to maintain his own residence, but he did stay at Jessica’s home from time to time. Near the end of July 2017, the parties decided to “take a break”. However, by September of 2017 an attempt was made at reconciliation.

[35] Michael indicated that the couple came up with a plan to farm Michael’s property located in Desboro. Michael continued to work at the Darlington Plant for Ontario Power Generation. He would be home for weekends but remained in the Clarington area during the work week.

[36] Michael indicated that communication was ineffective during the relationship and that he expected the parties “to live out agreements”. Michael stated that when the parties did not live out their agreements, he would become frustrated.

[37] Michael described the events leading up to Jessica’s departure from the Desboro farm. He states that the conflict was over “a team agreement” predicated upon Jessica (who had been in Grafton picking up her mother and two other children and was returning to Desboro) picking up a six pack of beer to give to the nanny. Michael requested Jessica do this because Noah was in his care, and he would not take Noah to a beer store.

[38] I find as a fact that the confrontation was loud, stressful, lacked civility and bordered on hostility.

[39] Michael asked the court to favour his plan over that of Jessica for several reasons. They are:

1. Under Jessica’s plan there would be significant reduction in the amount of time that Michael would spend with Noah;

2. Under Jessica’s plan the time between Noah and Anderson would be significantly reduced and it would be devastating upon the boys as they are inseparable; and

3. Michael’s plan ensures that sibling contact through both blended families would remain intact and that Noah’s time with Landon and Lily would be expanded slightly.

[40] Michael testified that Noah has no particular or special needs to be addressed when formulating the parenting schedule. Both Jessica and Mr. Tonge agreed with this.

[41] Noah and Anderson reside together 14 days a month. Michael has a very structured routine for the boys which provides for plenty of time together. The boys travel to and from school together and after school their routine includes tidying up, caring for the dog, having play time, eating dinner, cleaning the table after dinner, Anderson reading to Noah, and the boys and Michael meditating prior to bed.

[42] Michael acknowledged that he believes that Noah, Landon, and Lily have a close relationship and that this relationship is beneficial and in Noah’s best interests.

[43] During the assessment process, Michael could not identify any strengths of Jessica as a parent.

[44] Michael acknowledged that he was critical of Jessica’s parenting time during their relationship. He acknowledged that when agreements were not complied with, he would become “frustrated”.

[45] Michael considers himself the better parent and during the assessment process he was unable to identify any weaknesses in his parenting skills.

[46] During cross-examination, Michael was asked why during the assessment he could not name a single parenting strength on behalf of Jessica. He stated that he couldn’t name any strengths because he interpreted the assessor’s question to mean “could he identify any strengths at that very moment” (i.e. during the interview portion) and that the reason he could not identify any strengths is that he was not observing Jessica at that precise time.

[47] When questioned by the assessor to name any concerns or weaknesses of Jessica, Michael did not limit himself to the observations “in the moment” and reflected upon historical events based on his observations of Jessica’s parenting of her son Landon.

[48] When considering these two responses together they simply lack credibility and it appeared that Michael was crafting his answers in order to portray himself in his best light.

[49] Michael acknowledged in cross-examination that when agreements were not kept up, he would become “frustrated”. He made comments such as “caution is necessary and deceit makes trust difficult” and “I can’t, and I won’t communicate with Jessica”.

[50] In cross-examination, he testified that he made those comments to the assessor and acknowledged that at the time of the assessment he and Jessica’s level of communication was practically non-existent.

[51] Michael recognizes and supports Noah’s need for emotional support from Jessica and it would not be his intention to marginalize Jessica’s role in Noah’s life. The parties use of Our Family Wizard has improved the level of communication between them. The recommendation to use Our Family Wizard was made by Mr. Tonge during the assessment process and has clearly assisted the parties in moving from “zero communication” to one where dialogue relating to Noah is civil and child focused.

[52] The e-mails tendered into evidence between the parties made subsequent to the assessment do reflect a civil and child focused level of communication. Michael recognizes that Noah needs his mother and that any past animus he had towards Jessica is no longer relevant. In further support, he asked the court to consider the terms of the consent final order made by Justice Gunsolus on 19 September 2021.

Jessica Clarke’s Evidence

[53] Jessica confirmed that Noah does not have any special needs. Jessica stated that Michael’s behaviour during their relationship amounted to verbal and emotional abuse and that he was highly critical of her parenting of Jessica’s other children. She indicated that prior to the parties separating there was little consultation on issues relating to Noah. She stated that “Michael does not consult, he informs”. She stated if things were not going Michael’s way he would yell, stomp, and throw things in behaviour that she described as temper tantrums. She characterized her relationship with Michael as a roller coaster; communication was difficult and that there was often conflict. This was especially true during the period before their move to Desboro.

[54] As a result of the move to Desboro, Jessica had to give up primary care of Landon and Lily. She stated that this was a difficult decision and one which she regrets. However, at the time the decision was made she was very excited about the prospect of raising the children at the Desboro farm.

[55] Currently, while Noah is in her parenting time, Noah and Landon share a room. She observed that the boys enjoy their time together quadding, playing Minecraft, building Lego, and making creations. She described the relationship as a close one and important for Noah’s development.

[56] Noah’s relationship with Lily is also beneficial. They play together, scooter, bike, and go swimming.

[57] Jessica works Monday to Friday with one week working from 6:00 a.m. to 2:00 p.m. and the other week working from 2:00 p.m. until 10:00 p.m.

[58] The daily routine with Noah was described as Noah awakening, going to day care, being picked up, and then going home at which time Noah would play outside prior to dinner. Following dinner there would be more play time, help with household jobs (folding laundry), the brushing of teeth, story time, and then bed.

[59] Jessica acknowledged that Michael is more organized than she is.

[60] Jessica confirmed that following the recommendations made by David Tonge during the preparation of the assessment, communication with Michael has improved and that it is very good. She indicated that it appears that Michael is willing to receive input and consider her opinions and that she believes that Michael will make decisions that are in Noah’s best interests. She described an example of this being the booking of Noah’s inoculation appointment by Michael without consultation. Once Michael received Jessica’s opinions and input, he cancelled the appointment.

[61] Further evidence of the continued improvement is found in the parties’ weekly communications, the continued use of Our Family Wizard and the agreement of a joint decision-making final order.

[62] On cross-examination, Jessica acknowledged that she had acted unilaterally regarding the determination of Noah’s parenting time immediately following separation when Jessica took Noah and relocated to her other’s home in Grafton.

David Tonge’s Evidence

[63] Both of the parties agreed that Mr. Tonge be considered an expert and provide opinions related to the preparation of a s. 30 assessment and the recommendations contained therein. The court agreed.

Cross-examination by Mr. Tobin, counsel for Michael

[64] Mr. Tonge testified that prior to giving his evidence he reviewed his notes and his report, and he could find no errors contained in them. During cross-examination he was able to find and identify some errors as they related to comments which he had placed in quotation marks which may or may not have been specific comments made by Michael.

[65] Mr. Tonge indicated that on average 12 hours are allocated to the interviews in the assessment; that this was consistent with protocol; and that, if required, he could increase the number of interview hours. He did not need more time.

[66] Other than the parties themselves, the only other adult interviewed was Jessica’s partner Marty. No other adult collaterals were interviewed.

[67] When asked whether or not he thought the report was out of date, Mr. Tonge indicated that the report reflected what was before him in 2020. At that time Noah was three years of age and he would not interview a three-year-old as the views and preferences were not relative. Mr. Tonge indicated that he would, however, interview a four-year-old.

[68] Mr. Tonge indicated that Noah is developing at a healthy rate and did not present any special needs. He appeared comfortable and attached to both of his parents and he described the attachment as secure.

[69] Mr. Tonge stated that Noah’s connection with all three of his siblings is important. He did not consider the impact upon Noah and those relationships under each of the parties’ plans. Mr. Tonge simply indicated that Noah needed to maintain his connection with all of his siblings.

[70] Mr. Tonge reported that both of the parties were critical of one another. He never observed the two together but found that, as parents, their communication was not good. He acknowledged that his comments on their ability to communicate reflected how the parties were when they were together and did not reflect the quality of their communications at the time of the trial.

[71] Mr. Tonge confirmed that during the assessment process, he had suggested that the parties utilize Our Family Wizard as a way to communicate with one another in a non-threatening way. He was concerned that the level of resentment displayed by Michael towards Jessica at that time would lead to marginalization.

[72] Mr. Tonge acknowledged that Michael’s living arrangement was more stable than Jessica’s. Michael has continued to reside at the Desboro property, both prior to and subsequent to separation. Jessica has moved three times since the date of separation. Mr. Tonge acknowledged that stability is a consideration.

Cross-examination by Mr. Touchette, counsel for Jessica

[73] Mr. Tonge characterized Jessica’s decision to give up primary care of her two children as “huge”. Her move to Desboro with Michael amounted to a power shift in favour of Michael. Mr. Tonge concluded that nothing worked out the way either one of the parties wanted as their expectations were not met.

[74] Mr. Tonge concluded that the comments made by Michael to Jessica prior to separation amounted to verbal abuse and although Michael described it as frustration, Mr. Tonge indicated that he did not see a difference.

[75] Mr. Tonge indicated that it is important that both parents recognize the importance of Noah’s relationship with the other children and that, in hindsight, observing Noah and the other siblings may have provided a balanced response.

[76] Two significant paragraphs are found in the s. 30 assessment under the “formulation” section:

As parents, Michael and Jessica were never able to form any sense of mutual support, unity, and respect. Even prior to Noah's birth, parenting was a source of division and criticism as Michael stood in judgement of Jessica's parenting of Landon and Lily. Since the separation, both parents have focused on their separate care and parenting of Noah with little communication or cooperation between them in their care and parenting of a young child. In December 2019, Michael did communicate with Jessica when Noah had swallowed a nickel and was taking him to the hospital. Basic childcare and information are not communicated, let alone information necessary for joint decision making. Michael stated, "I'm not invited to take part in his medical care, she won't give me his health card". As parents, separate and apart from each other they are both providing well for Noah. Noah is developing well and presents as adjusting well to the current timesharing schedule and Noah is developing positive attachments to both of his parents. However, the current timesharing arrangement and the current parenting separateness will not work come September 2021. Noah will be in school and his needs will demand greater parenting communication and cooperation.

Michael wants sole custody of Noah, believing that he is the better parent and can provide Noah with stability and healthy childcare. His suggested time sharing would be every other weekend with no sense that he sees the need for parental communication or cooperation,"/ can't, I won't". Given Michael's attitude towards Jessica and his judgement of her, there is a very significant concern that Jessica's role and involvement with Noah will be marginalized. Jessica, on the other hand, stated that Michael should have a say, a voice in Noah's life and is open to joint custody and the use of Our Family Wizard. Jessica proposes a higher level of involvement for Noah to be in his father's care than does Michael propose that Noah be in Jessica's care. This assessment does not support Michael's plan of care.

The Law

[77] Subsection 24(1) of the CLRA states that in making a parenting order or contact order with respect to a child the court shall only take into account the best interests of the child.

[78] Section 24 provides factors which guide the court’s analysis in determining what would be in Noah’s best interest. They are:

(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 parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

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

(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 co-operate, in particular with one another, on matters affecting the child;

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

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

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate 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. 2020, c. 25, Sched. 1, s. 6.

The Application of the Evidence as it Relates to Factors set out Under Subsection 24(3)

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

[79] Michael, Jessica, and Mr. Tonge testified that Noah does not have special needs. Mr. Tonge indicated that Noah was developing as a healthy three-year-old and that there was nothing particular about Noah’s needs when he had performed the assessment.

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

Noah’s relationship with his parents

[80] All of the witnesses noted that Michael and Jessica are loving parents, and that Noah has developed a strong and positive attachment with each of them. Noah has thrived in the care of each parent, and it is only as a result of the need for Noah to start school and the geographic distance between the parties that the court must vary the “week about” parenting plan which was clearly in Noah’s best interest.

Noah’s relationship with Anderson, Landon, and Lily

[81] Both parties acknowledge the importance of Noah’s relationship with his half-siblings and that it is in his best interest to maintain those relationships.

Noah’s relationship with Ruth, Marty, and his grandparents

[82] The evidence was clear that Noah has a strong and meaningful relationship with both Ruth and Marty. Michael testified that Noah has a great relationship with his paternal grandparents and that he sees them every other week while in Michael’s care. No evidence was led as to Noah’s relationship with respect to the maternal grandparents.

c) Each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent

[83] The parties testified Noah has a loving relationship with the other party. They agree it is important to Noah’s development to maintain those relationships. The implementation of the recommendations of Mr. Tonge to utilize Our Family Wizard and the communication placed into evidence demonstrates a willingness on the part of the parties to maintain their relationship with the other party.

d) The history of the care of the child

[84] Noah has resided with his parents on a week about basis since 9 April 2019. Prior to that, and following separation, Noah resided primarily with Jessica and resided with Michael three weekends per month.

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

[85] No attempt was made by Mr. Tonge to ascertain Noah’s views and preferences given that he was three years of age.

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

[86] The parties conceded that Noah does not have any special, religious, or cultural considerations for his upbringing.

g) Any plans for the child’s care

Michael’s Plan

a) Michael will continue to reside at his home in Desboro where he has resided since 2012.

b) Noah will have parenting time with Jessica on the second and fourth weekend every month.

c) Michael works Monday to Friday from 7:00 a.m. to 4:30 p.m.

d) Noah will go to North Port Elementary School in Port Elgin with his brother Anderson.

e) Noah will attend before and after care at the same place he attended summer camp.

f) Michael and Noah will leave the house at 6:30 a.m. and will drive around 40 minutes with Noah and Anderson when Anderson is in Michael’s care. They will go to before school daycare.

g) Noah will be at before school daycare until his elementary school begins at around 9:00 a.m.

h) Michael will pick up Noah from after school daycare at around 4:30 p.m. and drive him home.

i) Noah’s family doctor will be Dr. Wong, with whom Michael has a relationship.

j) Michael also testified that he will be supported by his family and Ruth.

Jessica’s Plan

a) Noah’s parenting time with Michael will be every other weekend.

b) Jessica works Monday to Friday, with one week working 6:00 a.m. to 2:00 p.m. and the other week working 2:00 p.m. to 10:00 p.m.

c) Noah will attend the local public school, Plainville Public School.

d) Jessica switched Noah’s daycare to a local one so that Noah can take the bus to school.

e) When Jessica is working 6:00 a.m. to 2:00 p.m. she will not see Noah in the morning, and she will pick Noah up after school.

f) When Jessica is working 2:00 p.m. to 10:00 p.m. she will see Noah from 6:30 a.m. to 9:10 a.m. Marty will pick Noah up from daycare or from the bus.

g) Marty is prepared to assist in picking up Noah after school.

[87] Jessica did not lead evidence regarding how long Noah’s commute to school is or if he will be going to the same school as Landon or Lily.

[88] On cross-examination Jessica acknowledged that her work schedule would impact her time with Noah in that for one week she would not see him in the mornings, and for the next week she would not see him in the evenings.

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

[89] The evidence is clear that there are no concerns regarding either party’s ability to parent. Noah is comfortable with both parties and is developing well.

i) The ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child

[90] Both parties testified that following separation their ability to communicate was “virtually zero”. The evidence also indicates that Michael clearly did not feel that Jessica could adequately parent Noah and that he (Michael) was the better parent.

[91] The parties testified that they now can communicate effectively. The evidence led demonstrates that there is a civil and child focused quality of the communications. Both parties are prepared to engage and discuss matters affecting Noah.

[92] I find that the use of Our Family Wizard and, more importantly, the terms of the consent to final order on decision making, are evidence to the contrary of marginalization. The order of 19 September 2021 has a built-in safeguard that in fact prevents marginalization on the part of either parent.

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

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

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child.

[93] There is no evidence indicating that either party has been violent towards Noah. While I find that there was one particular incident that amounted to verbal abuse by Michael against Jessica, it is clear that since the week about regime was put in place there is no evidence to suggest that Michael is unwilling or unable to meet Noah’s needs. In fact, this was confirmed by both Mr. Tonge and Jessica.

k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security, and well-being of the child. [2020, c. 25](https://www.canlii.org/en/on/laws/astat/so-2020-c-25/latest/so-2020-c-25.html), Sched. 1, s. 6.

[94] There was no evidence led that there are any civil or criminal proceedings, orders or conditions that are relevant to the safety, security and well being of Noah.

Conclusion

[95] The aforementioned portions of the assessment prepared by David Tonge made specific recommendations. In my view, they were predicated upon Mr. Tonge’s assumptions that the “I can’t, I won’t attitude” previously displayed by Michael is a significant concern and that Jessica’s role and involvement with Noah will be marginalized. As I have previously noted, Mr. Tonge’s opinions and recommendations were based upon his assessment of the situation as of November 2020. Happily, and thankfully, the evidence at trial clearly demonstrates that the concern voiced by Mr. Tonge has not played out and I find on the evidence presented at trial that both parents now have a say and voice in Noah’s life. They have demonstrated a high level of involvement and have entered into a joint decision-making order.

[96] There is no doubt that Noah will experience a significant change in the parenting time he spends with either parent as a result of the geographic distance between the homes and his need to attend school. This will surely be upsetting to Noah. As a result it will be necessary to protect Noah from further upset. There will be a greater need to maintain the frequency of his face-to-face contact with siblings on both sides. I find that this is a central issue for determination given the relatively balanced evidence when considering the other criteria under s. 24 as the parties, their partners, and the assessors all agree that maintaining sibling contact is in Noah’s best interest.

[97] The plan submitted by Jessica will have little effect on Noah’s time with Lily and Landon. It will have significant effect on Noah’s time with Anderson.

[98] By contrast, Michael’s plan ensures that there is no interruption in the time that Noah spends with Anderson. It is maintained. Further, Michael’s plan practically maintains or increases the amount of time that Noah spends with Lily and Landon.

[99] Additionally, Michael’s plan better serves the principles set out under s. 24(6) of the CLRA. Under Michael’s plan, Noah will be cared for by Michael every day. Michael indicated that other than his children, his only other obligation is work. His work is flexible: he can take time off and “leave at a moments notice if needed”.

[100] Jessica’s plan, given her work hours, would limit the amount of time Noah spends with her insomuch as she would not see Noah at all in the mornings of one week and then not at all in the evenings of the following week.

Ruling

For all of the reasons previously set out and taking into consideration Noah’s best interests, pursuant to s. 21 of the CLRA, I make the following order.

[101] The current week about time sharing will remain in place until September of 2022 at which point Noah shall primarily reside with Michael in Desboro.

[102] If the week preceding the commencement of the school year is a week where Noah resides with Jessica then Noah is to be returned to Michael’s care by the Saturday preceding the commencement of the school year.

[103] Michael shall enrol Noah in Northport Elementary School, or another school of his choosing in time for the commencement of the 2022 academic year.

[104] Noah will have parenting time with Jessica on the second and fourth weekend of every month. Should those weekends be flanked by a holiday or holiday Friday or a day on which Noah does not have to attend school (Thanksgiving, Easter, Labour Day, or PA days) then Noah will continue to reside with Jessica from after school on the last day of school before the long weekend until 8:00 p.m. the evening before Noah returns to school. This schedule will be in place during Noah’s academic year.

[105] Travel will continue to be shared with the exchange location continuing to be Go Transit in Brampton.

[106] Summer vacation break will see a return to a week about time sharing schedule.

[107] Exchanges during the summer will occur on Sunday afternoon at the GO Transit station in Brampton.

[108] Noah shall be permitted to Facetime, call, or video call with Jessica when he wishes to do so and in any event no less than three times per week.

[109] Noah’s Holiday parenting time with parties shall be as follows:

Family Day weekends – Noah shall be with Jessica on Family Day weekend from after school on Friday until 8:00 p.m. on Family Day.

March Break – Noah shall spend March Break with Jessica each year.

Easter – Noah shall spend Easter annually with Jessica from after school on the Thursday before Good Friday until Easter Monday at 8:00 p.m.

Mother’s Day – Noah shall spend Mother’s Day annually with Jessica from after school on Friday until Sunday at 8:00 p.m. on the Sunday.

Father’s Day – Noah shall spend Father’s Day annually with Michael from after school on Friday until Sunday at 8:00 p.m. on the Sunday.

Summer – Noah shall reside with both parties on a week about rotation. The parties will endeavour to create a schedule that Noah will reside with Jessica while she has Landon and Lily in her care and will reside with Michael when he has Anderson in his care. If they are unable to do so, Michael will choose his weeks first in even numbered years and Jessica will choose her weeks first in odd numbered years. The party with the first choice will advise the other of their choice by April 30 of each year.

Christmas – In even numbered years Noah will reside with Jessica from the first half of Christmas break until the mid-way point and with Michael from the mid way point until return to school. In odd numbered years Noah shall reside with Michael for the first half of Christmas break until the midway point and with Jessica from the midway point until return of school.

Noah’s Birthday – If Noah is not otherwise in Jessica’s care on his birthday, Jessica shall be permitted to travel to Desboro to spend the day with Noah on his birthday, the timing of which will be agreed upon by Michael and Jessica.

[110] Jessica shall pay child support to Michael for the child Noah in the amount of $177, in the accordance with the Tables under the Child Support Guidelines based on Jessica’s annual income of $22,104 commencing 1 September 2022 and continuing on the first day of each month that follows.

[111] Jessica and Michael will contribute proportionate to their incomes towards the following special extraordinary expenses under s. 7 of the Child Support Guidelines.

a) Childcare expenses;

b) Out of pocket medical and dental expenses; and

c) Agreed upon extracurricular activities.

[112] Jessica shall, by June 1of each year in which child support is payable, deliver to Michael a copy of her notice of assessment, notice of reassessment (if any) and income tax return for the previous year.

[113] Michael shall, by June 1 of each year in which an amount for special or extraordinary expenses is payable, deliver to Jessica a copy of his notice of assessment, notice of reassessment (if any) and income tax return for the previous year.

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

Costs

[115] If the parties are unable to come to an agreement on the issue of costs, then they are to submit within 30 days hereof their submissions which shall be limited to five double spaced pages, any applicable offer to settle, and any bills of costs to which the party is seeking contribution.