COURT FILE NO.: FC 1252/14-01

DATE: 2022/11/25

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

Charles Moniz Vieira

Applicant

• and -

Lesley Ann Bettencourt

Respondent

Robert Haas, for the Applicant

William R. Clayton, for the Respondent

HEARD: September 12-16, 19-23, 26, 2022

HASSAN J.

INTRODUCTION

[1] Parenting is a selfless job. Even the best parents lose sight of that truth. That is how this case came about.

[2] The trial of the Application and Answer-Claim proceeded for 11 days, in September 2022. The main issue was Decision-Making Responsibility for the two children of the relationship between the Applicant and the Respondent, being Mila Arceline Vieira, born February 12, 2012 (“Mila”) and Reece Carlos Vieira, born March 16, 2014 (“Reece”). Parenting time, child support and special expenses were secondary issues.

[3] The proceeding was commenced by the Applicant, in December 2018, in response to a relocation by the Respondent, which the Applicant claimed was a breach of a Separation Agreement between the parties, dated August 12, 2016. At Trial neither party sought to uphold the terms of the Separation Agreement, although both sought Parenting Time, similar to the terms of the Agreement. The Agreement provided for joint decision-making for the 2 children. Both parties now seek sole decision-making responsibility.

[4] The Applicant, Charles Vieira (referred to as CV, for ease) and the Respondent, Lesley Bettencourt (referred to as LB, for ease), were involved in a cohabitation relationship between 2011 – 2014. They had dated for a period of time prior to their cohabitation. They both described the relationship as toxic and conflictual. Both point to the other as the source of the conflict. There are two children of the relationship, Mila who is 10 years of age and Reece who is 8 years of age. The child, Reece, was born 2 months before the parties separated. Following their separation in June 2014, the parties engaged in Mediation and eventually entered the Separation Agreement of August 2016. The Agreement provided for joint custody and joint decision-making between the parties, and shared parenting time on a 10-week schedule. The parties have followed the parenting schedule for the past 6 years.

[5] Through the course of the Trial, both parties alleged that the other had violated multiple terms of the Separation Agreement. Neither ultimately sought to enforce the terms of the Agreement. Both now seek sole decision-making responsibility. Both seek an order for parenting time, similar to that contained in the Separation Agreement, and consistent with the schedule they have followed for the past 6 years.

ISSUES AND DECISION

[6] The issues the court must determine are:

1. What framework for decision-making would best meet the needs of these 2 young children;

2. Determination and clarification of some terms relating to a parenting-time schedule that is otherwise on agreement between the parties;

3. The appropriate order under Section 9 of the Child Support Guidelines;

4. The Respondent's claim for a retro-active adjustment to child support.

[7] For the reasons set out below, I find neither of the parties’ claims for sole decision-making responsibility to be in the best interests of the children. Rather, I find that a form of “divided decision-making” would be most appropriate, granting final decision-making in various areas, to each parent, according to the strengths of each party in specific areas; the Applicant CV, in the areas of Education, Dental and Extra-Curricular Activities, and the Respondent, LB, in the areas of medical decisions and School Supports. I find that this will best ensure that the children benefit from the differing but equally valuable perspectives and contributions that each parent brings to decisions about their children and will also best ensure that timely decisions are made, but only after meaningful consultation with the other parent. I find that joint decision-making can continue, in the area of Religion.

[8] Regarding Parenting Time, I find that the existing schedule, which the parties have followed for the past 6 years, continues to be in the best interests of the children, with specific terms to address the main areas of conflict.

[9] Regarding child support, I find that an order that no child support be paid by either party, is the most appropriate order under Section 9 of the Guidelines, having regard to the circumstances of the parties and the considerations contained in Contino v. Leonelli-Contino, [2005] 3 S.C.R. 217, 2005, SCC 63.

[10] Regarding the Respondent’s claim for retro-active adjustments to child support, I find that, in the circumstances, and particularly the acquiesces on behalf of both parties to the nonpayment of child support by either party, over the past 5 years, a retro-active adjustment would not be appropriate.

BACKGROUND

[11] The Applicant, CV, is 41 years of age, having been born on January 13, 1981. He grew up in the City of London. He resides at 1258 Thornley Street in London. The home is a two story, 4-bedroom home in a residential area of Westmount. CV’s parents, Carlos and Albertina Vieira, live several blocks away, as does his sister and her husband and their 2 children. The family is very close and have been involved in the lives of the children, Mila and Reece, since their birth. CV is in the plumbing profession and has worked for his present employer, Pro Electric, for 15 years. He earns around $85,000 per annum and generally works Monday to Thursday, from 7:00 a.m. – 4:00 p.m., and a few hours on Fridays. CV also recently began a home building corporation with his brother-in-law, called Ferox Design and Build Inc. He is an equal shareholder. The corporation has had no net revenue, to date. CV also owns a property with his brothers, from which he earns rental income.

[12] The Respondent, LB, is also 41 years of age, having been born on July 5, 1981. She has lived in the City of London for the past 22 years, with the exception of a 3-year period when she lived in the Village of Thamesford. Her parents reside in Sarnia, Ontario. Her family has also been extensively involved with Mila and Reece, particularly her mother, Linda Bettencourt. LB resides at 916 Shelborne Street in London. It is a two story, 3-bedroom home in a residential area of Pond Mills. LB completed a Bachelor of Science degree in 2006 and is a Registered Nurse. She has been employed at various locations, for London Health Sciences Centre and St. Joseph’s Health Care. She presently works at Southwest Centre for Forensic Mental Health Care, near the City of St. Thomas. She works Monday – Friday, from 8:00 a.m. to 4:00 p.m. She earns approximately $100,000 per annum.

[13] Both CV and LB are of Portuguese descent, and both are of Roman Catholic faith.

[14] As indicated above, the parties dated on and off, commencing around 1999. They cohabited between 2011 and June 2014, when they separated for the final time. Both parties described the relationship as toxic and conflictual. Each claims the other was the cause of the volatility and numerous arguments during the relationship. The Respondent, LB, claimed that the Applicant, CV, was violent. She described only one incident, approximately 8 years ago, when she alleged that CV had thrown a baby monitor at her. CV denies the incident. I make no finding as to the nature of the relationship or the allegations of violence.

[15] The parties separated on June 30, 2014, after an argument in their home. At the time the parties lived in a home located on Gristmill Lane in the City of London. LB’s mother attended at the home, when advised of the conflict, and LB decided to take the children and go to her parents’ home in Sarnia for a period of time, while things cooled off. CV also contacted his mother, who also attended the home. CV testified that he did not try to stop LB from leaving with the children, believing they needed some space from each other. CV continued to have parenting time with the children, sometimes in Sarnia and sometimes in London, when LB came to London.

[16] After her move LB made the decision that she was going to remain living in Sarnia, with the children. She did not consult CV about this decision. She claimed that because CV was not paying child-support she needed to stay in Sarnia, for family support. She was then on maternity leave from her employment in London. CV was not in agreement with the children remaining in Sarnia and he requested that LB return to London with the children. LB declined to return, and CV commenced a Motion for the return of the children to London. On September 10, 2014, Templeton J. ordered, on an interim interim without prejudice basis, that the children return to live at Gristmill Lane. The order also provided that LB could live at Gristmill Lane, while seeking out alternate accommodations. The parties were also ordered to meet with counsel to arrange a reasonable parenting schedule.

[17] LB did return to London with the children, and resided at Gristmill Lane, until she moved to a rental home on Beechbank Crescent in London. She later purchased a home on Woodcrest Boulevard. CV moved back into Gristmill Lane and then purchased his present home on Thornley Street.

[18] The parties did arrange a parenting schedule, wherein CV had increasing parenting time with the children, as the infant, Reece, grew and was weaned from breastfeeding. The parties then entered Mediation, where they finalized a Separation Agreement on August 12, 2016. The parties agreed to joint custody of Mila and Reece, and joint decision-making. They agreed that the children would have their primary residence with CV, to allow for the children to be bused from CV’s home to the school where the child, Milas then attended, St. Anthony French Immersion Catholic School. The parties also agreed to a 10-week 2-2-3 parenting schedule, based on LB’s work schedule and particularly, the days when LB worked night shifts. The parties agreed that the goal of the schedule was to allow the children to be in the care of a parent as much as possible. The only issue not resolved between the parties was Christmas parenting time. That issue remained unresolved, with the parties having to seek judicial intervention for the past 3 years.

[19] Much time was spent at the trial, on evidence relating to LB’s work schedule. At the time the Separation Agreement was signed, and the parenting schedule determined, LB was working full-time as a Registered Nurse. She worked a mix of day and night shifts. The 10-week parenting schedule was created around LB’s schedule, to ensure, to the extent possible, that the children were in CV’s care, when LB was working, particularly for night shifts. The parties had settled into this schedule even before the Separation Agreement was negotiated. The schedule did not account for the fact that CV would be working most days also. The reality was that both Grandmothers were extensively involved in the care of their grandchildren and had been throughout their lives. The evidence was, and I accept, that the children shared a close relationship with both sets of grandparents, and benefited from their regular involvement in their lives, including childcare.

[20] CV testified to numerous requests for LB’s schedule, as she changed positions and work schedules. LB testified that she provided the schedules when requested, and that if her schedule changed, such that it impacted the weekly schedule, that she would advise CV. She testified, and CV agreed, that CV simply did not trust LB when she reported her schedule status. She testified that she had never worked a night shift while the children were with her, and now she does not work night shifts, since early 2022. The evidence did support a finding that LB was not always forthcoming with providing her schedule, when requested, and that she worked more often than she conveyed to the Court, while the children were in her care, evidenced by receipts for care provided by her Mother. However, both parents relied on their parents, particularly their Mothers, to provide care for the children when they were working. I find that each parent worked around the schedule that they agreed on, and that the children were always well cared for, whether in the care of a parent or a grandparent. To expect the parties to agree on a new schedule each time there was a change in LB’s work schedule, would have resulted in further conflict. Parents are required to ensure proper care of their children, during parenting time, and I find that both parents do.

[21] The parties generally followed the Separation Agreement, with some exceptions detailed below, for the next 6 years. In 2016 LB became involved in a relationship with Mr. Wilhem Enns. In late 2018 they decided to purchase a home together, in the Village of Thamesford, and cohabit, along with the children, Mila and Reece, and Mr. Enns’ 13-year-old daughter, who was in his care for significant periods of time. LB did not advise CV of the relationship or of the intended move, until December 2018, and did not provide her new address, where the children would be residing. LB moved to 267 Allen Street in Thamesford, in February 2019. CV commenced this Application in December 2018, and sought an Order on Motion, for custody of the children or, alternatively, that the children’s residence remain in the City of London. LB brought a countermotion to allow her to move the permanent residence of the children to the Village of Thamesford. On April 2, 2019, Korpan J. ordered that the children’s primary residence would be with CV and that all of the children’s medical, dental and other professional services and any extra-curricular activities would be in London. Korpan J. dismissed LB’s motion and ordered that she not move the children’s residence any further than her home in Thamesford. She also ordered, on the consent of the parties, that both children would be registered at Jean Vanier Catholic School (now St. Rose of Lima) for September 2019. She ordered that the parties were to otherwise follow the parenting-time schedule set out in their Separation Agreement, with LB responsible for all transportation when the children were in her care.

[22] LB remained living in Thamesford until May 2022, when she relocated back to London, after her relationship ended. She purchased her present home on Sherborne Street in London.

[23] The parties have continued to follow the terms of their Separation Agreement. However, as is set out below, joint decision-making has been a constant struggle, with the parties being unable to agree on even the most basic decisions, resulting in either decisions not being made, or each parent “doing their own thing.”

[24] While the issue of LB’s relocation is no longer an issue, I do find it relevant to my determination. I find that LB’s relationship with Mr. Enns, and with his daughter, was a significant development in the lives of the children, Mila and Reece, and one that ought to have been conveyed to CV. He was unaware, for years, that a new partner had been introduced into the lives of the children, along with his daughter. Even when the decision was made that they would purchase a home together, and that the children would be living with Mr. Enns and his daughter, LB did not think that CV needed to be consulted or even advised. Instead, she relied on an interpretation of the Separation Agreement which, in my view, did not make sense. Clearly the Agreement envisioned that any move ought to be conveyed in advance, including the new address. As well, in my view, a reasonable reading of the Agreement would conclude that a move outside of the City of London, would require either consent or a court order. I find that an additional 30 – 40 minute drive to school or activities, would be a “material change” which would have triggered the notice provisions of Section 3.36, particularly when the children were accustomed to living within minutes of the other parent’s home. Even if LB did not think this was the case, the move and the fact that the children would be sharing a home with Mr. Enns and his daughter, was a major development in their lives and something that CV ought to have been made aware of, well before the move actually occurred. In fact, the Agreement even provided that, “In the event that a parent plans to bring a new partner to an activity of the children, he or she will advise the other parent in advance as a courtesy.” The fact that LB was bringing a new partner to live with the children, would certainly merit prior notice and consultation, at the very least. To rely on a strict and strained interpretation of the Separation Agreement to justify not notifying CV, illustrated in my view, a lack of appreciation for the impact of the move and the importance of including CV in developments in the lives of their children.

THE EVIDENCE

[25] The trial unfolded over an 11-day period. Both parties testified in support of their claims. CV also offered the evidence of the Principal of the children’s school, Mr. Matthew MacDonald, the Support Teacher for the child, Reece, Ms. Lucille Panziera, and the children’s Paediatrician, Dr. Maria Sottosanti. LB offered the evidence of her mother, Linda Bettencourt, the children’s former Paediatrician, Dr. Sudhir De’Souza, and a representative of Oxford Learning Centre, Mr. Brian Nelles.

[26] The evidence offered by both parties, mostly revolved around the inability of the parties to make decisions together, relating to the children, particularly relating to extra-curricular activities and medical and tutoring supports for the child, Reece, who struggles with ADHD and learning challenges. Each party’s testimony consisted of relaying a series of events, along with related emails and communications, to illustrate how the other parent was “at fault” for the event, or not cooperative in decision making. The majority of Exhibits consisted of email exchanges between the parties.

[27] I found both parties to be thorough, sincere and generally child-focused in their testimony. Credibility was not a significant issue, as the parties generally relayed similar facts, but placed different interpretations on those facts. Each party took every opportunity to describe the other in a negative light, in relation to the various events and issues. Both parties tended to revert to “I do not recall”, if the evidence may have reflected badly on them.

[28] While I have considered all of the evidence, I do not intend to review each incident described by the parties, but will refer to various examples below, as I address each issue.

THE CHILDREN

[29] The child, Mila, is 10 years of age and in Grade 5 at St. Rose of Lima Catholic School. She is described as a bright, happy, creative, social and entrepreneurial young girl. She has developed a love of horses and was described by CV as being “all about horses”. She has also been involved in soccer, basketball, dance and gymnastics. Mila is described as a protective and loving older sister to Reece. Mila is reported to be doing well academically in school, and to be well adjusted socially at school.

[30] Mila shares a close relationship with both of her parents and with both extended families, particularly her Grandparents. She has good friends at school and lives close to her paternal cousin, Aria, with whom she is very close.

[31] The child, Reece, is 8 years of age and in Grade 3 at St. Rose of Lima Catholic School. Reece is described as a loving, friendly, affectionate and energetic young boy, who is a delight to be around. Reece is interested and has been involved in soccer and tball, although he is not presently involved in an organized sport. He is described as having a love of steam trains, video games and traditional board games.

[32] Reece also shares a close relationship with both of his parents and with both extended families, particularly his Grandparents. He has good friends at school and in the respective neighbourhoods, where he lives.

[33] Reece struggled with some learning and health challenges, including a diagnosis of ADHD, and possibly some Central Auditory Processing issues, which are discussed in more detail below. He is reported to be doing well academically, despite these challenges. He has been diagnosed with Asthma and allergies, which are managed.

LEGAL CONSIDERATIONS

[34] Section 18(1) of the Children’s Law Reform Act, R.S.O. 1990, CHAPTER C.12, defines decision-making responsibility as:

1. “decision-making responsibility” means responsibility for making significant decisions about a child’s well-being, including with respect to:

2. Health;

3. Education;

4. Culture, language, religion and spirituality; and

5. Significant extra-curricular activities.

[35] Section 28 of the Children’s Law Reform Act, provides:

28 (1) The court to which an application is made under section 21,

(a) may by order grant,

i. decision-making responsibility with respect to a child to one or more persons, in the case of an application under clause 21 (1) (a) or subsection 21 (2),

ii. parenting time with respect to a child to one or more parents of the child, in the case of an application under clause 21 (1) (b), or

iii. contact with respect to a child to one or more persons other than a parent of the child, in the case of an application under subsection 21 (3);

(b) may by order determine any aspect of the incidents of the right to decision-making responsibility, parenting time or contact, as the case may be, with respect to a child; and

(c) may make any additional order the court considers necessary and proper in the circumstances, including an order

i. limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child,

ii. prohibiting a party or other person from engaging in specified conduct in the presence of the child or at any time when the person is responsible for the care of the child,

iii. prohibiting a party from changing the child’s residence, school or day care facility without the consent of another party or an order of the court,

iv. prohibiting a party from removing the child from Ontario without the consent of another party or an order of the court,

v. requiring the delivery, to the court or to a person or body specified by the court, of the child’s passport, the child’s health card within the meaning of the Health Insurance Act or any other document relating to the child that the court may specify,

vi. requiring a party to give information or to consent to the release of information respecting the child’s well-being, including in relation to the child’s health and education, to another party or other person specified by the court, or

vii. requiring a party to facilitate communication by the child with another party or other person specified by the court in a manner that is appropriate for the child. 2020, c. 25, Sched. 1, s. 6.

[36] Section 28(4) of the Act provides that the court may allocate decision-making responsibility with respect to a child, or any aspect of it, to one or more persons.

[37] Section 28(6) of the Act provides that unless the court orders otherwise, a person to whom the court allocates parenting time with respect to a child has exclusive authority during that time to make day-to-day decisions affecting the child.

[38] Section 28(8) of the Act provides that unless a court orders otherwise, a person to whom decision-making responsibility or parenting time has been granted with respect to a child under a parenting order is entitled to ask for and, subject to any applicable laws, receive information about the child’s well-being, including in relation to the child’s health and education.

[39] Section 24 of the Act requires the Court, when making the above determinations, to only take into account the best interests of the child.

[40] Section 24(2) requires the Court to consider all factors relating to the circumstances of the child, when making a “best interests” determination but to give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

[41] Section 24(3) enumerates a non-exhaustive list of factors relating to the circumstances of a child, including:

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

(b) The nature and strength of the child’s relationship with each 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.

[42] The recent changes to the legislative terminologies, contained in the Children’s Law Reform Act, reflect a more child focused approach to decisions relating to parenting orders. Regarding decision-making responsibility, the focus is on the role of the parent visa vie the child; the responsibility to make effective decisions which impact the child, rather than on the rights of the parents in relation to the child. Regarding parenting time, the focus is on the role of the parent while having care of the child; the responsibly to provide effective parenting, rather than on a parent’s “right” to time with the child.

[43] Along with the changes to terminology is a recognition that decision-making responsibility is not an “all or nothing” proposition, and that the responsibilities can be divided between parents, as is consistent with the interests of the children.

[44] The enumerated factors for consideration, confirm that the determination is specific to the facts of each case. The factors provide a framework to consider the unique circumstances of each family, and suggest considerations found to be particularly relevant to determining how the child’s best interests can most effectively be determined. The factors provide a helpful framework and focus, for considering the facts of each case.

[45] Jurisprudence has also developed and evolved, around the determination of decision-making responsibility and parenting time, to guide in the application of the legislative framework.

[46] Of particular relevance in this case, is the jurisprudence relating to the determination of sole decision-making responsibility versus shared or divided decision-making. These parents initially made the determination, following months of negotiations, that it was in the best interests of their children to share decision-making responsibility on major decisions relating to their children. This was reflected in the Separation Agreement they executed in August 2016, wherein they agreed to share “joint custody” of their children, and to make major decisions concerning the children’s education, non-emergency health-care, and religion, together.

[47] Each parent is now seeking sole decision-making in relation to major decisions, in consultation with the other parent.

[48] There is a history of judicial consideration of the issue of “joint” or shared decision-making versus sole decision-making, and the circumstances in which each is more appropriate. In the end, however, the determination is fact-specific to the particular circumstances of the family before the Court. The question is always, what decision-making regime will best serve the interests of these children; their need to have effective, timely decisions made for them, consistent with their unique needs and circumstances. Looked at from the parents’ perspective, which parent is best able to assess and understand the needs of the children and to make decisions that meet those needs effectively, and with the meaningful involvement of the other parent.

[49] Just as each family differs, and circumstances require an individualized regime to best meet the unique needs, so too does the legislation provide for individual forms of decision-making orders, providing for decision-making to be granted to more than one parent, or the incidents of decision-making to be divided between the parents.

[50] Chappel J. in McBennett v. Danis, 2021 ONSC 3610, undertook a review of the caselaw relating to decision-making determination and set out a helpful list of guiding factors that have been identified over time, particularly in relation to joint decision-making. They include:

1. In deciding on the appropriate decision-making responsibility regime, the court is required to consider all possible frameworks, and not simply those proposed by the parties;

2. The ultimate goal in crafting an appropriate decision-making regime is to promote the child’s “right to grow up within a parenting regime that is co-operative and effective, where decisions are made in a child-focused way and with the least amount of acrimony and stress.” (Lafrenière J. in J.B.H. v. T.L.G., 2014 ONSC 3569 (S.C.J.));

3. There is no presumption in favour of granting joint decision-making responsibility to both parties in some or all areas;

4. Joint decision-making in some or all areas should only be considered as an option if the court is satisfied as a threshold matter that both parties are fit parents and able to meet the general needs of the children;

5. In order to grant joint decision-making in some or all areas, there must be some evidence before the court that despite their differences, the parties are able to communicate effectively in the areas under consideration for the sake of the child. The rationale for this principle is that the best interests of the child will not be advanced if the parties are unable to make important decisions regarding the child under a joint decision-making arrangement;

6. The fact that there is some evidence of communication and cooperation does not, however, dictate in and of itself that joint decision-making must be ordered. The trial judge must carefully assess in each case whether the parties' ability to cooperate and communicate about issues relating to the child is sufficiently functional to support an order for joint decision-making;

7. The court is not required to apply a standard of perfection in assessing the parties' ability to cooperate and communicate with each other on matters relating to the children. The existence of occasional conflict does not necessarily preclude an order that involves elements of joint decision-making, and the court should consider the entire record of the parties' communication to obtain a clear sense of the nature and extent of the discord;

8. In assessing the level of conflict and cooperation the question to be determined is whether the nature, extent and frequency of the conflict between the parties is such that requiring them to decide issues jointly is likely to impact on the well-being of the children;

9. In analyzing the ability of the parties to communicate, the court must delve below the surface and consider the source of the conflict;

10. Where the parties are both competent and loving parents, but one of them is the major source of the conflict, this factor may support an order for sole decision-making in favour of the other party;

11. Alternatively, judges have often opted for orders for joint decision-making rather than sole decision-making with one parent in these circumstances, where they have been satisfied that the best interests of the child require a balance of influence and authority between the parties in addressing important parenting decisions;

12. Where an objective review of the historical and more recent evidence clearly indicates that there has never been an ability to cooperate or communicate effectively, and that both parties are responsible for this dynamic, joint decision-making is not an appropriate order. This principle applies even where both parties are attentive and loving parents;

13. The quality of each party's past parenting and decision-making, both during the parties' relationship and post-separation, is a critical factor in determining whether an order for joint decision-making in some or all areas is appropriate.

[51] Chappel J. also discussed the body of caselaw relating to “divided decision-making” regimes and observed:

The caselaw has also established some valuable principles and guidelines for assisting the courts in deciding whether to make orders that divide out specified areas of decision-making responsibility to each party. These would include orders requiring the parties to attempt to make decisions jointly, but which grant each party final say in specified areas of decision-making in the event of disagreement. These types of decision-making frameworks evolved as a means of meeting the needs of children in circumstances where both parties have been involved and competent parents, and the child would benefit from both having a say on important matters, but the conflict between them is such that a traditional joint decision-making order or an order for sole decision-making in favour of one parent would not be in the child’s best interests. Courts have recognized there are many merits to these types of regimes in appropriate cases. They give both the child and the parents the benefit of maintaining each parent as a meaningful player in the child’s life, over and above time-sharing with the child. The importance of this factor from an emotional standpoint cannot be underestimated where a family is in turmoil because of the breakdown of the parents’ relationship. In addition, by delineating clear areas of decision-making between the parties, these arrangements have the potential in appropriate cases to disengage the parties and reduce parental discord (Hensel v. Hensel, 2007 CarswellOnt 7010 (S.C.J.), at para. 30; Jackson v. Jackson, at para. 69).

[52] Chappel J. then went on to outline factors and considerations relevant in deciding whether to allocate areas of decision-making. Those factors and considerations are, for the most part, reflected in the factors set out in Section 24(3) of the Children’s Law Reform Act.

[53] Both parties provided Brief of Authorities for the Court’s review, in support of their respective positions. The Applicant’s cases generally supporting the proposition that a form of divided or parallel decision-making regime can be appropriate in high conflict cases, in circumstances where the best interests of the children require that both parents continue to have a meaningful role in the children’s lives, beyond parenting time, and when such involvement may be threatened through a sole decision-making order. (V.K. v. T.S. 2011 ONSC 4305 and Rigillo v. Rigillo, 2019 ONCA 548)

[54] The Respondent’s cases generally supported the proposition that while a shared decision-making regime may be appropriate in some circumstances, where there is a lack of ability on behalf of the parents to communicate and make decisions together, the goal of a decision-making regime must be to ensure that effective and timely decisions are made on behalf of the children. (Rogers v. Porga, 2021 ONSC 4759 and Kaplanis v. Kaplanis, 2005 1625 (ONCA))

[55] What both Briefs of Authorities confirmed was that the determination of decision-making responsibility is highly fact-specific, relating to the history of involvement and decision-making of each parent; the ability of each parent to appreciate and focus on the needs of the children; and the specific interests and nature of decisions required on behalf of the children, all viewed in the context of the factors set out in Section 24(3).

[56] With that I move to reviewing the relevant facts in relation to each determination.

DECISION-MAKING RESPONSIBILITY

[57] I begin by observing that, based on the evidence heard, the children Mila and Reece are fortunate to have 2 capable and caring parents who are interested and involved in their lives and with whom they each share close relationships. Both parents were generally child-focused and arranged their work and activities around their children. I found both parents to have a good understanding of the needs of their children and generally able to focus on those needs, when making decisions about their children. I say generally, because unfortunately the parents do not share a healthy relationship with each other, and their animus toward each other, at times, clouded their judgment about the interests of their children.

[58] Given the relatively short period of co-habitation, and the shared description of a strained and argumentative relationship prior to separation, it is not surprising that these parents have struggled to develop a healthy co-parenting relationship. The way their separation unfolded, and the events that triggered this Application, did not assist, and seem to have defined, to some extent, the perceptions the parties bring to their interactions as parents; CV perceiving that the LB seeks to exclude him from full participation in parenting their children and LB perceiving CV as attempting to control and impose his will with regard to decisions impacting the children. The result has been an inability to have a healthy dialogue about decisions impacting the children, with both parents gravitating toward unilateral decision-making, with little sharing of information. This has also, unfortunately, resulted in both children, at times, being caught up in the conflict between their parents, and being negatively impacted by the lack of consultation and the desire of both parents, at times, to “win” or “be right” in relation to a particular decision.

[59] The parties separated when the child, Mila, was just over 2 years of age and the child, Reece, was 2 months old. LB testified that prior to their separation she was the primary caregiver to the children, and that CV assisted when he was not at work. At the time of their separation LB was on maternity leave and home with the children. CV had regular parenting time with the children, first in Sarnia and then in the family home, after LB returned to London, pursuant to the Order of Templeton J. CV’s parenting time was on a day-basis initially, as the child, Reece, was still breastfeeding. Gradually the parties increased parenting time to include overnight time and eventually, by August 2016, they had established the current 2-2-3 schedule, which was then incorporated into the Separation Agreement of August 12, 2016. The Separation Agreement provided for joint decision-making on all major decisions.

[60] Both parents, then, have been involved in the care and decision-making for their children since birth. As indicated, however, the parties have struggled with joint decision-making. Although the parties had good intentions and the hopes of shared decision-making, as incorporated into their Separation Agreement, it did not translate into practice. The parties rarely consulted on decisions, and each made decisions impacting the children, with little or no consultation.

[61] That being said, the parties have parented together for 8 years, since their separation. The children were described as content, well-adjusted children who had active lives with good friends and success in school. This does not happen on its own and speaks to effective parenting on behalf of both parents. Although the evidence of both parties focused on the areas of dispute and conflict, there was also evidence of cooperation, compromise and agreement. However, the evidence as a whole supported the conclusion that it would not be in the best interest of the children to continue the shared decision-making regime.

[62] Much time was also spent at trial, with each parent offering evidence of the manner in which the other parent was portrayed to the children. CV introduced various email exchanges wherein LB described him in disrespectful terms. This included a profile on LB’s phone, of CV as “world’s greatest douchebag”. LB conceded that the children could have accessed this device. From CV’s part, evidence was heard of CV regularly videotaping LB at exchanges at his home, in the presence of the children, creating an impression, I find, that their Mother was somehow doing something wrong simply by delivering them to their Father’s home. There was also evidence of both parents blaming the other, in the presence of the children, for the children missing certain activity. These are only some examples of the manner in which both parents portrayed their mistrust and contempt for the other parent, to their children.

[63] While parents are not required to like or be complimentary to the other parent, the level of support they exhibit toward the other parent’s relationship with the children, is a factor to consider in the “best interest” factors set out in the Children’s Law Reform Act. A consistent negative portrayal of the other parent can erode that parent’s relationship and trust, in the eyes of their children.

[64] I find that if either parent were granted sole decision-making, as each has requested, that they would be unable to properly support the other’s relationship with the children, or meaningfully include the other parent in the decision-making process. This would not be in the best interests of the children, who are entitled to and will benefit from the full participation and different but valuable perspectives that both of their parents bring to their lives. I find this can best be assured by both parents having some decision-making responsibly in the lives of their children, as set out below.

1. MEDICAL DECISIONS

[65] Under the Separation Agreement of August 12, 2016, the parties agreed to jointly make all major decisions relating to the children. Pursuant to the Agreement, LB was primarily responsible for taking the children to their regular medical appointments. CV would be advised of appointments in advance, and if he was not able to attend, LB would provide an email within 24 hours, indicating what had occurred at the appointment and any follow-up steps to be taken. If the appointment was with a specialist, LB would make every effort to ensure that CV could attend and, if he was not able to, the same reporting would be provided. These requirements were the same for CV, who was generally responsible for regular dental appointments. Both parties testified that the other rarely followed these terms, and that appointments were made without notice and follow-up was not provided.

Dr. D’Souza

[66] The children’s Paediatrician initially, was Dr. Sudhir D’Souza. In March 2018, the child, Mila, had developed a discoloration on her legs. An appointment was made through Dr. D’Souza’s office, for Mila to see a dermatologist. LB received the notice of the specialist appointment in January 2018, and forwarded it to CV in March, 3 days before the appointment. LB testified that the appointment had been changed from a previous time, because both her and CV were out of the country at the time. CV was upset that he was only provided 3-days notice, for a specialist appointment. LB testified that she thought she had forwarded the notice in January but realized she had not.

[67] CV testified that he contacted Dr. D’Souza’s office to inquire why he was not receiving information about appointments, directly from Dr. D’Souza’s office. He learned that he was not shown in their records, as a “joint custodial parent” and that LB was shown as the custodial parent for the children. CV then provided Dr. D’Souza’s office with a copy of their Separation Agreement, indicating their shared custodial status, and requested information directly from the office. He did not receive the requested information and eventually threatened to involve his lawyer. He also sought an apology from Dr. D’Souza and advised if same was not provided he would look to change doctors. Dr. D'Souza supported the change in doctors and the children were eventually referred to Dr. Maria Sottosanti, who continues to be their Paediatrician presently.

[68] Dr. D’Souza was called to provide evidence on behalf of LB. I found him to be defensive and unresponsive to questions. He had little recollection of the family or of the events which resulted in the children being referred to another office. He did not speak to CV personally about the events. Dr. D’Souza did testify that at the time of these events he was transitioning from his primary care practice and was referring all of his pediatric patients to other offices.

[69] While the transfer of the children to Dr. Sottosanti’s office has proven to be a positive change for the family, and one that, it appeared, would have been inevitable, I also find that CV allowed his animosity toward LB, and his perception that she sought to exclude him from involvement in medical decisions, to cloud his judgment and involve the children’s medical professionals in the family conflict. To the extent possible, professionals involved with children ought not to be drawn into family conflict. It interferes with their ability to provide the services they provide to the children. While CV was justified in seeking to receive information from the children’s Paediatrician, as provided in the Separation Agreement between the parties, his threat to end the relationship if he did not receive an apology, placed his own need for vindication above those of his children, to retain their Paediatrician.

Reece’s Learning Challenges

[70] Much of the evidence relating to medical decisions, related to the child, Reece’s struggles with learning issues. Reece began showing some signs early in his development, which suggested possible developmental or learning challenges. As an infant he showed signs of repetitive body motions. He preferred independent play and playing on the floor. Later, at around age 2, it became apparent that his speech was delayed. Reece also experienced multiple ear infections and at around age 2 the parents agreed, in consultation with his Paediatrician, that Reece would be tested. He had tubes placed in his ears for a period of time. The parents also agreed that Reece would start to receive speech therapy through Tyke Talk, which he attended until he commenced school, when his care was transferred to the Thames Valley District School Board.

[71] LB also registered Reece in part-time daycare, to allow him to socialize and practice his speech more. She testified that while CV initially agreed he eventually refused to pay his share, because the Separation Agreement between them provided that Reece would not require daycare. LB then registered him on her own and paid the cost.

[72] Reece commenced JK in September 2018. Based on reports from the parents and from Tyke Talk, Speech and Language Pathology, Occupational and Physiotherapy Reports from Thames Valley Children’s Centre, and a report from the “All Kids Belong” program at Merrymount Children’s Centre, Reece was identified as a student who qualified to receive supports through the Thames Valley District School Board. An assessment was undertaken, and reports provided, to assist Reece with the transition to school. Reports from his teachers indicated struggles with fidgeting, being able to receive and follow instruction, struggles with boundaries in interacting with other children and Reece’s need to move frequently. While Reece was seen to proceed well academically, his struggles with maintaining attention, and the ease with which he was distracted, raised concerns about his ability to maintain success academically.

[73] When Reece was in SK his Paediatrician, Dr. Sottasanti, recommended and the parents agreed to have Reece tested by an Occupational Therapist. The Assessment was completed when Reece was starting Grade 1. The Assessment Report recommended various accommodations and equipment, to assist Reece in reducing distractions and movement and increase his ability to receive and respond to instruction. The parties agreed to implement the recommendations. The Report resulted in Reece being given an Individualized Education Program (IEP) at his school.

[74] In October 2020, a form was sent to each parent, by the school, to allow Reece’s Paediatrician, Dr. Sottasanti, to discuss Reece’s issues with his school. CV declined to consent. He testified that he wanted to talk to the school first and see how the recommendations from the Occupation Assessment worked. Eventually he did provide his consent, in October 2021.

[75] In 2020 Dr. Sottosanti recommended that Reece have a Central Auditory Processing test completed. This would indicate if some of Reece’s struggles at school related to auditory processing issues. LB agreed but CV initially did not agree and wanted to see how the accommodations assisted Reece, through his IEP. Eventually CV agreed and in December 2021 the parties arranged to have Reece tested at Piccadilly Hearing Centre, for hearing and Central Auditory Processing (CAP). The test results, contained in a report of December 7, 2021, found Reece to have Central Auditory Processing deficits, more pronounced in his left ear. Recommendations were made for accommodations, such as preferential seating at school and using a phonetic approach to reading. It was also recommended that Reece have follow-up testing.

[76] The parents have both cooperated with Reece’s team at his school, and maintain frequent contact, to assess and discuss how the accommodations are working and to receive recommendations for alterations in Reece’s IEP. Reece receives indirect support in the classroom.

[77] The Court heard from Mr. Matthew MacDonald, the Principal of St. Rose of Lima Catholic School, since September 2021, and from Ms. Lucille Panziera, a Special Support Teacher at St. Rose of Lima, who assisted in Reece’s classroom. Reece was described by both as a bright, friendly, cheerful, kind and genuine young boy who was a delight to interact with. He was described as energetic and needing guidance in managing his interactions and directing his attention. They confirmed the goal to provide the proper supports to allow Reece to reach his potential academically and in the community.

[78] Both parents were described as involved, easy to contact, child-focused and very responsive to both Mila’s and Reece’s needs. They were described as model parents.

Dr. Sottosanti

[79] Dr. Maria Sottosanti testified at the Trial and was qualified as a “participant expert” to offer expert opinion evidence relating to general pediatrics and to diagnosing ADHD. Dr Sottosanti has been Mila and Reece’s Paediatrician since May 2018, when she was referred from Dr. D’Souza.

[80] She also described both parents as cooperative, responsive and child focused. She testified that she had initially met the parents together but at times there would be disagreements and different opinions and frustrations expressed by both. She testified that this can, at times, impact her ability to do her job properly and to gain all of the information she required, from the meeting.

[81] Dr. Sottosanti testified that their office moved to a procedure whereby each parent is notified of appointments and is given the opportunity to attend. Appointments are made separately for each parent, to discuss issues, either by phone or in person. She testified that this takes longer but seems to work. She testified, however, that managing the children’s care was, at times, very challenging, requiring agreement on decisions between two parent who disagree often. She testified that for now things were workable, but she expressed concerns about moving forward with the same model.

[82] Dr. Sottosanti described both CV and LB as good listeners with their own firm opinions. She confirmed CV can become frustrated at times. She confirmed both parents offered valuable and reasonable input into decisions. She confirmed that both parents had good insight into the needs of their children and had good relationships with their children.

[83] Dr. Sottosanti confirmed CV’s initial unwillingness to permit her to speak to personnel at Reece’s school. She testified that CV had advised that Reece was not struggling academically, and he wanted to see how things went before he agreed to her speaking with the school. While she agreed it would have been helpful for her to be able to speak to the school, she also understood CV’s cautious approach. CV did provide his consent the following year, in October 2021, and Dr. Sottosanti was able to consult with Reece’s teachers and school supports.

[84] Dr. Sottosanti also confirmed CV’s initial hesitation to proceed with the Central Auditory Processing testing for Reece, recommended by her. While she understood CV’s desire to proceed slowly with testing, and to review reports from the school, she also confirmed that Reece’s had gone through a year at school, without accommodations, partially as a result of the delay in the CAP testing and recommendations.

[85] Dr. Sottosanti confirmed she eventually diagnosed Reece with ADHD, after reviewing the CAP report. She also confirmed that this was different from his diagnosis of Central Auditory Processing deficits. She explained that while CAP deficits may be addressed through certain accommodations, such as preferential seating at school, the treatments for ADHD involve either behavioral therapy or medications. She confirmed that CV wanted to wait to see how the accommodations assisted Reece at school, before considering treatment for Reece’s ADHD, particularly treatment through medication. Dr. Sottosanti testified this was a reasonable response and that she understood his “protective hesitation”, but that if parents wait too long for treatment it can begin to impact self-esteem, as children perceive they are different and that other students respond differently to them, as a result of their behaviors. LB was also hesitant to turn to medications but testified that she had now decided that she would proceed with medications and was waiting for a response from CV.

[86] It was LB’s position that CV often either delays or does not respond to issues relating to the children, resulting in actions not being taken. She pointed to CV’s refusal to allow Dr. Sottosanti to consult with Reece’s school personnel, and his hesitation to agree to the CAP Assessment, as two significant examples. LB testified that she is now prepared to proceed with medications for Reece, to address his ADHD, and is concerned that CV will not agree and the treatment will not proceed.

[87] The parties also had differing views on medical issues relating to the child, Mila. In January 2022, LB reached out to CV and inquired about counselling for Mila. She had been experiencing some conflict with friends at school and had been exhibiting signs of possible depression. She had also been exhibiting outbursts and episodes of crying and sadness and had made troubling comments which could have been interpreted as suicidal ideations. Mila also made comments about how her parents did not get along. It was CV’s evidence that he did not observe any concerns outside of usual friend conflict, and that Mila did not present as depressed or troubled, when in his care. He testified that he checked with Mila’s teachers, who did not express concerns. This was confirmed by Mr. MacDonald. CV expressed concern with arranging counselling and introducing ideas to Mila which she was not experiencing. LB arranged to have Mila speak with Dr. Sottosanti about her concerns, at Mila’s request. CV was upset that this has not been in consultation with him, and he was not in agreement with any counselling being arranged for Mila. Mila did confirm with Dr. Sottosanti, that she struggled with friend issues at school and with the conflict between her parents, and that she would like to speak to someone.

Tutoring for Reece

[88] In 2021 the parents received communications from Mr. MacDonald, at Reece’s school, indicating that Reece’s reading level was low. In the summer of 2021, the parents exchanged emails regarding potential tutoring support for Reece, to assist him in preparing to enter Grade 2. CV agreed and appointments were arranged at both Oxford Learning Centre and Kumon. The initial meeting at Oxford Learning Centre was to have Reece assessed for his needs. Several days later the Assessment was received and both parents participated in a Zoom call with Mr. Brian Nelles, to discuss the Assessment and what was recommended for Reece. Both parties also attended a meeting at Kumon, with the 2 children. When LB asked questions relating to Oxford, CV became upset and left with the children.

[89] Brian Nelles of Oxford Learning Centre testified. He and his spouse own several Oxford Learning locations in London, not including the centre where Reece attends. At the time that the parties brought Reece for his assessment, in June 2021, Mr. Nelles was managing the centre. He did not administer the test for Reece but reviewed the results and prepared the Report. He testified that Oxford uses standardized assessment programs from Pearson Education, an education publishing and assessment business. He conceded that he had no training or expertise in diagnosing learning abilities, disabilities or disorders, but only some training in administering and interpreting the Pearson tests. He testified that the Assessment Report was created by the Pearson system, based on the test results fed into the system. He confirmed that the headings and descriptions of the tests and results were pro forma. He testified that individualized programs were then developed for children, based on the test results. The test results for Reece suggested that Reece struggled with processing auditory and visual information, concentration, focus and reading comprehension. These issues had also been identified through testing for Reece’s school supports.

[90] Mr. Nelles testified that from what he knew of Kumon it was a good tutoring service and was Oxford’s competitor. He testified that he understood Kumon to focus on rote learning and mastering skills and concepts. He testified that by contrast, Oxford first attempts to address the underlying learning and processing challenges, to develop a program that assists students to improve at processing information as well as improving skills.

[91] Mr. Nelles testified that after his Zoom meeting with the parents, he was contacted by LB, who advised that she wished to proceed with registering Reece at Oxford. He testified that he subsequently had a phone call with CV, where he described CV as being irate and accusing him of going behind his back to enroll Reece at Oxford. He testified that CV questioned his qualifications to assess and diagnose Reece’s medical condition. He testified that CV indicated he would be involving his lawyer. He had no further contact with CV and no contact from a lawyer. CV did not testify about the phone call.

[92] Each parent then registered Reece in their preferred programs, during their parenting time; CV with Kumon and LB with Oxford.

[93] LB testified that she prefers Oxford Learning Centre. She believes that the assessment identified some underlying issues which Reece struggled with, including inattention, visual and auditory processing and challenges with focusing. She believes it would be more effective and helpful for Reece, to address the underlying issues and not just focus on improving reading and math. CV testified he preferred Kumon. He testified that Kumon has shorter class times, which was good for Reece, who struggled to focus for periods of time, particularly after a day at school. He testified that Kumon then assigned homework which he did with Reece, through the week, and that Reece enjoyed the program. Both parents reported slight improvements in Reece’s learning, as did reports from his school, as he matured.

[94] The Court did not hear from a representative of Kumon. I was asked by counsel for LB, to make a finding regarding the efficacy of Oxford Learning Centre as compared to Kumon. I do not find I am in a position to make such a finding, nor do I find it necessary. While Oxford Learning appears to aim at addressing underlying learning challenges, in addition to improving skills, it was conceded, this was not based on any qualified medical, behavioral or cognitive assessment, but a commercial learning system. It would be concerning if Oxford Learning claims to be able to “solve” Reece’s underlying processing issues, in 1 hour every 2 weeks, which a team of professionals, including his Paediatrician, continue to struggle with. Dr. Sottosanti testified herself that either behavioral therapy or medication were the only effective treatments for ADHD.

[95] Ultimately both Oxford and Kumon are “tutoring services”. I do not find either to be more than that. Both were contacted to address the specific goal of assisting Reece in his reading. His additional issues are being addressed through his Paediatrician and his support team at his school. Reece can obviously benefit from any learning supports, which he received both through his Paediatrician, his school and tutoring services.

[96] While I do not make a finding as between the two tutoring services, I do find that LB was more open to investigating and learning about the best “fit” for Reece, when it came to selecting a tutoring service. I find that CV was more focused on challenging LB’s preference, and that he early on took an adversarial stance on a decision that should not have been so controversial. The result, like various other areas, was for each parent to “do their own thing”, which I do not find to be in Reece’s best interests.

[97] Whether it is tutoring or extra-curricular activities, children are entitled to be fully involved in one version of an activity, and to have the support and involvement of both parents in that activity, rather than to be caught in a “power struggle” between their parents and participating in “competing” activities. The child misses out on participation when with the other parent, and the focus is more on each parent proving their decision is preferable, rather than on supporting their child to fully participate in the activity.

[98] Both Kumon and Oxford Learning appear to be effective tutoring services. However, by dividing Reece between the two, he will not benefit fully from either. This is one of various examples of the inability of these parents to make child-focused decisions together, and the impact on the children. I find that both parents individually seek to understand and address the needs of their children. When required to make “joint” decisions, their animus toward the other parent tends to cloud their judgment. While I find that both children benefit from the differing perspectives and approaches their parents bring to parenting decisions, ultimately decisions need to be made, and be supported by both. I find LB’s approach to Reece’s medical, school support and tutoring decisions to be more in line with Reece’s best interests, and she will have final decision-making in these areas, but only after timely and meaningful consultation with CV.

2. DENTAL DECISIONS

[99] In the Separation Agreement of August 2016, the parties agreed that CV would be responsible for taking the children to their regular dental appointments, with the same obligation to advise LB of the appointments and to report after the appointment. It was not disputed that CV did not advise of appointments or report on the outcome. However, the children had the same dentist as LB, and she testified that she received information directly from the dental office. This did not excuse the fact that CV did not comply with the terms of the Separation Agreement, particularly when he, at the same time, alleged breaches on behalf of LB.

[100] The reality was that very early on both parties found it preferable to make decisions on their own and not involve the other parent. As indicated above, I do not find that to be in the interests of the children but, rather, I find that it worked to draw the children into the mistrust and disdain their parents had for each other. However, decisions need to be made and appointment made and kept. I find no reason to change the decision the parents made, to have CV primarily responsible for the dental appointments for the children, but with the same proviso, that notice needs to be provided in a timely manner and meaningful consultation with LB, prior to any decisions.

[101] I would stop here to note that while the Court can determine and order who will have final decision-making responsibility in various areas, to ensure that decisions do get made, the Court cannot order a change in perspective for each parent toward the other. I would stress, however, that it is that change in perspective or attitude that would be the most beneficial for these children. The court can, and will order, that the parents treat each other respectfully, in the presence of their children, and can only hope that this becomes actual respect for the other parent.

3. EDUCATION DECISIONS

[102] At the time the Separation Agreement was completed, the child, Mila, was attending St. Anthony French Immersion Catholic School. The parties had agreed that the French Immersion experience would be beneficial for the children. The parties agreed in the Separation Agreement, that both children would attend St. Anthony and that their primary residence would be with CV, to allow for busing to school. As the child, Reece, grew he began exhibiting signs of possible learning challenges. The parties came to the conclusion that French Immersion may be too challenging for him. As well, St. Anthony did not offer JK classes. The child, Reece, then, was registered at Jean Vanier Catholic Elementary School (now St. Rose of Lima Catholic School). The child, Mila, remained at St. Anthony. LB testified that CV unilaterally registered the child, Mila, at St. Rose, a year after Reece had started school at St. Rose. She testified that she became aware of the change in registration when she tried to arrange busing for Reece, to St. Anthony. When asked about the registration CV testified that he did not recall who registered Mila at St. Rose, but that he did not think it was necessary or convenient to have the children attending at two different schools. LB testified that she preferred that the child, Mila, continue to attend French Immersion, but she agreed it was easier and beneficial that both children attend the same school and that she did not want to fight about that issue. By March 2019, the parties consented to an Order, contained in the Order of Korpan J. of April 2, 2019, that both children would be registered at Jean Vanier (now St. Rose of Lima) for September 2019, when Reece would be starting SK and Mila Grade 2.

[103] I find that CV did register the child, Mila, at Jean Vanier, without consultation with LB, contrary to their shared decision-making agreement, and the terms of the Separation Agreement. While this may have inevitably been the decision the parties came to, when it became apparent that the child, Reece, would not attend French Immersion, it was an important decision that ought to have been discussed.

[104] LB conceded in her testimony, that Reece benefited from attending the same school as his older sister, and that it was more convenient for the children and parents. Based on the evidence heard, both children appear to like and benefit from attending and being a part of the St. Rose of Lima community.

[105] The parties agreed, in the Separation Agreement of August 2016, that the children’s “primary residence” for the purposes of school, would be at CV’s home. This was to allow continued attendance at St. Anthony’s, at the time, and to allow for busing services to CV’s home. The school was within walking distance of LB’s home. While both children now attend St. Rose of Lima, it is still in CV’s neighbourhood, where he has maintained his residence since separation. LB, on the other hand, has relocated to various addresses, including out of the City of London.

[106] I find, based on the evidence heard, that the children are very connected to CV’s neighbourhood and to their school. The school is several kms from CV’s home and the children walk to their bus stop each morning. They are delivered to and picked up at the bus stop by LB, when the children are in her care. I find that CV’s commitment to remain in the children’s neighbourhood, and to allow for their continued attendance at St. Rose of Lima, to be child-focused and beneficial to both children. While French Immersion would certainly have been valuable for the child, Mila, to continue, I find being at the same school as her brother has been equally advantageous to both children.

[107] I find that it would be in the best interests of the children, for CV to have final decision-making in Education, specifically in the determination of the school the children will attend, but only after timely and meaningful consultation with LB.

[108] As set out above, however, final decisions relating to school learning supports, for both children, will be with LB.

4. EXTRA-CURRICULAR ACTIVITIES

[109] Registration for extra-curricular activities was also an area of disagreement between the parties, resulting in both parties unilaterally registering the children in activities, and not supporting some activities. For example, at the time of separation the child, Mila, was registered in gymnastics, an activity she appeared to enjoy. In March 2017, CV inquired of LB, why Mila had missed some classes. LB responded that she had reasons why Mila did not attend on some days, when in her care, and instructed CV not to register her again, as she could not afford it, since she was going to have more legal fees. The parties were not in litigation at the time and the registration fee was modest. I find that LB’s instruction not to register Mila again, was not motivated by the cost of the activity, but as a reaction to CV’s inquiries about Mila missing classes on her time. The result was that Mila was not registered in Gymnastics.

[110] A year later, in August 2018, LB conveyed to CV that Mila was asking to attend gymnastics. She suggested the fall session and indicated that the Saturday classes were already full. CV did register Mila in the Sunday class, while waiting for the Saturday classes to hopefully open. Emails were exchanged, each parent accusing the other of violating the Separation Agreement by not consulting with the other and refusing to pay for or support activities arranged by the other parent. The end result was LB announcing that from then on, they would “do their own thing” with the children. CV responded that he believed they should agree to and jointly support activities for their children. However, he then registered the child Mila, in horseback riding at West Meadow Stables, without consultation with LB, claiming that they were now “doing their own thing”. LB did not initially participate in the riding lessons but did begin, after the Order of Korpan J.

[111] On another occasion, LB had registered the child, Reece, in Karate classes, without consultation with CV. CV admitted to not taking Reece to Karate during his parenting time but did not remember why. On another occasion, in August 2021, the child, Reece, was registered in Tball, which his father coached. Notice had been sent that picture day for the team had been scheduled. Reece was with LB on that day, and she did not take him for the photos, claiming that she thought it had been cancelled due to rain. She had not inquired beforehand to confirm. The event had not been cancelled and Reece missed having his photo with his team. On another day that summer, LB advised that she was going to the beach instead of taking Reece to his Tball game.

[112] I mention these events as they are illustrative of the unwillingness on behalf of both parents, at times, to support an activity if it was arranged by the other parent, even when they were aware that their children enjoyed the activity. This intransigence on behalf of both parents resulted in the children, at times, missing activities they enjoyed, or being caught in the conflict between their parents. Most recently the child, Mila, sought to change from western to English horseback riding. The parents could not agree on a stable and she was yet to be registered.

[113] While I do find that both parties’ endeavor to arrange enjoyable activities while the children are in their care, I do not find it in their best interests for the parents to “do their own thing” in relation to activities. I find this resulted more from the inability of the parents to agree on activities, than on a child-focused consideration of what the children would enjoy. Both children are of an age where they can voice what activities they enjoy and would like to participate in. Once an activity is chosen, the children would benefit from the full involvement and support of both parents. Separating activities by which parent they are with, means they miss attendance on alternate weeks, and are not able to fully participate in any organized activity, with the support and attendance of both parents. They are caught in a “war of wills” between their parents.

[114] I find that it would be in the children’s best interests to have one parent who is the final decision-maker in relation to extra-curricular activities, with early and informed notice to the other parent and after full and timely input from the other parent. I find CV to be the parent most child-focused when it came to extra-curricular activities, with LB being willing, at times, to allow the children to miss activities, simply to “push back” on CV’s decisions.

[115] I would clarify one issue, relating to informal activities. Following Mila’s registration in horseback riding, LB took Mila to a stable near Thamesford, where she was then living, and arrange a lesson for Mila. On another occasion LB and Mr. Enns and their children, participated in dirt biking for an afternoon. CV took issue with both of these activities, claiming they were contrary to the Order of Korpan J., which provided that all extra-curricular activities were to be in London.

[116] While generally one organized activity at a time seems preferable for these children, and an informal understanding the parents have, informal, one-time activities, as mentioned above, should not be included in this restriction, as long as it does not conflict with the children’s organized activities, whether it be soccer or horse-back riding or another organized activity.

5. RELIGION

[117] The Separation Agreement of August 12, 2016, provided that the parties would jointly make decisions relating to the religion of the children. Both parents are of the Roman Catholic faith. The children attend school in the Roman Catholic school system. There was little evidence adduced by either party, relating to religious decisions, with the exception of a dispute about how and when the children would celebrate their First Communion, which was complicated by Pandemic restrictions. Each parent ended up having their own celebrations with their families.

[118] This does not appear to be an area of conflict and I find no reason why the joint decision-making, agreed to by the parties, ought not continue.

PARENTING TIME

[119] For the past 6 years, the parties have followed the weekly 2-2-3 parenting time schedule, agreed to when they negotiated their Separation Agreement in August 2016. They are both seeking the same weekly schedule throughout the school year, which I find to be in the best interests of the children and will order.

[120] The parties are also in agreement on the proposed schedule for most holidays, with the exception of:

1. Summer parenting time;

2. March Break - only as to which years the children will be with each parent;

3. Thanksgiving - only as to exchange times;

4. Mother's Day and Father's Day;

[121] I will briefly address each.

1. Summer Parenting Time

[122] For the past 6 years the parties have followed the terms of the Separation Agreement, for their summer parenting time. The Agreement provides that the regular weekly schedule will continue, but with each parent having two non-consecutive weeks with the children, from Friday to the following Friday, overlapping with their regularly scheduled weekend. Notice was to be provided by March 15th and, failing agreement, the parties would alternate having their preferred weeks each year.

[123] This schedule has proceeded relatively well, with some conflict when LB alleges that CV did not provide notice as required, and one occasion when both parents sought the same week.

[124] CV seeks to continue this summer schedule, with the addition of a provision that either parent may elect to have their summer weeks consecutive, if they intend to travel out of province.

[125] LB seeks an order that the parties share week-about summer parenting time, from Friday to Friday. She testified that the children were of an age where they would be comfortable being in each parent’s care for a week at a time. She testified that this would make for a more relaxing summer, where the children could sleep in and not have to move back and forth between homes as often. She also testified that it would make vacation planning easier for both parents.

Exchanges

[126] Much time was spent during the trial, on conflicts between the parties during exchanges.

[127] Pursuant to the Separation Agreement between the parties, the parent receiving the children for parenting time, was responsible for the pick-up of the children. This was changed by the Order of Korpan J., of April 2, 2019, which provided that LB was responsible for all transportation for activities and for exchanges, which were to occur at CV’s home, if not at the bus stop. This provision was on consent and a part of LB’s proposal, in support of her Motion to change the primary residence of the children, after her move to Thamesford.

[128] The Court heard evidence of multiple conflicts at the Applicant’s home during exchanges. In response to the conflict, CV installed a video feed at his door and also video-taped or took pictures of certain interactions.

[129] One such conflict occurred on Father’s Day, 2020. The children were in LB’s care for the weekend. Pursuant to the Separation Agreement, the children would be in CV’s care from 10:00 a.m. – 7:00 p.m. on Father’s Day. LB made a proposal that the children could remain in CV’s care until Monday at school, but she wanted to drop them off at 11:00 a.m. instead of 10:00 a.m., as she was going to Sarnia to celebrate Father’s Day with her father and wanted the extra time on Sunday morning. CV rejected the additional one hour but advised that he was in agreement with the children staying with him until Monday. LB responded that they would just follow the terms of the Separation Agreement, (which she had described as “the order”) leaving the pick-up time on Sunday at 7:00 p.m. CV responded to the email, correcting LB and referencing the Separation Agreement.

[130] LB arrived at 7:00 p.m. to pick up the children. Her partner, Mr. Enns, and his daughter were also in the vehicle. LB got out of her car and knocked on the door. CV came to the door and advised that the children should be allowed to stay overnight and that she had previously said they could. The children eventually came out of the house. There was some confusion about books that needed to be returned to the school. Each parent testified that the other parent had the books. In any event, the books were given to the child, Mila, to give to her mother. LB told her to give them back to her father. Mila did bring them back to her father. Somehow the books ended up on the ground. LB testified that CV threw them. CV denies this. However, this occurred, it upset Mila and she was caught squarely in the middle. When the books ended up on the ground, Mr. Enns exited the vehicle. A verbal exchange ensued between he and CV. Eventually CV brought the children into the house and LB left without the children. LB called the police and they arrived later in the evening at CV’s house. The children were aware of the police attendance.

[131] I do not make any findings as to what occurred with the books or who said what to whom. What I do find is that both parents could have prevented this escalation and the resulting anxiety to the children. CV could have just sent the children out to LB’s car when she arrived. LB could have just taken the books and returned them to the school. Mr. Enns should have been told not to interfere. LB did not need to contact the police.

[132] Instead, both parents were intent on being right and proving a point and were prepared to have their children caught in the middle, observing the ugly interaction between their parents, and missing their exchange time with their mother.

[133] This exchange resulted in an agreement between the parties, through their lawyers, that LB would remain in her vehicle at exchanges, and park on the street.

[134] On another occasion, in March of 2022, the children were in LB’s care and Mila was not feeling well. LB conveyed this to CV and advised that the children would not be going to school the next day. They were to be in CV’s care the next day. The following morning CV emailed LB asking if the children would be dropped off that morning. LB responded that they were on their way. LB’s mother had been visiting and she was transporting the child, Reece, and the child, Mila, was with LB. They arrived at CV’s home at the same time. LB parked in the driveway. CV arrived very shortly after. He had been at work and came home when he received LB’s message that they were on their way. CV had also contacted his parents, who were in his home to receive the children if he was not home from work on time.

[135] When CV arrived, the children were getting out of the cars they were in and heading toward to house. CV began to either take pictures or a video. There was a dispute in the evidence as to whether he was video-taping or taking pictures, or both, but it was clear that he was documenting the arrival of LB and her mother. CV took pictures of LB and her mother’s car and was asking why they needed to have 2 vehicles there. LB asked CV to stop taking pictures and told him it was not necessary, and it was upsetting the children. CV continued. LB’s mother then exited her vehicle and walked across the lawn and took CV’s head in her hands and asked him why he was taking pictures. She was clearly upset. She turned, spit on the lawn and both she and LB left. The children witnessed some if not all of the events and were very upset. The child, Mila, was crying. CV contacted the police and a police and CAS investigation resulted. No further action was taken by either, past the initial interviews.

[136] This, again, was an ugly scene that either parent could have avoided. I find that CV had no legitimate reason to videotape or take pictures of the exchange. Neither LB nor her mother were doing anything wrong by dropping off the children. CV claimed they were parked where they had agreed not to park. This could have been conveyed later, by email; it did not require pictures, especially in the presence of the children. The message to the children would be that their mother and grandmother were somehow doing something wrong just by bringing them to their father’s home. CV was more concerned, at that point, in collecting evidence, rather than shielding the children from conflict. On the other hand, LB could have parked where she had agreed to park. She also could have just driven away. She had dropped off the children and they were heading to the house. She had no reason to remain, when CV began taking footage, or to engage with him. Certainly, her mother did not assist, by taking the aggressive actions she took. All of the adults behaved badly and the children had to watch. LB’s mother did testify and showed genuine remorse for losing her temper and becoming physical with CV. Neither parent took responsibility for their part in the scene.

[137] These are only 2 of numerous incidents the court heard of, which occurred during exchanges, with CV taking pictures or the parties having heated discussions, all with the children in earshot or present. The parents seem oblivious to the upset, anxiety and stress these encounters cause to their children. They are simply intent on making a point.

[138] All exchanges in the summer, would be at the homes of the parties. LB’s proposal for summer, in addition to having other benefits, would reduce exchanges to 2 per week, for the summer. In addition to providing a more relaxed pace for the children, they would not be exposed to the risk of conflict every 2 – 3 days. A week-about schedule would also allow the parents to arrange vacations within their weekly parenting time and not be required to agree on a summer schedule for vacations.

[139] For these reasons I find LB’s proposal for summer parenting time to be preferable.

2. March Break

[140] The draft orders offered by the parties, both provide that the parties will alternate March Break parenting time, from the Friday commencing March Break, to the following Friday. Where their draft orders differ is in who will have the children in odd and even years. CV’s order has LB having the children in odd numbered years and LB’s order has her with the children in even numbered years. There was no evidence as to how March Break was dealt with in 2022. The Separation Agreement provides that LB will have the option to travel with the children in odd numbered years. Assuming the Separation Agreement was followed, I will order that the children will be with LB in odd numbered years and CV in even numbered years.

3. Thanksgiving

[141] Both parties propose to share Thanksgiving weekend, with the parent not having care of the children for the weekend, to pick the children up partway through the weekend. CV proposes Sunday at 10:00 a.m. and LB proposes Monday at 10:00 a.m. To allow for an equal sharing of the weekend I will order that the exchange take place on Sunday at 4:00 p.m.

4. Mother’s Day and Father’s Day

[142] Both parties propose that the celebrated parent have parenting time on their honoured day, commencing at 10:00 a.m., if the children are not already in their care. CV proposes that the children be returned at 7:00 p.m. and LB proposes that the children be returned to school the next morning. CV also seeks to include a term that the parenting time be conditional on whether the parent is working or not.

[143] I prefer LB’s proposal. This, again, reduces the number of exchanges between the parties and allows the honoured parent to enjoy the full day and evening with the children. I do not see the need for a requirement that the parent not be working.

TERMS OF PARENTING ORDER

[144] In their respective draft Orders, the parties both propose various reasonable terms for the parenting order, which I will incorporate into my Order. They disagree on some terms, and I will address those terms only.

1. Mobility

[145] The party’s draft orders in this regard, differ slightly. While CV proposes that any move out of the City of London, ought to require prior notice, LB proposes that any move from the parents’ current locations ought to require notice. I find, consistent with Section 39.1 of the Children’s Law Reform Act, that any move from their current locations ought to require notice. The parties will otherwise be governed by the remaining provisions of the Children’s Law Reform Act, relating to changes in residence and relocations.

2. Restrictions on Extra-Curricular Activities

[146] In his draft Order CV seeks restrictions on the number and location of the children’s extra-curricular activities. Given my order in relation to extra-curricular activities, and the lack of evidence to suggest the need for restrictions, I decline to make any order in that regard.

3. Exchanges

[147] CV seeks to continue the requirement that LB be responsible for all transportation for the purposes of parenting time, and that all exchanges continue to occur at his home, if not at the children’s school. This changed from the terms of the Separation Agreement, when LB moved to Thamesford. On consent, LB agreed to provide all transportation. Now that LB is residing in London, I see no reason for the parties not to return to their previously agreed terms, wherein the parent receiving the children for parenting time, be the party to pick the children up from the other parent’s home, if not at the bus stop.

4. Retaining Passports, Health Cards, Social Insurance Cards, Birth Certificates and Other Documents

[148] The Separation Agreement between the parties provided that each parent would cooperate with and sign any documents required for the other party to obtain passports for the children. It was not disputed that CV refused to sign the passport application, completed by LB. Under the Separation Agreement the parties also agreed to alternate years wherein they secured the children’s important documents, such as Passports, Health Cards, Social Insurance Cards, Birth Certificates and other documents. It is also not disputed that CV received the documents and never exchanged them.

[149] I will order that LB complete the children’s passport applications and that CV sign all required documents, when requested, to allow for the passports to be completed. I will also order that LB retain all documents and provide same to CV, on request, as needed.

5. Clothing Exchanges

[150] Not long after the parties signed the Separation Agreement, they stopped the payments between them, relating to clothing and boots for the children. Instead, each purchased all of their own clothes, coats and boots for the children. These would sometimes end up at the other parent’s home. The parents would then arrange for exchanges of the clothes. CV has insisted that the exchanges be made when the children were picked up or dropped off, and that the children be present. LB seeks an Order that the clothing either be sent in the children’s backpacks or picked up/dropped off at the other parent’s home, on reasonable notice. These are reasonable terms, but I would add that the children not be present for clothing exchanges at the parties’ homes.

CHILD SUPPORT AND SPECIAL EXPENSES

[151] The parties agree that child support is to be determined under Section 9 of the Child Support Guidelines for “shared parenting time.” There is no dispute about the fact that the parties are sharing equal time with the children and have for the past 6 years.

[152] In the Separation Agreement between the parties, they agreed to a straight “set-off” calculation of child support, under Section 9. The outcome was that CV paid a modest amount of “set-off” child support to LB. The parties also agreed to certain Special Expenses, and to share the costs proportionate to their incomes, pursuant to Section 7 of the Guidelines. Additional Special Expenses were to be approved in advance. The parties also agreed to purchase day-to-day clothing for the children, at their own expense, and to share certain expenses, such as outerwear and boots, with payments of $25.00 per month, to be paid in alternate years by each parent. The Agreement provided that the parties would exchange Income Tax Returns each year and adjust the child support and proportion of Special Expenses accordingly.

[153] LB testified that when the parties exchanged Income Tax Returns the following year, in 2017, that CV’s income had dropped and hers had increased, as she had transitioned towards full-time. She testified that she believed CV had intentionally reduced his income so that she would have to pay child support to him and that she was not going to pay. Both parties testified that after LB announced that she was not going to pay support, the other party stopped providing income information and no adjustments were ever made as required by the Agreement.

[154] No child support was paid by either party after 2017, until a consent Order of Grace J., dated July 5, 2019, wherein LB agreed to pay “set-off’ support in the amount of $279.00 per month. She has paid that support to date.

[155] The payment of $25.00 per month for shared items also stopped in 2017. The parties began purchasing all of their own items for the children. LB testified that she restarted the $25.00 per month payments after the Order of Korpan J. of April 2019 but stopped again when FRO began enforcement the child support Order. Both parties testified that they purchased their own clothing for the children. They exchange clothing from each other’s homes, as discussed above.

[156] The issues for the Court are:

1. What is the appropriate Child Support Order under Section 9 of the Guidelines, going forward;

2. Should there be a retro-active adjustment of child support from 2017 to date.

Child Support

[157] It is CV’s position that child support ought to be determined as a straight “set-off” amount consistent with the terms of the Separation Agreement. He had initially suggested that income should be imputed to LB, but then agreed to accept her T4 income, as she was now working on a full-time basis.

[158] LB asks that the court exercise its discretion under Section 9 of the Guidelines and find that LB should not be required pay support to CV, based on their respective assets, debts and expenses.

[159] The Supreme Court of Canada, in Contino v. Leonelli-Contino, 2005 SCC 63, set out the approach required in determining a child support obligation under Section 9 of the Child Support Guidelines. The Court found that in creating the Section 9 category, the makers were acknowledging that in shared custody situations, (now referred to as shared parenting time) neither the straight Section 3 support, nor a straight “set-off” amount, were necessarily appropriate, and that there were no presumptions either way. Instead, the Court is to consider the circumstances of both parties and the children, to determine the appropriate support for that family. The court indicated:

3. When dealing with shared custody, however, the formula used in ss. 3 and 8 was not retained. New categories of custodial arrangements were created under s. 9 which states:

4. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account

(a) the amounts set out in the applicable tables for each of the spouses;

(b) the increased costs of shared custody arrangements; and

(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

Pushing in favour of some adjustment is a concern for fair and consistent treatment of payors who incur increased expenses during the time they spend with the child. There are two dimensions to the fairness claim. The first is fairness between the payor and the support recipient, who is arguably being relieved of some costs assumed by the payor. The second is fair and consistent treatment of the payor as compared to payors at the same income level who may not be spending any money directly on their children apart from the payment of child support.

But then adjustments are hard to evaluate. More time spent with a child may not involve increased spending or significant savings for the other parent. Where there is a significant disparity of incomes, a new formula can mean a drastic change in the amount of support for the lower income parent, who was previously the custodial parent, and exacerbate the differences in standard of living in the two households. There is also a concern that shared custody can entail more cost in duplication of services and leave less money for support.

[160] In reviewing the 3 factors under Section 9, the Court indicated:

27 The three factors structure the exercise of the discretion. These criteria are conjunctive: none of them should prevail (see Wensley, at p. 90; Payne and Payne, at p. 254; Jamieson v. Jamieson, [2003] N.B.J. No. 67 (QL), 2003 NBQB 74, at para. 24). Consideration should be given to the overall situation of shared custody and the costs related to the arrangement while paying attention to the needs, resources and situation of parents and any child. This will allow sufficient flexibility to ensure that the economic reality and particular circumstances of each family are properly accounted for. It is meant to ensure a fair level of child support.

[161] The Court found that in considering the 3 factors, the Court would start with a review of the respective incomes of the parties, and what the set-off support would be. This is only the starting point. Under the second factor, the court is to consider not only the increased costs to the payor spouse, of the increased parenting time, but also the expenses, in general, of both households, to determine the increased costs to both, of the shared parenting arrangement. Lastly, under the third factor, the court is to consider the actual income and expenses of both parties and the resulting standard of living. Ultimately the outcome will be based on the specific facts and circumstances of the two households.

[162] In this case the parties assumed the shared parenting regime early after separation and have followed it for the past 6 years. There would not, then, be any consideration for the change in costs to either party, when the shared parenting regime began. As well, for the majority of those 6 years, neither party paid child support or special expenses to the other, despite the initial agreement for a Section 9 set-off payment. While there is no “status quo” consideration in the determination of child support, this is relevant to decisions both parties may have made, based on the fact that there was no child support being paid by either parent.

[163] Applying the above considerations to this case, the incomes of the parties are fairly straight-forward. CV’s income consists of regular T4 income and some rental income from the property he co-owns with his siblings. His 2021, Line 15000 income was $89,660.00. Ferox Design Build Inc had no income for 2021. CV’s income for support purposes, then, would be $88,294.00 (income less union dues).

[164] LB’s income is also regular T4 income. She testified to having recently started a dog breeding business, along with the child, Mila. The business had not earned revenues and LB was not seeking to claim the expenses as against her income. Her 2021 Line 10100 income was $95,324.00. LB’s income for support purposes, then, would be $93,686.78 (income less union dues).

[165] Based on the respective incomes, the “set-off” child support under Section 9 would be a very modest $65.00 per month. In considering this factor, under Section 9(a), I would simply note that the parties have relatively similar, steady, healthy incomes, and have since their separation. LB’s income has been consistently higher, with the exception of 2020, when she moved to casual employment and worked less hours due to her concern with Covid 19. Both are pursuing other sources of income, through their respective business ventures. CV’s rental business appears to now be earning revenues.

[166] I will not consider Section 9(b), given that the parties have shared parenting since early in their separation, and there has not been a recent adjustment that would change the costs of the shared parenting for either.

[167] Under Section 9(c), I then look to the Financial Statements of the parties. The parties share similar, reasonable expenses. Both show expenses exceeding their income, and small, corresponding debts. CV has substantially more debt, which may be related to his recent business venture. Both parties own their properties. While CV’s property is shown at a higher value, neither value is based on a formal appraisal. LB’s home is a more modest, semi-detached, but both are located in established residential neighbourhoods, and were described similarly. Both parties enjoy employment pensions and have substantial equity in their homes.

[168] I find, based on the respective Financial Statements, and evidence from the parties, that both are secure in their employment, have comfortable incomes and share similar standards of living. I see no consideration under Section 9(c) that would indicate that the straight set-off quantum under Section 9(a) would be inappropriate.

[169] The factor I do find the most compelling is the fact that the parties decided, on their own, that neither would pay support to the other and that they would each pay their own child related expenses, without seeking contribution from the other. Whether this came about on a voluntary basis, initially, or not, which is not clear from the evidence, neither sought to change the arrangement for 5 years, until LB’s move to Thamesford. LB has now returned to London and purchased a home, and the parties are in very similar circumstances and share very similar standards of living. While LB’s income is slightly higher, CV has several ventures which represent a good potential for supplementary income.

[170] Based on these considerations I find that the most appropriate Order under Section 9 of the Guidelines, would be that neither party pay child support to the other. I find that both have the resources to provide well for the children, while in their care. I further find that the modest set-off amount that would be owing, would not benefit the children in any meaningful way.

[171] I will, however, order that both parties are required to provide income disclosure to the other, each year, including of business and corporate revenues and expenses.

Special Expenses

[172] Consistent with my finding above, I find that the parties should equally share the Special Expenses for the children. All requests for Special Expense reimbursement shall be approved in advance, to be claimed, with the exception of medical or dental expenses not covered by benefits.

Retro-Active Adjustments

[173] LB seeks an order that CV pay her retro-active child support, to 2017. Based on the formula in the parties’ Separation Agreement, this would total $3,591.00. Based on a calendar year calculation, this would total $5,583.00.

[174] CV does not seek any retro-active order. He did provide a chart of Special Expense payments he claimed were owing by LB, which totaled $1,380.42. LB disputed these charges, claiming that most would have been covered by benefits she had available, and that CV did not even try to use the benefits.

[175] For the same reasons as set out above, for exercising my discretion against an order for child support, I find the same Order appropriate in relation to retro-active support. Both parties acquiesced in not seeking an adjustment in child support, only a year after the Separation Agreement was entered into. LB admitted that she was the first to suggest that support not be paid as between them. The support she has paid, to date, was pursuant to an order that she consented to. That order will now be terminated, and no support will be payable going forward. In these circumstances I find no basis for ordering retro-active support.

[176] For the reasons set out above an Order will issue in the terms contained in Schedule A attached.

“Justice Sharon E. Hassan”

Released: November 25, 2022

COURT FILE NO.: FC 1252/14-01

DATE: 2022/11/25

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

Charles Moniz Vieira

Applicant

• and -

Lesley Ann Bettencourt

Respondent

REASONS FOR JUDGMENT

HASSAN J.

Released: November 25, 2022