COURT FILE NUMBER: FC-20-997

DATE: 2022/12/06

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Laura Stephanie Zychla

Applicant

– and –

Ryan Chuhaniuk

Respondent

Laura Pilon for the Applicant

Alexei Durgali for the Respondent

HEARD: October 3, 4, 5, 6 and 7, 2022

REASONS FOR JUDGMENT

SHELSTON J.

Overview

[1] The applicant (“Laura”), and the respondent (“Ryan”), are the biological parents of two children namely, L.Z, 9 years of age, and T.Z., 7 years of age. The issues for this trial are to determine which parent should have the decision-making responsibility for education, health, extra-curricular activities, determining a Christmas and March break holiday schedule, cellphones for the children, retroactive table child support from July 2019 to December 2021, section 7 expenses, and costs.

[2] Prior to the start of this trial, the parties resolved many issues as set out in six separate Minutes of Settlement, identified as follows:

1. Exhibit 1 dated August 24, 2022, regarding decision-making responsibility including Our Family Wizard procedures, such as education, health, communication.

2. Exhibit 2 dated August 24, 2022, regarding decision-making responsibility, communication, property division and support and divorce.

3. Exhibit 3 dated September 14, 2022, regarding Halloween.

4. Exhibit 4 dated September 16, 2022, regarding special expenses, review of child support, extra-curricular activities, and equalization payment.

5. Exhibit 5 dated September 16, 2022, regarding travel with children, terminating child support, life insurance, pension transfer.

6. Exhibit 6 dated September 22, 2022, regarding table child support and section 7 expenses as of January 1, 2022.

[3] On consent, I grant a final order in accordance with these Minutes of Settlement, identified as Exhibits 1 to 6.

French immersion program – decision deferred between parties

[4] The parties’ youngest child, T.Z., is currently registered in a French immersion program. The parties do not agree on the child’s continued participation in this program. The parties have agreed that there will be a psycho-educational assessment to be conducted in October or November 2022, with an expectation that the assessment will be completed within a month of the start of the assessment. At the trial, the parties agreed that the issue of the child’s participation in the French immersion program will be deferred, until the receipt of the psycho-educational assessment. As such, this court orders that Laura serve and file an affidavit on Ryan, within seven days of receipt of the assessment setting out her position with respect to the issue of French immersion. This court orders that Ryan shall serve and file an affidavit on Laura, within seven days of the receipt of Laura’s affidavit setting out his position on the issue of French immersion. This court reserves the right to receive further evidence, as it may direct, including viva voce evidence.

Factual background

[5] The parents are both 42 years of age, and are employed on a fulltime basis, working virtually from home.

[6] L.Z. and T.Z. are enrolled in the French immersion program, at Huntley Centennial Public School, in grade 6 and 4 respectively. The school has both an English and French immersion program.

[7] The parties met in high school, reconnected, and begin cohabitating in December 2007, in the Hamilton area. They married each other on October 31, 2009. They remained in the Hamilton area until November 2017, when they moved to Ottawa. The first child, L.Z., was born in 2011, and the second child, T.Z., was born in 2013. Laura’s mother, Lesley, moved in with the parties in 2011. After the birth of both children, Laura took one-year maternity leave and cared for the children. She then returned to her full-time position at the Hamilton Health Center, until December 2014, when she went part-time.

[8] Laura desired to own a franchise, which she purchased in Ottawa, Ontario. In November 2017, the parties and Lesley, purchased the matrimonial home in Carp, Ontario. Ryan was employed in Mississauga and on the third week of each month, he would leave on Sunday afternoon and drive to work, and he would return very late on Thursday, or early Friday morning.

[9] By August 2018, Laura’s view was that the marriage was in trouble, and she told Ryan that she wanted a divorce. On September 24, 2018, Laura emailed Ryan setting out which expenses were to be shared, which expenses were Ryan’s responsibility, which expenses were Laura’s responsibility, setting out the balance owing on a credit card and listing the value of Laura’s investments.

[10] The parties remained living together from September 2018 until March 2020. During this time, Laura created a rotating three-week schedule of when each parent would be primarily responsible for the care of the children. The schedule provided that the children would be with Ryan in week one, from Friday at 3:00 pm until the next Friday at 3:00 pm, week two, they would be with Laura from Friday at 3:00 pm to the following Friday at 3:00 pm, and finally, on week three, the children would be in the care of Ryan from Friday at 3:00 pm until Saturday at 7:00 pm and with Laura, from Saturday at 7:00 pm until Friday at 3:00 pm.

[11] By September 2019, the situation was unpleasant between the parties, as they were not talking to each other, and they agreed to never be in the same room at the same time. There were very few arguments and each parent cared for the children in their exclusive parenting time. When Ryan traveled to Mississauga during the third week of the parenting schedule, Laura was responsible for the children’s care.

[12] From September 2018 to March 27, 2020, the parties cohabitated, living in the matrimonial house with the children. While Ryan’s evidence was that the situation was uncomfortable, there were signs that the situation was getting worse for all concerned. On September 3, 2019, when Ryan and Laura were verbally arguing about money issues and custody of the children, Lesley heard the raised voices and entered into the room where the parties were arguing. She slapped Ryan in the back to stop the arguing. Ryan went upstairs and Lesley contacted the police. No criminal charges were laid.

[13] The situation remained the same until March 20, 2020. After coming home from working in Mississauga, Laura and Ryan argued after she told him that the children had not been out for the week, as a result of the outbreak of the Covid-19 pandemic. Ryan wanted the children to get out of the house and proposed to take the children on a car ride, but Laura and her mother told him he could not leave with them. An argument ensued, but the children did not leave the house. The rest of the week, the children were in Ryan’s care. On Friday, at the end of the week, he left the home to get away for a few hours. When he came home, Laura, her mother, and the children had gone to a shelter, where they remained until April 17, 2020, when Lesley was granted exclusive possession of the matrimonial home. On April 18, 2020, Ryan moved out and eventually rented a home in Stittsville.

[14] While in Stittsville, Ryan met Sarah DeLuca (“Sarah”), who was a neighbor, and had two young children. The relationship became romantic and in February 2022, Ryan moved in with Sarah and her children in her home. Since January 2022, the children live with each parent, on a week about schedule.

Decision-making responsibility

[15] The parties differ on which parent should have the decision-making responsibility on academic and health care issues.

Position of the parties

Laura

[16] Laura seeks an order that the parties have joint decision-making responsibility for the important decisions for the children, relating to their health, education, religious upbringing, and extra-curricular activities. She proposes that the parties follow the consultation process agreed to in the Minutes of Settlement dated on August 24, 2022. If after following that process, the parties are still unable to agree on medical, mental health, or academic decisions, then Laura shall have the final say. If Ryan does not provide a response within 14 days, Laura shall make the decision for the children. Finally, if a decision needs to be made within 14 days or less, and if the parents are unable to agree on health and/or academic services, Laura shall make the final decision, taking into consideration any information she has received from Ryan and professionals’ recommendations in the best interests of the children.

[17] On the issue of tutoring and educational support, Laura proposes that she will select the tutor for T.Z., that the tutoring costs would be shared as a section 7 expense, that the child shall receive weekly tutoring and each party would be responsible for ensuring the child attends tutoring while in their care.

Ryan

[18] Ryan’s position is that if Laura is granted the final say on academic and health care issues, she will discount his opinion and make the decision irrespective of his views. Ryan submits that consultations between them are difficult, if not impossible, and that the parties’ communication has not improved since separation.

[19] Ryan submits that the parties shall have joint decision-making responsibility regarding all aspects of health care and make decisions in accordance with the recommendations of the family doctor, or another health care professional involved in the children’s care.

[20] Ryan submits that the court should make an order for parallel decision-making responsibility, granting him the sole decision-making responsibility for the children’s education. Moreover, Ryan submits the following:

1. T.Z. should withdraw from the French immersion program, while Laura proposes the child remain in the program.

2. The parties shall follow recommendations of the psycho-educational assessment regarding academic supports for T. Z.

3. Ryan will switch T.Z. out of French immersion, if it is recommended by the psycho-educational report that he continues to require accommodations in the English language.

Parenting assessment

[21] In the fall of 2019, the parties jointly retained Ms. Chantal Bourgeois (“the assessor”), to complete a custody and access assessment pursuant to section 30 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12. The assessor completed two reports, dated respectively January 9, 2020, and November 22, 2021.

[22] Ms. Bourgeois testified that when she was completing the first report, she found the relationship between the parties to be very tense and that both parties were in each other’s face. She testified that there was a lot of mistrust, that Ryan was concerned about being left out, but he trusted Laura to organize appointments. There did not appear to be any disagreement between the parents with regards to their religion, activities or education, and the assessor felt it was important to delineate responsibility.

[23] The assessor found that Ryan was initially reluctant to engage and was very emotional and she recommended that he have some type of counseling. The assessor also recommended that Laura have counseling to address her communication issues. She found that both parents had strong parenting skills, were educated, employed on a full-time basis and were very child focused. When she completed the first report, she hoped that once there was a physical separation the communication would improve.

[24] In the second report, Ms. Bourgeois found that even though the parties were physically separated, they were still in conflict, they did not trust each other, and they blamed the other party for all the problems. She recommended that Laura be granted decision-making responsibility for medical, academic, and mental health issues for the children. She recommended that the parties communicate by using the Our Family Wizard (“OFW”) application’s protocol and recommended that the exchanges be at school to avoid any contact between the parties. The issue of exchanges was based on Laura’s concerns that she did not feel safe while in Ryan’s presence and Ryan was worried about false allegations being made by Laura.

[25] Ms. Bourgeois testified that she found both parents to be rigid, but that Laura did see counselors and was proactive to address her mental health issues while Ryan did not. Both parents felt the other was controlling. While the assessor recommended that Laura have the final say on academic, medical, and mental health issues, she was concerned about giving her carte blanche and recommended a consultation process requiring her to consider Ryan’s views.

[26] In the final assessment report, the assessor made numerous recommendations, including but not limited, to the following:

a) Laura and Ryan should share major decisions regarding the children.

b) If the parties are unable to agree on who, or what, important medical and mental health services or academic support the children receive within three weeks, Laura shall make the final decision. If Ryan does not provide a response at all within 14 days of a request from Laura, she shall make the decision.

c) In odd numbered years, Laura shall schedule and accompany the children to their regularly scheduled medical appointments, dental exams, with Ryan having that responsibility in even numbered years.

d) In odd numbered years, Laura shall schedule and accompany the children to therapy with mental health professionals, with Ryan having the responsibility in even numbered years.

e) Laura will have the right to select a counselor for either child if they require appointments with medical specialists or mental health professionals if the parties are unable to agree on the selection of a counselor.

f) When the Covid-19 vaccine for children is approved for use on children under 12 years of age, the children should receive their vaccine unless their regular physician, Dr. Boyden, advises otherwise in writing.

g) Laura shall keep the children’s OHIP cards and passports in odd numbered years and Ryan in even numbered years.

h) Both parties are free to expose the children to different religions, beliefs and spirituality, and the children should continue to celebrate typical Christian holidays.

i) The children should equally share their time with both parents in a week about (seven-day/seven-day) schedule, with a transfer on Monday after school or 3:00 pm during the summer vacations, PD days or holidays.

j) In odd numbered years, Ryan should have the children from the end of school for Christmas vacations to Christmas Day at 1:00 pm. Laura will have the children from Christmas day at 1:00 pm to December 29 at 4:00 pm. In even numbered years, Laura will have the children from the last day of school until Christmas Day at 4:00 pm and Ryan will have the children from Christmas Day at 4:00 pm to December 29 at 7:00 pm.

k) In odd numbered years, Laura will have the children from New Year’s Eve at 12:00 pm to New Year’s Day at 12:00 pm, and Ryan will have the children from New Year’s Day at 12:00 pm to January 2 at 12:00 pm. In even numbered years, Ryan will have the children from New Year’s Eve at 12:00 pm to New Year’s Day at 12:00 pm, and Laura will have the children from New Year’s Day at 12:00 pm to January 2 at 12:00 pm.

l) The March break will be split in half with the parent having their parenting time leading up to the holidays parenting schedule until Wednesday at 9:00 am. The other parent will have the children from Wednesday at 9:00 am and transitioning into their normal parenting time. If a parent wishes to travel for a week, the other parent should have the children for the week the following year.

m) The children shall be free to call, video call, text, or email their parents at any time. The number of the other parent should be clearly listed in a visible area. If the parents feel the need, then they may call, or video call their children at 7:00 pm, but this time may be adapted in accordance with each parents’ work commitments and/or children’s activities or sports. Ryan is free to call the home phone at Laura’s home first, given the connection is better, but then, he should call the cell phone as a backup. The children should be free to have their iPad so that they may text with their father, or stepsiblings and friends. Ryan shall ensure that there are no locator apps on. The parent should not be required to be at home for the time of the calls. Each parent shall provide a quiet and private place for the children to speak on the phone, without being monitored or recorded. These calls should not involve any parent dialogue or communication and another time should be arranged to communicate about adult issues.

n) Both parents should receive individual counseling to work on developing healthier coparenting communication strategies and manage their own emotional reactions to the other parent. They both would benefit from having a neutral third party to help keep them grounded in a child-focused approach.

o) Both parents should receive post-divorce educational counseling to synthesize them to the impact of persistent parent conflict on children’s well-being.

Jurisprudential and legislative framework

Legislative and Jurisprudential Considerations

[27] The court has considered section 16 of the Divorce Act, R.S.C. 1985 c.3 (2nd Supp.) (“Divorce Act”), which provides as follows:

16(1) Best interests of child

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

16(2) Primary consideration

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

16(3) Factors to be considered

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

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

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

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

(d) the history of care of the child;

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

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

(g) any plans for the child's care;

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

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

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

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

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

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

16(4) Factors relating to family violence

In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

(h) any other relevant factor.

16(5) Past conduct

In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

16(6) Maximum parenting time

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

[28] Decision-making responsibility is defined in section 2(1) of the Divorce Act as:

Decision-making responsibility means the responsibility for making significant decisions about a child’s well-being, including in respect of:

a) Health;

b) Education;

c) Culture, language, religion and spirituality; and

d) Significant extracurricular activities.

[29] The child’s best interests are not merely “paramount” – they are the only consideration in this analysis: see Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, at para. 28; Mattina v. Mattina, 2018 ONCA 641.

[30] The court must ascertain a child’s best interests from the perspective of the child rather than that of the parents: see Gordon v. Goertz, at para. 69.

[31] In cases of family violence, particularly spousal violence, it is crucial that the court consider whether a co-operative parenting arrangement is appropriate. A victim of family violence might be unable to co-parent due to the trauma they have experienced or ongoing fear of the perpetrator. In addition, co-operative arrangements may lead to opportunities for further family violence: see Bell v. Reinhardt, 2021 ONSC 3352, at para. 15.

[32] The court is required to give primary consideration to the child’s physical, emotional, and psychological safety, security and well-being. None of the factors in the non-exhaustive list in subsection 16(3) of the Divorce Act is more important than any other. Rather, the list is a guide or checklist of a number of customary factors that the court should ordinarily consider when determining what is in the best interests of the child. Not all of the factors will apply in each case, and there may be other factors not in the list which may be relevant in other cases: see Cote v. Parsons, 2021 ONSC 3719, at para. 130.

[33] The jurisprudence has provided a series of factors to be considered in determining whether or not to make a joint custody order, now termed a decision-making responsibility order, such as:

(a) The parties need not consent to an order for joint custody but before ordering joint custody the court must have some evidence that the parties are able to communicate effectively with each other: see Kaplanis v. Kaplanis (2005), 2005 CanLII 1625 (ON CA), 249 D.L.R. (4th) 620(Ont. C.A.), at para. 11.

(b) Simply relying on allegations of conflict will be insufficient to preclude a joint custody order. The analysis must consider the nature, extent and frequency of conflict. If conflict impacts are as likely to impact on the well-being of the child if the evidence is that the parties have been able to shelter the child from the conflict reasonably well and put the child’s interest ahead of their own, an order for joint custody may be appropriate: see Ladisa v. Ladisa (2005), 2005 CanLII 1627 (ON CA), 11 R.F.L. (6th) 50 (Ont. C.A.).

(c) One parent cannot create problems with the other parent then claim custody on the basis of a lack of cooperation: see Lawson v. Lawson (2006), 2006 CanLII 26573 (ON CA), 81 O.R. (3d) 321 (C.A.), at para. 15.

(d) Where it is necessary to preserve the balance of power between the parties, particularly cases where both parties are caring and competent parents, but one party has been primarily responsible for the conflict, joint custody versus sole custody may be appropriate: see Khairzad v. Macfarlane, 2015 ONSC 7148, 72 R.F.L. (7th) 436 and Fraser v. Fraser, 2016 ONSC 4720.

(e) In determining whether a reasonable measure of communication and cooperation is in place and is achievable in the future the court must consider the source of the conflict, consider whether one parent is creating the conflict and engaging in reasonable conduct, impeding access, marginalizing the other parent or by other means and then claim sole custody of the basis of lack of cooperation communication: see Khairzad v. Macfarlane, 2015 ONSC 7148, 72 R.F.L. (7th) 436.

[34] In McBennett v. Danis, 2021 ONSC 3610, at para. 97, Chappel J. provides an excellent list of factors for the court to consider in deciding which parent should have the decision-making responsibility. The court is mandated to consider the best interests of the children and all possible frameworks and proposals made by the parties. Furthermore, the court identified factors such as whether the parties can communicate effectively, is the communication sufficiently functional, is one parent the major source of conflict between the parties, the quality of each party’s past parenting, and one party’s failure to financially support the children.

[35] In deciding the appropriate decision-making responsibility regime, the court is required to consider all possible frameworks, and not simply those proposed by the parties: see Chomos v. Hamilton, 2016 ONSC 5208; Jackson v. Mayerle, 2016 ONSC 72; Ruffudeen v. Coutts, 2016 ONSC 3359; McBennett v. Danis.

[36] Parallel-parenting orders can take the form of “divided parallel parenting”, where each party is given separate, defined areas of parental decision-making, independent of the other; or alternatively, “full parallel parenting”, where both parents are given the right to make major decisions respecting the child in all major areas of parental authority while the child is with them, without the consent of the other parent: see Hensel v. Hensel (2007), 2007 CanLII 45911 (ON SC), 46 R.F.L. (6th) 343 (Ont. Sup. Ct.); Izyuk v. Bilousov, 2011 ONSC 6451.

[37] Parallel parenting was ordered instead of final decision-making authority for one parent in a joint custody case where the facts disclosed a history of conflict but both parties were capable parents: see Rigillo v. Rigillo, 2019 ONCA 548, 31 R.F.L. (8th) 356. In Roloson v. Clyde, 2017 ONSC 3642, the court warned against the parallel parenting order because it could simply create a breeding ground for further power struggles and discord. In Newstead v. Hachey 2018 ONSC 1317, the court indicated that attempting to ensure formal equality of influence between the parents is not in and of itself sufficient grounds to order divided parallel parenting.

[38] In McBennett v. Danis, Chappel J., at para. 98, indicated that parallel parenting is appropriate where both parents have been involved and are competent parents, and the child would benefit from both having a say on important matters. However, the conflict between the parties in this case is such that a traditional joint decision-making order, or an order for sole decision-making in favor of one parent, would not be in the children’s best interests. Furthermore, Chappel J. found that the parallel parenting regimes give both, the child and parents, the benefits of maintaining each parent as a meaningful player in the child’s life, over and above time-sharing with the child. Finally, the court found that parallel parenting has the potential in appropriate cases to disengage the parties and reduce parental discord. Finally, the court listed 13 relevant factors that should be considered in making parallel parenting orders including if both parties played a significant role in the child’s life on all levels, where one parent is clearly more competent, responsible, and attentive than the other, then a sole decision-making order is more appropriate. Finally, the ability of the parents to put the children’s interest above their own is often a very compelling consideration for the court.

Analysis

[39] In arriving at my decision, I have considered the evidence of the various witnesses including the assessor. I find that the assessment reports and the testimony of the assessor were instructive and revealing with respect to the parents. While I have considered the recommendations, in the end, I must determine what is in the best interests of the children taking into account all of the evidence.

[40] In the Minutes of Settlement dated August 24, 2022, as Exhibit 2, the parties have agreed to the following regarding decision-making of academic and health care issues:

1. A parent making a request, proposal, change to the schedule, daycare/school, activities, expenses, or expressing her concern or other communication directly related to the children shall do so via Our Family Wizard (“OFW”) application:

i. The parents shall respond to any messages within 24 hours, which could range from a simple acknowledgment or full response.

ii. A parent shall provide a full response within 7 days, unless there are extraordinary circumstances or more significant issues needing research, in which case the full response deadline may be extended to 14 days.

iii. Communication regarding exchanges, or last-minute changes, can be sent via text in OFW application. The parent shall commit to responding/acknowledging these time-sensitive notifications as received.

iv. The parents agree that they may communicate by telephone in the event of an emergency.

v. Communication is to remain respectful and child-focused at all times.

2. Following communication regarding a significant decision about the children noted in “OFW procedures”, each parent shall research and present the reasoning for their preferred decision/choice.

3. In the event of a disagreement in a health and/or academic issue for the parents, the parent will:

i. Seek a written recommendation from the children’s existing professional; and

ii. In the event one of the parents disagrees with the recommendation, that parent may seek a second opinion, provided the second opinion may be obtained within 30 days.

4. For the second opinion, an extension may be obtained if an appointment is difficult to obtain within a reasonable timeline and if that extension does not harm or burden the children. Evidence for an extension requirement may be requested by either parent.

5. Additional opinions required from family clinicians shall be obtained through the Rideau Valley Health Center (where the children’s family physician practices), via their same-day care clinic, which will allow for timely expertise to be obtained from health professionals with full access to the children’s charts.

[41] After the birth of the children, Laura worked full-time until December 2014, when she went part-time. Up to separation, Laura was the primary parent to deal with teachers, medical issues, babysitters, summer camps, doctor appointments, and speech language assessments. Ryan did not challenge Laura’s statements regarding her being the primary parent and decisionmaker.

[42] Prior to separation, I find that both parties were involved in the children’s education. Both parties agreed to register L.Z. and T.Z. in French immersion schooling and agreed for tutoring for L.Z. They also agreed that T.Z. should work with a speech therapist, based on the recommendation of a teacher. After the separation, both parties made appointments for the children.

[43] From September 24, 2018, to March 27, 2020, the parties shared in all major decisions regarding the children and agreed to a parenting schedule created by Laura. From March 27, 2020, to December 31, 2021, the children followed the three-week rotating schedule. By January 1, 2022, the parties agreed that the children would alternate residences on a week about basis. Both parties were involved in arranging tutoring for the children, although they were with different tutors and at different times.

[44] I find that both parties are fit and able to care for the children on a full-time basis, as evidenced by their agreement to alternate the children weekly. Furthermore, they have entered into extensive Minutes of Settlement, canvassing many issues between the parties. These two factors are significant because they support a finding that the parties consider the other a competent parent and that a specific process will be undertaken regarding decisions.

[45] In 2019, Laura started to see a counselor related to the stress she was feeling as a result of increased hostility between her and Ryan while they were still living in the home. On March 20, 2020, a major incident occurred. I accept the evidence of Laura and her mother that Ryan, after returning from working in Mississauga, was aggressive and threatening to Laura. I further accept that Ryan and Lesley argued about him taking the children out for a drive after being in the home at the beginning of the Covid-19 pandemic. There was no physical altercation, but the verbal argument escalated resulting in the children being very upset. I accept the evidence of Lesley that she was shocked at Ryan’s behavior.

[46] On March 23, 2020, the mother’s counselor was concerned about the allegations made by Laura, that there was an increase in verbal altercation and that she was afraid of Ryan, and the counselor decided to contact the Children’s Aid Society (“CAS”). By letter dated April 15, 2020, the CAS concluded that the children were being exposed to the risk of emotional harm, based on the verbal arguments between the parents.

[47] On March 27, 2020, Laura, the children, and Lesley moved to a shelter. They remained there until returning to the matrimonial home on April 18, 2020.

[48] After March 27, 2020, the communication between the parties worsened. The parties disagreed on T.Z.’s continued participation in the French immersion program and they did not coordinate his tutoring, French language camps or counseling. From January 2022 to the date of the trial, T.Z. was in tutoring two times per week, for one hour, but only on the weeks that he was in the care of his mother. On the other hand, Ryan had the child in tutoring, with another tutoring company on the weeks the child was in his care. Additionally, Ryan has refused to discuss any academic issues with Laura and takes the position that T.Z. does not need tutoring but rather prefers to wait for the outcome of the psycho-educational assessment.

[49] In December 2021, while in Ryan’s care, the children wanted to stay an extra day. Rather than return both children in accordance with the existing schedule, Ryan agreed that L.Z. would remain in his home. T. Z. returned home to Laura without L.Z and she called the police to do a wellness check on her eldest son. After speaking with the child, the police took no further action. I find that both parents acted unreasonably. Firstly, Ryan should have never allowed L.Z. to vary the schedule without Laura’s consent. Secondly, Laura was aware that her son was with his father and should not have called the police and thereby, place more stress on the child.

[50] The situation between the parties was dysfunctional, requiring the children to be exchanged at a neutral location, such as Sobeys or a fire station. From September 2019 to the spring of 2021, Ryan videotaped the exchanges ostensibly to protect himself from false allegations being raised by Laura. Clearly the parties did not trust each other.

[51] Prior to separation, neither child had any significant medical issues that needed to be addressed by the parents. Since the separation, T.Z. has required mental health support. The parties made allegations against each other regarding T.Z. contracting pinworm at the shelter. Laura denies the allegation. After being in Ryan’s care, T.Z. returned to Laura’s care complaining about an injured ankle. Laura did not accept Ryan’s explanation about how the incident occurred, Laura took the child to the doctor, who confirmed there was no break. Both parties are very quick to make allegations against the other, which is indicative of a complete lack of trust.

[52] The assessor found that both parents had the ability to make decisions. She recommended joint-decision-making responsibility with the caveat that if following consultation process the parents are unable to agree, or if Ryan does not provide a response within 14 days, Laura will have final say. However, the assessor also indicated that Laura tends to be very principled, and her mind is not easily, if at all, swayed to another way of thinking different from her own. In cross-examination, the assessor agreed that Laura will make decisions regardless of Ryan’s views. Laura would do the proper research and then will move forward. I agree with that assessment, as I received evidence where Laura was not swayed by recommendations made by the family doctor or by Ryan.

[53] Ryan testified that the parties started using OFW in February 2021. He indicated that he would get bombarded daily with up to 15 messages that were not related to the children. He tried to respond but if Laura did not like his answer, she would send back multiple messages. Laura testified that Ryan is not responsive to her inquiries and ignores her. It is clear to me that the parties have a significant communication problem.

Education

[54] Both parties have agreed to a very specific process with respect to academic and medical issues set out in the Minutes of Settlement filed in this proceeding. My decision on education and medical issues is restricted to which parent will have the final say, in the event that the parties follow the consultation process and cannot agree.

[55] I find that Laura disregards Ryan’s views if they run counter to hers. This occurred in 2019, when the parties were living together, and Laura proposed buying a dog. Ryan did not think it was a good idea that the parties have a pet. Laura bought a pet contrary to Ryan’s view. In 2021, Laura took the children to Alberta, when Ryan opposed the idea because of an outbreak of Covid-19 pandemic at the time. When Ryan proposed a counselor for the children, Laura did not agree and contacted the social worker’s professional organization, which the assessor found to be quite unusual. Despite Ryan objecting to the children carrying a cell phone to his home during his parenting time, Laura insisted that the children bring their cell phones. These incidents demonstrate that if Laura does not agree with Ryan’s views, she will simply do what she feels is in the best interests of the children. This type of behavior suggests that Ryan’s views will not be relevant to the decision-making process and that Laura will eventually make the decision that she wants to make.

[56] The assessor found that while Ryan is a capable parent, he is overwhelmed and shuts down when confronted by Laura’s conviction on what she wants to do regarding the children. However, when Ryan interacts with T.Z.’s tutor, teachers, and professionals, he is engaged and easily advocates his position. However, in interactions with Laura, her dominant personality overwhelms him at times. I find that Ryan feels overwhelmed by the number of emails sent by Laura. He admits that he ignores many of her emails, as he finds them to be excessive.

[57] I am troubled by Laura’s refusal to allow Ryan to have the children on Father’s Day for the years 2020, 2021 and 2022. I am also troubled by her decision to allow the children to have their videogame time while in her home during Ryan’s scheduled phone calls. The failure to allow Ryan’s time on Father’s Day and Laura’s decision to schedule video games during Ryan’s phone calls are not the actions of a parent who is considering the best interests of her children and fostering a positive relationship with their father. I find that this is an indication that Laura seeks to exercise control over Ryan and his time with his children.

[58] I find that Ryan does not trust Laura. He does not agree with her views on French immersion, French tutoring, Laura’s request for cell phones and her request for the Covid-19 vaccination for the children. He finds that she is overbearing, demanding and difficult to communicate with. In my review of the emails, he has indicated that once the case is over and the lawyers are no longer involved, that they will be able to coparent but at this point, he complains about Laura’s inability to coparent.

[59] I find that the parties are in a high conflict situation, where they do not agree on many fundamental issues regarding their own children. The history of this case is one where allegations have been made back and forth, raising the animosity between the parties, and resulting in the children being caught in the middle. I conclude by finding that a joint decision-making responsibility order would not be in the children’s best interests with respect to academic issues. The parties simply cannot communicate effectively, and they do not trust each other.

[60] Laura proposes that she have the final say after completion of the consultation process set out in the Minutes of Settlement. In my view, irrespective of what Ryan proposes, Laura will impose her own decision. Laura has done that many times since their separation. Granting Laura the final decision-making responsibility will create a significant power imbalance in favor of Laura, which can be utilized to marginalize Ryan’s rule with respect to his children. I conclude that it is not in the children’s best interest that Laura be granted with final decision-making responsibility on academic issues.

[61] Ryan seeks an order that he will have the decision-making responsibility with respect to academic issues after consulting with Laura. At this time, both parties agree that L.Z. will continue in the French immersion program and that T.Z. will participate in a psycho-educational assessment, while continuing to be in the French immersion program. In the Minutes of Settlement dated August 24, 2022, filed as Exhibit 1 and 2, the parties agree that the children will continue with their enrollment in the Huntley Centennial Public Elementary school and the children shall continue to attend in-person schooling, unless in-person schooling is suspended due to the Covid-19 pandemic, at which point the children will participate virtually.

[62] The only real issues of dispute for education is French immersion. Both parties are hopeful that the assessment will provide the parents with a framework going forward, to create an updated independent educational plan that suits T.Z.’s needs.

[63] On the issue of French immersion, that issue has been deferred pending the completion of the psycho-educational assessment. There does not appear to be any dispute as to L.Z.’s future educational path at this point. I find that Ryan is more open to receiving Laura’s views in arriving at a decision. That is not to say that there were not issues between these parties regarding academic issues. However, I find that joint decision-making is unworkable, by granting Laura sole decision-making responsibility will result in Ryan having very little input and that Ryan has acted reasonably with respect to his children’s education. He did not agree that T.Z. continue in French immersion but agreed to a psycho-educational assessment to ascertain the child’s needs. For these reasons, I order that Ryan will have the final say on any academic issue after participating in the consultation process set out in the Minutes of Settlement.

Medical issues

[64] At the end of the trial, Ryan consented to a final order that Laura would have the final say on mental health and dental issues for the children. Ryan submitted that the parties have joint decision-making on medical issues while Laura proposes that she have the final say.

[65] In the Minutes of Settlement dated August 24, 2022, filed as Exhibit 1, the parties have agreed to a protocol regarding health decision including existing health care professionals, new health care professionals, responsibility for appointments, sick appointments, medical emergencies, medications and health cards.

[66] I find that Laura was the parent who made arrangements for L. Z. to be seen by a counselor. She was also the parent who advocated for the children to be vaccinated for the Covid-19 pandemic. In May 2022, Laura objected to T. Z. being tested for asthma, contrary to the recommendations of the family doctor. On the other hand, Ryan did not agree on the children receiving the Covid-19 vaccination despite the recommendations of the family doctor and the assessor.

[67] I find that the parties have agreed to a protocol that must be undertaken before a final decision is made and that this protocol provides that significant information must be obtained before a final decision is made. I find that Laura has generally followed the advice of the medical practitioners, while Ryan has disregarded the opinion of the family doctor in opposing the Covid-19 vaccination for his children. As set out in these Reasons for Judgment, I have concluded that the children should have the Covid-19 vaccination. While I respect Ryan’s right to oppose the vaccination, in my view, it is in the children’s best interest, and he should have had the children vaccinated.

[68] I reject Ryan’s submission that the parties will have joint decision-making on medical issues. I find that the parties could not agree on a significant medical issue such as the Covid-19 vaccination, which has resulted in the children still not being vaccinated. I find that the parties need to have one parent to have the final say. I find it is in the children’s best interest that Laura be granted the final say on medical issues regarding the children.

Holiday schedule

Christmas school break holiday

[69] With respect to Christmas, Laura submits that the children wish to see each of their parents over the Christmas Holidays, which is confirmed by the assessor. Laura’s evidence is that Christmas is a time when she, the children, and her mother get together with her sisters, while Ryan has historically traveled to visit his parents in Ajax. However, Ryan is in a relationship with Sarah. He indicates he will not be going to Ajax, Ontario, as he did in the past, and that he will spend Christmas with Sarah, her children, and his children in the Ottawa area.

[70] Laura has testified that New Year’s Eve and New Years Day are important to her, while Ryan is ambivalent, as are the children.

[71] Based on the assessor’s assumption that Ryan would be commuting to his extended family in Ajax, Ontario, the assessor proposed a schedule. However, Ryan’s circumstances have changed.

[72] Laura proposes that in even numbered years, Ryan would have the children from the end of school to Christmas Day at 1:00 pm and then she would have them from Christmas Day at 1:00 pm to December 29 at 4:00 pm. In odd numbered years, Laura would have the children first in accordance with the same schedule. Ryan proposes that starting this year, he would have the children from Christmas Eve at 1:00 pm to Christmas Day at 11:00 am and Laura would have the children from Christmas Day at 11:00 am to December 26 at 1:00 pm, with the schedule alternating. In odd numbered years, the schedule would reverse with Laura having the children first.

[73] For New Year’s Day, Laura proposes that in even numbered years she would have the children from New Year’s Eve at 12:00 pm to New Year’s Day at 12:00 pm and Ryan would have the children from New Year’s Day at 12:00 pm to January 2 at 12:00 pm, with the schedule alternating the following year. Ryan makes no proposal with respect to New Year’s Day.

[74] Since January 1, 2022, the parties have agreed to an alternating week about schedule. I have taken into consideration the views and preferences of the two children, ages 9 and 7, that they want to spend equal time with their parents over the Christmas Holidays, as well as Ryan’s desire to have his Christmas break the same as his new partner Sarah.

[75] I find that it is in the best interests of the children that the parties will follow the alternating week about schedule, with such schedule to be suspended for the three-day period from December 24 to December 26. I order that in even numbered years, starting with 2022, Ryan will have the children from December 24 at 9 am to December 25 at 1:00 pm, and Laura will have the children from December 25 at 1:00 pm to December 26 at 5:00 pm. I order that in odd numbered years, starting with 2023, Laura will have the children from December 24 at 9:00 am to December 25 at 1:00 pm, and Ryan will have the children from December 25 at 1:00 pm to December 26 at 5:00 pm.

[76] I order that on even numbered years, Laura will have the children for December 31 at 12:00 pm to January 1 at 12:00 pm, and Ryan will have the children from January 1 at 12:00 pm to January 2 at 12:00 pm. In odd numbered years, Ryan will have the children from December 31 at 12:00 pm to January 1 at 12:00 pm. Laura will have the children from January 1 at 12:00 pm to January 2 at 12:00 pm.

Spring break

[77] Laura submits that the March break week shall be split in half, with the parent having their parenting week leading into the holiday week parenting the children until Wednesday at 9:00 am. The other parent shall have the children from Wednesday at 9:00 am and transition into the normal parenting time.

[78] Ryan submits that during March Break, the children should be with him in odd numbered years and with Laura in even numbered years. He submits that since his partner Sarah is a teacher, and that she is only able to take a vacation during the summer, it would be in the best interests of the children to allow him to travel with the children while they are on March Break. Laura submits that Sarah does not work for most of the summer and that she could go on vacation at that time.

[79] The assessor has recommended that the March break be split on Wednesdays at noon.

[80] The sole consideration is what is in the best interests of the children. I recognize that granting one parent the right to go on a March break holiday may result in the other parent not having the children for a three-week period. I agree that it would not be in the best interests of the children. On the other hand, dividing the March break on Wednesdays will prevent either party from traveling on a spring break vacation. I do not find that it is in the children’s best interests either.

[81] I find it is in the best interests of the children that each parent has the right to take the children for the entire March break without interruption. Consequently, starting in 2023, and every odd year thereafter, Ryan will have the right to travel with the children during the March break, while Laura will have that right starting in 2024, and every even year thereafter. If a parent intends to exercise the option to have the children with them for the entire March break, that parent shall notify the other in writing by January 15 of each year. In the event that no written notice is provided by January 15 of each year, the March break will be split, with the parent having their parenting week leading into the holiday week parenting the children until Wednesday at 9 am. The other parent shall have the children from Wednesday at 9 am and transition into their normal parenting time thereafter.

[82] In the event that notice is given by January 15, resulting in the travelling parent having the children for three consecutive weeks, the children will reside with the non-travelling parent from Monday after school to Thursday before school, in the week subsequent to the March break.

Cellphones

[83] Laura seeks an order that the cellphones that she purchased for the children should travel with the children and that they will have uninhibited access to the cellphones when they are with Ryan. Ryan opposes the claim, arguing that the children have uninhibited use of his cellphone and that the children can communicate with Laura via their computers or iPads. Moreover, he opposes the claim because it will be used to interfere with his parenting time.

[84] The Minutes of Settlement dated August 24, 2022, Exhibit 2, provide at paras. 17-22, certain provisions addressing the communications between the parents and the children as follows:

17. Each parent shall provide a quiet place for the children to speak on the telephone without being monitored or recorded.

18. The calls shall not involve parent dialogue and communication, and another time shall be arranged to communicate about adult issues between parents.

19. The children may be free to connect with the other parent even if the residential parent is not at home.

20. The parents will ensure that the children use their iPads, cell phone, home phone or other electric device to contact their parent, relatives or friends.

21. Ryan is free to call the home phone at Laura’s home first to contact the children but then shall call Laura’s cell phone as a backup.

22. Parents shall not be required to be at home for the time of the calls.

[85] I agree with Laura that the children should have their own cellphones for safety reasons and the ability to communicate with family and friends. The parties have agreed that the children are to have uninhibited access to contact the other parent. I understand Ryan’s concern because he feels that Laura will be communicating with the children while they are in his care and possibly interfering with his exclusive time with them. This past summer, Ryan took the children away for a weekend to a cottage, where he indicated he had no cellphone service. Rather than accepting this fact, Laura challenged his claim that there was no service. In addition, Laura demanded that there be at least two telephone numbers where she could reach the children while in Ryan’s care. I find that Laura’s conduct was unreasonable in the circumstances. While I understand that Laura wants to ensure that her children are well cared for while in Ryan’s care, his response that there was no cellphone service in a cottage area was reasonable. There was no evidence led that cellphone service was available contrary to Ryan’s testimony.

[86] I find that the children having their own cellphones is in their best interests. Laura wishes to pay for these cellphones, and I will make an order accordingly. However, Laura is not to initiate telephone calls with the children while they are in Ryan’s care. If the children want to call their mother while they are with Ryan, that should be encouraged.

[87] Consequently, I order that Laura shall purchase and pay the monthly costs for cellphones for both children, and that she shall not initiate any calls with them while they are in Ryan’s care save and except for returning a call from the children.

Covid-19 vaccination

[88] Laura seeks to have the children vaccinated with the Covid-19 vaccine. She requests the vaccination to allow the children to travel and because the vaccine will prevent serious sickness. Laura submits that the children have mentioned that they were anxious they would contract Covid-19, and that could be harmful to their grandmother. In support of the mother’s position, she relies on a letter from the family doctor, Dr. Boynton, dated February 10, 2022, who supports the vaccine being administered. In addition, the assessor also supports vaccination.

[89] Ryan objects to the children being vaccinated. He submits that given the history of blood clots in his family he fears for adverse side effects. He submits that the court should take judicial notice that vaccines do not prevent infection, reinfection, or transmission, but reduce the severity of symptoms and that the potential harmful effects of the vaccine are not outweighed by its benefits. Furthermore, he submits the children are not at high risk and their daily living is not impacted. Finally, Ryan argues that he is prepared to agree for the vaccine to be administered if the children’s circumstances change and the vaccine would be needed for the children to maintain their current lifestyle and preserve mental health.

[90] I accept, as does Ryan, that the vaccines reduce the severity of illness if either child contracts the Covid-19 virus. I agree with the case law that indicates that the decision as to whether or not children should be vaccinated is governed by their best interests and that there is a general presumption that it is in the best interests of children to be vaccinated. At the most basic level, a vaccine will prevent these children from becoming seriously ill if they unfortunately contract the Covid-19 virus.

[91] Ryan has produced no evidence as to any personal or family history of blood clotting that would have relevancy in my decision regarding the children’s vaccination. He has provided no evidence as to what adverse side effects would potentially affect the children. Ryan did testify that when Laura initially asked, he needed time to investigate the risks related to the vaccine. Despite the original request being made in 2020, he still has not provided a valid explanation as to why these children should not be protected from contracting the Covid-19 virus.

[92] I have considered the opinion of the family doctor, the assessor, and the lack of any evidence from Ryan that there is a history of blood clots in his family and regarding adverse side effects of the vaccine. I conclude that it is in the best interests of the children that they should be vaccinated. I order that Laura shall schedule and take the children for the Covid-19 vaccine and boosters.

Child support

Table child support from July 2019 to December 2021

[93] Laura submits that Ryan should pay table child support from July 2019 to December 2021, as she had been the primary caregiver for the children. Ryan denies any liability to pay table child support to Laura during this period of time, submitting that he had the children more than 40% of the time. Laura denies that Ryan met the 40% threshold of section 9 of the Federal Child Support Guidelines, SOR/97-175 (“Guidelines”).

[94] Ryan submits that from April 2020 to December 2021, the children resided with the parents in the three-week period rotation, resulting in each parent having one week when the children were in their exclusive care and for the third week, the children were in the father’s care from Friday at 3:00 pm to Sunday. He submits that the court should adopt the decision in Bexon v. McCorriston, 2019 ONSC 6060, that the responsibility for the children in school continued to be shared by the parties, albeit not equally, such that for the purposes of the calculations under section 9 of the Guidelines, the children’s time at school was to be considered neutral. Consequently, the court found that the father met the 40% of the time requirement to require the court to determine support pursuant to section 9 of the Guidelines.

Jurisprudential framework

[95] In Maultsaid v. Blair, 2009 BCCA 102, 78 R.F.L. (6th) 45, the British Columbia Court of Appeal found, at para. 20, that school time should not be credited to the parent relying on section 9 unless that parent has the child both before and after school on a particular day. If a parent exercises mid-week overnight access and only picks up a child from school, they should not be allotted school time in pursuance of the 40% threshold. This reasoning was adopted by Chappel J. in Scott v Chenier, 2015 ONSC 7866, at para. 42, and in Khairzad v. McFarlane, 2015 ONSC 7148, 72 R.F.L. (7th) 436, at para. 69.

[96] In G.H.F. v. M.D.E., 2019 ONCJ 766, at para. 30, the court provided an excellent summary of the decision of the Czutrin, J. in L.L. v. M.C., 2013 ONSC 1801 as follows:

There is no jurisdiction to alter the 40% threshold. A detailed review of the case law was outlined by the court in L.L. v. M.C., 2013 ONSC 1801. The following summary of principles can be taken from the case:

1. The onus of proving that the 40% access threshold is met falls on the spouse seeking to invoke s.9 (Meloche v. Kales, 1997 CanLII 12292 (ON SC), [1997] O.J. No. 6335; Huntley v. Huntley, 2009 BCSC 1020).

2. Though the method of the calculation is not set out in the legislation, it is clear that 40% is the minimum period of access time fixed by Parliament as sufficient to trigger a child support calculation under s. 9 of the Guidelines. Courts cannot ignore this mandatory requirement in favour of rounding up in the case of access time that is close to 40% (Maultsaid v. Blair, 2009 BCCA 102 (C.A.)).

3. In commenting on Froom the review states, "[w]ith respect, the overwhelming weight of authority in Ontario and the other provinces supports calculating the 40% threshold on an hourly basis." This approach is applied by the court in Rockefeller v. Rockefeller, 2005 CanLII 14325 (ON SC), [2005] O.J. No. 1736 (S.C.). Its appropriateness is also affirmed in Gauthier v. Hart, 2011 ONSC 815, although in that case the parties' evidence did not support an hourly calculation so it was not applied.

4. The two most common approaches to calculating access and custody time are in days, and in hours. If using days, to reach 40 per cent, the access parent must have the child in his or her care for 146 days per year (Handy v. Handy, [1999] B.C.J. No. 6 (S.C.). When calculating in hours, the 40 per cent threshold lies at 3504 hours per year (Claxton v. Jones, [1999] B.C.J. No. 3086 (Prov. Ct.)).

5. Julien D. Payne points out that no matter how the calculation is completed, the relevant period is the amount of time the child is in the care and control of the parent not the amount of time that the parent is physically present with the children ((2002) 32 R.G.D. 1-36, at 8). The calculation includes the time the child spends in swimming lessons, at day care, at school, or with a nanny, so long as the parent claiming this time is the parent who during that period is "responsible for their well-being" (Sirdevan v. Sirdevan, [2009] O.J. No. 3796).

6. In line with this approach, a custodial parent will be credited with time that a child spends sleeping or at school, except for those hours when the non-custodial parent is actually exercising rights of access or the child is sleeping in the non-custodial parent's home (Cusick v. Squire, [1999] N.J. No. 206 (S.C.)). If there is a fixed drop-off time for the access parent to deliver the child to school or daycare and the child returns to the custodial parent at the end of that day, the time during school or daycare is typically credited to the custodial parent (Maultsaid, at para. 20; Barnes v. Carmount, 2011 ONSC 3925, at para. 43).

7. In the case of Mehling v. Mehling, 2008 MBCA 66, at para. 45, the court asserts that the flexible approach is in line with the view expressed by Terry W. Hainsworth in his text, Child Support Guidelines Service, loose-leaf (Aurora: Canada Law Book, 2007) (at para. 3:10.03), which is as follows:

Section 9 of the Guidelines requires the courts to consider more than a simple mathematical comparison of the number of hours in a year and the number of hours of physical access exercised by the parent asserting shared custody. If a given situation establishes an unusually extensive pattern of access by the support payor which is consistent with the concept of shared parenting or shared custody, the reality of the situation should be carefully reviewed. In determining the issue, the court may consider several factors, including:

(a) how the shared parenting situation evolved;

(b) any specific contractual agreements relating to joint custody; and

(c) the quality of the time the children spend with each parent (i.e., whether the children are in daycare, whether there are associated costs such as meals and activities, whether there are clothing costs, etc.).

If it is determined that a given situation is, in spirit and reality, one of shared custody, there is no governing method of calculation so long as the method used is reasonable. ...

Analysis

[97] Ryan has the burden of proving that over the course of the entire year, he had the children in his care for at least 40% of the time to engage the section 9 analysis

[98] To support his argument that he has met the 40% threshold, Ryan has allotted 6.5 hours per day, for all school days during the three-week period on the basis that the children’s school time be neutral because the responsibility for school continued to be shared by the parties. Ryan concedes that if the school days are not found to be neutral, he will not meet the 40% threshold.

[99] I find that based on the three-week parenting schedule, the children were in the care of each parent on a week one and week two alternating but in a week three, the children were primarily in the care of Laura from Monday to Friday, with Ryan having the children Friday afternoon, Saturday, and Sunday. I find it in the third week that the school times should be credited to Laura because she had the children both before and after school. Based on my rejection of Ryan’s submission that all school hours should be neutral, his claim that the parenting schedule meets the test of shared custody set out in section 9 is denied.

July 2019 to April 2020

[100] Soon after agreeing to separate in September 2018, the parties entered into a parenting time schedule. At the time, Laura was residing in the matrimonial home and working from home. Ryan was able to work from home two weeks a month. However, on the third week, he had to leave on Sunday afternoon and travel to his employment in Mississauga, where he remained until he returned home late Thursday night, or early Friday night.

[101] From July 2019 to March 2020, the parties were residing in the matrimonial home. I accept the evidence of Laura and Ryan, as confirmed by the email dated September 24, 2018, that the parties agreed to contribute on a 50/50 basis to food, house insurance, the mortgage, utilities, and snow removal, and that they were responsible for certain specifically designated expenses on their own. In 2019, Ryan earned $78,566 while Laura earned $70,575. In 2020, Ryan earned $79,717 while Laura earned $81,518. I find the parties had very similar incomes.

[102] I accept Ryan’s evidence that Laura would do the monthly reconciliation of the expenses and Ryan would pay her any amounts that he owed. On the other hand, Ryan indicated that if he paid an expense, Laura would not pay him but would deduct her share from what he owed her.

[103] In Thomas-Bakker v. Bakker, 2018 ONSC 5673, the court, at para. 64, found that where parties reside together and share expenses, there is no child support payable:

Ms. Thomas is seeking an order for the payment of child support retroactive to the date of separation in April 2012. The parties continued living with the children under the same roof until August 31, 2013. They shared the mortgage and property tax expenses equally. In these circumstances, Ms. Thomas is not entitled to child support during the months that they lived together. One of the primary purposes of child support is to ensure that the children benefit from an equivalant standards of living in each parent’s household. This purpose has no application when the separated parents occupy the same household. Mr. Bakker’s child support arrears will therefore be calculated from September 1, 2013.

[104] I find that there should be no child support payable. The parties were sharing their expenses, living together, and earning approximately the same income.

April 2020 to December 2021

[105] On March 27, 2020, Laura left the matrimonial home with the two children and her mother and went to a shelter until she returned to the home on April 18, 2020. Ryan left the matrimonial home, and for a short period of time, used a vacant house owned by one of his friends until he could find his own accommodations, which he did in May 2020. Since that time, the parties have lived in different residences.

[106] Ryan has provided a calculation that shows that he, and Laura, each had the children equally for one week out of the three-week rotating schedule. Ryan submits that with the onset of the Covid-19 pandemic he was no longer required to travel to Mississauga but was able to work remotely. As such, he argues that he was as involved with the teachers, counselors, and tutors for the children as Laura. Ryan submits that the time spent by the children in school should not be allotted to either party. Based on that calculation, Ryan submits that he has met the 40% threshold.

[107] Based on my finding that Ryan has not discharged his burden of proof, I find that Ryan had a legal obligation to pay table child support to Laura commencing April 1, 2020. I find that based on his income in 2020 of $79,163, he should have paid $1,198 per month, as the table child support for the two children from April 1 to December 31, 2020, for a total of $10,782. I find that based on Ryan’s income in 2021 of $78,483, he should have paid $1,189 per month, as table child support for the two children from January 1 to December 31, 2021, for a total of $14,268. I order Ryan to pay to Laura child support in the amount of $25,050 for the period of April 1, 2020, and inclusive of December 1, 2021.

Section 7 expenses

[108] Laura seeks an order that Ryan contribute to various section 7 expenses. In Exhibit 18, Laura produced a chart setting out various expenses incurred from 2019 to 2022 totaling the amount of $5,099.82, based on setting out Ryan’s proportionate share. Ryan admitted that Laura incurred the expenses set out in the chart. During her testimony, Laura advised that the dental expenses of $868 and $91, psychologist expense of $60 and a seasonal allergy medication of $11.48, should be removed from the total, resulting in a balance claimed in the amount of $4,068.84, set out by the following categories:

1. Dental expenses not covered by benefits.

2. Gymnastics.

3. Recreational soccer registration costs.

4. English and French tutoring.

5. Medical costs not covered by benefits.

6. Youth recreational league registration costs.

[109] Ryan opposes any contribution to these expenses because until March 2020, all expenses were shared, and he paid Laura for any expenses that she incurred. Furthermore, he submits that Laura did not consult him before incurring expenses for any extracurricular activities in 2020 and 2022, that he incurred expenses for activities for summer camps and baseball registration and that he paid approximately $1,640 for tutoring expenses. Finally, he submits that if there are any medical/dental outstanding expenses that are covered by his extended benefit package, they should be submitted to the insurance company.

[110] Both parties have an obligation under the law to contribute to specific expenses, as set out in section 7 of the Guidelines. The court must determine if the expense is necessary, reasonable, and affordable. In addition, one party does not have carte blanche to incur these expenses and then, seek compensation from the other parent. The other parent must be given an opportunity to determine if the expense is necessary, reasonable, and affordable. In this case, both parties acted independently of each other and many of their claims are not reimbursable for a lack of consultation. If a party unreasonably refuses to consent to an expense that is necessary, reasonable, and affordable, the court can order that parent to pay their proportional share. However, the lack of communication between the parties does not allow either of them to seek to be reimbursed for expenses incurred without consultation and consent.

[111] With respect to the claim of $1,156 for dental expenses not covered by benefits for T. Z., I find that Ryan made a payment set out in Exhibit 64, which was his contribution to the dental expenses of $1,156 and $868 in early February 2019.

[112] With respect to gymnastics expenses of $749.20 in 2020, Laura testified that she registered the children in gymnastics during the pandemic and after separation, but she never asked Ryan for his consent because he ignored her emails. She also registered them in house league soccer and did not seek Ryan’s consent. I do not find that these expenses qualify as section 7 expenses and deny Laura’s claim for reimbursement.

[113] With respect to $318.10 and $188.39 for house league soccer for the children, Laura did not consult with Ryan before incurring these expenses but indicated that she requested payment. I deny this claim, as I find that house league soccer does not qualify as a section 7 expense.

[114] With respect to $360 and $135 for tutoring with Carp Tutoring, incurred by Laura for T.Z in 2021, I accept Laura’s evidence that the school noticed that the child had difficulty reading in English, that she arranged for it, that she requested that Ryan pay and that he refused. I find that Laura sent three emails to Ryan on December 14, December 22, and December 23, 2021, seeking his consent for the Carp Tutoring to continue. He never replied. I find that the expense for November and December 2021 and January and February 2022 are valid as section 7 expenses. Based on the chart referred as Exhibit 18, I order Ryan to pay $177.48 for November, $66.55 for December, $106.20 for January 2022 and $84.96 for February 2022 for a total of $435.19.

[115] In January 2022, Laura arranged for T.Z. to receive tutoring in French and added L.Z. in May 2022. That summer, both children were registered in a French camp. Ryan did not agree that T.Z. should continue in the French immersion program, and he was never requested to contribute to the weekly tutoring or the summer camps. At the same time, Ryan was incurring his own tutoring expenses for the children. I find both parties are at fault, and they were simply incurring tutoring expenses with different tutors without either party seeking consent from the other parent.

[116] In 2021, Laura incurred $802.95 for gymnastics for both children, as well as $105 to register L.Z. in an Extreme Frisbee course. I do not find that these expenses qualify as section 7 expenses. This claim is denied.

[117] In 2022, Laura incurred $35 for a gymnastic registration fee, $83.33 for recreational soccer for T. Z. and $100 for recreational soccer for L.Z. I do not find these expenses qualify as section 7 expenses. This claim is denied.

[118] In 2022, Laura incurred dental expenses for both children totaling $357. I find that these expenses are to be shared, after the payment of each party’s benefit package through their employment. Any remaining amount is to be shared by the parties on a pro rata to income basis.

Costs

[119] I will defer the issue of costs until I provide supplemental reasons on the issue of French immersion education.

________________________ Mr. Justice Mark Shelston

Released: December 6, 2022

COURT FILE NUMBER: FC-20-997

DATE: 2022/12/06

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Laura Stephanie Zychla

Applicant

– and –

Ryan Chuhaniuk

Respondent

REASONS FOR judgment

Shelston J.

Released: December 6, 2022