COURT FILE NO.: FC-20-1516

DATE: 2022/02/10

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: A.G., the Applicant

-and-

T.E., the Respondent

BEFORE: Justice P. MacEachern

COUNSEL: Applicant, Self-Represented

Eric Letts, for the Respondent

Mr. Gilpin was also in attendance and made submissions concerning the relief claimed against him.

HEARD: February 3, 2022, by Video conference

ENDORSEMENT on motions

Overview

[1] Each party brought a motion, heard on February 3, 2022, pertaining to their 2-year-old child, K.G. The parties cohabitated for a short period. On June 22, 2020, they separated when the Applicant Father moved out with his son, R., age 11. Since separation, K.G. has primarily resided with the Respondent Mother.

The Motions

[2] There have been numerous court appearances in this matter. The digital court record shows that five motions have been scheduled, plus three case conferences. One planned motion (December 7, 2021) was adjourned to February 3, 2022. All of the other scheduled events proceeded.

[3] On July 19, 2021, Justice Engelking was appointed as case management judge. Justice Engelking gave direction for this motion in her endorsement of December 14, 2021, as follows:

“The parties are to discuss whether some schedule which is less limited than that set out by Justice MacLeod may be workable for both them and [K.G.]. If they are unable to resolve it on consent, a motion has already been scheduled for February 3, 2022 at which [the Applicant’s] parenting time as well as temporary child support may be addressed.”

[4] Justice Engelking also directed that the parties may proceed to a settlement conference after receiving the OCL Report, completing disclosure, and this motion was heard.

[5] On October 4, 2021, the OCL advised that they would investigate. Their report is not yet complete.

[6] The Father initially brought a motion dated March 17, 2021, seeking parenting time on an eight-week schedule that follows his work schedule. He tried to have that motion heard on an urgent basis but leave for urgency was declined.

[7] Justice MacLeod heard the Father’s March 17, 2021 motion on June 29, 2021. On July 8, 2021, Justice MacLeod released his decision. Justice MacLeod’s award provided that, on a without prejudice basis, pending the return of the motion, the Mother would have temporary care and control of the child K.G., and the Father would have two full days with K.G. each week, including overnights, subject to several conditions. Justice MacLeod’s order was made pending the return of the motion once the CAS and OCL had been allowed to respond. The CAS responded to the court’s request for information on July 23, 2021. The OCL responded to the proposal that it become involved on October 4, 2021. The Father then returned this motion as the return of the motion before Justice MacLeod.

[8] The Father’s Notice of Motion also includes requests for additional relief that was not part of his March 17, 2021 motion, nor part of the issues directed to a motion by Justice Engelking. The Father’s Notice of Motion dated January 25, 2022, sets out the orders he seeks. He seeks orders on temporary decision-making (joint), temporary parenting time (equal time), disclosure, imputing income to the Mother, costs, contempt, and findings that the Mother and her counsel and former counsel (Mr. Gilpin) acted in bad faith. At the hearing of the motion, the Father advised that he was seeking costs payable by Mr. Gilpin personally. The Father did not serve a Notice of Contempt Motion (Form 31) nor personally serve such notice on the Mother. He did not pursue a finding of contempt at the hearing of the motion on February 3, 2022.

[9] The Mother brought a motion seeking temporary parenting time for the Father on alternate weekends (Fridays to Mondays at 6 pm), that she has temporary sole decision-making and an order for temporary child support, both ongoing and retroactive to June 1, 2020.

Material

[10] At the outset of the motion, I accepted the Mother’s affidavit sworn February 3, 2022, and, from the Father, a copy of their conversation printout identified as Exhibit A. The Father did not object to me accepting the Mother’s affidavit if I received the conversation printout. The Mother did not object to me receiving the conversation printout. This material related to some Uber charges on the Mother’s Visa made by the Father and added little to the issues before me.

Parenting

[11] The parenting claims are brought under the Children’s Law Reform Act. The sole criteria are the child’s best interests (s.24(1)). In determining the best interests of a child, the court shall consider all factors related to the child’s circumstances. In doing so, the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being (s.24(2)). Factors related to the child’s circumstances are set out at s.24(3).

[12] This is an interim motion. Interim orders for parenting time are intended to be temporary. They provide a stop-gap pending a full determination of the issues at trial on a full evidentiary record. If not otherwise resolved, this matter should proceed to trial after the OCL report is completed and after the parties attend a settlement conference before Justice Engelking. In Ottawa, it is usually possible to be added to a trial list six to ten months after the settlement conference. These are the timelines I am considering for this temporary, interim parenting order.

[13] Pending a trial, the evidence before the court to determine K.G.’s best interests is limited. The parties have not conducted questioning, although an order allows them to do so. Each party raises significant credibility issues. The Father relies heavily on a letter from his former caregiver, but her last involvement was in 2018, before K.G.’s birth. The OCL has not completed its investigation. I have only the parties’ respective affidavits – and although the affidavit material is extensive, it contains very little current information about any of the factors under s.24(3) of the CLRA, such as the child’s current needs, current stage of development, and the current nature and strength of her relationship with her siblings.

[14] The Father’s material, in particular, is disproportionately fixated on various allegations and critiques of the Mother’s conduct in this litigation rather than evidence of K.G.’s current circumstances. This is unfortunate.

[15] Concerning parenting time, I find that it is in K.G.’s best interests to remain in the Mother’s primary care pending trial, with the Father having parenting time as set out below. The temporary orders below reflect this finding. My reasons are as follows:

a. I am not prepared to find, on the evidence before me, that it is in K.G.’s best interests to spend equal time with the Father, which is what he seeks on his motion. K.G. is only two years old. She has primarily resided with her mother since the parties separated on June 22, 2020, when she was eight months old. In the Mother’s household, K.G. has a close relationship with her four older half-siblings, all under 14. The only evidence I have about her current needs and stage of development is the Mother’s general evidence that she is doing well in the Mother’s care[^1].

b. The Father argues that the existing status quo was created under a without prejudice order (Justice MacLeod’s order of July 8, 2021) and also by unilateral conduct by the Mother. But before this, the Father created a status quo of K.G. primarily residing in the Mother’s care when he moved out with his son after separation.

c. The Father has not provided any evidence on R.’s current circumstances. R. has several documented behavioural concerns and special needs. He has acted violently in the past. Yet the most recent information from professionals involved in R.’s care that the Father has provided to the court is from June 2020 and earlier.

d. The Father’s main argument is that there is no evidence that K.G. is at risk in his care or that he is not a good father. This, however, is not the test. There is no presumption of equal time. The only question is what parenting schedule is in K.G.’s best interests, which is a different and significantly more expansive analysis.

e. Although the CAS has closed its file, and concluded in July of 2021 that it did not have concerns with how the Father responded to the past situation with R., R.’s needs and current stability are significant factors in determining K.G.’s best interests. R.’s presence in the Father’s household impacts K.G.’s circumstances when she is in the Father’s care – possibly in positive and possibly in harmful ways. Given the information I have about R.’s needs in the past, I expect the situation with R. is complex. But I have no evidence before me as to how the Father plans to manage these challenges that allow me to conclude anything about K.G.’s best interests as they involve R., except that the history raises concerns that should be addressed before expanding K.G.’s time in the Father’s care.

f. There has been significant conflict because the parties have had difficulty scheduling the Father’s parenting time within the parameters set out by Justice MacLeod’s order. In particular, there have been issues because of what the Father says is his work schedule[^2], disagreement on childcare, the Mother’s preference for a regular schedule, the Father’s refusal to ask his employer to accommodate a regular parenting schedule, and generally the conflict between the parties. I do not find that this conflict means that parenting time should take place on alternate weekends rather than the two days per week directed by Justice MacLeod. The order below, which stipulates when access will occur, is intended to address the conflict caused by the parties’ inability to negotiate the schedule themselves. The schedule below follows the two days per week schedule imposed by Justice MacLeod where possible but makes adjustments given the Father’s work schedule. For example, when the Father begins work at 6 am on a return day, I have avoided a very early morning return time by providing for K.G. to be returned the day before. This results in the Father only having one overnight in some weeks.

g. The alternating weekend schedule proposed by the Mother arguably provides similar parenting time to the Father as under Justice MacLeod’s Order but would mean that K.G. would not see her father, in between alternate weekends, for ten days. Ten days is a long time for a child who is two years of age, and I do not find this length of time between visits is in her best interests, particularly when she is used to seeing her father weekly under the July 8, 2021 schedule.

h. Although the current schedule, which rotates weekly based on what the Father says his work schedule is, may not be a long-term solution, especially once K.G. is in school, I do not see a reason to change it on an interim basis. The Mother argues that a regular schedule is better because it allows her to schedule her work and her other children’s activities more predictably. I accept this as a general proposition that rings true but reject it as a reason to change the schedule on an interim basis in the absence of the Mother providing specific information as to how K.G.’s best interests are impacted by not having a regular alternating weekly schedule at this point. It is not clear how the rotating parenting schedule impacts the Mother’s work schedule, nor how this affects the other children.

i. A significant concern with the Mother’s proposed schedule is that such a schedule would conflict with what the Father says is his current work schedule, which would result in the Father missing significant parenting time either until his employer agrees to change his work schedule, or the Father provides evidence that his employer is not willing to make such a change. This would not be in K.G.’s best interests, particularly when there is little is evidence that the current rotate schedule is causing her problems.

j. The Mother argues that this court should presume that the Father’s employer will accommodate his parenting time under a family court order and that the burden of proving his employer will not provide accommodation should fall on the Father. The Father has not requested accommodation from his employer to have a regular alternating week parenting schedule. The Father gave three reasons for not doing so, all of which are not reasonable, being:

i. That his employer only accommodates medical issues. I do not accept this because the Father did not provide any supporting confirmation of this assertion from his employer, which would have been easy to obtain if he had requested it.

ii. It would be discriminatory against other employees who do not have children if his employer accommodated single-parent employees. I do not accept this because the Father did not provide any supporting confirmation of this assertion from his employer, which would have been easy to obtain if he had requested it.

iii. That he has had the same schedule for eight years, inferring that he should not have to ask for a change. I find that this factor, as well as the general power struggle that has developed between the parents, is the Father’s real reason for not asking for accommodation and is an attitude that prioritizes his convenience rather than the child’s best interests. This attitude is not child-focused.

k. While the schedule set out below continues to rotate based on what the Father says is his work schedule, I am ordering the Father to request his employer accommodate a regular parenting schedule that, at most, rotates over two weeks, rather than over eight weeks, and allows him to have parenting time every second weekend. In his July 8, 2021 reasons, Justice MacLeod already flagged that the extent to which the Father has control or input into his schedule is something that needs to be fully explored. This information is needed for the court to determine the child’s best interests at trial.

l. The order below requires that K.G. attend childcare while in each parent’s care to ensure that the Mother continues to qualify for her childcare subsidy. Childcare is a significant expense, and the Father has already raised concerns about the cost. The Mother’s childcare subsidy must be maintained so that the Mother can work (which both parties reasonably support) and K.G. benefits from continuity of care in what appears to be a well-qualified childcare facility. To the extent that the Father finds this takes away from his parenting time, I encourage him to take immediate steps to request accommodations from his employer regarding his work schedule.

m. The schedule below provides for transfers through the childcare facility, where possible, to minimize K.G. being exposed to tensions between the parties.

n. If the Father’s employer will accommodate a regular parenting schedule that, at most, rotates over two weeks, rather than over eight weeks, and allows him to have parenting time that includes alternate weekends, this matter may be returned to me to adjust the interim parenting schedule so that the Father has approximately the same amount of parenting time but on a two-week rotating schedule.

o. I decline to make an order requiring make-up time for the Father. Such an order would, I expect, just add to the conflict and confusion between the parties, which is not in K.G.’s best interests.

p. I am not ordering extended vacation parenting time on an interim basis, such as during the summer months. This is because this is an interim motion and because of K.G.’s young age. The parties may agree to mutual provisions for each to take an extended summer vacation with K.G. But if they cannot agree, this issue will need to wait until trial.

q. I am not making a specific order for temporary Christmas access. The Father has not provided me with any evidence of his work schedule during the Christmas period. The regular schedule below will apply for the Christmas period in 2022 unless the parties can agree on a change for Christmas 2022. Otherwise, any specific Christmas parenting schedule will need to be determined at trial.

[16] On the issue of temporary decision-making, I find that it is in K.G.’s best interests for the Mother to have temporary sole decision-making after consultation with the Father. The evidence before me does not support that there is a reasonable prospect, at this time, that the parties will be able to make decisions together jointly, which is what the Father seeks. The conflict between the parties, the number of court dates needed in this matter already, and the issues on this motion speak to this loudly. Although the Father blames the Mother, I disagree. The Father plays, at minimum, an equal role. I leave it to the trial judge to make any further determinations that may be necessary regarding each parent’s ability to work with the other in a child-focused manner.

[17] I reject the Father’s proposal that parallel decision-making be imposed in the alternative to joint custody. The Father has not provided any details for how parallel parenting would work or evidence of how this would be in the child’s best interests.

Child Support

[18] I am ordering the Father to pay temporary child support to the Mother for the support of K.G. of $835 per month, commencing January 1, 2022. This is the table amount based on the income of $90,178 per year, based on the Father’s 2020 income of $90,862, less $684 for unions dues. This income figure comes from the Father’s 2020 Notice of Assessment, less the $57 per month in union dues that he claims on his financial statement sworn December 4, 2021.

[19] The Father previously undertook to pay $700 per month in child support, based on his representations to the court that this was the table amount. That Justice Summers (Feb 26, 2021) and Justice MacLeod (July 8, 2021) accepted this undertaking is not, however, a basis to refuse the Mother’s request for an interim order for child support at this time.

[20] I find that an interim order for child support is appropriate because:

a. K.G. is primarily in the Mother’s care;

b. The Mother has a prima facie entitlement to child support;

c. Despite the Father’s undertaking to the court, the uncontested evidence before me is that, as of February 3, 2022, he is two months behind in his child support payments.

d. The Father’s income in 2020 of $90,862 was higher than what he represented to Justice Summers and Justice MacLeod as his current income.

e. The Father’s August 31, 2021 pay stub, when annualized, results in an income of approximately $105,000, which is higher than his 2020 income.

f. The Father has not provided his 2021 year-end pay statement to the court. I infer from this that his income in 2021 was approximately $105,000.

g. There is evidence that the Father’s 2020 and 2021 pay includes amounts for back pay. But the starting point for calculating income for child support purposes, under s.16 of the Child Support Guidelines, is that income consists of the sources of income that make up a payor’s Line 150 Income – which includes back pay. If the Father wishes to pursue the argument that amounts received for back pay should be excluded from his income for child support purposes, he can make these arguments at trial.

h. I do not accept the Father’s arguments that his pay stubs and tax returns do not reflect his current income due to issues with Phoenix and recoveries of amounts paid to him when he has not provided evidence from his pay office in support of this.

i. The Father did not argue that table child support should be reduced because of undue hardship, although he has raised this in his pleadings. His sole argument regarding interim child support pertains to issues he claims with his pay. His previous representations to the court were that he would pay the table amount as interim support. The table amount turns out to be higher than what he has been paying. On the evidence before me, on an interim basis, I find that the table amount is appropriate.

j. For now, I am ordering temporary child support payable as of January 1, 2022, based on the Father’s 2020 income, given the uncertainty about the Father’s pay. This income may be a bit too high, or a bit too low. The Father will need to provide better evidence at trial than he has to date to support the various claims that he makes about his income. But for the time being, on a temporary basis, this provides a more reasonable, and probable, amount of child support than the previous amount being paid. This award is interim only and is reviewable at trial. The issue of what child support should have been paid from the date of separation to the trial date will be determined at trial.

[21] The Father seeks an order imputing income to the Mother. I am not doing this. The Mother’s income is not relevant to the determination of interim child support that I have made today, given K.G. is primarily in her care. The Mother is not seeking a temporary order requiring the Father to contribute to s.7 expenses. The Mother advises that she will pursue s.7 expenses at trial. The issues about the Mother’s income, as they may relate to child support, are therefore best left to trial.

Other Orders Sought

[22] The Father seeks an order that K.G.’s original official documents be in his possession in odd-numbered years. It was suggested that he wants to open a bank account for her. K.G. is two years old. This does not need to be addressed on an interim motion and is best dealt with at trial.

[23] The Father seeks orders requiring the Mother to provide disclosure about her income. I decline to deal with other orders for disclosure in this motion. Justice Engelking is the case management judge. If the parties seek further procedural orders for disclosure, they will need to seek an appearance before Justice Engelking.

[24] The Father seeks an order for costs for the motion on June 29, 2021, the conference on July 29, 2021, and the conference on December 14, 2021. I decline to do so. I am not making orders for costs for appearances over which other Judges presided. To the extent the presiding Judge did not decide them, such costs may be addressed as part of any cost submissions after a trial decision, if not otherwise agreed by the parties (see Rule 25(11)).

[25] I will decide the costs of the motion heard on February 3, 2022. I have provided directions below for the parties to make submissions on costs. Mr. Gilpin may also make submissions if he seeks costs.

[26] The Father seeks an order requiring the Mother to provide an updated Form 35.1 and 35.1A. I am ordering both parties to do so within 30 days. Both parties have completed these forms by either indicating “not applicable” as answers to many questions or leaving answer areas blank. Neither is not acceptable. All of the questions require responsive answers. “Not applicable” is not a responsive answer.

[27] The Father is particularly concerned that the Mother has not listed her parents on her Form 35.1. I do not see that as a material issue. She has disclosed that her parents currently live with her. In any event, both parties need to provide new forms in accordance with the Rules.

[28] The Father seeks a finding that the Mother, Mr. Letts, and Mr. Gilpin have acted in bad faith. It is not clear to me what jurisdiction of the court the Father seeks me to exercise to do so. To the extent that the Father takes the position that the Mother has acted in bad faith as it pertains to the costs of this motion between himself and the Mother (see Rule 24(8)),he may include this in his submissions on costs within the page limits directed below.

[29] I do not find any basis upon which to find that Mr. Letts or Mr. Gilpin have acted in bad faith. The Father served Mr. Gilpin, the Mother’s previous lawyer, with his motion. Mr. Gilpin attended the motion and spoke to the issue. In his submissions, the Father suggested that he sought an order of costs personally against Mr. Gilpin for acting in bad faith because he did not disclose to Justice MacLeod that he had received certain documents. I am not making this order. The Father has not provided me with a transcript of the proceeding, and therefore I do not have evidence of what was or was not said to Justice MacLeod. The Father was also represented by counsel, who presumably made submissions on his behalf and could have provided evidence of the documents in issue. Justice MacLeod’s endorsements reflect that he was aware that some documents had been provided. I do not find any basis upon which to personally order costs payable by Mr. Gilpin. I point out that the test for requiring counsel to pay costs personally is very high, requiring the court to exercise extreme caution, and is only granted in exceptional circumstances. The Father’s allegations fall far short of the test needed to be met.

[30] FOR THE ABOVE REASONS, I GRANT THE FOLLOWING ORDERS:

[31] Under the Children’s Law Reform Act:

a. The Respondent Mother, T.E., shall have sole temporary decision-making for the child, K.G., born [XXXX], with prior consultation with the Applicant Father, A.G.

b. On a temporary basis, K.G. shall primarily reside with the Respondent Mother. The Applicant Father, A.G., shall have parenting time based on the Applicant representing that his work schedule is as indicated below:

1. Week 1[^3] – The Applicant works 6 am to 6 pm Monday, Tuesday, Friday, Saturday and Sundays;

a. The Applicant shall have parenting time from Wednesday after childcare to Thursday morning, before childcare;

2. Week 2 – The Applicant works 6 am to 6 pm Wednesday and Thursday;

a. The Applicant shall have parenting time from Friday after childcare to Monday morning (being Monday of Week 3) before childcare;

3. Week 3 – The Applicant works 6 am to 6 pm Wednesday, Thursday and Friday;

a. The Applicant shall have parenting time from Saturday at 10 am to Monday morning (being Monday of Week 4) before childcare;

4. Week 4 – The Applicant works 6 pm to 6 am Tuesday, Wednesday and Thursday;

a. The Applicant shall have parenting time from Friday after childcare to Sunday at 6 pm;

5. Week 5 – The Applicant works 6 am to 6 pm Monday, Tuesday and 6 pm to 6 am Friday, Saturday and Sunday;

a. The Applicant shall have parenting time from Wednesday after childcare to Friday morning before childcare;

6. Week 6 – The Applicant works from 6 pm to 6 am on Monday;

a. The Applicant shall have parenting time from Wednesday after childcare to Friday morning before childcare;

7. Week 7 – The Applicant works “leave relief.” His schedule is not provided until two weeks before. Therefore, the Applicant shall have parenting time from Wednesday after childcare to Friday morning before childcare, but only if he is not working during this period. If he is working, this parenting time will not occur, and there will not be any make-up time.

8. Week 8 – The Applicant works “leave relief”. His schedule is not provided until two weeks before. Therefore, the Applicant shall have parenting time from Wednesday after childcare to Friday morning before childcare, but only if he is not working during this period. If he is working, this parenting time will not occur, and there will not be any make-up time.

9. “Before childcare” means drop off or pick up in the morning at the normal morning drop off time for K.G.

10. “After childcare” means drop off or pick up in the afternoon at the normal afternoon pick up time for K.G.

11. During the Applicant’s parenting time, K.G. shall continue to attend childcare for the normal operating period to maintain the Respondent’s childcare subsidy. K.G. shall only be permitted to be absent from childcare if the childcare is closed or restricts attendance, the parties agree, or if K.G. is sick. If a party takes the position that K.G. cannot attend childcare because she is ill, that party must confirm this by a doctor’s note.

c. The Applicant shall immediately request that his employer accommodate a regular parenting schedule that, at most, rotates over two weeks rather than over eight weeks and allows him to have parenting time every second weekend. He shall provide the Respondent, through counsel, with a copy of his letter requesting this accommodation, and a copy of all further communications with his employer on this request, including their response.

d. If the Applicant’s employer will accommodate a regular parenting schedule that, at most, rotates over two weeks, rather than over eight weeks, and allows him to have parenting time every second weekend, this matter may be returned to me to adjust the interim parenting schedule so that the Applicant has approximately the same amount of temporary parenting time, but on a two-week rotating schedule.

e. Within 30 days, the Applicant shall provide the Respondent with confirmation from his employer of his current work schedule and, in the event of any changes to that schedule, within 30 days of such a change. If the Applicant takes the position that his employer does not allow him to release confirmation of his work schedule to the Respondent, he shall provide, within the same period, proof from his employer that this is the case.

[32] Under the Family Law Act:

a. Commencing January 1, 2022, the Applicant shall pay temporary child support to the Respondent for the support of K.G., born [XXXX], of $835/m. This is the table amount payable for one child by a payor in Ontario, earning $90,178 per year.

b. This order for temporary child support is without prejudice to the issue of what child support is payable from the date of separation forward, including s.7 expenses, which shall be determined at trial.

[33] Under the Family Law Rules:

a. Within 30 days, each party shall serve and file a new Form 35.1 and Form 35.1A.

b. If the parties cannot agree on further disclosure, they shall seek an appearance before Justice Engelking, case management Judge, to address disclosure.

c. If the parties cannot agree on this motion's costs, the Respondent may serve and file submissions concerning costs on or before February 18, 2022. If Mr. Gilpin seeks costs, he may also serve and file submissions by February 18, 2022. The Applicant may file submissions concerning costs on or before February 25, 2022. Any Reply, if needed, shall be served and filed on or before March 1, 2022 (limited to two pages). Cost submissions shall be no more than three pages in length, plus any offers to settle and bills of costs, and shall be spaced one point five spaces apart, with no less than 12-point font; except for Reply submissions limited to two pages.

[34] All other claims on these motions are dismissed.

[35] Because this decision will be published, I have initialized the parties’ names to protect the child’s interests, R. This is partly because the previous published decision also used initials. My use of initials is without prejudice to the issue of whether initials should be used in any future published decisions.

Justice P. MacEachern

Date: February 10, 2022

COURT FILE NO.: FC-20-1516

DATE: 2022/02/10

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: A.G., the Applicant

-and-

T.E., the Respondent

BEFORE: Justice P. MacEachern

COUNSEL: Applicant, Self–Represented

Eric Letts, for the Respondent

ENDORSEMENT on motions

Justice P. MacEachern

Released: February 10, 2022

[^1]: Although the Applicant provided affidavits sworn January 22, and 31, 2022, these contain almost no evidence of K.G.’s current circumstances. His previous affidavit was sworn on July 21, 2021.

[^2]: The Respondent questions whether the Applicant’s work schedule is what he says it is. She has requested confirmation from his employer, but this has not been provided. The Applicant suggests that access to his work schedule is restricted due to the nature of his work.

[^3]: It appears that the Applicant’s work weeks run from Monday to Sunday