B.M. v. D. M, 2023 ONSC 2068

COURT FILE NO.: FS-19-170

DATE: 20230403

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

B. M.

Applicant

– and –

D. M.

Respondent

Lloyd St. Amand, for the Applicant

Danica E. Maslov, for the Respondent

HEARD: February 27, March 1, 2, 3, 6 and 7. 2023

Justice D.A. Broad

[1] The trial of this matter concerned the respondent’s (the “father”) motion to change the final order of Kent, J. made on consent of the parties on July 2, 2014 (the “Final Order”) in respect of decision-making and parenting time for the parties’ two children G.M. (now aged 11 ½ years) and W.M. (aged 8 1/2 years) (the “children”) and to fix child support.

[2] The parties agreed that their and the children’s names and the names of other witnesses should be initialized to protect the privacy of the children.

[3] The applicant (the “mother”) and the father commenced a relationship in 2005 and separated in October 2013.

[4] The Final Order provided that the mother would have sole custody (decision-making) in respect of the children and the father would have access (parenting time) to the children as agreed to by the mother. The order also provided for payment of child support by the father to the mother.

[5] The mother resides with the children in the City of Brantford and has been employed full-time since 2015 in the accounting and payroll department of an automotive dealership. Her hours of work are on Monday through Friday from 8:00 a.m. to 4:30 or 5:00 p.m., with flexibility to accommodate W.M.’s schedule in hockey.

[6] The father resides in the City of Brantford with his partner S. B. and their two children a boy aged 3 (R.) and a girl aged 19 months (M.) (initial of surnames not provided). They moved to Brantford in December 2018. Their residence is a five-minute drive from the mother’s residence.

[7] The father is employed at a steel plant in Hamilton, Ontario. He works on a two-week cycle that allows him to be off work for approximately three weekdays per week and every second weekend.

[8] The children attend Our Lady of Providence School in Brantford. The school property backs onto the mother’s residence and is a five-minute drive from the father’s residence.

Finding of Henderson, J. respecting a material change in circumstances

[9] The father brought a motion to change the Final Order on August 30 2019 seeking joint custody (decision-making) for the children and equal parenting time on a week-about basis, together with the elimination of child support payable by him to reflect the proposed altered parenting arrangement.

[10] The parties differed on whether the father could establish that there had been a material change in circumstances to warrant a review of the final order respecting decision-making and parenting time. On consent the parties sought a ruling by the court by means of a motion for summary judgment on the threshold issue of material change in circumstances.

[11] The motion was heard by Henderson J. and he rendered his decision on October 9, 2020 (the “Henderson Order”) holding that there existed a material change in circumstances warranting a review of the Final Order with respect to decision-making and parenting time and that the father’s motion to change could therefore proceed. Justice Henderson’s Reasons for Decision were reported at 2020 ONSC 6146

[12] The mother’s appeal from the Henderson Order was dismissed by the Court of Appeal on April 22 2021 with reasons reported at 2021 ONCA 264.

[13] The father submitted that there had been four changes in circumstances since the Final Order, namely:

(a) the father had moved to Brantford from Hamilton and resided much closer to the residence of the mother and the children;

(b) the father’s work schedule had changed such that he will be more available to care for the children during the week;

(c) the father had re-partnered and his new partner is available to assist him with the children if he is unavailable; and

(d) the children have expressed a desire to spend more time with the father.

[14] In his Reasons Henderson, J. made the following findings of fact as of the date of hearing of the motion:

(a) the mother and the father lived in Hamilton with their oldest child G.M. at the time of their separation October 2013;

(b) the mother moved to Brantford in early 2014 with G.M. and the parties’ second child W.M. was born in June 2014. The mother and the children have lived together in Brantford since that time, and the father remained in Hamilton;

(c) as of the date of argument of the motion, the mother had made all of the important decisions regarding the children’s health, education and activities. She had informed and consulted with the father with respect to some of the children’s medical decisions, and the father had had some input into those decisions;

(d) communications between the parties have occasionally resulted in friction and conflict, and their communications have not always been amicable;

(e) the father has a new partner S. B. In December, 2018 the father and S.B. moved to Brantford where they now reside with their first child who was one year old at the time of argument of the motion;

(f) the father lives approximately five minutes away from the residence of the mother and their children, and approximately five minutes away from the children’s school. Prior to moving to Brantford, the father lived approximately 30 minutes away from the residence of the mother and their children;

(g) father continues to work for the same employer, but his work schedule had changed. He is currently on a two-week cycle that allows him to be off work for approximately three weekdays per week and every second weekend; and

(h) for the purposes of the motion, the children were happy and healthy in their present environment. There were no issues with respect to the mother’s ability to parent the children and there was no evidence to suggest that the father was not able to properly care for the children.

[15] Henderson, J. noted that there was a factual dispute respecting the children’s views and preferences. He noted that the children were not old enough to express their views and preferences at the time of the making of the Final Order, they were very young on the date of the hearing of the motion and their views and preferences had little effect on the threshold motion respecting material change in circumstances. Henderson, J. stated that he would not be making any finding of fact regarding the children’s views and preferences and would not consider this factor any further in his analysis.

[16] Henderson, J. considered the remaining three factors namely the father’s move from Hamilton to Brantford, the change in his work schedule, and his having re-partnered with S.B., as one alleged change that revolved around the father’s increased availability to parent the children. He found that this change met the three-part test for a material change in circumstances as outlined in the case of Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 SCR 27 namely (1) a change in the condition, means, needs or circumstances of the children and/or the ability of the parents to meet the needs of the children; (2) which materially affected the children; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.

Relief sought by the father at trial

[17] At trial, the father sought the following relief, as set forth in his draft order submitted at the conclusion of trial:

(a) the parties shall have joint decision-making responsibility for the children;

(b) in the alternative, the parties shall have joint decision-making responsibility for the children, with the mother to have final decision-making responsibility in the event of a profound disagreement between the parties;

(c) in the further alternative, the mother shall have sole decision-making responsibility for the children. Prior to exercising final decision-making authority for the children, the mother shall first consult with the father in respect of all important decisions and will seek his input. Only after the consultation process shall the mother be at liberty to make a decision, which shall be communicated to the father in writing;

(d) the parent having the children in his or her care shall make day-to-day decisions concerning the children;

(e) in a health emergency, the parent with care of the children shall make the treatment decision on the advice of medical personnel and shall immediately contact the other parent;

(f) both parties shall have the same right and entitlement to information from third parties relating to the health, education and welfare of the children;

(g) both parties shall be entitled to attend school meetings and events, medical and health-related appointments and recreational activities and both parties shall be listed as emergency contacts at school for the children;

(h) the parties shall have parenting time with the children on a week-about basis from Sunday to Sunday with exchanges taking place at 8:00 PM;

(i) in the alternative, the parties shall have a two-week 2-2-3 rotating schedule of parenting time;

(j) in the further alternative, the father shall have parenting time with the children every other weekend from Friday after school until Sunday at 8 PM with one midweek overnight visit in each week, with the schedule to be reviewed in six months with a view to further expanding the father’s parenting time;

(k) a detailed holiday schedule for parenting time including three weeks with the father during the school summer vacation with no more than two weeks being scheduled consecutively and March breaks with each parent in alternating years;

(l) in the case of equal parenting time, the father shall pay the mother child support in a set-off amount of $361 per month, commencing January 1 2023;

(m) in the case of less than equal parenting time, the father shall pay to the mother table amount of child support in the amount of $1,137 per month commencing January 1, 2023;

(n) arrears of child support shall be fixed at $9,076.08, less $3,500 for the outstanding costs award owing by the mother to the father, for a total of $5,576.08 to be paid at the rate of $250 per month commencing January 1, 2023;

(o) arrears of section 7 expenses to be determined by the court and fixed, to be paid on a monthly rate by the father to the mother until paid in full.

Relief sought by the mother at trial

[18] The mother sought the following relief as set forth in her draft order submitted at the conclusion of the trial:

(a) the father’s motion to change shall be dismissed;

(b) the father shall have parenting time with the children on alternate weekends from Friday after school until Sunday at 8:00 PM;

(c) the children shall be with the father each Father’s Day if they are not otherwise with him, from 9:00 AM until 8:00 PM;

(d) if the children are with the father on Mothers’ Day weekend, the father shall return the children to the mother on Mothers’ Day at 9:00 AM;

(e) the father shall have parenting time with the children for three non-consecutive weeks during the summer holidays;

(f) at Christmas each year the children shall be with the father from December 25 at 1:00 p.m. until Boxing Day at 8:00 PM and four additional days over the Christmas holidays as agreed upon between the parties;

(g) the father shall pay child support to the mother in the amount of $1,137 per month commencing July 1, 2022

(h) child support to be paid by the father to the mother shall be adjusted for the years 2016, 2017, 2018, 2019, 2020 and 2021 to the table amount for each of those years based upon the father’s annual income in each of those years;

(i) the father shall pay 50% of section 7 expenses for the children, including daycare expenses, retroactively from September 1 2015 until the present time; and

(j) the mother shall be permitted to travel with the children outside of the Province of Ontario without the consent of the father, or a court order.

Governing Statutory Principles

[19] As indicated above, the parties never married. The applicable legislation is therefore the Children's Law Reform Act, R.S.O. 1990, c. C.12 (the “CLRA” or the “Act”)

[20] Amendments to the CLRA came into force on March 1, 2021. The amendments change the terminology, expand on the matters to be considered and otherwise codify the legal principles developed over time in the case law.

[21] The following are the statutory provisions in the Act dealing with parenting orders which may be pertinent to the issues to be determined in the case at bar.

24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section.

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

(3) Factors related to the circumstances of a child include,

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

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

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

(d) the history of care of the child;

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

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

(g) any plans for the child’s care;

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

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

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

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

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

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

(5) 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 the person’s decision-making responsibility, parenting time or contact with respect to the child.

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

(7) This section applies with respect to interim parenting orders and contact orders, and to variations of parenting orders and contact orders or interim parenting orders and contact orders.

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

(a) may by order grant,

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

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

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

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

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

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

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

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

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

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

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

(vii) requiring a party to facilitate communication by the child with another party or other person specified by the court in a manner that is appropriate for the child.

(4) The court may allocate decision-making responsibility with respect to a child, or any aspect of it, to one or more persons.

(5) The court may allocate parenting time with respect to a child by way of a schedule.

(6) Unless the court orders otherwise, a person to whom the court allocates parenting time with respect to a child has exclusive authority during that time to make day-to-day decisions affecting the child.

(7) The court shall include in a parenting order or contact order any written parenting plan submitted by the parties that contains the elements relating to decision-making responsibility, parenting time or contact to which the parties agree, subject to any changes the court may specify if it considers it to be in the best interests of the child to do so.

(8) Unless a court orders otherwise, a person to whom decision-making responsibility or parenting time has been granted with respect to a child under a parenting order is entitled to ask for and, subject to any applicable laws, receive information about the child’s well-being, including in relation to the child’s health and education, from,

(a) any other person to whom decision-making responsibility or parenting time has been granted with respect to the child under a parenting order; and

(b) any other person who is likely to have such information.

Legal Principles derived from the jurisprudence re parenting issues

[22] The starting point in reference to the resolution of parenting issues is that, as stipulated in subsection 24(1) of the Act, the sole consideration is best interests of the children, The focus is therefore on the children, not on the parents.

[23] As observed by Gordon J. in S.K. v. D.P., 2022 ONSC 2359 at para. 62, past conduct, specifically addressed in subsection 24(5) of the Act as pertaining to the best interests of the child, primarily focuses on the child. Parental conduct, however meritorious or reprehensible, does not enter into the analysis unless it relates to the ability of the parent to meet the needs of the child. Misconduct, however, that results in the parents having a negative view or attitude towards each other may necessitate consideration when it affects the emotional well-being of the child.

[24] Gordon J. noted that what is known as the maximum contact principle has traditionally emphasized that children shall have as much contact with each parent as is consistent with their best interests. A corollary to this is sometimes referred to as the "friendly parent rule", which instructs courts to consider the willingness of a parent to foster and support the child's relationship with the other parent, where appropriate. Both of these considerations are recognized by the Act at ss.24(6) and ss. 24(3)(c). What is known as the maximum contact principle is only significant to the extent that it is in the child's best interests; it must not be used to detract from this inquiry. The amended Act recasts the "maximum contact principle" as “as much time with each parent as is consistent with the best interests of the child:” ss. 24(6). This shift in language is more neutral and affirms the child-centric nature of the inquiry. Indeed, going forward, the "maximum contact principle" is better referred to as the "parenting time factor" (see Barendregt v. Grebliunas 2022 SCC 22 para. 131-135)

[25] McSorley, J. of the Ontario Court of Justice (as she then was) observed in Habel v. Hagedon, 2005 ONCJ 242 (aff’d at [2007] O.J. No. 2143) at para. 7 that joint custody may be appropriate in three main types of cases:

• An order for joint custody works best when the parents agree to it, although such agreement is not a prerequisite to ordering joint custody.

• Joint custody may also be appropriate where neither parent has disentitled himself or herself to custody and where there is a positive history of co-operative parenting and effective, appropriate communication between the parents with respect to their child or children.

• Finally, joint custody may also be ordered to preserve a parent's relationship with the child or children in cases where the parent who is the primary caregiver objects to joint custody without just cause, particularly where there is a risk that the objecting parent will try to marginalize and limit the other parent's involvement with the child.

[26] Chappel, J. provided a very useful summary of factors to be considered by the court in determining decision-making issues in the recent case of McBennett v. Danis, 2021 ONSC 3610 at para. 97. What follows is an abbreviated list of the pertinent factors complied by Chappel, J. with the citations omitted:

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

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

3. In order to grant joint decision-making in some or all areas, there must be some evidence before the court that despite their differences, the parties are able to communicate effectively in the areas under consideration for the sake of the child;

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

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

6. The fact that one party insists that the parties are unable to communicate with each other is not in and of itself sufficient to rule out the possibility of a joint decision-making order in some or all areas. The issue for the court's determination is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis;

7. In analyzing the ability of the parties to communicate, the court must delve below the surface and consider the source of the conflict. One parent cannot create conflict and problems with the other parent by engaging in unreasonable conduct, impeding access, marginalizing the other parent, or by any other means and then justify a claim for sole decision-making in their favour on the basis of lack of cooperation and communication;

8. However, where an objective review of the historical and more recent evidence clearly indicates that there has never been an ability to cooperate or communicate effectively, and that both parties are responsible for this dynamic, joint decision-making is not an appropriate order;

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

10. However, the mere fact that both parents acknowledge that the other is a "fit" parent does not mean that it is in the best interests of the child for a joint decision-making order to issue. The determination of the appropriate decision-making arrangement must take into consideration all factors relevant to the child's best interests;

11. In some cases, the parties are clearly able to cooperate and jointly support the best interests of the child in some areas of decision-making but have a pattern of conflict and lack of collaboration in other specified areas. In these circumstances, a hybrid type of decision-making structure that provides for joint decision-making in the areas that have never been problematic but that allocates the remaining areas out to each party for sole decision-making may be the most appropriate outcome; and

12. Evidence as to how an interim parenting order has worked, and in particular, whether the parties have been able to set aside their personal differences and work together in the best interests of the child, will be highly relevant to the ultimate decision regarding the appropriate decision-making regime.

[27] The child’s views and preferences, insofar as they can be ascertained, are a factor for the best interest analysis.

[28] In the case at bar no evidence respecting the children’s views and preferences was made available to the court. On August 30, 2021, I made an order, on consent of the parties, requesting involvement of the Office of the Children’s Lawyer (OCL) to prepare a report pursuant to s. 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43. Regrettably the OCL declined to become involved. A s. 112 Report may have been invaluable in assisting the parties in resolving the issues without a trial by agreement, and failing agreement, in assisting the court in addressing the issues at trial in a manner in keeping with The United Nations Convention on the Rights of the Child (to which Canada is a signatory). The Convention provides at Article 12 that “states parties shall assure to the child who is capable of forming his or her own views the rights to express those views freely in all matters affecting the child, the view of the child being given due weight in accordance with the age and maturity of the child.”

Position of the father on the parenting issues

(a) Communication between the parties

[29] The father submits that the evidence points to the parties having been able to communicate cordially and amicably prior to the father moving to Brantford in 2018, and states that the mother agreed that there were some positive communications prior to that time and that the communication has deteriorated since. Once the father notified the mother that he was looking to purchase a home in Brantford the mother’s communication style changed and became very hostile.

[30] The father submits that the evidence supports the conclusion that the mother is the source of the conflict between the parties. She has marginalized the father from the children’s lives and has claimed sole decision-making responsibility based on a lack of cooperative communication.

[31] The text message communications between the parties introduced at trial clearly show that the mother has not been respectful or appropriate in her communications with the father. The mother also engaged in profane and insulting language towards the father’s partner S.B., calling her an “educated c**t” and a “bitch” during their first telephone conversation. The mother continues to be openly hostile when meeting S.B. in public.

[32] The mother acknowledged in testimony that her communication has not been appropriate. None of the text messages introduced at trial would attribute the source of the conflict to the father’s behaviour. His communication with the mother was shown to be respectful and cordial. The mother still harbours considerable animosity against the father.

(b) Marginalization of the father’s role in the children’s lives

[33] The father submitted that the mother has marginalized his role in the children’s lives contrary to their best interests. The evidence at trial confirmed that both parents are competent and caring and, in her testimony, the mother admitted that there have never been any concerns relating to the father’s parenting of the children, acknowledging that he is a good father and that he loves the children.

[34] Notwithstanding the foregoing, the mother admitted to unilaterally decreasing the father’s parenting time in or around November 2018 after she did not meet with S.B. as requested by her simply because she felt “uncomfortable” with the father having overnights with the children at that time.

[35] There were numerous examples of the mother failing to consult with or inform the father of important information relating to the children, all of which would have been in the best interests of the children for the father to know.

[36] The father points to the issues concerning the child G.M.’s Individual Education Plan (IEP) as the most egregious example of the mother’s failure to share important information respecting the children with the father.

[37] The mother initially stated that she had just received the consent form for a psycho-educational assessment in G.M.’s backpack around May 2022 and that she had no further communications with school authorities about the IEP from the date of the Consent until the receipt of the IEP on February 28, 2023. After further questioning, the mother admitted that she had had at least two telephone conversations with school personnel, two in-person conversations and one email exchange regarding the IEP, and ultimately admitted that she never communicated this information to the father.

[38] After attempting to evade the question multiple times, the mother admitted that she had not responded either personally or through counsel to a letter from the father sent through counsel on May 31 2022 requesting information about the IEP.

[39] The father subsequently reached out directly to the school but was told that the school could not provide him with information about the IEP without the mother’s consent. The mother admitted that G.M.’s teacher had alerted her to the father’s email looking for information, and also admitted that she failed to give consent to the school to furnish the father with the information that he had been requesting. She had also failed to reach out to the father to provide the information to him. The mother maintained that the father should have persisted in asking her for the information instead of going “behind her back” to the school.

[40] Although the mother admitted that it was in G.M.’s best interests for the father to have the information, the information was not forthcoming from her at any point. She refused to admit that she had failed to act in G.M.’s best interests by failing to provide the father with the information.

[41] The father also points to the example relating to the children’s COVID-19 vaccination status. The mother admitted that she had never consulted with the father about COVID-19 vaccinations for the children. In reaching the decision not to vaccinate the children, she did not even consult with her family doctor. She stated that she did not advise the father of the children’s COVID-19 vaccination status because she “did not think it was relevant.”

[42] The father also cited the example of G.M.’s participation in the “Stay at Home Alone” program which the mother admitted the child had completed at the end of 2022. She acknowledged that she did not inform the father prior to or after completion of the program, stating that G.M. would have been the one to let the father know of this information or alternatively, that the father should have asked. She had no answer when asked how the father would have known to ask for this information.

[43] The mother also admitted that she had engaged a tutor for G.M. but had not consulted with the father in making this decision, nor had she advised the father of the tutoring or provided him with any updates regarding the tutoring sessions.

[44] The mother admitted to enrolling G.M. in an art class around November 2022, without any consultation with the father nor did she inform the father after G.M. had attended the art class. She also admitted to not consulting the father prior to enrolling the children in summer camp, and to have never provided the children with the opportunity to spend time with the father instead of going to camp.

[45] The mother testified that she would not agree to allow the father to obtain information directly from third-party sources, stating that she did not think that it was appropriate but rather the father should be required to request information from her. Notwithstanding this, the evidence disclosed that when the father did request information from the mother, no response was received. In her testimony the mother stated that she relies on the children to keep the father informed. This is not a reliable or appropriate way to provide information to the father.

[46] Although the mother stated that she believes the father’s input is important, the evidence disclosed that she does not seek his input prior to making major decisions for the children.

[47] When asked whether she would agree that both her and the father’s home were equally important to the children, the mother would not agree, and implied that the father’s home is not even a home for the children. She pointed out that another home for the children would be her parent’s home.

[48] The father submits that the mother has marginalized the father’s role in the children’s lives and will continue to do so unless the court intervenes.

(c) Parenting time

[49] The father submitted that the evidence did not disclose any issues respecting his ability to parent the children, nor did the mother allege any incidents regarding the father’s parenting. She was unable to articulate any reason why the father has not been an appropriate parent to the children.

[50] The father submits that as close to 50/50 percent parenting time of the children would be in their best interests. He has proposed two alternate parenting plans, namely a “week-about” arrangement with exchanges on Sunday evenings or alternatively a 2-2-3 rotating schedule that follows his days off work.

[51] The “week-about” schedule would have the father and S.B. working cooperatively to meet the needs of the children including taking them to school and to extra-curricular activities. The 2-2-3 schedule would have the father assume most of the parenting of the children during his parenting time, with S.B. providing support as needed.

[52] The father submits that the mother has not identified any reason why it would not be in the best interests of the children to have maximum contact with their father by means of a 50/50 parenting time arrangement.

[53] The father says that the mother has demonstrated no interest in providing additional parenting time to him if it does not remain within her discretion to do so. The draft order submitted by the mother proposes that the father continue to only have alternate weekends, with no PA days, holidays or weekdays specified.

[54] The father pointed out that in her text messages to him, the mother depicts herself as the children’s custodian, with him only having access to them. She has stated that his time with the children should be considered “a privilege.”

[55] The mother asserted that she had been “generous” in providing the father time during the summer and some holiday time with the children. When questioned on her use of the word “generous” to refer to the father’s parenting time, the mother was forced to capitulate and changed her characterization of her approach to “fair.”

[56] The father maintained that the mother has been dictatorial in her dealings with him concerning the children.

[57] The father submitted that the children have a close bond with their younger siblings and look forward to seeing them more regularly.

Position of the mother on the Parenting Issues

(a) Communication between the parties

[58] The mother submitted that the evidence led at trial reflects that the parties do not communicate effectively and that any communication they do have is infrequent and quite terse. She says that the parties have not communicated effectively for a period of approximately nine years.

[59] The mother described the relationship between the parties as “copacetic” for the four years following the final order of Kent, J. on July 2, 2014, but stated that things changed dramatically in November 2018. She stated that, given the historical inability of the parties to communicate, the mother did not wish to meet with S.B. in the presence of the father. The reality is that the mother and S.B. have no relationship, beyond nodding to one another in a public setting.

[60] The mother submitted that, based on the jurisprudence, an award of joint decision-making is not appropriate where there is no evidence of historical co-operation and appropriate communication between the parties in the hope that it would improve their parenting skills of the parties.

[61] The mother maintained that she was justifiably suspicious of the father’s and S.B.’s intentions when she learned from the child G.M. that they had found a home in Brantford and S.B. stated that they were not considering any changes to the children’s current living situations, which she regarded as untruthful.

[62] The mother stated that she regrets the language that she used in some of her text messages and expressed remorse, however, she explained that it was a very emotional time and she very much wanted to get the know the woman who would be spending significant periods of time with her two children. She maintained that her comments and the manner in which she expressed those comments should not be held against her.

(b) Keeping the father informed and involving him in decision-making

[63] The mother stated that, although the father made much of the fact that he had not been consulted by her with respect to decisions pertaining to the children, the evidence suggests that he had never requested of her that she sign a consent which would allow him to access information about the children directly from third parties such as education and medical personnel.

[64] The mother acknowledges that the father should be consulted by her with respect to decisions pertaining to the children and he should be kept informed about all major decisions pertaining to them. With respect to decisions made to date, it appears from the evidence that the only concern the father had pertained to her enrolment of the children in summer camps. Otherwise, there is nothing about her decision-making respecting the children which the father found wanting or inappropriate. Rather, it is the process of the decision-making that is disturbing to the father.

[65] The mother observed that although the Final Order was not specific concerning the father’s time with the children, the parties were able to fashion a schedule which they followed. The father was to have the children in his care on alternate weekends and at various times through the week. The mother often drove the children from Brantford to Hamilton so that they would have time with their father and there were seemingly no skirmishes about one party being late for pickup or drop-off. The parties worked out parenting time during the summer months, at Christmas, March Break and other holidays.

[66] The mother submits that the children are doing well with the status quo and there is no compelling reason to displace it. The children’s attendance at school has been exceptional and they regularly complete their homework which is monitored by her.

[67] The children’s medical needs are attended to. Mother points out that the father has never met the children’s physician.

[68] The children are involved in a number of activities including W.M. playing on a second hockey team with her agreement. The children have friends in the neighbourhood and regular contact with extended family members. The mother maintains that the children are comfortable in her care.

[69] The mother stated that when she was served with father’s Motion to Change, she did not withhold the children, and although she did indicate that she would do so in November 2018 she did not carry this out.

[70] The mother pointed out that the father acknowledged that he has never had the children on an evening before a school day. The mother was forthright in indicating that she would be content with weeknight visits for the father, but not overnights.

Review of the evidence and discussion

(a) Decision-making

[71] The evidence indicates that prior to early November 2018 the parties were capable of and did communicate with one another cordially and constructively. In an exchange of texts on August 13 and 14, 2018 they had what was clearly a friendly exchange addressing payments from the father to the mother through the Family Responsibility Office, clothing for the children and plans for G.M.’s birthday party.

[72] The mother’s attitude towards the father changed dramatically in early November 2018. The father testified on cross-examination that, although the mother had previously been positive about his proposed move with S.B. to Brantford, when the purchase occurred her whole demeanour changed.

[73] In an exchange of text messages on or about November 6 2018 the mother was demanded a meeting with S.B. without the father being present, and threatened to withhold the children until such a meeting took place. The mother stated “look it’s this simple. I meet [S.B.] you get to see your kids. I do not get to meet [S.B] and I will not feel comfortable with the kids around either of you… If you cannot respect me or my wishes I will not make special allowances for you like PA days or extra holidays. I want to give the kids that opportunity but if I feel uncomfortable with their care then I will be limited in what is allowed.”

[74] S.B. reached out on the same day to the mother by email to follow-up on her request to meet. An exchange of emails ensued in which S.B. indicated that it was important that the father to be part of the meeting in order to discuss the roles and expectations of one another in order to avoid any suggestion that she was interfering in the parents’ roles. The mother responded aggressively, stating in part “I have absolutely no interest in spending time with [the father] in discussing any roles. I am asking to meet with you.” S.B. answered, in part by stating “I am not opposed to chatting in the future and would be happy to do so after [the father], you and I meet in person during the kids scheduled drop off weekend with their father. To meet before that is redundant as we do not have possession of any house, nor considering any changes to [the children’s] current living situations.” She went on to state that “[the father] is your primary source of contact, not me.” The mother reacted with threats to withhold the children and to involve third parties, responding in part “I will not feel comfortable dropping off the kids with [the father] as I worry for their health and safety.” She concluded “I will be contacting the appropriate people to ensure their safety and well-being is being met.”

[75] On November 16 2018 S.B. contacted the mother by telephone, as she was not comfortable meeting the mother in person one on one. S.B. testified that the mother dominated the conversation and used profanity, including the “F” word, throughout and called S.B. an “educated c**t” and a “bitch.” In her testimony at trial the mother was evasive in responding to questions about her behaviour and tone during the telephone conversation, stating that she could not be “100% sure of all verbiage and wording” she used and could not be sure of what she had said.

[76] In her testimony the mother had great difficulty in bringing herself to refer to S.B. by her name, repeatedly referring to her as “this individual.” I find that this is indicative of her disrespectful and dismissive attitude towards S.B.

[77] Subsequent to the email and telephone exchanges between the mother and S.B. in November 2018 they never developed any relationship. They do not speak, only nodding to one another in public places.

[78] In my view, responsibility for the damage that occurred to the ability of the mother and the father to effectively communicate for the benefit of the children rests with the mother.

[79] The mother’s hostility towards the father and his partner S.B. upon learning that they had made plans to move to Brantford to be closer to the children was unwarranted and inexplicable. Indeed, the mother did not offer a rational reason for this hostile reaction in her testimony. I accept that the mother knew about the father’s and S.B.’s plans to look for a house in Brantford some three or four months previously. Ordinarily, it would be expected that the mother would welcome such a move for the benefit of the children, if only to reduce travel time for exchanges.

[80] I find that the mother’s refusal to meet with S.B. with the father being present was unjustified. S.B.’s approach to the situation in requesting the father to be part of the discussions concerning the appropriate roles of the parties in the children’s lives was entirely appropriate. S.B. was being careful to ensure that she would not be perceived by the mother as treading on the proper roles of both parents. I accept S.B.’s perception, as she relayed in her testimony, that what the mother was really seeking to do was to interview her as she would a babysitter. The mother’s aggressive and disrespectful behaviour towards the father and S.B. over the issue has had the effect of undermining, perhaps irretrievably, the chances of the parties developing any kind of relationship marked by positive communication and cooperation for the benefit of the children.

[81] The hostility that the mother harbours towards the father and S.B. and her dismissive attitude towards their having any meaningful role in the lives of the children, have not abated in the time that has passed since November 2018. In an exchange of texts which the father testified took place around January 23 2019 the mother made some quite shocking comments to the father which help to define her attitude towards his role in the children’s lives, as follows:

Mother: “Leave my kids out of it and worry about the one you have with your girl. Move on with your life and leave my kids alone.”

Father: “So what their (sic) not my kids? You need help… So now are you going to try and keep them away from me?”

Mother: “They are your children by DNA. That’s it. I legally can’t keep them away from you.”

[82] The mother did not lead any evidence to suggest that her hostile attitude and communications towards the father were reciprocated by him, and I find, on the evidence, that they were not.

[83] I also find that since the Final Order the mother has sought to marginalize the father’s role in the lives of the children, relegating him to a “weekend father” with no right to be consulted in decision-making or to be informed, either by her or by involved third parties, respecting their well-being including their education and health.

[84] I agree with the father’s counsel that the most egregious, but not the only, example of the mother’s marginalization of the father relates to the process leading to the implementation of an IEP for G.M. in 2022 and early 2023, including the child undergoing a psychoeducational evaluation.

[85] On May 31, 2022 the father’s counsel wrote to the mother’s counsel stating as follows:

“This past week, the child, [G.M.] handed to my client a consent form for what looks like a psychoeducational evaluation. No information or context has been provided by [the mother] to my client regarding same. I think we can all agree that this is not an appropriate way to provide information to the parents. My client would like additional information such as: Is the child G.M. experiencing issues at school? Who recommended this evaluation be completed? Who is going to complete it? When and where will it be completed? And other such pertinent information.”

[86] This clear and appropriate request for information concerning G.M.’s educational best interests was ignored by the mother. I find that her answers on cross-examination on why she did not respond were evasive.

[87] The mother sought to deflect responsibility by initially saying that she was unsure if her counsel provided a response, stating “to be honest the request was made to my counsel. I heard nothing further.” A short time later she stated that her counsel did share the letter with her, but she did not have any other information beyond the consent form. She stated that G.M. was tested in late 2022 however she did not advise the father in advance that she was to be tested.

[88] Under questioning, the mother admitted that she had received confirmation from the child’s teacher that G.M. had completed the assessment. When asked when she provided the father with this this information, she responded that he never requested the information other than by the letter from counsel in May. She stated that “I believed that he would have pursued it further” and “I had not received a further inquiry from him”

[89] The mother acknowledged that in early November 2022 G.M.’s teacher informed her that the father had contacted her to obtain information about her psychoeducational assessment. She became aware that the school took the position that it could not share any information with the father because of the terms of the Final Order. Although she professed in her testimony that she would welcome the father receiving information from the school, she admitted that she did not offer her consent to the school providing the father with the information, nor did she reach out to the father to provide the information that he was seeking.

[90] Although she agreed that it would have been in the child’s best interests for the father have the information, she stated that she “assumed” that the father had received the information that he was looking for. She did not explain how she was able to make this assumption when she knew that the school would not share the information with him, and she had not provided it to him.

[91] Although the mother stated that she was sorry that she did not give the father the information, she sought to justify her conduct by maintaining that she had always made these types of educational decisions and that it was “unusual” for the father to make a “big deal about this” and that the important thing was that he received G.M.’s IAP but “not the process to get there.”

[92] The mother also acknowledged that she had not consulted the father about having the children vaccinated against COVID-19, nor had she made the father aware that the children were not vaccinated. When asked why, she responded that it was because the children’s health status had not changed and there was no update to give.

[93] Although the mother reluctantly agreed that informing the father of the children’s COVID-19 vaccination status was in their best interests, she sought to excuse her failure to do so on the basis that he did not know about the children’s other vaccinations, he never asked for the information, and she did not think it was relevant.

[94] In late 2022 the child G.M. completed a program entitled “Stay at Home Alone” in which she received instruction on the necessary skills to be at home safely without adult supervision. The mother acknowledged that she had not informed the father that the child had completed this program, dismissing the suggestion on the basis that it was “no different than programs for pottery and rock-climbing.”

[95] In my view, equating a course devoted to training the child in life skills to permit her to be safely at home without adult supervision to receiving instruction in pottery or rock-climbing is disingenuous and an insufficient excuse for not informing the father.

[96] The mother would not acknowledge that it was in G.M.’s best interests for the father to be informed that she had completed the “Stay at Home Alone” program. She sought to justify her failure to advise the father on the basis that they do not have a “talking relationship” and they do not communicate, except to arrange parenting time exchanges. She stated that she would be willing to share this type of information if the parties had a working relationship and if it was something that they did on a regular basis. She acknowledged that would have been beneficial for the father to have this information, but she had not provided it to him.

[97] Similarly, the mother acknowledged that she had not consulted with the father prior to engaging an academic tutor for G.M. in 2019. She stated that, although she had not consulted with the father, he was made aware that she had retained a tutor for G.M., although she did not explain how this occurred. In any event, the mother did not update the father on the progress of the tutoring as it was ongoing, nor did she inform him when the tutoring sessions ended.

[98] The mother enrolled G.M. in an art class in October 2022. However, she did not consult with the father prior to enrolling the child and was unsure whether she had informed him following enrolment. However, she maintained that the father was aware but did not explain how. She did not think that this was important information for the father to have, as it is not critical for the safety of the child and was not something that she and the father had regular conversations about.

[99] In my view the evidence is clear that the mother has, by her conduct and attitude, marginalized father’s parental role in the children’s lives by failing to consult him before making important decisions in their best interests, not informing him of important events in their lives touching on their development, and not facilitating the exercise of his right to obtain pertinent information from third parties involved in the children’s care, as provided in ss. 28(8) of the CLRA.

[100] In my view, the case at bar is an example of the third type of case described by McSorley, J. in Habel v. Hagedon where the parent who is the primary caregiver objects to joint decision-making without just cause, particularly where there is a risk that the objecting parent will try to marginalize and limit the other parent's involvement with the child. Here there is more than a risk of the mother marginalizing and limiting the father’s involvement with the children, she has demonstrably done these things.

[101] Chappel, J. addressed the quandary which the court is faced with in this situation in Khairzad v Macfarlane, 2015 ONSC 7148 at paras. 31-33 (authorities and citations omitted):

In analyzing the ability of the parties to communicate, the court must delve below the surface and consider the source of the conflict. The Ontario Court of Appeal has clearly stated that one parent cannot create conflict and problems with the other parent by engaging in unreasonable conduct, impeding access, marginalizing the other parent, or by any other means and then claim sole custody on the basis of lack of cooperation and communication.

There has been an increasing willingness in recent years to order joint custody rather than sole custody where necessary in order to preserve the balance of power between the parties, particularly in cases where both parties are caring and competent parents but one party has been primarily responsible for the conflict between the parties.

Although the foregoing comments outline the various factors and considerations which the courts have taken into consideration in deciding between sole and joint custody, the analysis must at all times remain firmly grounded in the best interests of the child before the court. While both parents may be attentive and loving, a joint custody order may not coincide with the child’s best interests. As Pazaratz, J. stated in Izyuk v. Bilousov, 2011 ONSC 6451, 2011 CarswellOnt 12097 (S.C.J.) at para. 504, “[I]n the wrong family circumstances, a joint custody order can perpetuate hostilities, indecision, and power struggles. Children- particularly children already exposed to the upset of family breakdown- look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully.”

(underlining added for emphasis)

[102] In my view the case at bar bears the hallmarks of the type of circumstances described by Pazaratz J. in Izyuk v. Bilousov in the passage cited above. The mother’s unexplained hostility and bitterness towards the father and towards his partner S.B. is so engrained and she is so unwilling or incapable of letting it go, that the making of a joint decision-making order would not be in the children’s best interests for the reasons identified by Pazaratz, J.

[103] To his credit, the father does not seek sole decision-making for himself, but rather seeks an end to the mother’s marginalizing behavior and the right to be consulted and informed about important issues involving the children and to have his views considered and taken into account in decision-making. As noted above, the father has proposed two alternatives to joint decision-making in his submissions and draft order, namely, 1) that the parties have joint decision-making responsibility, but in the case of profound disagreement, the mother shall have final decision-making responsibility or 2) that the mother shall have sole decision-making responsibility but prior to exercising final decision-making authority the mother shall first consult with the father in respect of all important decisions and seek his input.

[104] In my view, an order for joint decision-making responsibility with final decision-making to the mother in the event of dispute would not actually represent joint decision-making in the true sense. I find that to address and correct the mother’s marginalizing behaviour, the second alternative proposed by the father, incorporating a robust duty on the mother to consult with the father, is most appropriate course and is in the best interests of the children.

[105] Before concluding my remarks regarding decision-making, I note that the mother called a long-time close friend B.H. to testify to their relationship, her relationships with the children G.M. and W.M., their shared activities and her observations of the mother with the children. I place no weight on B.H.’s testimony on the issues for determination and found it unhelpful. B.H. was clearly aligned with the mother and bore antipathy towards the father. She stated that she stopped speaking to the mother for four years because she “did not approve of” the father. She acknowledged that when she has seen the father, they “don’t engage” and that she has never observed the father parenting G.M. and W.M.

(b) Parenting time

[106] It is evident from the evidence at trial that the mother incorrectly interpreted the provision respecting access (parenting time) in the Final Order of Kent, J. as conferring on her the right to unilaterally grant and withhold parenting time to the father in her discretion. A statement made by the mother in a text message to the father exemplified her approach when she stated “please remember these children are in my sole custody and you have access to them. I will gladly have them come home this weekend - as it is a privilege [for you] to have them an additional week.” The mother’s attitude in this respect was also demonstrated by her threat to withhold the children if her demand to meet S.B. on her terms was not met. As noted above, she characterized the father’s parenting time with the children on PA days or extra holidays as “special allowances” she makes for him.

[107] In her draft Order the mother evidently seeks to retain the right to provide or withhold additional time to the father in her discretion on holidays and special days throughout the year, as no specific provision was made for those days in her draft.

[108] Paragraph 2 of the Final Order of Kent, J. did not grant access (parenting time) to the father “in the discretion” of the mother, but rather “as agreed to” by the mother. An agreement requires the participation and concurrence of both parties, not simply a unilateral decision by the mother.

[109] In my view an expansion of the father’s parenting time with the children is necessary to correct the imbalance which has prevailed since the making of the Final Order and is in keeping with the principle set forth in ss. 24(6) of the CLRA that a child should have as much time with each parent as is consistent with the best interests of the child.

[110] As Gordon, J. rightly observed in S.K. v. D.P. at para. 90 “parenting time and the responsibility it entails, involves more than just overnight visits. It includes responsibility for school -related matters and extracurricular activities and other events.”

[111] The mother led no concrete evidence showing that an expansion of the father’s time with the children would not be in their best interests. She simply made the conclusory submission that there is no compelling reason to disturb the status quo on the basis that it has worked, as children's attendance at school is exceptional, they regularly have their homework assignments monitored and assisted by her, and their medical needs have been met.

[112] It is noteworthy that the mother made no suggestion of any deficiencies in the father’s parenting capabilities.

[113] In my view to continue to relegate the father to the role of a “weekend parent” would not be in the best interests of the children. I agree with Gordon J.’s observation in S.K. v. D.P. at para. 93 that generally young children need to spend time with each parent on a frequent basis. I also agree with his comment at para. 93 that sibling relationships are an important consideration.

[114] The father and S.B. both testified to the strong relationships and affection which have developed between G.M. and W.M. and S.B.’s two children R. and M. These sibling relationships would be better fostered by more frequent contact.

[115] It is also important that the father have mid-week time with the children so that he may participate, with S.B.’s involvement, as fully as possible in their education, including helping them with homework, and with morning, afternoon and evening routines. It is in the children’s best interests that they come to perceive their father as fully involved in all aspects of their lives, including their education, extra-curricular activities and daily guidance and discipline, and not just as the “leisure time” parent on alternate weekends.

[116] To meet this goal, I find that it is in the best interests of the children that their time with the father be expanded to a 50/50 arrangement.

[117] On balance, the 2-2-3 two-week rotating schedule organized around the father’s work schedule proposed by the father is preferable to his alternate “week-about” plan. Although the 2-2-3 schedule would entail more frequent exchanges, conversely it has the advantage of offering more frequent regular contact between the children and each parent and between the children and their younger siblings in the father’s household. It also maximizes the father’s time with the children during the time allocated in the schedule to him and would place less reliance on S.B. as a caregiver.

[118] Under an alternating 2-2-3 parenting schedule, there would be no requirement to make specific provision for school professional development days. On such days the children shall be in the care of the parent scheduled to have parenting time with them.

[119] A detailed holiday and special day schedule shall be specified in the order. Christmas and March Break school vacations shall be shared equally by the parties, with the parties to have the children for March Break in alternating years. Each party shall have three weeks during the school summer vacation with the children, with no more than two weeks being scheduled consecutively. Additional time during the school summer vacation may be allocated between the parties by agreement.

[120] Based upon the parties’ respective draft orders submitted at the conclusion of the trial, there appears to be no disagreement that, in the event that equal parenting time is ordered, the father shall pay to the mother child support in a set-off amount, based upon their respective annual incomes, in the sum of $361 per month commencing January 1, 2023.

[121] There also appears to be no disagreement that the father owes retroactive support to the mother based upon his fluctuating income for the years 2016 through 2022 in the total amount of $9,076.08. He has paid child support at the level stipulated in the Final Order without adjusting for fluctuations in his income.

[122] Similarly, there is no disagreement that the mother owes the sum of $3,500 to the father for costs awarded by the Court of Appeal and that it is appropriate to set off the outstanding costs award owing by the mother against the arrears of child support owing by the father, resulting in a net amount of arrears to be paid in the sum of $5,576.08.

[123] As submitted by the father, the net arrears of child support should be paid at the rate of $250 per month commencing January 1 2023 until paid in full.

[124] The mother claims from the father 50% of section 7 expenses incurred by her for the years 2015 to 2022. She calculates the total amount expenses at $15,952.20, with the father’s share being $7,976.10.

[125] Para. 6 of the Final Order provided for the father to pay 50% of section 7 expenses “as agreed to by the parties including any childcare costs, upon being provided with receipts.”

[126] The father does not dispute the mother’s calculation but submits that he was not given the opportunity to agree or disagree with the various expenses, nor was he provided with receipts for them.

[127] In my view, the father should not be relieved of the obligation to contribute to the section 7 expenses incurred by the mother. Both parties evidently disregarded the strict terms of paragraph 6 of the Final Order. Although the mother did not provide receipts for the expenses to the father nor seek his agreement to them, he knew or should have known generally that the expenses were being incurred for the benefit of the children, including the childcare expenses. The father did nothing to follow up with the mother to obtain particulars and receipts. The only expenses that the father took serious issue with were in relation to enrolment in summer camps. His complaint was not the expense incurred or that the children benefitted from attending the camps but the fact that they were enrolled in camp by the mother without offering that they spend that time with him during the summer when he was available to care for them.

[128] In my view the father should be ordered to pay $7,976.10 for arrears of section 7 expenses at the rate of $250 per month commencing January 1 2023 until paid in full.

Disposition

[129] For the reasons set forth above, it is ordered as follows:

Decision-making responsibility

1. The applicant shall have sole responsibility for making significant decisions about the children’s [names and dates of birth to be inserted in the formal order] well-being, including with respect to (a) health (including a decision not to vaccinate the children against communicable diseases as recommended by public health authorities) (b) education (c) culture, language, religion and spirituality and (d) significant extra-curricular activities.

2. Prior to exercising decision-making authority for the children, the applicant shall first consult meaningfully with the respondent in respect of all important decisions and will seek his input as follows:

(a) she shall notify him of the particular decision to be made, including disclosure of any relevant documents, and the proposed decision she intends to consider, with brief reasons;

(b) unless the circumstances clearly require an earlier response as communicated by the applicant to the respondent acting reasonably, he will respond within three business days as to his views and the decision he supports with brief reasons;

(c) if the parties are unable to reach an agreement within five business days after the time permitted for his response, she shall make the final decision;

(d) during the consultation process, each party may consult with any third-party service providers pertaining to the decision required to be made;

(e) it is only after this consultation process is completed that the applicant will be at liberty to make a decision, which decision shall be communicated by her to the respondent in writing.

3. During the period when the children are in the care of either the respondent or the applicant, the parent having the children in his or her care shall make day-to-day decisions concerning the children.

4. In a health emergency, the parent with care of the children at that time shall make the treatment decision, on the advice of medical personnel. If a parent makes an emergency health decision, the parent who has made the decision must immediately contact the other parent.

5. Both the applicant and the respondent shall have the same right and entitlement to information from third parties relating to the health, education and welfare of the children without the necessity of any release, direction, or acknowledgement executed by the other parent. If necessary, either parent will cooperate and execute any required authorization or direction necessary to enforce the intent of this clause.

6. Subject to policies and mandates of relevant public health authorities, both the respondent and the applicant shall be entitled to attend school meetings and events, medical and health -related appointments, and recreational activities including sports games, practices, and award ceremonies. Both parents will be listed as emergency contacts at school for the children. The applicant shall keep the respondent informed as to the names and contact information of all third-party educational service providers, including the children’s teachers, principal, and tutors, if any, and physicians, dentists and other healthcare providers.

Parenting time

7. The parties shall have parenting time with the children in accordance with the two-week rotating schedule set forth on Schedule A hereto, commencing on a date to be arranged by the parties which corresponds with the respondent’s work schedule.

8. The parties shall have parenting time at any other times as agreed by them.

9. Parenting time exchanges shall be conducted at the children’s school, if possible, or at the parents’ residences, if not possible. The parent shall remain in the vehicle and the children shall exit the vehicle and go into the other parent’s residence.

10. Each parent’s parenting time schedule shall be subject to the following holiday schedule for the children:

(a) March Break: the children shall be with the respondent in even-numbered years and with the applicant in odd-numbered years, from after school as the break starts until the start of school following the break;

(b) Mother’s Day: if the children are not otherwise with the applicant on this weekend, the children will stay with the applicant on Mother’s Day weekend, from Saturday at 7:00 p.m. until their return to school on Monday;

(c) Father’s Day: if the children are not otherwise with the respondent on this weekend, the children will stay with the respondent on Father’s Day weekend, from Saturday at 7:00 p.m. until their return to school on Monday;

(d) Summer Vacation: respecting the children’s school summer vacation, each party will spend on interrupted vacation time with the children as follows:

i. the children will stay with each parent for three (3) weeks during the school summer vacation, with no more than two (2) weeks being scheduled consecutively.

ii. unless otherwise agreed, the applicant shall have the first choice of weeks in odd-numbered years and the respondent in even-numbered years, with the choice to be communicated to the other parent by April 30, unless otherwise agreed.

iii. Additional time during the school summer vacation may be allocated between the parties by agreement.

(e) Christmas Eve/Morning and Christmas Day: the children will stay with the respondent from 12:00 noon on Christmas Eve until Christmas Day at 12:00 noon and with the applicant from 12:00 noon on Christmas Day until 8:00 p.m. on Boxing Day in even-numbered years, and with the applicant from 12:00 noon on Christmas Eve until Christmas Day at 12:00 noon and with the applicant from 12:00 noon on Christmas Day until 8:00 p.m. on Boxing Day in odd-numbered years;

(f) Christmas Break: the parties’ regular parenting schedule shall be changed to a week-about basis from Sunday to Sunday with exchanges to be at 8:00 p.m. with the respondent to have the choice of week in even-numbered years and the applicant in the odd-numbered years;

(g) New Year’s Eve/ New Year’s Day: the respondent shall have parenting time with the children on New Year’s Eve from 5:00 p.m. until New Year’s day at 12:00 noon in odd-numbered years and the applicant in even-numbered years. The applicant shall have parenting time with the children from January 1, 2021 from 12:00 noon to 7:00 p.m. in odd-numbered years and the respondent in even-numbered years;

(h) Family Day Weekend: the respondent shall have the children in even-numbered years and the applicant shall have the children in odd-numbered years from Friday after school until Monday at 8:00 p.m.;

(i) Easter Weekend: the respondent shall have parenting time with the children from Thursday after school until Monday at 8:00 p.m. in odd-numbered years. The applicant shall of parenting time with the children from Thursday after school until Monday at 8:00 p.m. in even-numbered years;

(j) Victoria Day Weekend: the respondent shall have the children in even-numbered years and the applicant shall have the children in odd-numbered years from Friday after school until Monday at8:00 p.m.;

(k) Thanksgiving Day Weekend; the respondent shall have parenting time with the children in odd-numbered years and the applicant in even-numbered years from Friday after school until Monday at 8:00 p.m.;

(l) unless otherwise agreed, parenting time with the children on all other holidays or long weekends shall be exercised according to the regular parenting time schedule.

Communication

11. Except in the case of an emergency affecting one or both of the children, the parties shall communicate with one another in writing by text or email or using a communication app upon which they may agree upon. Communications between the parties shall be confined to issues respecting the well-being of the children or parenting time issues including exchanges and vacation or trip scheduling.

12. The parties shall maintain a respectful tone in their communications with each other or with their respective partners, if any, and will refrain from the use of name-calling or profanity. Neither party shall speak ill of the other in the presence of, or in the vicinity of the children, nor shall they permit any other person to do so.

13. The applicant and the respondent will provide each other with their current email addresses, current municipal addresses and a current cell phone number where they can be reached at all times and shall immediately inform the other of any changes to this information.

Documentation and travel

14. The applicant shall be the custodian of the children’s documents, including birth certificates, health cards, social insurance cards and passports. The applicant shall provide notarial copies of the health cards and birth certificates to the respondent. The applicant shall deliver the children’s passports to the respondent at least 10 days prior to any scheduled trip. The respondent will return the children’s passports to her on the next parenting time exchange following return from the trip.

15. If either party plans to travel with the children outside of the province that party shall notify the other parent not less than 30 days prior to planned departure and provide a detailed travel itinerary which includes all locations, transportation and contact information for the duration of travel, inclusive of accommodations, flight numbers and times. Proposed travel shall not occur during any of the days the child is in school or on days the child is with the other parent according to the rotating and holiday schedule without the other party’s consent or order of the court. If permitted, the party whose consent to travel is required shall provide a travel consent letter to the travelling parent unless there are valid grounds to withhold consent. Neither party may travel for more than 14 consecutive days or more than once a year with the children without the other parent’s written consent or court order.

Child support and section 7 expenses

16. The respondent shall pay to the applicant child support in a set-off amount of $361 per month based upon their current respective incomes, commencing January 1 2023 and on the first of each month thereafter

17. Arrears of child support owing by the respondent to the applicant shall be fixed at $9,076.08 minus $3,500 in respect of the outstanding costs award to the respondent, for a net total of $5,576.08. This amount shall be paid by the respondent to the applicant at the rate of $250 per month, commencing January 1 2023 and on the first of each month thereafter until paid in full.

18. The respondent shall pay to the applicant the sum of $7,976.10 for arrears of section 7 expenses for the years 2015 to 2022 at the rate of $250 per month commencing January 1 2023 until paid in full.

19. Ongoing section 7 expenses shall be shared by the parties in proportion to their respective annual incomes.

20. This order bears interest at the post-judgment interest rate set out in the Courts of Justice Act of 2% per year effective from the date of this order. A payment in default bears interest only from the date of default.

21. For as long as child support is to be paid, the applicant and the respondent shall provide updated income disclosure to the other each year within 30 days of the anniversary of this order in accordance with section 24.1 of the Federal Child Support Guidelines.

22. Unless the support order is withdrawn from the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the orders shall be paid to the Director who shall pay them to the person to whom they are owed. A support deduction order will be issued.

Costs

[130] The parties are strongly encouraged to agree upon costs.

[131] Failing agreement, the respondent may deliver written submissions on costs within 14 days of the release of these Reasons the applicant shall have 10 days thereafter to deliver responding submissions. There shall be no reply submissions unless requested by the court or with leave. The written submissions on each side shall not exceed four double-spaced type- written pages, exclusive of Costs Outlines or Bills of Costs and Offers to Settle.

[132] The written submissions shall be sent to the Trial Coordinator at Brantford at the email address utilized for the release of these Reasons.

[133] If the parties are able to resolve the issue of costs, they are directed to advise the court accordingly. Any party choosing not to deliver costs submissions shall similarly advise the court.

[134] If no submissions are received within the times as set forth above, the parties shall be deemed to have settled the issue of costs.

D.A. Broad, J.

Released: April 03, 2023

SCHEDULE A

To Reasons for Decision of Broad, J. April 3, 2023

Monday

Tuesday

Wednesday

Thursday

Friday

Saturday

Sunday

Week 1

With the Applicant drop off at school.

With the Respondent pick up from school

With the Respondent

With the Respondent until drop off at school

With the Applicant from pick-up at school

With the Applicant

With the Applicant until school drop off at school

With the Respondent from pick-up at school

With Respondent

With the Respondent until 7:00 p.m.

With the Applicant from 7:00 p.m.

Week 2

With the Applicant

With the Applicant

With the Applicant until drop off at school

With the Respondent pick up at school

With the Respondent

With the Respondent until drop off at school

With the Applicant from pick-up at school

With the Applicant

With the Applicant

COURT FILE NO.: FS-19-170

DATE: 20230403

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

B. M.

Applicant

– and –

D. M.

Respondent

REASONS FOR JUDGMENT

D. A. Broad, J, SCJ

Released: April 03 2023