Court File and Parties

COURT FILE NO.: FC-19-1016 DATE: 2023/06/09

SUPERIOR COURT OF JUSTICE

BETWEEN:

Kimberly Amber O’Connor Applicant (“Kimberly”) – and – Ken Duguay Respondent (“Ken”)

COUNSEL:

Francois Kasenda Kabemba for the Applicant Self-represented

HEARD: January 17, 18, 19, 20, 23, 24, 25, 26 and 27, 2023 (at Ottawa)

Amended Reasons for Decision

The text of the original decision was amended on June 9, 2023 and the description of the amendment is appended

SHELSTON J.

[1] The applicant (“Kimberly”), and the respondent (“Ken”), are the biological parents of one child of their relationship namely, J., who is 6 years old. He currently resides with both parents on a week-about basis, with the exchange day being Sunday, at 5:00 pm. The issues for this trial address which parent should have decision-making responsibility; determining a parenting time schedule; determining the quantum of table child support, Ken’s claim to be reimbursed by Kimberly in the amount of $230.13 regarding a cellphone, and costs.

Factual Background

[2] Kimberly is 34 years of age. She received a high school diploma in 2007 and attended a pre-graphic design course at Algonquin College for six months in 2009. Kimberly has been in receipt of benefits through the Ontario Disability Support Plan (“ODSP”) since 2015, as a result of mental and physical health challenges. Kimberly testified that she has had blackouts in the workplace that started in 2015 and continues. Prior to receiving these benefits, she worked in the food industry such as at Subway. She is in a relationship with Mr. Turner, who is also in receipt of ODSP benefits. They are the biological parents of a child named, K., now 2 years old. K. resides primarily in the care of Kimberly but every second week, when J. and K. are together, Mr. Turner lives with Kimberly and the maternal grandmother. The other weeks, he resides at his residence. Kimberly is pregnant with Mr. Turner’s second child, with the due date at the end of May or early June 2023. Mr. Turner and Kimberly are engaged to be married.

[3] Ken is 42 years of age. He graduated with a degree in computer science in 1998, is currently employed as a public servant and earns an annual income of approximately $71,000. He has a roommate, Mr. Shawn O’Connor, who is Kimberly’s brother.

[4] The parties met online in 2015 and moved in together in Toronto, on June 11, 2015. They subsequently moved to Sudbury for a period of time and then, by April 2016, moved to an apartment in Ottawa, with Kimberly’s mother, Ms. Cardinal. The child, J. was born in August 2016. The parties moved to a townhouse in the Barrhaven area of Ottawa, to be closer to Kimberly’s father and stepmother, Mr. O’Connor and Ms. Grant.

[5] Prior to separation, the child was attending daycare, where problems arose with the child fighting and biting other children.

[6] Both parties cared for the child while living together, including Ken taking a six-month paternity leave from his employment. From the child’s birth until separation, Kimberly was responsible for all parts of the child’s life especially dealing with medical appointments. The parties and the child were patients of Dr. David McMillan.

[7] Problems arose in the relationship resulting in the parties undertaking couples counselling and receiving budgeting advice from Kimberly’s father and stepmother. On March 7, 2018, the Children’s Aid Society (“CAS”) received an allegation by Kimberly that she had been pushed into a wall, about a year before, after an argument with Ken about cleanliness in the home. Furthermore, she complained that Ken set up a camera in the master bedroom and another on the main floor to monitor her activities and to allow him to send her messages from work.

[8] On December 11, 2018, Kimberly decided to end the relationship because Ken refused to help her when she slipped and injured her knee upon entering their townhouse. The parties resided together until January 2019 when she was removed from the townhouse by the Ottawa Police Service (“OPS”) based on allegations made by Ken. She was permitted to remove limited contents and moved in with her mother in a townhouse two doors down from his residence. .

[9] The parties, with the assistance of Kimberly’s father and stepmother, agreed starting in February 2019 to an alternating week-about schedule with the exchange being on Sunday. In March 2019, there was a verbal agreement that the change-over would be Monday morning at home. At this time, the parties lived two doors down from each other. Ken was working from 7:00 am to 3:00 pm, while Kimberly was not working, as she was in receipt of ODSP benefits. The parties agreed that Ken would pay for her cell phone if she would drop off and pick up the child from daycare. This arrangement worked until April 2019, when the parties had an argument related to a cellphone bill. Thereafter, Kimberly’s brother Shawn, would drop off and pick up the child from daycare on Ken’s week.

[10] On May 31, 2019, Kimberly started these proceedings. The parties appeared at a case conference before Justice Beaudoin, on July 24, 2019, who ordered the parties to maintain a week-about schedule, ordered Ken to pay table child support of $355 per month commencing August 1, 2019, as well as addressed various other issues.

[11] In September 2019, J. started to attend junior kindergarten and Ken changed his work hours from 9:00 am to 5:00 pm, which would allow him to drop the child off at the Jockvale Elementary School, which is approximately a two-minute drive from his residence. Shawn would pick the child up until Ken returned home at approximately 6:00 pm.

[12] On February 13, 2020, Kimberly contacted the CAS about the child exhibiting aggressive and sexualized behaviour. On February 21, 2020, she contacted the OPS alleging that Ken was harassing her. After the police interviewed Ken, no further action was taken. On March 15, 2020, Kimberly contacted the OPS again alleging that Ken was harassing her based on her receiving four text messages. The police interviewed Ken and no further action was taken.

[13] With the onset of the Covid-19 pandemic in March 2020, Ken started to work from home, which he continues to this day. On June 11, 2020, while working from home, J., who was in the care of Kimberly, unexpectedly entered his home and approached his father. Kimberly contacted the OPS alleging that Ken was interfering with her exclusive time with the child. After the police interviewed Ken, no action was taken.

[14] In June 2020, Ken was charged with physical and sexual assault on Kimberly. In the undertaking signed by Ken, one of the conditions was that he not communicate directly or indirectly, with her except in accordance with his access to the child via a family court order or in accordance with any written agreement between the parties via a counsellor, CAS, or a mutually agreed upon third-party.

[15] On August 6, 2020, Kimberly took the child to the Children’s Hospital of Eastern Ontario (“CHEO”) because of his aggressive behaviour. On August 8, 2020, she contacted the police because J. was becoming increasingly violent with her and the pets, and she wanted to force Ken to sign papers so the child could receive therapy. No action was taken.

[16] By September 2020, the parties could not agree as to whether the child should attend school in person or virtually, as a result of the Covid-19 pandemic and Kimberly wanted the child to attend counselling to address his aggressive behaviour. The matter went to court and on October 9, 2020, Justice Ryan Bell ordered that the child attend school in person, designated Ken as the parent with decision-making responsibility for educational issues and declined to order counselling for the child. The mother testified that she was on a waiting list to move to subsidized housing at this time.

[17] Ms. Picard, a child protection worker, testified that she initially became involved in February 2021, based on allegations that Kimberly had spanked the child on one occasion. The initial allegation was that she had caused the child’s injury to his neck but after consulting with the OPS and interviewing the child, the worker concluded that the child rammed his head into his mother’s stomach when he was mad causing the injury to the neck. Kimberly admitted to the worker that she was struggling with the child’s behaviour. By letter dated March 18, 2021, the CAS confirmed that Kimberly had spanked the child but that allegations of emotional harm to the child or physical harm to his neck were not verified. The CAS closed its file as Kimberly was engaging with Crossroads to get help and support for herself in parenting her child and that she was agreeable to creating a safety plan.

[19] On August 3, 2021, Kimberly contacted the OPS because her son was physically aggressive with her, causing her to have bleeding down her right side and her left arm and she had bite marks throughout her body. The police arrived and Kimberly recounted that the child went into a violent rage and physically hurt her on four occasions. She stated that the child choked her on her 32nd birthday and told her “I’m going to kill you”. Kimberly blamed the child being like Ken because he witnessed too much domestic violence. No action was taken but he OPS informed the CAS about the incident.

[20] Two days later, on August 5, 2021, Kimberly contacted the OPS again, yelling that her five-year-old was hitting her and has anger management issues. The police attended and spoke to Ken, who confirmed that the child did not display aggressive behaviour at his house. The OPS informed the CAS of this second incident. No action was taken.

[21] As a result of this second incident, the CAS intervened and recommended that the child stay with the maternal grandfather and his wife until mid-August to give Kimberly some respite. As of that date, the alternating week-about schedule for the child changed dramatically. The child continued to see Ken every second week and in the other week, the child was residing with his maternal grandfather and stepmother. Kimberly had parenting time from approximately 5:30 am, when she attended at Mr. O’Connor and Ms. Grant’s home to get the child ready to go to kindergarten. The child would be picked up by bus at their residence. She would attend at the maternal grandfather’s home to receive the child from the junior kindergarten program. She would stay at the house until the child went to bed and then she would leave. This process continued every second Monday through Friday. On the weekend, Kimberly was permitted to take the child to her home without supervision for approximately three hours.

[22] On August 19, 2021, the OPS interviewed Kimberly for child abuse allegations based on a report made by the CAS worker. The OPS advised her that because the child had suffered two injuries to his neck within two months of each other while in her care, they were concerned about the child. The officer warned her that the OPS and CAS have identified there was child protection issues with her and her child.

[23] Ms. Gropp, the child protection worker, assumed carriage of the file in September 2021. She testified that the CAS were concerned about Kimberly’s ability to manage her emotions to deal with the child’s significant behavioural issues and concerns about her ability to regulate herself. The CAS felt they needed to prepare a safety plan to help her deal with her mental health challenges and regulate the child’s emotions. By the time Ms. Gropp became involved, the safety plan had been in place since mid-August. The plan was that Kimberly, not be alone with the child without a member of her support network, being the maternal grandmother, Mr. Turner, the maternal grandfather and stepmother.

[24] When the CAS approached her and the maternal grandfather to care for the child in August 2021, Ms. Grant stated that she originally thought this would be for a few months. In fact, it lasted until August 2022. Starting in August 2021, the child resided at the maternal grandfather’s home and Kimberly would attend at the home in the morning, prepare the child for school, assist him for the bus to school and then, she would come back to their home to meet the child after school and stay until he went to bed. Ms. Grant found that when the child originally came into her care, she found him to be very needy, very upset, a true mess and angry.

[25] Ms. Kadri, the assigned social worker, testified that Crossroads received a referral from the CAS, in October 2021. At that time, the identified problems were Kimberly’s difficulty in having the child go to bed on time, the child being jealous with Kimberly spending time with her newborn K. and trying to transition the child from watching videos to other activities. From October 5 to December 23, 2021, Kimberly and Mr. Turner had twelve sessions with Ms. Kadri, while Ken and the child J, had seven. Ms. Kadri testified that one of the main goals was to address emotional regulation and she had taught J. and Kimberly on how to address that issue.

[26] Commencing in January 2022, Kimberly’s parenting arrangement changed. The parties agreed that the child would continue to sleep at Mr. O’Connor’s home, but that Mr. O’Connor would drop the child off at Kimberly’s home at approximately 6:30 am and that Ms. Grant would pick the child up at approximately 6:30 pm. The child would be Kimberly’s responsibility during this time, but he would sleep at the maternal grandfather’s home.

[27] While the child was in her care, Ms. Grant testified that she and Mr. O’Connor created a chart system where the child would earn stars for sleeping in his own bed, not using bad language etc. They indicated that they used the chart on Kimberly when she was a child. Problems arose when they made suggestions to Kimberly about parenting. The situation worsened when Kimberly complained to the CAS that Mr. O’Connor and Ms. Grant would bully her.

[28] By Easter 2022, Kimberly started to have J. overnight on Saturday without supervision.

[29] In his kindergarten report card dated June 27, 2022, J. was recommended to start grade one in September 2022. In the report card, the teachers indicated that he is progressing positively but uses profanity words at times. The teachers recommended that J. should be encouraged to participate in structured outdoor activities.

[30] Ms. Gropp found that from April to July 2022, Kimberly continued to struggle with her interpersonal conflicts, but the plan continued to reintegrate the child at her home. By August 2022, Kimberly had advised that she was planning to move to the South Keys area to live with the maternal grandmother. Ms. Gropp was concerned because of her challenges, her self-regulation and her conflictual relationship with her own mother. Kimberly was suggesting that she no longer wanted to follow the safety plan and sought to resume full-time care of J. The CAS indicated they did not have grounds to intervene or take a position on her parenting time but would review the safety plan involving her network should she struggle during her parenting time.

[31] By August 2022, Ms. Grant testified that the child was acting appropriately, would sleep in his own bed, did not use bad language, was compliant with requests and the child was back to listening.

[32] The parties agreed to resume the week-about schedule effective September 2022. On September 1, 2022, without any notice to Ken, Kimberly moved from the townhouse in Barrhaven to a subsidized four-bedroom home in the South Keys area. Despite moving, the parties agreed that J. would attend the school in Barrhaven.

[33] Since moving, Kimberly wakes J. between 5:30 am and 6:00 am, to leave the home to walk to the bus station for 6:40 am. She and J. take one bus and then, transfer to another bus arriving near the school at approximately 8:00 am. She then enters a local arena with the child, waiting for the start of school at 8:20 am. When Mr. Turner was with her, he would take K. to daycare for 7:30 am until 3:30 pm. When J. is in Ken’s care, it is a ten-minute walk or a five-minute drive to drop off and pick up the child from school.

[34] The parties agreed that the exchanges would continue to be on Sunday at 5:00 pm, at a train station or at Kimberly’s residence in the South Keys area. As neither party owns a car, Ken borrows a car from the maternal grandfather to drop off and pick up J. The parties communicate by Our Family Wizard (“OFW”) or simply text each other. By January 2023, the parties stopped using OFW and relied on text messages to confirm the exchange time and place on Sundays.

[35] In September 2022, Kimberly advised Ms. Gropp that the child was aggressive, swearing and refusing to go to bed when instructed to do so. Kimberly and Mr. Turner admitted to Ms. Gropp that they were struggling. In October 2022, Ms. Gropp recommended that Kimberly and Mr. Turner go back to Crossroads to get more parenting support. In November 2022, Ms. Gropp received two telephone calls from the school about the child’s behaviour. In December 2022, the school contacted the CAS because the child was disclosing that he was being physically disciplined by spanking at Kimberly’s home. Ken also alleged that the child was being beaten by Mr. Turner with a belt. Ms. Gropp investigated and could not verify these allegations.

[36] In December 2022, Kimberly contacted Crossroads, seeking more intervention because of dysfunctional comments made by J. In January 2023, she received confirmation that Crossroads would take her back for further assistance.

[37] In January 2023, Ms. Gropp had significant concerns that the child was not doing well because he was screaming, yelling, and not following Kimberly’s instructions. She did not close the file because she was concerned about Kimberly’s mental health, her coping skills and the child’s dynamic with Mr. Turner. She was concerned that the situation was regressing back to the situation in August 2021.

[38] By email dated January 19, 2023, the child’s grade one teacher advised that most of the behaviour that they had contacted her about had subsided except some swearing and that they were continuing to support the child.

Office of the Children’s Lawyer (“OCL”)

[39] By order dated January 28, 2021, the OCL was appointed and on June 3, 2021, the clinician was appointed. The completion of the report was delayed as a result of various investigations by the CAS. The parties had a disclosure meeting on December 20, 2021, and the clinician signed her report on January 17, 2022. On November 25, 2022, Justice MacEachern, case management judge, rejected a request to have an updated assessment and adjourn this trial. On January 17, 2023, I rejected a request by the applicant to have an updated assessment and adjourn the trial. This matter has been before the court since May 2019. When the litigation started, the child was almost three years of age. This year, he will turn seven years of age. By the commencement of this trial, the report was one year old, and things had changed.

[40] The clinician conducted numerous interviews with the parties, conducted observation visits, contacted collaterals and reviewed the extensive pleadings. She concluded that the child has lived most of his life in an unhealthy environment, where he was exposed to domestic violence. The child has been exposed to conflict between Kimberly and her extended family members and the conflict has had a huge impact on the child’s emotional health. The clinician found that while Kimberly believed that the child needed psychological help, the clinician felt that the child’s environment needed to change. After interviewing the grandfather, the step grandmother and reviewing records from the CAS, she found that positive changes had occurred in the child’s behaviour since he had been living with the grandfather and step-grandmother. The school confirmed that the child functioned well for the most part and did not report any major behavioural problems.

[41] The clinician identified that the close proximity of the parties’ homes accentuated the parental conflict, and it was essential that one of the parents move. The clinician found that Kimberly’s actions of calling the CAS and the OPS on multiple occasions in 2021 demonstrated a great lack of judgment, insight, and parenting skills. Even though she had taken parenting courses and participated in twelve sessions with Crossroads, her progress was proceeding very slowly.

[42] The clinician was especially concerned about Kimberly’s mental state as being a cause of concern regarding her ability to parent the child. She admitted to the clinician that she suffers from panic attacks, depression, post-traumatic stress disorder (“PTSD”), seizures and dissociative disorder. The family doctor confirmed to the clinician that she had traits of borderline personality disorder, anxiety, PTSD, panic disorder and unstable emotions. She was advised by the CAS that her environment was chaotic and the maternal grandmother’s influence was not positive for the child and she had exposed him to violent adult games and used vulgar language towards the child. Furthermore, Kimberly admitted to the CAS that the maternal grandmother was tired, irritable and at times, impatient with the child.

[43] At the time of the report, the child was living one week with Ken and one week with Mr. O’Connor and Ms. Grant. The clinician found that the safety plan created by the CAS helped in reducing the conflicts. In January 2022, the clinician did not recommend that the child return to a shared parenting time schedule because of the impact Kimberly’s mental health issues had on her parenting. She found that the parents are not good candidates for joint decision-making responsibility, as they are not able to decide together due to a high level of disagreements and ongoing conflict.

[44] The clinician made the following recommendations:

a) Sole decision-making responsibility to Ken, with an alternate week schedule with the exchange being Sunday at 5:00 pm. Kimberly to have parenting time with the child at the paternal grandfather’s house on alternate weeks after school until bedtime and three unsupervised hours on weekends. b) Ken to have primary residence if the maternal grandparents are no longer part of the safety plan put in place by the CAS. c) Kimberly to request assistance from her support network if she is feeling overwhelmed during unsupervised hours and inform CAS of any concerns with the safety plan. d) The parties to maintain cooperation with the CAS and follow their recommendations. e) Ken to inform mother about important events in the child’s life and seek her input on major decisions. Ken to sign consents allowing mother to contact collaterals involved with the child. f) One of the parties needs to find new accommodation further away from the other, as soon as possible. g) Kimberly to discuss with her family doctor the possibility of doing an updated psychiatric assessment to confirm diagnosis and treatment plan. h) Ken to take in the “Parenting Through High Conflict Separation and Divorce” course provided by Family Services Ottawa, to have similar tools to better co-parent with Kimberly. i) Kimberly to continue her involvement with her psychotherapist to discuss her present concerns and past trauma. j) Kimberly to apply the techniques learned from parenting courses and individual counselling sessions. k) The parties should refrain from having conflict with each other or with the other adults in front of the child. l) The parties to continue communicating via OFW application or other written communication tools, to avoid direct contact as much as possible. Communications to remain respectful and child focused. m) The parties to follow school recommendations regarding activities to do at home with the child. They are also encouraged to involve the child in extracurricular activities. n) If the above recommendations are respected and maintained over time, Kimberly could request an updated assessment from the OCL in the future.

Legislative and Jurisprudential Framework

[45] Section 24 of the Children’s Law Reform Act, 1990 R.S.O., c. C.12 (“CLRA”) provides:

24(1) Best interests of the child

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.

24(2) Primary consideration

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.

24(3) Factors

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

24(4) Factors relating to family violence

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

(a) the nature, seriousness and frequency of the family violence and when it occurred; (b) whether there is a pattern of coercive and controlling behaviour in relation to a family member; (c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence; (d) the physical, emotional and psychological harm or risk of harm to the child; (e) any compromise to the safety of the child or other family member; (f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person; (g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve the person's ability to care for and meet the needs of the child; and (h) any other relevant factor.

24(5) Past conduct

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

24(6) Allocation of parenting time

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.

[46] Custody and access decisions are inherently exercises in discretion. Case-by-case consideration of the unique circumstances of each child is the hallmark of the process. The discretion vested in the trial judge enables a balanced evaluation of the best interests of the child and permits the court to respond to the spectrum of factors which can positively and negatively affect a child: see Van de Perre v. Edwards, 2001 SCC 60, at para. 13.

[47] The court must ascertain a child’s best interests from the perspective of the child rather than that of the parents. Further, the only consideration is the best interests of the child in any custody decision: see Gordon v. Goertz, [1996] 2 S.C.R. 27, at para. 28.

[48] No one factor in the statutory definition of a child’s best interests is given statutory pre-eminence: see Wilson v. Wilson, 2015 ONSC 479.

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

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

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

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

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

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

Analysis on Decision-making Responsibility

[55] Kimberly seeks an order for joint decision-making responsibility for the child with her having the final say on the health issues and Ken the final say on educational issues. Ken seeks an order for sole decision-making responsibility for the child on all issues. He proposes that he would communicate with Kimberly for her input, and in the event of a dispute, he would have authority to make the final decision.

[56] Prior to separation, Kimberly was responsible for all parts of the child’s life including medical issues. She was the parent who found the daycare center for the child that she eventually had to switch because of concerns the child was being physically abused. After separation, Ken relied on Kimberly to take J. to and from daycare, bring him back to her home to feed him dinner until Ken returned from work. This lasted until the parties had a disagreement over a Rogers’ cellphone bill in March 2019. I find that Ken raised no concerns about Kimberly at that time.

[57] Ken relies on the OCL report to support his submission that he should have sole decision-making responsibility. I agree with the clinician’s evidence during cross-examination that by January 2023, her report was outdated and was a picture in time of the parties’ situation. I find that since the release of the report, the situation has changed significantly in that Kimberly has moved, she had a psychiatric examination in December 2022 and the child had been residing with both parents on a week-about schedule since September 2022.

[58] I agree with the clinician that the events of August 2021 showed that Kimberly had poor parenting skills and lacked insight in how to properly parent her child. However, I have had the evidence of Dr. MacMillan and Dr. Ghandi, who raised no fears regarding her ability to make decisions or to put the child’s health at no risk. Furthermore, the parenting situation is different from January 2022, when it changed around Easter 2022 and reverted to the week-about schedule in September 2022. Finally, Kimberly has moved away from Ken. When I reviewed the entire chronology of events, Kimberly raised the issue before Justice Ryan Bell in October 2019 that the child needed counselling. She sought help in 2020 and by 2021, I accept her evidence that she was calling OPS as a last resort because of her frustration in nothing being done to address the child’s behaviour. I find that the child used inappropriate language at school that cannot be linked only to Kimberly. Ms. Grant testified the child was a mess and angry in mid-August 2021.

[59] In any event, while the OCL report is an important piece of evidence, it is only one of the many factors that I am to take into consideration in exercising my discretion to determine who should have decision-making responsibility and what the parenting time schedule is in the best interests of this child.

[60] I find that Kimberly recognized that she needed help in parenting her child and agreed to J. being placed with the maternal grandfather and his wife. She enrolled in the Crossroads program to improve her parenting skill from October to December 2021. I find Kimberly’s recognition that she needed help and decision to enroll in the Crossroads program was the proper thing to do at that time. By December 2022, Kimberly had again reached out to the Crossroads program. I find that these actions are those of a caring and concerned parent.

[61] Dr. MacMillan, her family doctor, testified that Kimberly has been the parent who has been most involved in attending appointments and advocating for the child’s health care. She impressed him on multiple occasions that she holds the child’s health as a top priority and tells him regularly that she treats his reactive airway disease according to his recommendations. Dr. MacMillan indicated that at times, Kimberly can be emotionally unstable, volatile and have problems controlling her mood which can affect her parenting skills. However, he indicated that he did not think that her mental health challenges affected her decision-making responsibility or her insight. He indicated that J. does not have ADHD, a learning disability, autism, or that which is on the Asperger spectrum. He referred Kimberly to be assessed by a psychiatrist at the Royal Ottawa Hospital. He stated that he finds that she is better regulated, more organized, more sensible and is motivated to do better.

[62] By report dated December 2022, Dr. Gandhi, a psychiatrist at the Royal Ottawa Hospital, testified that she met Kimberly in 2016, four times in 2021, and in December 2022. She diagnosed Kimberly as suffering from PTSD in partial remission with underlying historic ADHD. On the issue of decision-making responsibility, she indicated that when triggered, Kimberly will have symptoms such as nightmares. Dr. Gandhi found that there were no acute safety concerns to harm self, others, child, or a lack of ability to care for herself.

[63] I find that the evidence of Dr. MacMillan and Dr. Gandhi support a finding that while Kimberly has mental health issues, it has not impacted her ability to make proper decisions for the child and that Dr. Gandhi concludes that Kimberly is not a risk factor to herself or to others.

[64] Ken has full-time employment, has no mental health issues, and encourages J.’s relationship with the maternal grandfather and his wife. I accept the finding of the clinician that both Ken and Kimberly have been involved in the conflict resulting in their child being exposed to dysfunctional behaviour by his parents. I note that Ken has taken the course of Parenting Through High Conflict Separation and Divorce as recommended by the OCL.

[65] I accept that Ken has admitted to engaging in inappropriate yelling and screaming at Kimberly in the child’s presence. I find that the relationship between the parties worsened over time, resulting in the police being involved in removing Kimberly in January 2019. By that time, the relationship between the parties was at an end and the child was caught in the middle. I accept that the assistance of Mr. O’Connor and Ms. Grant to negotiate a week-about schedule allowed the parties to separate and hopefully, move on with their lives. However, that was not to be, and they continued to have friction when interacting. While Kimberly moved in September 2022 based on the recommendation of the clinician, she was wrong by failing to provide Ken with notice. While Kimberly may harbour anger towards Ken, he is the father of her child with whom she shares an equal parenting time schedule.

[66] I recognize that the parties have some ability to communicate. The parties started using the OFW application to exchange emails in February 2021. By January 2023, the parties agreed to stop using the application, as they rarely used the service and agreed that any matters that were urgent should be exchanged by telephone call, any documents to be signed would be emailed to each other and that they normally text message each other on Sundays, the day of the exchange.

[67] I find that Kimberly has been the parent who has been more actively involved in addressing J.’s day-to-day health related issues with the family doctor. I find that Ken was the person to do the necessary investigation by checking Health Canada websites to confirm when the child was eligible to receive a Covid-19 vaccination. Both parties agreed that the child should be vaccinated. Ken made an appointment for the child, which was unilaterally changed by Kimberly to a week when she had the child. There was no communication from her of this action. Consequently, Ken made arrangements to have the child have his two remaining vaccinations without any notice to her.

[68] The major decisions for this child will be concerning J.’s education, medical issues and activities. While the parties lived together, they both shared in these decision-making responsibilities. Other than the incident regarding the rescheduling of the Covid 19 vaccination and counseling, there was no evidence that there are any further difficulties in making decisions regarding the child’s health. The parties did differ on J.’s mental health resulting in an appearance before the court on the issue of counselling. However, since that time, both parties have sought assistance through the Crossroads program.

[69] Since January 2019, I find that Ken takes the child to his dentist and optometrist appointments. Kimberly has taken the child one time to the dentist. Ken does not disclose the name of the optometrist, the dates of appointments with the optometrist or the dates of appointment with the dentist to Kimberly to avoid her interference. I find that Ken’s actions are wrong. Both parents should have full disclosure on any health care providers dealing with their child.

[70] I am troubled by Ken’s statements that he does not agree that Kimberly loves their child or that there is any affection between the child and his mother. This evidence is contradicted by the evidence of the OCL, the CAS and Kimberly’s witnesses. While I can accept that Ken does not trust her because of the events that have occurred since separation, the position he is advocating is that he is totally in control of all aspects of this child’s life, and she will be relegated to having parenting time every second weekend as well as every Wednesday until 7 pm. I find that if Ken is granted sole decision-making responsibility, he will attempt to reduce Kimberly’s involvement even further in their child’s life. I do not find that granting him with sole decision-making responsibility will be in the best interests of their child.

[71] I reject Ken’s submission that Kimberly’s inability to regulate her emotions and behaviour has resulted in an escalation of the child’s own aggressive behaviour. While Kimberly told Ms. Gropp in September 2022 that she was struggling, there is no evidence to support Ken’s allegation. Furthermore, Ken’s allegations that the child is being physically harmed while in Kimberly’s care since September 2022 was not verified by the CAS. By email dated December 22, 2022, the CAS alleged that J. disclosed that he had been spanked by Mr. Turner. Ms. Gropp recommended that Kimberly and Mr. Turner re-attend the Crossroads program to provide more parenting education, which they agreed to. Ms. Gropp did testify that she was concerned, and she was monitoring the situation, but she took no action to intervene regarding these allegations.

[72] Ms. Grant testified that Ken had signed the child up for Scouts on Mondays, while the maternal grandfather and stepmother registered him in jujitsu on Tuesdays and Thursdays. She also testified that J., who left her care in August 2022, is not the same today. He appears sad and he is afraid of Mr. Turner. When Kimberly was considering moving, Ms. Grant encouraged her to stay in Barrhaven because the child was registered in various activities in that area, and she had the support of the maternal grandfather and herself. As neither Kimberly nor Ken have a car, Ms. Grant proposed that on the day that the child had jujitsu, which was being paid by the maternal grandfather and Ms. Grant, the plan was to pick the child up after school, go for supper at their home, go to jujitsu and then, Kimberly and the child would be driven home. Kimberly brought the child only one time, then stopped without explanation. Consequently, the child attends jujitsu solely on the weeks when he is in Ken’s care. I find that her decision to not have her child participate in jujitsu was self-centred and an indication of her lack of appreciation of the child being involved in extracurricular activities. One of the recommendations of the OCL report was that the child was going to be involved in extracurricular activities. Despite her father and stepmother paying for the program and offering to drive her and the child home after the child participated, she rejected the proposal. For this reason, I am granting Ken with sole decision-making responsibility for extracurricular activities for the child.

[73] I find that it is in the best interests of the child that a parallel parenting decision-making responsibility regime be implemented with Kimberly assuming responsibility for health care and Ken assume responsibility for education and extra-curricular activities. I make the following order with respect to decision-making responsibility:

a. I grant Ken sole decision-making responsibility with respect to the child’s education, dental care and extracurricular activities with an obligation to consult with Kimberly prior to making a final decision. Ken is to advise her by email, text or by OFW of any decision regarding these issues prior to making a final decision. Kimberly is to respond within seven days failing which, Ken may make the decision. In the event of an emergency, the mother is to respond as soon as possible. b. I grant Kimberly sole decision-making responsibility with respect to the child’s medical care with an obligation to consult with Ken prior to making a final decision. Kimberly is to advise Ken by, email, text or OFW of any decision regarding these issues prior to making a final decision. Ken is to respond within seven days failing which Kimberly may make the decision. In the event of an emergency, Ken is to respond as soon as possible. c. Each parent may make day-to-day parenting decisions during their own parenting time, as long as such decisions do not impact the other party’s parenting time with the child. When minor decisions do impact the other party’s time with the child, then the parties will participate jointly in the decision-making. d. The parties are to communicate by email, text or OFW, unless there is an emergency, and the cost of such expenses are to be shared equally. In the event of an emergency, the party with the child shall attempt to reach the other parent before making emergency medical decisions for the child. e. Ken shall apply for and retain a Canadian passport for the child. Kimberly shall sign all necessary documents to permit Ken to obtain the passport. He will keep the passport. It shall be given to Kimberly when she travels outside of Canada and shall be returned to Ken promptly after travelling. f. Ken shall retain the child’s birth certificate and SIN documents. He shall provide Kimberly with a certified copy of these documents within 30 days of this order. g. Kimberly shall schedule all regular health and dental care appointments after consultation with Ken. Both parties may attend such appointments. The child’s health card will travel with him between the parties’ homes. h. If either party plans a vacation with the child, that party shall give the other party a detailed itinerary at least 60 days before the vacation begins, or as soon as is practical if plans are made less than 60 days before the vacation begins, including the name of any airline carrier, the flight number, the flight times, accommodations, including address and telephone numbers on how to contact the child during the trip. i. Both parties will provide each other with their current address and a telephone number where they can be reached at all times. j. The child will be permitted to take any personal items, toys, gifts, or articles of clothing between the parties’ homes. k. Both parties may attend all school functions. The parties will attend parent-teacher meetings individually. Each party will obtain their own school calendar and school notices. With respect to school field trips or classroom events, a party will only attend field trips and participate in classroom events when the child is in that party’s care according to the parenting schedule. If one party is unable to attend, that party will immediately notify the other who may attend instead. l. The parties may make inquiries and be given information by the child’s teachers, school officials, doctors, dentists, health care providers, summer camp counsellors or others involved with the child. The parties shall have access to any information or documentation to which a parent of a child would otherwise have a right of access. The parties will cooperate and execute any required authorization or direction necessary to enforce the terms of this order. m. If a party is proposing to change their residence with the child, within the city of Ottawa, the moving party will give written notice to the other party at least 60 days before the proposed change including the date on which the change is to occur, the address of the new residence and the contact information of the moving party and the child, including any new telephone number. In the event that a party intends to undertake a relocation with the child, within the city of Ottawa, that will significantly impact the other parent’s relationship with the child, the moving party will give written notice at least 60 days before the proposed change to the other party including the date on which the change is to occur, the address of the new residence and the contact information of the moving party and the child including any new telephone number. Once the other party receives a notice of proposed relocation, the parties may try to negotiate to resolve any issues arising from the move. Within 30 days of receiving said notification of relocation, the non-moving party will provide a written notice of objection setting out a statement that the party objects to the proposed relocation and the reasons for the objection. In the event the parties cannot agree on the relocation, the issue shall be submitted to the Superior Court of Justice for adjudication. n. Neither party shall be permitted to relocate with the child outside the city of Ottawa without the prior written consent of the other parent or court order. In the event that a party intends to relocate with the child outside the city of Ottawa, the moving party will give written notice at least 60 days before the proposed change to the other party including the date on which the change is to occur, the address of the new residence and the contact information of the moving party and the child including any new telephone number. Once the other party receives a notice of proposed relocation, the parties may try to negotiate to resolve any issues arising from the move. Within 30 days of receiving said notification of relocation, the non-moving party will provide a written notice of objection setting out a statement that the party objects to the proposed relocation and the reasons for the objection. In the event that the parties cannot agree on the relocation, the issue shall be submitted to the Superior Court of Justice for adjudication. o. Neither party may change the child’s name. p. Neither parent may post videos or pictures of the child on any public forum/website without the other parent’s consent. q. Any other parenting time as agreed by the parties.

Analysis on a Parenting Time Schedule

[74] The question is what parenting time schedule is in the best interests of this child? On parenting time, Ken proposes that Kimberly have the child every second weekend from Friday after school to Sunday at 7:00 pm and every Wednesday after school to 7:00 pm. Furthermore, Ken provides a very detailed order addressing the issues of holidays, communication, important events, documents, child’s property, mobility, travel, new partners, social media and requests a review of the parenting plan in five years. Kimberley proposes that the parties maintain the same week-about schedule.

[75] Ken submits that based on her mental health issues, the child’s parenting time with Kimberly should be significantly reduced. I do not find that it is in the child’s best interest to make such a dramatic change in his life by creating a parenting time schedule where he will only see his mother every second weekend and Wednesdays after school to 7:00 pm. The focus of the parenting order is centered on the best interests of the child. I recognize that Kimberly has acted selfishly at times and did not exhibit proper parenting skills in August 2021. She accepted the safety plan that her child would be removed from her physical care and that starting in October 2021, she and Mr. Turner accepted to undergo the parental training through the Crossroads organization. Once the child returned to her care in August 2022, she was very forthright in her emails to Ms. Gropp, describing the continued challenges with her parenting of J. Finally, in December 2022, she recognized the problems persisted and agreed to re-attend the Crossroads program. I accept the evidence of Dr. Gandhi that there are no mental health issues that put Kimberly at risk to harm herself or the child. Her family doctor, Dr. MacMillan’s concerns about her are being triggered by certain events, he nonetheless opined that she had the ability to parent and to make decisions regarding her child.

[76] I have considered the evidence of Ms. Gropp, the OCL clinician, Ken and Ms. Grant, who all raised their concerns for the child based on Kimberly’s mental health challenges. However, she cared for the child since birth and no complaints were raised by Ken until after separation. The two incidents in August 2021 were serious and appropriate steps were undertaken to provide Kimberly with respite and allow her to obtain proper parenting skills through Crossroads with the plan to return the child to the week-about parenting schedule.

[77] I have considered the OCL’s recommendations that Kimberly have weekend parenting time. I find that the report is outdated as circumstances have changed with the child returning to her care every second week. The safety plan has been abandoned and while the CAS has concerns, they have not acted or intervened.

[78] Ken produced a Google map that indicates that the commute from Kimberly’s new home to the elementary school by bus would be approximately one hour and ten minutes. Kimberly testified that the commute can be anywhere between 50 minutes to 1 hour and 20 minutes. Ken testified that he walks his son to the bus and meets him at the bus and walks to his home which is minutes away. He submits that as a result of Kimberly moving, the child’s commute to school is not in his best interests. While the OCL clinician found the commute to be too far, Ms. Gropp had no issues with the distance. I find that the daily commute for the child is approximately one hour. While I think it would have been better for the child to live closer to school, there is no evidence from the school indicating that he has been late or that the commute has had a negative effect on his performance at school. I see no issue in Kimberly commuting with the child by bus to and from school. Many children are picked up and delivered to school each day and the length of the commute varies. I do not find that the one-hour commute for the child is a sufficient reason to make such a dramatic change in his living arrangements. I note as well, that Kimberly testified having an agreement that the child continue in the same elementary school.

[79] Since September 2022, Ken has borrowed the maternal grandfather’s car to pick up and deliver the child to the mother’s home or a local bus station for exchanges on Sundays at approximately 5:00 pm. He submitted that based on Kimberly’s parenting time being reduced to every second weekend and every Wednesday, she would be required to pick up and deliver the child when it is her parenting time. I have not granted that relief but maintained the alternate week-about schedule. Neither party has a vehicle, but Ken has the ability to borrow one which will make it an easier exchange procedure for the child. My focus is on what’s in the best interests of the child and not what is in the best interests of the parties on the issue of exchanges. The situation has been in existence since September 2022. I see no valid reason to change it at this time as long as Ken has use of the car. If that changes, then the parties will have to share in picking up and delivering the child on Sunday.

[80] I find that both parties love their child, each have parented the child since separation, each have a close bond with the child, and each have appropriate accommodations to care for the child. Each parties have their own strength and weakness. Both have admitted to verbal abuse against each other in front of the child. Each party has a role to play in their child’s life. I do not find that Kimberly’s mental health issues prevent her from equally caring for her child. I do not find that her residence is so far from the child’s school as to mandate a change in the parenting time schedule.

[81] I am concerned on how the child will develop moving forward. In January 2023, Kimberly was reconnecting with Crossroads to address ongoing issues with J., while in her care. This situation must not be allowed to create another situation like August 2021. If it does, a change in this decision may be justified. For that reason, I will remain seized of this matter until further order to address any parenting and child related issues.

Disposition on a Parenting Time Schedule

[82] I find that it is in the best interests of the child to maintain a week-about schedule with modifications for Mother’s Day, Father’s Day, and Christmas set out below. The child shall follow the parenting time schedule for Family Day, Victoria Day, Canada Day, Civic Day, Labor Day, Thanksgiving and any professional development days. The parties may amend this schedule on consent.

[83] I order the following:

a. The child shall alternate residences between the parents on a week-about schedule with the changeover being Sunday at 5 pm., at the Greenboro station, or Kimberly’s home, or any other location as agreed to between the parties. b. The child will be with Kimberly on Mother’s Day weekend, from Saturday at 7:00 pm until the return to school on Monday morning. c. The child will be with Ken on Father’s Day weekend, from Saturday at 7:00 pm until the return to school on Monday morning. d. The child will be with Ken, for Halloween, on odd-numbered years and with Kimberly, in even-numbered years from the end of school until the return to school the next morning. If Halloween falls on a non-school day, and the child will be with the parent from 4:00 pm to 9:00 pm., the parent with the child for Halloween will be responsible for his costume. e. In odd-numbered years, the child will be with Ken, on Christmas Eve at 12:00 pm until Christmas Day at 2:00 pm, and with Kimberly, from 2:00 pm on Christmas Day until 6:00 pm on Boxing Day. In even-numbered years, the child will be with Kimberly, from Christmas Eve at 12:00 pm to Christmas Day at 2:00 pm and with Ken, from 2:00 pm on Christmas Day until 6:00 pm on Boxing Day. f. The parties are at liberty to modify the terms of this parenting order on consent.

Table Child Support

[84] On the issue of child support, Kimberly seeks an order that commencing January 1, 2020, Ken pays table child support. Ken seeks an order that commencing January 1, 2023, Kimberly pays $168 table child support as well as on other issues regarding section 7 expenses, annual disclosure, review of the table amount of child support, termination of child support and to claim the eligible dependent credit for the child.

[85] The parties have agreed to use the line 150 income of their notices of assessment to determine their income for child support purposes. Furthermore, they agree to use the set-off method of calculating child support based on the shared custody situation. For the year 2022, the parties have agreed to use their line 150 income on their 2021 notice of assessment. This amount will be modified once the 2022 notice of assessment is provided.

[86] I make the following findings of fact with respect to Kimberly’s income:

a) 2020 – $18,492 b) 2021 – $21,041 c) 2022 – $21,041

[87] I make the following findings of fact with respect to Ken’s income:

a) 2020 – $66,175 b) 2021 – $71,160 c) 2022 – $71,160

[88] In 2020, Ken paid monthly child support of $355 for a total of $4,260. In 2021, he paid $355 per month, for the months of January and February 2021. Commencing March 15, 2021, the parties agreed that he would reduce the monthly child support by $150 per month because Kimberly could not afford to pay the $3,000 cost award in favour of Ken, made by Justice Ryan Bell. Consequently, Ken paid the equivalent of $355 per month for each month for the remainder of 2021 for a total of $4,260. In 2022, Ken continued to pay $355 less $150 relating to Kimberly’s monthly payment towards the cost award for the months of January to March, 2022. As of April 2022, the parties agreed that the proper amount of the set-off child support based on the disclosure of the parties 2021 notices of assessment was that Ken owed Kimberly $497 per month. Ken paid $322 per month plus the $150 on account of her contribution to the cost award resulting in Ken paying the equivalent of $472 per month for the months of April, May, June, July, and August 2022. Commencing September 2022, Ken paid the full amount of $497 per month.

[89] I find that, using the set-off method, in 2020, Ken owed $472 per month for a total of $5,664; in 2021, he owed $497 per month for a total of $5,964 and in 2022, he owed $497 per month for a total of $5,964.

[90] I find that Ken has paid child support from January 2020 to December 31, 2022, in the amount of $13,933. I find he should have paid child support from January 2020 to December 31, 2022, in the sum of $17,592. I find that Ken owes Kimberly $3,659. I have deducted from that amount the $300 owed by her with respect to the costs ordered by Justice Ryan Bell and find that Ken owes Kimberly $3,359 for the period January 1, 2020, to December 1, 2022.

[91] Commencing January 1, 2023, and on the first day of each month thereafter, Ken will pay child support in the amount of $497 per month using the set-off method between Ken’s income of $71,160 and the respondent’s income of $21,041, based on their 2021 income tax returns.

[92] The parties shall exchange their income tax returns and notices of assessment by June 15 of each calendar year commencing June 15, 2023. The child support amount payable shall be adjusted accordingly pursuant to the Child Support Guidelines, S.O.R./97-175, as amended (“Guidelines”). The adjusted child support amount will commence on July 1 of each year commencing July 1, 2023.

[93] The parties shall share the expenses set out in section 7 of the Guidelines, on a prorated basis with Ken paying 77% and Kimberly 23%. The parties must consent in writing to the proposed expense; Such consent not to be unreasonably withheld.

[94] I order that Ken maintain the child as a beneficiary of his extended health plan through his employment for so long as he has an obligation to pay child support and the benefit is available through his employment.

Ken’s Claim for $230.13

[95] In his closing submissions, Ken, for the first time, argued that Kimberly owed him the said sum based on unjust enrichment. He argues that based on his Roger’s bill dated April 15, 2019, he was required to pay a Device Saving Recovery Fee of $250.83 to Rogers that was reduced as a result of credits on Ken’s bill. He testified that Kimberly moved to another cell phone provider causing Rogers to charge him the cost of the phone that he purchased for her under his plan. He submits that he should not bear the cost of her decision to change carriers.

[96] By text message dated April 2019, Kimberly texted Ken that he either give permission to have the cellphone transferred to her name or that he makes arrangements to deliver and pick up the child from daycare. When the parties started the alternating week-about schedule, Ken and Kimberly agreed that she would pick the child up from his home, deliver the child to daycare and then pick the child up from daycare and return to her home until Ken returned from work. There was no charge by Kimberly for this service. He refused and Kimberly changed carriers. There is no evidence that she was made aware that there would be a Device Saving Recovery Fee. Furthermore, Kimberly testified that when she moved in with Ken originally, she had to pay a similar fee when she transferred to his cellphone carrier.

[97] I accept Kimberly’s evidence that she would arrange to drop off and pick up the child from daycare in exchange for Ken paying her cellphone bills. I find that he breached that verbal agreement resulting in her no longer being responsible for delivering and picking up the child in a daycare. No notice was given by Ken with respect to any possible financial repercussions if she changed carriers. I dismiss this claim.

Costs

[98] I urge the parties to attempt to settle the issue of costs. If the parties are unable to resolve the issue of costs by April 26, 2023, the party claiming costs shall provide their cost submissions, not to exceed three pages plus any offers to settle and a detailed Bill of Costs, by May 2, 2023. The other party shall provide their cost submissions not to exceed three pages plus any offers to settle and a detailed bill of costs by May 15, 2023. There shall be no right of reply.

Released: June 9, 2023 SHELSTON J.

Appendix

June 9, 2023: On page 5, paragraph 18 has been removed in its entirety.