Court File and Parties

COURT FILE NO.: FC-13-00000601-0001 (Kingston) DATE: 20230705

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HEATHER DORIS SMITH Applicant – and – MELVILLE WILLIAM MARTYN Respondent

COUNSEL: Lucienne MacLauchlan, for the Applicant Kendra Swallow, for the Respondent

HEARD: June 6, 7, 8, 9, 12, 13 and 14, 2023, at Kingston.

ROBERTSON J.

Judgment

[1] The Respondent father brought a Motion to Change my final joint custody order dated July 28, 2014, pursuant to Section 29 of the Children's Law Reform Act, R.S.O. 1990, c. C.12, as amended (“CLRA”). This matter was heard as a six and a half-day trial with viva voce evidence and cross examinations upon affidavit evidence.

Issues Requiring Adjudication

[2] Has there been a material change in circumstances that necessitates a change in decision making? Should the mother be removed as the decision tie breaker for major decisions if the parents disagree after mutual consultation? What schedule is best for M.? Should costs be awarded?

[3] The parties consented to an order regarding child support at the end of the trial.

Father’s Position

[4] The Respondent/father (Applicant on motion) claims there have been three material changes in circumstances:

a. The mother breached the 2014 final order; b. The parties are not following the order and have implemented a new, unstable schedule; and c. Passage of time - The original order was made nine years ago.

[5] As a result, the father seeks joint or shared decision-making responsibility with day-to-day decisions to remain in the sole authority of the parent who has M. in their care that day including meal preparation, homework help and any third-party caregivers. His draft order requires both parties to ensure they follow routine homework, activity and sleep schedules which are consistent with both parents’ homes.

[6] He proposes equal time sharing on a week about arrangement, failing which a schedule on a 2-2-5 rotating basis. His strong belief is that M. should have equal time with him and that the mother should not have final decision making authority.

[7] He asks for other, smaller relief such as document/identification management, converting a communication book requirement to an app and adding relocation restrictions. His draft order proposes to restrain the mother’s alcohol consumption, hire a parent co-ordinator and, failing agreement, return to court. He commits to consultation with the mother. No parent co-ordinator or cost estimate was identified. He has not put forward a plan how this will happen. His pleadings do not match some of these claims.

[8] According to his opening statement, the parties “never had a fully functional co-parenting relationship. From M.’s birth, Ms. Smith has made it clear that in her view, she is the only parent who counts. Mr. Martyn should take what he is offered and be quiet about it”. He goes on to say that: “Ms. Smith has done everything she can to control and limit M.’s relationship with his father and Ms. Smith has been making some questionable decisions regarding M.’s welfare”. His position is that the mother informs him of decisions but does not meaningfully consult with him.

Mother’s Position

[9] The mother denies any material change in circumstances affecting the child warrants the changes sought. She says she has always consulted with the father about major decisions and undertakes to continue. She agrees to modernize the custody wording from the original order to reflect legislative changes now referencing joint decision-making authority. Otherwise, she states his claim should be dismissed. She agrees to revisit the parenting time schedule. She agrees to major holiday sharing. She agrees that each parent will have two non-consecutive weeks of vacation each summer and offers the father first choice of holiday time each year. She denies an alcohol problem and has no plans to move.

Background and Litigation History

[10] M. is nine years old. He is the only child for both his mother and father, now 46 and 50 years old respectively. The parties have known each other for 30 years through a family sports connection. About ten years ago, they dated for a couple of months. They never resided together. They were not a good match. They broke up and moved on. About a month later, the mother realized she was pregnant. This changed everything. He tried to be supportive during the pregnancy. M. has resided primarily with the mother. The father has always wanted more parenting time and meaningful involvement in decision-making.

[11] They disagreed about custody even before M.’s birth. The mother insisted upon sole custody. The father was adamant he wanted co-parenting. They learned you cannot litigate custody issues before the birth of the child. They tried counselling during the pregnancy to work out a parenting plan. That ended poorly. They remained deadlocked. They have disagreed about time sharing and decision-making for M.’s entire life. Both parents are devoted to their son. Both parties want to spend as much time as possible with M. I find both parties are competent parents.

[12] M.’s extended family constellation is positive. The father married Stephanie Lackey. All agree she is a good stepmother. M. loves her. The mother has not partnered. Her father and his wife live next door. They provide back up when she needs it. M. loves them.

[13] Custody litigation began shortly after M. was born. The parents were both well represented by experienced legal counsel. They settled on a comprehensive parenting plan for M. by way of my Final Order dated July 28, 2014 (the “Final Order”).

[14] Their consent order predicted disagreements. They built in dispute resolution. They fixed a date to start overnight access, recognized the father’s time would increase and included a formal communication protocol about routines, including health, sleep hygiene and school attendance.

[15] The Final Order contained a rare, fast tracked conflict resolution option only available to the father. If the parties got stuck about decision-making or the schedule, he alone could return the matter before a judge on ten days’ notice, skip a case conference and avoid delay. The father did not mention why he did not use his preferential privilege over the years. It was an available problem-solving tool.

[16] This motion to change is framed to vary decision-making. He proposes to delete the special treatment paragraph. Instead, his draft order adds a parent co-ordinator and failing agreement, authorizes either party to return to court, presumably in the usual manner.

[17] The relevant aspects of the Final Order are:

(a) [Joint custody] The parties shall confer and consult with one another in a meaningful way respecting all major decisions concerning the child, M.M.S. including health, education and well-being of the child. In the event the parties cannot agree, the Applicant, Heather Doris Smith shall make the final decision for the child. (b) The Respondent, Melville William Martyn shall have the right to bring the matter back before the Court by Motion on 10 days’ notice without the necessity of a Case Conference. (c) The child shall be primarily resident with the Applicant, however, the parties agree that M. shall spend as much time as possible with each parent in keeping with M.’s best interests. (d) The Respondent to have access every other weekend on Saturday for 9 hours and Sunday for 9 hours, not overnight; plus every Tuesday and Thursday for 2 hours and 15 minutes. (e) The parties to reasonably agree to additional dates and times for the Respondent to care for the child. (f) Overnight access to commence after the child’s 2nd birthday [date redacted]. (g) The parties shall not remove the child from daycare, pre-school or school unless due to illness or otherwise as agreed upon by the parties. (h) The parties shall use a Communication Book to communicate about all relevant issues concerning M.M.S. Each party shall inform the other about sleeping, eating, toileting, health and behavioral issues in this Communication Book. The Communication Book shall travel back and forth with the child for each and every visit with the Respondent, Melville William Martyn.

[18] Parental communication was a problem when they agreed to the Final Order. It continues to be a problem now. It improved for some years and declined. The evidence did not point to any specific reason. I find they each genuinely believe their position is best for M.

[19] Both parents have careers that require them to be good communicators with difficult people or poor listeners. The father is a Registered Nurse helping people with addictions and mental health problems. His manager and affiants commended his skills. The father knows community resources. He is seen as kind and generous by his supporters. The mother works with utilities. She communicates difficult information to customers. She has superior conflict management skills. Fifteen affidavits from their family and friends praise the parties’ communication styles with others, and their general reasonableness. The collateral witnesses voiced concern that the ongoing conflict harms M. Clearly, the parties have exemplary communication skills, and knowledge of local helping resources. The father suggested counselling a couple of times but never followed up with a plan or a suitable professional. Both have extended health benefit plans and some financial resources.

[20] M. will age out of the court system, but they will always be his parents. Finding new ways to communicate is essential to his lifelong wellbeing. Plainly stated, they have not chosen a therapeutic route. I find this odd. They both present as reasonable people with good problem-solving skills. Both agree their communication is a problem negatively impacting M.

[21] The father has longed for increased parenting time. He believes he has been patient and tried to get along.

[22] The mother believes she has always been fair, inclusive and accommodating. She believes that she consults and confers with the father. Changes to the schedule have been incremental. She believes that she has increased the father’s time sharing in accordance with M.’s best interests and has met obligations under the Final Order. I find she was slow to increase parenting time between the father and M. I find she did consult with him. She disagreed with him.

[23] The current arrangement has progressed to 60% time with the mother and 40% time with the father. The father wants 50/50. He wants more summer time. He wants to send their son to a sleepover camp. He believes M. should be with him as an available parent, rather than in a day camp program while the mother is working. The mother submits that M. is too young for overnight camp. She describes him as anxious, and often clingy to her. His sleep habits might not be compatible with a sleepover camp. She favours structured day camps over the summer, two non-consecutive holiday weeks for each party, and otherwise, to keep to the usual schedule. There is no dispute that the day camp programs are age-appropriate, and attended by some of M.’s friends.

Law

[24] Section 29 of the CLRA provides the statutory authority to vary the parties’ custody order:

A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.

[25] The Supreme Court of Canada decision in Gordon v. Goertz, [1996] 2 SCR 27, 19 R.F.L. (4th) 177 sets out a two-stage process for the court to conduct in motions to change custody or access as follows:

a) First, the parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child. b) If the threshold is met, the court must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.

[26] The burden of proof in a civil matter lies on the person asserting the claim. The father bears the burden of meeting the material change in circumstance threshold for his claim to change the decision-making provision. The standard of proof in this trial is the ordinary civil standard of a balance of probabilities. Finding that a fact is proven on a balance of probabilities means that it is more likely than not to have occurred. It means that it is probable – i.e., the probability that some event will happen is more than 50%.

[27] Both parents agree to change the current parenting schedule. Each proposes the parenting arrangement they believe is in M.’s best interests. I find that both parents bear an evidentiary burden in establishing his best interests. The father wants an equal time division, on a week about or 2/2/5 rotating schedule during the school year, with a week about arrangement in the summer or some other equal schedule. The mother proposes the father’s time with M. as each Tuesday after school until Thursday return to school, plus alternate weekends from Friday at 3:30 p.m. until Sunday at 5:00 p.m. The parties agree that non-school holidays should be shared but need some help to set the framework. They disagree about P.A. days, snow days and camps.

[28] In L.M.L.P. v. L.S., [2011] SCC 64, the Supreme Court stated that the change must be substantial, continuing that “if known at the time, [it] would likely have resulted in a different order”. The Supreme Court stated that it must limit itself to whatever variation is justified by the material change of circumstances. A change alone is not enough to justify a variation. The change must materially affect the child, the parents, or both: K.M. v. J.R., 2022 ONSC 111. The threshold material change in circumstances test is aimed in part at ensuring that the parties do not resort to litigation whenever any change occurs, however minimal: M.A.B. v. M.G.C., 2022 ONSC 7207.

[29] The change must have arisen since the making of the order or the last variation of the order: N.S. v. A.N.S., 2021 ONSC 5283; K.M. v. J.R., 2022 ONSC 111. On a motion to change, the court has the option of restricting changing the existing order to address a specific issue, while maintaining its integrity: Elaziz v. Wahba, [2017] ONCA 58.

[30] I have specifically considered that the test may also be satisfied if the terms of the existing order specifically contemplated changes to the order if certain events occurred, and if those developments in fact transpired. This could happen, for instance, if the order or the Reasons for Judgment in support of the order specifically contemplated a reconsideration of the parenting terms as the child matured: M.A.B. v. M.G.C., 2022 ONSC 7207. I find the Final Order anticipated that the father’s time sharing with M. would increase. It has, but not to his satisfaction. This can be adjusted. The Order contemplated disagreement and had built in resolution ideas.

[31] Conflict between parties does not automatically justify a change to a parenting order, as noted in K.M. v. J.R., 2022 ONSC 111, at para. 342:

a. Where the conflict existed as of the separation; where it continued throughout litigation in the first instance; and where it existed and was considered at the time the order was made – a continuation of that conflict does not constitute a material change in circumstances. Goldman v. Kudelya, 2017 ONCA 300; P.D. v. D.C., 2021 ONSC 2146 (SCJ). b. Where conflict between the parties was and continues to be “regrettably, the norm”, that is no reason to re-open a parenting order which already took the conflict into account. Litman v. Sherman, 2008 ONCA 485. f. If the existing order included provisions intended to address or reduce parental conflict, on a motion to change the court must consider whether those corrective terms were actually implemented. If they were attempted without success, that failure of the order to achieve the intended outcome would likely constitute a material change in circumstances. But if the parents simply failed to utilize provisions in the order which were intended to reduce conflict, that non-compliance with the order would not likely establish a material change. J. (J.) v. C. (C.), 2017 ONCA 357; Goldman v. Kudelya, 2017 ONCA 300. But conversely, if the existing order simply included provisions intended to mitigate the impact of ongoing conflict – with no real expectation that the conflict would reduce – then the continuation of foreseeable parental conflict would not constitute a material change in circumstances.

[32] In reaching my decision, I have considered that the passage of time and ageing does not automatically mean material change, but it can be a big factor. See: Brown v. Lloyd, 2015 ONCA 46. I am not persuaded that the passage of time meets the threshold for a material change in this family’s circumstances that would result in changing the decision-making provision.

[33] I agree that repeated or protracted breaches of a court order can constitute a material change in circumstances. See: L.W.-A. v. J.C., 2017 ONCJ 741; Maloy v. Pantalone, 2021 ONSC 7734. Those breaches must be material and affect the child’s best interests. See: Armstrong v. Vanneste, 2017 ONSC 5835 (SCJ); Laurin v. Martin, 2005 CarswellOnt 5084 (ON CA). I find the mother’s removal of M. from school on bus cancellation days or for counselling are not breaches of the Final Order. The counselling related to the child’s wellbeing. The father did not oppose counselling. Both parents agree M. is stressed. The mother testified he was angry at times. The maternal grandfather Barry Smith testified M. is disrespectful at times.

[34] I find the parents both disregarded some of the provisions in the order over time such as using a communication book, and even exchanging tax returns. Neither alleges that these amount to a material change. I find there are some breaches of the order but they are not sufficient to meet the threshold and warrant the change requested. On the evidence, I find any breaches of this Final Order can be remedied by adjusting the order.

[35] I find both parents have good problem-solving skills but cannot resolve this dispute. I find the ongoing and at times escalating conflict between the parties during the nine years since the Final Order was made is adverse to M.’s interests. While the initial joint custody order expressed a hopeful and optimistic view that the parties would be able to move past their conflict for the benefit of M., this has not happened. This is not to assign blame. There have been periods of calm. Currently, their conflict is high and negatively impacts M. and the one childhood he will experience. His entire life essentially has been lived in a state of parental disagreement about what is best for him and who should decide.

[36] I have used the test set out in Gordon v. Goertz for determining a material change. I have carefully listened, read and considered the evidence, submissions and the case law presented by counsel, particularly those cases referenced in their closing submissions. Based on the evidence, I do not find the father has met the threshold of establishing a material change in circumstances with respect to decision-making authority. That claim is dismissed.

[37] I find both parents try to be polite to each other, especially in the presence of M. They now exchange information mainly by text. The numerous exhibits included multiple chains of texts. The increase in frustration and the decline of civility between the parties was evident as this litigation took its toll. The mother conceded she recently sent the father some snarky texts, and she apologized. The father maintained a more neutral tone through texting, although his frustration was clear with a passive disapproval of her parenting. The parents both agree that goodwill declined since this round of litigation started. They historically shared various events with M. but have stopped doing so. The mother gave compelling testimony about her own childhood marred by parental tension at school events. Clearly, they are aware of the decline between them. They provide M. with two diverse parenting styles. Neither falls below a community standard. They are simply different.

Consultation and Tie Breaker

[38] The Final Order required the parents to confer and consult with one another in a meaningful way about all major decisions. Meaningful consultation obligations help parents to make short-term and long-term plans for the future care of their child. Their order built in a process to review an impasse on major decisions. I find the parents have been able to resolve big decisions but disagree on day-to-day issues.

[39] Joint decision-making authority without a tie-breaking parent may be appropriate where parents have the ability and willingness to easily communicate, to work together, to plan and to problem-solve for the benefit of the child, efficiently and amicably. Joint decision-making authority without a tie breaker is not appropriate where the absence of a clear decision-maker will lead to indeterminable power struggles, delays and impasse. The absence of a “tie-breaking vote” can have devastating consequences for vulnerable children who don’t want to – and shouldn’t have to – get caught in the middle: Bennett v. Burns, 2018 ONSC 5443. The evidence in this case from the parents, their collateral witnesses, and M. through his Office of the Children’s Lawyer (“OCL”) clinician, support a finding that M. is trying to please both parents. This is not easy for M. Without any doubt, the child is aware of his parents’ discord. I do not find that either parent coached the child or overshared information with M. Both want to do right by their son. By all accounts, M. is very smart. Both parents are keenly aware that a new communication pattern is required. Unfortunately, the delivery of this decision will not change things, especially for M. They must change their approach with each other if they want to protect him. I find it is in M.’s best interests for the tie breaking provision to continue.

[40] A final decision-maker will assist in minimizing conflict. Decisions must be made quickly, and uneventfully. There were no specific examples of major decisions awaiting determination. Given the father’s decade of dissatisfaction, I have no reason to conclude that deleting a “tie breaker” provision in the event of disagreement will improve communication or serve M.’s best interests.

[41] I find that removing the tie breaker clause in the joint parenting order would perpetuate indecision, delay and power struggles. I find it would expose M. to significant ongoing conflict between the parents.

[42] I do agree with the father’s submission that M. benefits from both parents’ involvement in making decisions. Decision-making entails mutual rights and mutual responsibilities. It is only in the case of a disagreement that custodial authority is required. When parents reach a stalemate, third parties - such as schools or doctors - need clarity. I find that M.’s best interests are served by retaining the mother’s final decision-making authority with consultation in advance with the father.

[43] Authorizing the mother to make major decisions for M. includes a duty to exercise those obligations fairly, having regard to M.’s needs. In entrusting her with this ongoing authority, she must be responsive in a timely way to the father’s concerns.

[44] Both parents have flaws and both parents have strengths. Each parent requires new strategies to improve their consultation patterns. Unchecked, their scuffles impact M.’s growth and development. The parents have differing views on home routines, and small decisions turn quickly into larger issues than necessary. Examples of this are cell phone use, video game policy, or dental care. I do not find these to be the big decisions covered by the existing Final Order.

[45] I find the parties have been able to work together on the big decisions. Although there were a few tussles, they have successfully negotiated M.’s daycare, school stream, French language, speech therapy, a broken arm, a possible head injury on the playground, the pandemic, vaccination, and implementing a schedule for remote learning. I commend them both for this.

[46] The most impressive example of co-operative consultation happened in 2018. The mother reached out to the father when she realized that she was depressed and abusing alcohol. She prioritized M.’s safety. She sought professional help so asked the father to take their child. The father stepped in and stepped up instantly. He did not take advantage of the situation or rush to court, even though the Final Order would have allowed him quick court access. He returned the child when the mother’s wellness improved. I find he showed maturity and a child focused approach in handling the situation. I find that the mother should have expanded his time share at that time. He proved himself to be a most capable parent.

[47] The mother is disappointed that the father has raised the issue of her mental health and alcohol consumption. This is an important factor for the court to know in determining M.’s best interests. It is evidence of both parents’ abilities to prioritize M.’s needs and safety above their own needs.

[48] By way of practical point, the mother’s own father lives next door to her. It would have been easy for her to hide her problems from the Respondent father and ask her own father for assistance. I see it as a testament to joint parenting that she decided to ask the right person to care for M. - his father. She may have issues again some day. Should that occur, she should again reach out to Mr. Martyn, regardless of having gone through a trial. Where she is correctly disappointed is how that difficult time is characterized by him now in the evidence, five years later.

[49] The father continues to present an undercurrent of suspicion about the mother’s misuse of alcohol. The evidence does not support his concern.

[50] When M. broke his arm during the father’s parenting time, the mother admits she was impaired at the time. She did not drive or attend the hospital. She was not in a caregiving role that day to M. He was with the father. This was during the pandemic when parents’ attendance at the hospital was strictly limited. The father is a nurse, a capable parent and had the matter well in hand. I draw no negative parenting conclusion about the mother in consequence of her actions that day.

[51] On that day, the mother was having a social event with girlfriends. She was free to imbibe. I find as a fact she pleaded with the father to return the child to her after M. was discharged from the hospital. To Mr. Martyn’s credit, he did so, even though it was his parenting time. I find this is an example of his co-operation. The father testified that by the time he got to the mother’s home that night, the child was asleep and he was confident that her level of impairment was within a modest range. Given his own expertise as a nurse working with community addictions, I am completely satisfied with his explanation.

[52] While I do not make any order restricting the mother’s consumption of alcoholic beverages as the father now proposes in his draft order, whether with or without the care of the child, I would be remiss if I did not urge the mother to abstain from drinking any alcohol. It is not a good fit in her life. I can understand why the father is worried. They have very limited information currently about what happens in each other’s homes. The father works in addictions. The mother testified that she suffers from anxiety and, at times, depression. She also testified that the child is stressed and anxious. M. is seeing a psychotherapist to assist him. The mother must be cautious and take extra care to role model personal regulation without the use of alcohol.

[53] I find on the totality of the evidence that much of the parental conflict relates to the parties’ differing communication and parenting styles, expectations, disappointments and/or the process of decision-making on daily matters, rather than substantive issues. Some examples are as follows (some of which pre-date the Final Order, but were raised again so I include them):

a. The father is a good athlete and sports coach. The mother volunteered the Respondent father to coach M.’s team. Clearly, the child liked his dad’s involvement. He coached a previous sport for the boy. The mother expected the father to be pleased. The father testified it was disrespectful not to be asked first. His reaction was not reasonable. b. The father wanted to attend the child’s birth. The mother objected because they weren’t a couple, they were on the cusp of litigation and she found birth to be an intensely private experience. She wanted her mother and sister in attendance. The mother texted him when she went to the hospital, and invited him with his own mother to see the baby within a few hours. The father was unhappy about this. I find her plan was reasonable in their circumstances. I can appreciate the father’s perspective also. The father is a nurse. I find his interest was appropriate because he wanted to be there to witness his child’s arrival. He has medical knowledge, and did not want to attend for any disruptive purpose. I find his poor reaction to the mother’s choice was misplaced. The fact is there is no socially accepted protocol in these circumstances. c. The mother was hesitant to allow the father liberal, unsupervised time with M. after she went home with the baby. Her overprotection was not reasonable. The father is a nurse. There were no protection concerns. Clearly a schedule was necessary. d. The mother added the father’s surname as the child’s middle name on the birth certificate of her own volition. She was trying to be inclusive. He thought that she should have consulted him first. The mother had recently given birth. He asked for a paternity test and emotional tensions were high between the parties. His response was disproportionate given the circumstances. e. The father expressed concern that the mother was not keeping up with M.’s school obligations during remote learning segments of the pandemic lockdown. While she failed to ensure that M. completed all assignments, she engaged the child in other activities and learning opportunities. The parents failed to communicate effectively. She hired and paid for a competent tutor during her parenting time to address his concern. He viewed the child’s involvement with a tutor negatively because he interpreted this as clawing back his parenting time. He complained the mother didn’t submit all assignments to the school portal. She said that she emailed some directly. He never checked with the teacher. He was upset that M. missed school on a day when a family project was being presented. He implied in his evidence the mother deliberately kept the child out of school. I find this is unfounded. The mother supplied family photos for the project. The father never asked the teacher if M. could present the project upon his return to school. f. The mother bought M. a phone for Christmas. She did not consult the father. He disapproved. She sent the phone with M. to the father’s home. He is concerned about the boy accessing various apps. The mother testified that there is no data on the phone unless the child hooks into the father’s WiFi with the father’s password. She wanted the phone so the child could text and call her. The father had been frustrated with her calling and texting him to speak with the child. The child rarely uses the cell phone. There was an issue as to whether the father interfered with M. calling his mother. The stepmother testified that the child can call if the stepmother and father know first. This differs from the father’s evidence. This is an example where M. is put in a tough spot. Both parents should have developed or discussed a common policy. g. The father got the child a paper route while at his home. The mother disapproved and said the child didn’t like it. The father minimized her concern. They should have talked about this in advance. h. The mother offered for the father to arrange a specialist appointment for M. He missed the appointment. It was the week before trial. The mother did not make an issue about this at trial or take advantage. She took the high road. I find it was a simple oversight by the father and not a reflection on his parenting. He is unable to offer her any credit.

[54] The father raised a fair concern that the mother removed M. from school early on some occasions related to her convenience, or due to M. not wanting to ride the bus. Most of the complaints were during earlier grades. The mother was lax on some school attendances. For example, she thought it was reasonable to remove M. from school for two days when cousins were visiting. She then listened to the father’s concern. As separated parents, unless they have an agreement, school attendance is mandatory. On some occasions, she acted contrary to the Final Order which prevented a parent from removing M. from school. This must stop. I do not find these examples sufficient to warrant a change in the Final Order. I find that empowering the father to organize the daily activities for the two remaining unscheduled weeks in the summer of 2023 is a measured and appropriate consequence. For clarity, the summer schedule in 2023 remains the same; however, the father may decide if M. will attend day camp those two remaining weeks or spend the days with him, returning to the mother at the end of the workday.

[55] The father also complains that on snow days, or otherwise when school busses are cancelled, M. should go to school. He believes M. would get some needed individual assistance. He offered to pick up M. from the mother’s home and take him to school. There was no evidence if his teacher was present on snow days or if it was just fun times with movies for the few kids showing up at the school on snow days, as the mother testified. The mother testified that she lives rurally and at times can’t even get out of her driveway. I find school attendance on snow days is not a big decision. It is a safety consideration depending on the day. Each parent should make the decision they consider best for M. on a snow day.

[56] Perhaps the biggest school attendance conflict relates to M. missing school to attend a counsellor. Both parents see M. suffering with some stress. Text messages confirm that both were rightly concerned. The mother located an available resource, advised the father and took M. Unfortunately, the psychotherapist did not have an individual appointment with the father but did with the mother. The counselling appointments were during the school day. The father gave no evidence of any better or more convenient professional. For clarity, he is not opposed in any way to his son receiving help. I accept the mother’s testimony that the availability of qualified children’s therapists in our community is limited. She found this psychotherapist through contacting the Children’s Lawyer clinician and following a lead through a name from there. She was mistaken that the name of the professional came directly from the clinician. This whole issue of helping M. has caused much friction between the parties. It appears that the frequency of the appointments is now diminished.

[57] The father did not directly challenge the counsellor’s credentials but described her as an intern. He failed to mention that while she is an intern play therapist, she is a registered psychotherapist. His affidavit also states: “I find it hard to believe that the therapist does not have time slots available at 4pm or 5pm on a weekday, thus not impacting his education”. I find he should have made proper inquiries, and on this point, I accept the mother’s evidence that this was the only time slot available. I find she did consult the father about the therapist in advance although poorly communicated with him. I find he did not present a better alternative to her plan.

[58] I find the father is more vigilant than the mother in ensuring M.’s education needs are prioritized, with homework done. I find the father is properly motivated. M.’s report card shows that he is well within a satisfactory learning range but there are areas where improvement is warranted.

[59] The father’s home appears to have more structure than the mother’s for homework time and bed routine. The mother is more free range and easy going. It would be better for M. if they shared the same expectations for M., especially as he advances to higher grades. This would involve compromise.

[60] The father raised a concern with the Children’s Lawyer clinician and the court about the mother co-sleeping with M., now almost 10 years old. It was clear to me that the mother was ruffled by his concern, as if he was alleging something sinister. She has explained many times that she is not co-sleeping but he still raises it.

[61] Because I have heard significant evidence about this issue, and it is incendiary to both of them, I elect to address it. For clarification, I define co-sleeping as the practice of sleeping in the same bed with your child. The mother’s evidence is that she does not share a bed with M. He prefers her large bed to accommodate their 2 big dogs he sleeps with. She cuddles him, he falls asleep and she sleeps elsewhere in a spare room, his room or the sofa. M. is generally sleeping in her room, in her bed but not with her. This is a usual routine and not simply a matter of comforting a sick child or reading a bedtime story together.

[62] M. does have his own room and his own bed. The mother described him as an anxious child who often goes to sleep in his own bed, wakes in the night and ends up in her bed at some point overnight, perhaps being an example of reactive co-sleeping.

[63] M. also has a dog at his father’s home. There was no evidence if M. sleeps with his dog for comfort at his father’s home.

[64] The bedtime issue is creating additional, unnecessary stress for the entire family.

[65] Given the independent evidence by the OCL clinician about M.’s worries for his parents’ wellbeing, neither parent testified as to why M. is anxious. The mother described M. as a “mama’s boy” several times. I do not find this to be flattering, or an acceptable explanation. It speaks to issues of autonomy, self regulation, and stress management. M. is a caring and thoughtful child by all accounts so even if he is worried for example that his mom will be lonely or sad, this family system needs to handle this issue with care, without judgment or insinuation. If it is as simple a problem as the mother claims - that he likes a bed big enough for 2 Labrador dogs - then buy him a queen size bed and let him take the dogs to his room.

[66] Given that the mother and the child both suffer from anxiety issues, the notion of M. being stressed by his parents’ conflict over him, and not being able to self soothe to go back to sleep without the mother, is a problem that the parents should speak to his doctor about. Apart from any privacy issues, both parents want to minimize any separation anxiety for M. A common routine may be a good consideration. It is not a legal issue. It definitely should be factored in to any overnight camp experience planned for this lad, and makes the case to defer overnight camp this year.

[67] Frankly, the parties should have had a telephone call to discuss sleep issues or consulted the child’s doctor together.

[68] There was a minor dispute about whether M. plays video games at his dad’s home and the content of the games. The fact is that neither parent has a good view of what goes on at the other’s home.

[69] M. has stopped speaking about what happens in the opposite home. Sadly for this child, he is living in two worlds. Both parents presented as if their family rules are correct. I find that they are both wrong.

[70] Because M. is half of each parent, they need to sort out a common family culture. I find that it is in M.’s best interests for his parents to compromise and address each other’s concerns. I cannot order them to be reasonable in each other’s eyes.

[71] Separation under most conditions brings communication challenges. These parties need to step up their communication skills. The future arrangements should be orchestrated between the parents. M. should not have to be put in a position of emissary about times and details. This means the mother must actively communicate with the father whether she wants to or not. They must sensitize to interpret the other’s view. It also means they must share information with each other about M.’s progress and any concerns at either household. If they lack the skills, they need to find a new plan or get some help. Both parents and the stepmother have quality benefit plans. This order won’t fix the parties’ communication problems. The father’s draft order minimizes direct parental communication further, and I find it is adverse to M.’s interests. Neither parent’s plan had a component to effectively address their obvious communication deficits and yet, they both readily identified a problem. Further, the parties and many of their collateral witnesses recognize that this impacts M. They are stuck. M.’s best interests are best served if the parties choose to arrange some communication counselling for them to better discuss issues regarding M.

[72] I find a parent co-ordinator would defer daily decisions, cause unnecessary delay and risk further exacerbating high tensions. The big decisions such as school, religion and medical care have been made. Mediation may be a good tool for this family to help them hear each other on small issues if they are unable to express their viewpoint. That is a personal decision, not a legal one in these circumstances.

Credibility

[73] Credibility is a function of truthfulness and reliability. I have had the opportunity to hear viva voce evidence of both parties, and in reaching my decision, I have considered the credibility of their witnesses, including Sabrina Tripolitano, the stepmother Stephanie Lackey, and Barry Smith, father of the Applicant. I also reviewed several affidavits of family and friends of each party. I find both parents, Ms. Lackey, Mr. Smith and Ms. Tripolitano are truthful.

[74] On the whole, I prefer the mother’s evidence as more reliable where it conflicts with the father’s evidence. Her claim, story and actions match. She readily admitted some mistakes, and was able to recognize the father’s parenting strengths, even at her own peril. She was candid about some difficulties she had experienced. For example, the mother was quite mistaken about her contributions to a savings account. She had mentioned several times that finances were not her strength. Both parties made errors on their financial statements. Both remained laser-focused on M. This case is about their child, and not money. The father paid regularly what he honestly believed he owed. The mother accepted it without complaint for years. She offered to take a reduced amount of child support when his time share increased.

[75] When assessing credibility, I look at what the parents did, and not just what they now say they will do. This helps determine reliability. Both parents are child focused and believe in their positions.

[76] I found the father to be evasive at times in his cross examination. His evidence in chief was tendered through an affidavit. When asked something uncomfortable, he was vague. He had difficulty answering questions that he knew would be unhelpful to his case. Sometimes, he had trouble answering obvious questions such as the identification of family members or places in photographs. At times he gave unclear responses and couched his evidence in ambiguity.

[77] I found he exaggerated or misconstrued facts. For example, his evidence was that the mother “demands he return child early, gets upset if she can’t immediately reach them and insists on knowing where we are at all times”. I find this is untrue.

[78] He testified the mother calls and texts multiple times a day and does not afford him the same courtesy. I find this is false. His description is exaggerated. Currently, there is very limited communication.

[79] His affidavit, sworn days before the trial, describes her with current mental health concerns and a drinking problem. He described the mother avoiding him during transitions, sending nonsensical and angry texts with alarming remarks about her inability to maintain routine and concerns about being a mother. The conclusion one is to draw, according to the father, is that she is drinking now and therefore avoids contact to inhibit detection. There is no credible evidence that she currently has a drinking problem or untreated mental health concerns. She confided some personal concerns to him about five years ago when she experienced a problem. She asked him for help with the child while she received treatment.

[80] In his affidavit in chief, at paragraph 42 the father attested: “Naturally, I wanted my son to be a part of my wedding and a part of the celebration. Heather would not allow it. She forbade me from including M. in the ceremony and he did not attend”. I find this is false.

[81] The father and Ms. Lackey married in a small ceremony in New Orleans in 2017. Her viva voce evidence did not support the father’s version of the events. Ms. Lackey described that the mother sincerely wished her well in her marriage. The child did not have a passport so could not have attended the small gathering in the USA. Later, the couple had a party in Ontario. Photos of the wedding party clearly show the child enjoying himself. The mother declined to attend that party but sent the child and sent an appropriate gift. Her parents attended. It is completely reasonable that the mother did not attend. The day was about Ms. Lackey, not the mother. There was no problem between these two women about this. The mother was most complimentary about Ms. Lackey and testified she couldn’t have asked for a better stepmother if she picked one herself. Ms. Lackey agreed that the mother had historically ensured M. called her on Mother’s Day.

[82] I find the evidence of Stephanie Lackey to be very credible. She was straightforward and balanced in her evidence, at times contradicting the father. For example, her evidence about M.’s cell phone use differed from the father. She testified that M. was directed to advise her if he wanted to use his phone. I find she and M. have a close relationship, supported by the mother.

[83] Barry Smith was also a straightforward witness. When he had the opportunity to criticize Mr. Martyn, he stayed focused on M. and answered the questions.

Analysis

[84] The court must make this determination based on the best interests of M. Despite the dismissal of the father’s requested change to decision-making authority, I have undertaken a fresh enquiry into M.’s best interests. It is hard to pinpoint every reflection, but in my analysis to determine M.’s best interests, I considered all factors related to his circumstances. In doing so, I gave primary consideration to M.’s physical, emotional and psychological safety, security and wellbeing, including:

• Each of the factors under the CLRA as reviewed by counsel in their submissions.
• The relationship between each parent and M. It is positive.
• Whether that connection is healthy for the child, including the sleep hygiene issue.
• M.’s need to have a healthy relationship with both parents, as well as Stephanie Lackey and the extended family.
• The benefits and risks to the child of the order requested.
• The age, maturity and level of development of M.
• M.’s views and preferences, particularly as provided through Sabrina Tripolitano and the Voice of the Child Report.
• The details and feasibility of the parenting plans promoted by each parent as well as the Final Order.
• The success, duration and history of the arrangement at the time of the Final Order and as changed to the arrangement currently in place.
• The mental and physical health of M. and each parent along with the plans to address mental and physical health issues.
• The moral environment to be provided by each parent.
• The education and socialization needs of M., and ways for the parents to address plans to meet those needs over the short and long term.
• Whether maximizing contact to each parent is desirable.
• The resources available to this family.
• The history of each parent including ability to communicate and cooperate.
• Whether the parents will obey rules in an order.
• The commitment of each parent to change their behaviour where needed.
• Conduct relevant to the ability to act as a parent of the child.

[85] The amendments to the CLRA require me to address factors relating to family violence, and specifically include whether there is a pattern of coercive and controlling behaviour in relation to a family member. I find no evidence of violence. Both parents alleged that the other was a bully at times. I do not find either of them to be a bully. Instead, I find they had disagreements, were entrenched in their positions and miscommunicated.

[86] I find that the parties’ usual pattern to deal with an issue is that the mother suggested a plan or solution. The father generally didn’t disagree. The mother concluded that this meant he agreed. From the father’s viewpoint, he didn’t always agree but he accepted her plans. He concluded that this meant she wasn’t consulting in a meaningful way. He tried to co-operate. He rarely complained. He wanted things to work. He wanted more time with his son. He never exercised his power remedy in the Final Order for a quick return to court.

[87] I find the father’s conclusions about the mother’s motives and his position that he was marginalized as a parent by her are unfounded. I find he has not made out his case, as he stated in his opening that “From M.’s birth, Ms. Smith has made it clear that in her view, she is the only parent who counts. Mr. Martyn should take what he is offered and be quiet about it”, and “Ms. Smith has done everything she can to control and limit M.’s relationship with his father”.

[88] I find their pattern of chronic miscommunication about mostly small things has layered into a larger dispute. Unfortunately, it rests at the feet of M. I find that neither parent has a realistic plan to effect change.

[89] Both parties filed supporting affidavits from friends and family. On the whole, I find the father’s affidavit material reads with an aggressive and critical tone. He was much more measured on the witness stand. Many of his affidavits had limited first-hand knowledge of the matters they were corroborating. Some attested to old, irrelevant or undisputed issues, including the father’s general good character. His supporting affidavits included personal contact information, inviting the court to contact them for further information. The material was not prepared by his current lawyer, Ms. Swallow. The written closing submissions of the mother detail examples from the father’s supporting affidavits of hearsay, opinion, irrelevant and disparaging commentary of the mother. I agree with these submissions. I find the mother’s collateral witnesses were more succinct, focused and relevant.

[90] I had the opportunity to hear from the OCL clinician, Sabrina Tripolitano. She described M. as a sweet, lovable and articulate child who did not identify any annoying traits in either parent. She testified he is a matter-of-fact child who is positive and protective of each parent. He was aware of their competing views and preferences about how time with him should be divided. He said his parents didn’t like each other.

[91] There were no disputes about Ms. Tripolitano’s credentials or process. I found her evidence to be credible and balanced. I have heard from both parties, Ms. Lackey, Mr. Smith and considered numerous affidavits. I find they corroborated aspects of the clinician’s evidence.

[92] I find M. wishes to have fewer transitions. The current routine exchanges him between his two homes almost daily. M. indicated he didn’t go long without seeing the other parent.

[93] The Voice of the Child Report dated June 6, 2022 describes inconsistent statements by the child, such as “he stated he likes the [current] schedule because it’s fair”, “he likes the current schedule and wants it to stay the same”, and “he wants equal time”. I accept Ms. Tripolitano’s evidence that “caution should be taken when considering the child’s states [sic] views and preferences, as he may be presenting a particular view in an effort to please his parents”. She testified that children do not experience time the same way as adults. She described a need for caution when drawing conclusions at his stage of development. She went on to say: “Based on the content of M.’s interviews, he demonstrates errors in describing the proportion of time he spends with each parent and is inconsistent in his articulation of the schedule. He also places an emphasis on things being ‘equal’ and fair, which is characteristic of children in the latency phase of development. Given M.’s age and his challenges with perception of time and the quantum of time he spends with each parent, this is further indication that M.’s views and preferences about ‘equal time’ should be considered with caution as his articulated perception of the current organization of time is inconsistent….and incorrect”.

[94] She also noted both parents were concerned about what the other parent was saying to M. The father raised various concerns such as the mother’s mental health, alcohol misuse, and co sleeping. He did not offer a time frame. She correctly did not address these issues with the mother because she was providing a Voice of the Child Report, not a clinical assessment.

[95] I reject the father’s plan for a week about arrangement at this time. It is a significant change for M. I find it is in M.’s best interests to reduce transitions, and increase the time division with some predictability. Given their longstanding conflict concerning changes to the schedule, I find it is in M.’s best interests to step into an equal time sharing regime as of the summer of 2024.

Endorsement

PURSUANT TO THE CHILDREN'S LAW REFORM ACT, THIS COURT ORDERS THAT:

1. The Respondent, Melville William Martyn’s request to vary the decision-making responsibility on behalf of the child, M.M.S. (“M.”) born [date redacted] is dismissed. For clarity, paragraphs 1 and 2 of the Final Order of The Honourable Madam Justice Robertson dated July 28, 2014 shall remain in full force and effect.
2. The term “joint custody” in the order dated July 28, 2014 is replaced with “shared decision-making responsibility”. The term “access” is replaced with “parenting time”.
3. The residential parent shall make the day-to-day decisions on behalf of M. Both parents are encouraged to maintain a similar set of household rules and routines.
4. Paragraphs 4 - 9 of the Final Order of The Honourable Madam Justice Robertson dated July 28, 2014 are terminated because they no longer apply or are replaced with new provisions by this order.
5. The Respondent’s regular parenting time with M. shall be on Tuesday after school or at 3:30 p.m. if there is no school that day to Thursday at 3:30 p.m. each week; and alternate weekends from Friday after school, or 3:30 p.m. if there is no school that day, to Sunday at 4:00 p.m.
6. For clarity, if M. is sick on a Thursday, the Respondent shall arrange care for him during the school day hours. This Thursday care during school hours if M. is not attending school may be provided by the Respondent, Ms. Lackey, the Applicant, Heather Doris Smith, the Applicant’s father, Barry Smith, or such other person agreed upon by the parties. If M. is sick on a Tuesday, the Applicant shall arrange care for him during the school day hours. This Tuesday care during school hours if M. is not attending school may be provided by the Applicant, the Respondent, Ms. Lackey, the Applicant’s father, Barry Smith, or such other person agreed upon by the parties.
7. If the school bus is not running due to inclement weather or other cause, the parent who has M. in their care before the school day shall decide if M. will be attending school that day and be responsible for the transportation.
8. In addition to the regular parenting schedule set out in paragraph 5 above, the holidays shall be as follows: (a) Christmas: In even-numbered years, starting in 2024, the Applicant, Heather Doris Smith, shall have care of M. from Christmas Eve at 2 p.m. to Christmas Day at 2 p.m., and the Respondent, Melville William Martyn, shall have care of M. from Christmas Day at 2 p.m. to December 27 at 2 p.m. (b) In odd-numbered years, starting in 2023, the Respondent, Melville William Martyn, shall have care of M. from Christmas Eve at 2 p.m. to Christmas Day at 2 p.m., and the Applicant, Heather Doris Smith, shall have care of M. from Christmas Day at 2 p.m. to December 27 at 2 p.m. (c) For clarity, the parent who does not have M. in their care Christmas Eve and Christmas morning gets an extra day, extending the time until December 27.
9. March Break: In odd-numbered years, the Applicant, Heather Doris Smith, shall have care of M. from the commencement of March Break, on Friday after school, until M. returns back to school. In even-numbered years, the Respondent, Melville William Martyn, shall have care of M. from the commencement of March Break, on Friday after school, until M. returns back to school.
10. Easter: The parent whose weekend falls on the Easter long weekend pursuant to the regular parenting schedule shall have care of M. from Friday at 2 p.m. to Sunday at 2 p.m., and the parent whose weekend does not fall on the Easter long weekend pursuant to the regular schedule shall have care of M. from Sunday at 2 p.m. to Monday at 5 p.m.
11. Mother’s Day: If not otherwise in the Applicant’s care, the Applicant, Heather Doris Smith, shall have care of M. every Mother’s Day from 9 a.m. to return to school Monday, the following day.
12. Father’s Day: If not otherwise in the Respondent’s care, the Respondent, Melville William Martyn, shall have care of M. every Father’s Day from 9 a.m. to return to school Monday, the following day.
13. Thanksgiving: The parent whose weekend falls on the Thanksgiving long weekend pursuant to the regular parenting schedule shall have care of M. from Friday after school until Sunday at 2 p.m., and the parent whose weekend does not fall on the Thanksgiving long weekend pursuant to the regular schedule shall have care of M. from Sunday at 2 p.m. until Monday at 7 p.m.
14. 2023 Summer: Each parent shall have the choice of two non-consecutive weeks (each week consisting of 7 consecutive days, including the parent’s regular weekend) in the months of July and/or August each year. Each year, the Respondent shall have the first choice of vacation time and shall advise the Applicant of the dates on or before May 1st.
15. For 2023, the Applicant, Heather Doris Smith, has scheduled two summer day camps for M. The Respondent, Melville William Martyn, shall schedule the remaining two weeks of unscheduled holidays. He may choose a day camp program, in consultation with the Applicant and M. He may, at his option, choose to provide care for M. on his own or with the assistance of Stephanie Lackey during the day for the two remaining weeks. In that event, he shall return M. to the Applicant at 4 p.m. on her parenting days. He will pick up M., or the Applicant may drop him off, whichever they both prefer, by 8:30 a.m.
16. Commencing Summer, 2024, and each summer thereafter, the months of July and August shall be equally shared between the parties as follows: (a) M. shall reside with each parent equally on a week on week off schedule from the end of school in June until the commencement of school in September with parenting exchanges occurring on Fridays at 4 p.m. (b) Each parent shall advise the other of their chosen week at minimum by April 1st. (c) If either parent chooses to plan a trip outside of the Kingston area, they shall have the option of a one- or two-week consecutive vacation. The parent so choosing, must advise the other of the planned itinerary by May 1st. That parent must also facilitate contact during the block holiday period through video or phone. (d) M. shall not attend an overnight residential camp without an attending parent until 2025 unless both parents agree.
17. P.A. Days: The parents shall consult with each other to divide M.’s school P.A. days between them, in consideration of the parents’ availability and M.’s activities. If they do not agree on division of time, the parent who has the night before the P.A. day will have care of M. for the P.A. day.
18. The parents may vary this holiday schedule from time to time, if they both agree.
19. Paragraph 16 of the Final Order of The Honourable Madam Justice Robertson dated July 28, 2014 shall be deleted and replaced with: “The parties are encouraged to use a parenting app to communicate with each other about the child and share information.”
20. In the event that M. requires urgent medical care, the residential parent shall notify the non-residential parent as soon as is practical.
21. M. may telephone, text or otherwise communicate with the non-residential parent at any time. The non-residential parent may have reasonable contact with M. at reasonable times. Both parents shall encourage M. to maintain regular contact with the other parent.
22. The Applicant, Heather Doris Smith, shall retain M.’s original documents, including M.’s birth certificate, Ontario Health Card, and Passport and Social Insurance Number card. She shall provide the original documents to the Respondent, Melville William Martyn on an as-needed basis and the Respondent shall promptly return them to the Applicant. If there is no Social Insurance Number, the Respondent shall make an application for one to be issued.
23. In the event a parent is travelling with M. outside of Canada, the travelling parent shall notify the other parent 30 days in advance of the date of departure and provide an itinerary of the travel plans including flight numbers and carriers and hotels. The non-travelling parent shall sign a Consent to Travel letter at the request of the travelling parent.
24. Commencing September, 2024, upon M.’s return to school, M. shall reside with both parents on an equal time sharing basis. The parents shall discuss the schedule by June 1, 2024. They are encouraged to seek third party assistance if they are unable to have this conversation between themselves. If they do not agree on the equal time sharing schedule for M., then they shall share time with him on a 2-2-5-5 schedule as follows: (a) M. shall reside with the Mother every Monday and Tuesday, with the Father every Wednesday and Thursday, and alternating weekends with each parent from Friday until Monday. (b) All Friday P.A. days shall be shared equally on an alternating basis or as otherwise agreed upon by Mother and Father. Upon receipt of the P.A. Day schedule in September, the parents shall confer and decide upon a mutually agreeable schedule sharing the time equally. If they cannot agree on a schedule, the Mother will assign the P.A. Day schedule in even-numbered years and the Father will assign the P.A. Day schedule in odd-numbered years.

PURSUANT TO THE FEDERAL CHILD SUPPORT GUIDELINES, THIS COURT ORDERS THAT:

ON CONSENT:

25. Commencing July 1, 2023, and on the 1st day of each month thereafter, the Respondent, Melville William Martyn, shall pay to the Applicant, Heather Doris Smith, support for the child, M.M.S. (“M.”) born July 28, 2013, in the amount of $500.00 per month.
26. The quantum of child support is based on the following facts: (a) The Respondent’s 2022 income was $103,508; (b) The Applicant’s 2022 income was $93,929; (c) The considerations set out in section 9 of the Child Support Guidelines; and (d) The finding of the Court that this quantum of child support meets the objectives of the Child Support Guidelines and meets the needs of M. (e) Commencing in the year 2024, and each year thereafter, on or before June 1st, the parties shall exchange a copy of their Income Tax Returns and Notices of Assessment. (f) Commencing July 1, 2023, the parties shall share equally M.’s special and extraordinary expenses. (g) Neither party shall incur an extraordinary expense on behalf of M. for which they seek contribution from the other party without first obtaining the written consent of the other party. Neither party shall unreasonably withhold his/her consent. (h) Counselling expenses are S. 7 expenses. (i) The Applicant and the Respondent shall maintain extended health and dental benefits for M. available to them through their respective employment. The parties shall provide information to the other parent about the benefit coverage under their plan, available to M. If M. is eligible for coverage under the benefit plan of Stephanie Lackey, the Respondent, Melville William Martyn, shall ask Ms. Lackey for information about the coverage and shall supply the Applicant, Heather Doris Smith, with Ms. Lackey’s response. (j) There are no arrears of child support owing by the Respondent to the Applicant as of June 30, 2023. (k) The Respondent shall forthwith pay to the Applicant the sum of $874.00 representing his contribution to the cost of M.’s counselling up to and including June 15, 2023. (l) Each party shall maintain a policy of life insurance with a face value of no less than $150,000, naming M. as the beneficiary for such time as M. is entitled to support. Each party may name a third party as the Trustee for M. and shall advise the other party of the name of the Trustee. (m) In the event either party wishes to review the quantum of child support, the requesting party shall provide to the other party, in writing by email, his/her proposal for the review and his/her reasons for the request. Within 7 days of receipt of a written proposal, the other party shall provide his/her response to the proposal. After this consultation, if the issue of child support is not resolved, either party may seek a variation to the child support provisions by a court of competent jurisdiction.

PURSUANT TO THE FAMILY LAW RULES, THIS COURT ORDERS THAT:

NOT ON CONSENT

27. The issue of costs shall be agreed upon within 14 days, failing which the Father will provide written submissions on costs, served and filed within 14 days thereafter, to be comprised of no more than 6 pages, one sided double spaced, plus a bill of cost, and any relevant Offers to Settle or case law. The Mother has the opportunity within 14 days thereafter to serve and file responding submissions on the same terms. Any reply shall be filed within 7 days thereafter.
28. This court further orders that unless the support order is withdrawn from the office of the Director, Family Responsibility Office, it shall be enforced by the Director and amounts owing under the support order shall be paid to the Director, who shall pay them to the person to whom they are owed.
29. The order bears post judgment interest at the rate of 6% per annum effective from the date of this order. Where there is default in payment, the payment in default shall bear interest only from the date of default.

Madam Justice C. Robertson Released: July 5, 2023