COURT FILE NO.: FC49/21 DATE: 2023/08/14

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

Nathan Huber Self-Represented Applicant

• and -

Rebekah Sawyer James Battin, for the Respondent Respondent

HEARD: April 26 and 27, 2023

T. PRICE, J.

Overview

[1] The Applicant, Nathan Huber (hereinafter, Nathan) and the Respondent, Rebekah Sawyer (hereinafter, Rebekah) met in August 2016 while working at a grocery store in St. Thomas. They commenced cohabitation in January 2017, when Rebekah moved into Nathan’s residence in St. Thomas. They never married. Their daughter, G., was born in 2018.

[2] They separated in August 2019 when Rebekah left their shared premises, taking G. with her. She claimed that she did so because, after the parties returned early from a camping trip with her family because of an argument between Nathan and some of her family members, Nathan continued to consume alcohol to the point of intoxication. He became belligerent to the point that Rebekah feared for her and G.’s safety. As a result, she called on a friend of Nathan’s for assistance. He attended, spoke with Nathan, and helped Rebekah and G. leave.

[3] A period of several months passed during which Nathan did not have parenting time with G. The parties each blamed the other for that situation but, whatever its cause, they eventually came to an agreement in February 2020 pursuant to which Nathan would have parenting time with G. every weekend from Friday evening until Monday morning.

[4] The arrangement worked reasonably well until on or about August 2, 2020, when they got into an argument about Nathan having additional parenting time with G. on statutory holidays. Nathan took a strident position, insisting that he would have G. in his care on every holiday for the next year, telling Rebekah by text message that it was “tough” if she had a problem with his position, and following that up with a text calling her a “bitch,” a “dirty slut,” and threatening to “wreck [her] life.”

[5] These texts, which were illustrative of others sent by Nathan around this time, caused Rebekah anxiety. As a result, she reneged on their agreement of February 2020 and stopped sending G. for parenting time with Nathan.

[6] As was the case in August 2019, the parties each blamed the other for Nathan not seeing G. after Rebekah started to withhold her. While Nathan accused Rebekah of “going into hiding,” she was living with her mother in Belmont, a fact she testified was known to him. Rebekah, on the other hand, claimed that Nathan rarely contacted her about seeing G., a situation that she said caused her concern about the risk of the relationship between Nathan and G. being damaged.

[7] When that situation persisted for several months, Nathan commenced this application in February 2021.

[8] In their pleadings,

a) Nathan sought:

i. “sole custody” of G. or, in the alternative, joint custody, with him having the final decision-making authority in the event of disagreement,

ii. equal shared parenting time,

iii. child support in accordance with s. 9 of the Child Support Guidelines, and

iv. an order for police enforcement.

b) Rebekah sought:

i. “sole custody” of G.,

ii. an order that the parties consult about major decisions, with Rebekah to have final decision-making authority,

iii. an order that Nathan’s parenting time with G. occur on alternating weekends from Friday evening until Sunday evening plus one afternoon during the week,

iv. an order that the parties equally divide parenting time on holidays, and

v. an order that child support be paid in accordance with s. 9 of the Child Support Guidelines.

[9] I made an interim, interim, without prejudice order on April 1, 2021 which provided Nathan with parenting time every weekend from Thursday at 4:00 p.m. to Sunday at 6:00 p.m. At the time Rebekah was unrepresented. Despite Rebekah later retaining counsel, my order of April 1, 2021 was neither reviewed nor changed prior to trial.

Order

[10] For the reasons that follow, I have made an order, the terms of which are set out in Schedule “A” located at the end of these Reasons.

Additional Evidence Relating to Parenting Issues Between the Parties

[11] Following their argument in August 2020 about Nathan’s parenting time with G. on statutory holidays, Rebekah informed police that she had been assaulted by Nathan on July 10, 2019 when, in a state of drunken anger, he pulled her from her bed by the hair. Nathan was arrested and charged with common assault. He was released on an undertaking, one term of which prohibited him from communicating directly or indirectly with Rebekah, except through a mutually agreed upon third-party for the purposes of child-care arrangements. Because of the undertaking, that term was also included in the interim order of April 1, 2021.

[12] The criminal charge was withdrawn on April 30, 2021 when Nathan entered into a peace bond for a period of 12 months. It contained a non-association term similar to that set out in his release recognizance. There was no evidence that he ever breached the terms of the peace bond, which had long expired by the time this matter went to trial.

[13] When asked why she waited until August 2020 to contact police about an incident which occurred in July 2019, Rebekah testified that she was tired of Nathan constantly belittling her in their communications and decided that it was time that she stood up for herself.

[14] While acknowledging that Nathan worked and supported the family financially while they cohabited, Rebekah also said that Nathan constantly drank alcohol to excess. As a result, she claimed that she was G.’s primary care provider, both while on parental leave and after. She said that whenever she confronted Nathan about his drinking, the resultant anger he displayed when intoxicated, and their potential effects on G., his response was to call her names and slam doors.

[15] Nathan did not respond directly to these allegations. He did, however, testify that he does not drink when G. is in his care.

[16] When asked about the abusive language that he directed at Rebekah in their communications in August 2020, Nathan responded that he called Rebekah a bitch “because she is” one. He further explained that he called her a “slut” because she had left their shared residence in August 2019 with one of his friends and had gone to that friend’s residence. As he testified to these points, Nathan’s disdain for Rebekah was obvious.

[17] Nathan explained that he becomes hot-tempered when people disrespect him. He said, “that is who I am. I treat people with respect unless they disrespect me.” He further described his view of how the world works, saying, “If you want to screw me over, I’ll screw you over. It’s called karma.”

[18] Examples of his worldview in action were evident in an incident which occurred on February 16, 2023, when he went to G.’s school to pick her up and she was not there because Rebekah had taken her to police to report alleged abuse by Nathan’s wife. In his texted communications with Rebekah, Nathan called her a “piece of shit.” When asked if he had apologized to Rebekah for calling her names, he responded that he would not “lower [him]self to apologize to her… Not once… Not ever.” He followed that response with, “Apologize? That’s pathetic.” He further testified that he “will never get over anything that [Rebekah] has done to my family and friends and I will never forgive her.”

[19] Notwithstanding the repeated disrespectful language he used to describe Rebekah, Nathan testified that he never did so in G.’s presence. His evidence was confirmed by his spouse, Ms. Fernandez, who, as a witness, had been excluded when he testified.

[20] Evidence was also presented about the following issues of concern relating to G. which affect the relationship between Nathan and Rebekah.

Transportation

[21] Nathan moved to London in 2020. He has been doing all of the driving between London and St. Thomas in order to retrieve G. for his parenting time and returning her when it is finished. Rebekah does not drive.

Friday School Attendance

[22] G.’s school attendance records reflect her often missing school on Fridays when she is in Nathan’s care.

[23] According to Nathan, G.’s absences stem from the fact that she has often been ill on Fridays, so he keeps her home from school. On other occasions, particularly in the winter, he has not driven her to school on Fridays because of weather conditions. He attributed G.’s illnesses to the fact that she was in a before and after school program, which meant that she was often at school for up to 10 hours per day which, in his view, was too long.

[24] Rebekah testified that G. is healthy when she leaves her care on Thursdays. While accepting that some of G.’s school absences likely occurred on Fridays when severe weather is a factor, she simply does not believe that G. is ill on Fridays as often as Nathan reports.

Alleged Abuse of G.

[25] A more recent, but significant, source of friction in the parties’ relationship is the fact that, in early 2023, Rebekah twice reported to the police that Nathan’s new spouse, Carolyn Fernandez, had either physically or sexually abused G. while she was in Nathan’s care. In each instance, police investigated and, at the time of trial, no charges had been laid.

[26] On one of the occasions, the parties encountered each other at the police station. G. was exposed to Nathan’s anger at Rebekah for what he regarded as false reports against his new spouse.

Evidence of Carolyn Fernandez

[27] Ms. Fernandez, who first made Nathan’s acquaintance in March 2022, married him in October 2022. She has two children, ages nine and seven, who continue to reside in the Philippines. Nathan is sponsoring them to come to Canada.

[28] She denied harming G. and said that she treats her as one of her own children.

[29] Ms. Fernandez testified that, at Nathan’s request, she bathes G. She said that when G. was younger, she did not always wipe herself properly after using the washroom, so she had to regularly wash G.’s anal area when bathing her. She also washed G.’s vaginal area to ensure it was clean and not affected. She said that Nathan authorized her to do so. She also said this is what she told the police.

[30] She stated that, if she had known that she should not be bathing G.’s private body parts, she would not have done so. She further testified that if she had harmed G., she had no doubt that Nathan would have reported her to the police himself.

[31] She also denied having caused any physical, non-sexual harm to G.

Additional Evidence Relevant to Parenting Time

[32] Nathan has been employed for over three years by a company contracted by the City of London to maintain the downtown in a clean condition, fertilize flowers, and remove graffiti on buildings.

[33] His hours of work are Sunday to Wednesday from 7:30 a.m. to 3:30 p.m. and Thursdays from 5:00 a.m. to 2:30 p.m. His Thursday hours were adjusted by his employer to allow him to be free to retrieve G. from school so that he can commence the parenting time allowed him beginning at 4:00 p.m. under the interim order of April 1, 2021. Because of his hours of work, G. remains in the care of Ms. Fernandez on Sundays, and he drives G. back to Rebekah’s home after the end of his workday. Before he married, his parents, who have since moved to Saskatchewan, cared for G. on Sundays.

[34] Nathan also expressed his disappointment at the fact that Rebekah would not allow G. to attend his wedding in October 2022. Rebekah explained that Nathan’s request for G. to attend the wedding came late and that the wedding occurred midweek, at a time when G. was in school and on a class trip. Text messages between the parties at the time support Rebekah’s version of events, particularly around the late timing of the request that G. be permitted to participate in the wedding.

Parties’ Positions Regarding Parenting Time and Decision-Making Responsibility

Nathan - Parenting Time

[35] Nathan requested that I make final the parenting times set by the interim order of April 1, 2021. He asked that I consider the fact that he works Sundays through Thursday and that he has adjusted his work hours on Thursday in order to have the full benefit of the parenting time afforded him by the order of April 1, 2021.

[36] He modified his request to the extent that he agreed that Rebekah could retrieve G. from Ms. Fernandez’s care on Sunday mornings because he is required to work that day and does not spend much time with G. He further requested some provision addressing parenting time on statutory and other holidays.

Nathan - Decision-Making Responsibility

[37] As he had pleaded, Nathan requested that he be granted sole decision-making responsibility for G.

Rebekah - Parenting Time

[38] Rebekah requested that there be a change in Nathan’s parenting time. Under her proposal, he would lose the ability to retrieve G. on Thursday evenings, and he would have parenting time on alternating weekends plus one non-overnight evening each week. She said that the requested change would benefit G. because it would ensure that she will be in school on Fridays.

[39] Rebekah’s counsel, Mr. Battin, submitted that any parenting order I make must be made in G.’s best interests in accordance with s. 24 of the Children’s Law Reform Act (CLRA). He particularly adverted to the requirement under s. 24(3)(j) of the CLRA that I must have regard to family violence when considering G.’s best interests, and submitted that, under s. 24(4), which specified factors that I must consider when assessing family violence, I must consider any verbal abuse in G.’s presence.

[40] He further submitted that Nathan’s text messages and his oral evidence bespeak some measure of instability. He pointed out that Rebekah testified to being affected by Nathan’s repeated attacks on her character, all of which caused her stress.

[41] He said that, of the two, Rebekah is the calm parent, a factor which weighs in favour of her having primary care of G.

[42] He lastly pointed out that the temporary order of April 1, 2021 deprived Rebekah of any parenting time with G. on weekends.

Rebekah - Decision-Making Responsibility

[43] Despite the unwarranted and vile verbal abuse directed at her by Nathan when she does not respond quickly enough to his text messages, disagrees with him, or does something that he considers inappropriate or upsetting, Rebekah testified that she believes that Nathan is a good father to G. and that the parties can make decisions about G. jointly. She does, however, want final decision-making responsibility in the event of disagreement between her and Nathan on major parenting issues.

Parenting Issues - Discussion and Analysis

[44] In deciding what order to make in G.’s best interests, I must have regard to the provisions of section 24 of the CLRA.

[45] Section 24(1) requires that, when I make a parenting order pertaining to G., meaning an order that addresses the parenting time of both parties and their decision-making responsibility with regard to her, I must take into account only her best interests.

[46] Section 24(2) makes it even more clear that, in determining G.’s best interests, I must consider all factors related to her circumstances. In doing so, I must give primary consideration to her physical, emotional, and psychological safety, security, and well-being.

[47] As to this factor, while I find that G. seems, for the most part, to enjoy her time with her father, I cannot ignore the fact that Nathan holds the view that people disrespecting him will be disrespected in return. Whether this might be G., herself, Ms. Fernandez, Nathan’s current spouse, Rebekah, or some member of the public who, in G.’s presence, Nathan deems to have disrespected him, I find that the likelihood is greater that G.’s emotional and psychological security and well-being are at risk of being compromised in Nathan’s care than they would be in Rebekah’s care.

[48] I am also required to consider those factors enumerated under s. 24(3) of the CLRA that relate to G.’s circumstances when determining what order to make in her best interests. I will review those that, in my view, are most pertinent to the facts of this case.

(a) G.’s needs, given her age and stage of development, such as her need for stability

[49] I was informed that G. is meeting her developmental milestones, so there are no particular concerns about her developing in accordance with expectations.

[50] G. is now five years of age, going on six. For most of the first half of her short life, she resided in the primary care of Rebekah, while for the last two and a half years her time has been divided between the care of each of her parents.

[51] A child of G.’s age needs stability. The question is what order will best ensure it for her. In my view, it is an order that does not expose her to uncertainty, such as whether she will be going to school regularly. I find that is more likely to be the case if she is in Rebekah’s primary care. Additionally, were she to be placed into Nathan’s primary care, she would have to change schools, which would be somewhat destabilizing for her, with the likely loss of the friendships that she has developed at her current school.

[52] I further note that there is already friction between the parties over the fact that, despite Rebeka’s objection, Nathan is telling G. to refer to Ms. Fenandez by a name that includes the term “mama.” Leaving G. uncertain about who fits into her life and in what role can be destabilizing. Should Ms. Fenandez’s children end up in Canada and living with Nathan and Ms. Fernandez, things are likely to be even more confusing for G. for some period until she is able to sort out where each of these persons fit in her world.

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

[53] The evidence suggests, and I find, that G. has a good relationship with both Nathan and Rebekah. I was provided with little evidence about G.’s relationship with Ms. Fernandez, other than the alleged abuse, about which I will comment, below. As a result, I cannot determine whether she is a person who plays an important role in G.’s life. She has, however, been caring for G. on Sundays for the last few months.

[54] I heard no evidence of any other persons playing an important role in G.’s life, although I was informed that Nathan’s parents now reside in Saskatchewan while Rebekah’s mother resides in Belmont. Given those circumstances, I find that it is more likely that G. will have a continuing personal relationship with her maternal grandmother than she will with her paternal grandparents. That relationship will clearly occur through Rebekah, not only because the familial relationship is through her, but also because Nathan made clear throughout his evidence that he had no use for any member of Rebekah’s family, thereby making highly unlikely any chance that he would prioritize G.’s relationship with her extended maternal family if she were to be placed into his primary care.

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

[55] Despite Nathan’s repeated attacks on Rebekah’s integrity and his extremely disrespectful language to and about her, the text messages between the parties suggest that he supports G.’s relationship with Rebekah. The question is whether he would continue to do so if G. were to be placed in his primary care. Given his punitive nature, I am concerned that, if Rebekah were to not meet whatever requirements he might set of her, Nathan might, in anger or as a retaliatory measure, interfere in G.’s relationship with Rebekah.

[56] That noted, while I am satisfied that Rebekah now understands the importance of G. maintaining a positive and loving relationship with Nathan, I cannot ignore the fact that she has twice previously interfered in that relationship.

(d) the history of G.’s care

[57] I have already commented on this matter, above.

(e) G.’s views and preferences, giving due weight to her age and maturity, unless they cannot be ascertained

[58] I was provided with no evidence which assists me in determining or ascertaining G.’s views and preferences. Given her age, however, those views and preferences would not have been given much weight in any event.

(g) any plans for G.’s care

[59] I have already discussed the likely educational result for G. of a move to her father’s primary care, since he would be required to enroll her in a school in London. He provided no evidence about what that school would be, or how she would get there, given his hours of work. He said nothing about whether a school bus would be available to transport her from his current residence. He provided no evidence about whether he would be required to move from the apartment that he and Ms. Fenandez currently inhabit if her two children come to Canada and reside with him, Ms. Fernandez, and G., were she to be placed in his primary care.

[60] Rebekah, equally, gave no evidence of her plans for G.’s care other than to say that she would continue to provide the care for G. that she always has, and that G. will continue to attend her current school if she is placed in Rebekah’s primary care.

[61] I was provided with no other evidence by the parties about other plans for G.’s care.

[62] I must, however, consider the fact that, under his plan, Nathan’s spouse, Ms. Fernandez, will be involved in providing care for G. It was my impression that she was an honest witness. I find that she explained her actions which led to allegations of sexual abuse in a forthright manner. Her explanation for coming into contact with G.’s private body areas was reasonable. As for the allegation of physical abuse, the photograph which was produced showed some bruising on G.’s arm, which Ms. Fernandez denied causing. I was given no further details about how, if at all, Ms. Fernandez was alleged to have physically harmed G.

[63] On the totality of the evidence, I am unable to make the finding that Ms. Fernandez caused harm, either physical or sexual, to G. while caring for her, so her continued involvement in caring for G. cannot be held against Nathan.

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet G.’s needs

[64] Each of the parties seems positioned to care for and meet G.’s needs. Both are employed and have been for some time.

[65] Rebekah has been caring for G. since she was born, and I am satisfied that she has the ability to continue to do so.

[66] Nathan did not care for G. for periods of time after her birth. While he denied that alcohol played a factor in his failure to care for her, I find that it did. Despite his denial that he had a problem with alcohol, he acknowledged a conviction for impaired driving.

[67] Furthermore, Ms. Fernandez testified that he continues to consume alcohol when not caring for G. I find that, while he testified that he does not consume alcohol while G. is in his care, the risk of such alcohol consumption continues to exist and is addressed in my order.

(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 G.

[68] Rebekah testified, without contradiction or denial by Nathan, that earlier this year, when she suggested that G. receive some counselling at school because she was having difficulty with the fact that her parents were separated, Nathan initially resisted. After some back-and-forth in text messages, Nathan consented to the counselling.

[69] Additionally, when faced with the allegations that G. had been abused, Nathan’s initial reaction was not to express concern for G. but to attack Rebekah for having the allegations looked into. While it is understandable that Nathan would be upset that the allegations were made against Ms. Fernandez, his reaction was clearly not suggestive of someone willing to cooperate with respect to a serious matter involving G.

[70] Instead, by demanding that Rebekah turn G. over to him so that he could begin his parenting time, he demonstrated that his “rights” were of greater importance than G.’s physical and emotional safety and well-being.

[71] Notwithstanding my observations in that regard, I also must have regard to the fact that Rebekah testified that she believes that she and Nathan can and do cooperate and communicate well about matters affecting G. Her belief is supported by the many respectful text messages between the parties on a myriad of minor issues affecting G.

(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 G.’s needs, and

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

[72] “Family violence” is defined in s. 18(1) of the CLRA as “any conduct by a family member towards another family member that is violent or threatening, that constitutes a pattern of coercive and controlling behaviour, or that causes the other family member to fear for their own safety or for that of another person, and, in the case of a child, includes direct or indirect exposure to such conduct.”

[73] Rebekah testified that she left the relationship in 2019 because she feared for her and G.’s safety primarily because of the threats posed to her by Nathan when he consumed alcohol to excess. This was added to the fact that he was alleged to have physically assaulted her in July 2019, leading to criminal charges which were ultimately resolved by way of a peace bond.

[74] I find that Nathan’s conduct towards Rebekah in the past, when he was alleged to have assaulted her and ended up having a peace bond, and when he caused her to fear for her and G.’s safety when they left the relationship in 2019, constituted family violence.

[75] I further find that Nathan’s repeated use of disparaging, disrespectful language to Rebekah, is such that it could cause her to fear for her safety and therefore, depending upon the particular language used, could constitute family violence toward her.

[76] In considering the impact of Nathan’s family violence, I have also taken into account the factors enumerated in s. 24(4) of the CLRA and have concluded that Nathan’s potential for family violence is a continuing problem as it pertains to his relationship with Rebekah if he drinks and verbally disparages her because that causes her to fear for her own safety.

[77] I also find, however, that the risk of family violence perpetrated by Nathan against Rebekah physically is substantially diminished because both parties are in new relationships, Nathan both complied with the terms of his peace bond and has not engaged in further physical violence against Rebekah since 2019. He claims that he no longer drinks or will drink alcohol while caring for G., thereby reducing the prospect of him verbally attacking Rebekah while under the influence of alcohol.

[78] However, his verbal abuse of Rebekah when he is not drinking continues and, on occasion, G. is a witness to it. To that point, I find that, during the police investigation earlier this year into whether G. had been abused, she was exposed to her father’s anger towards her mother, including his disparaging language spoken to Rebekah at the time.

[79] The solution to Nathan’s angry, unrestrained language when communicating with or about Rebekah, or with anyone else, for that matter, is simply for it to stop. More specifically, Nathan must cease his use of abusive language in any situation where G. might hear it.

Parenting Time

[80] It is clear from his evidence that, despite his worldview, Nathan loves G. deeply. He spoke of her in glowing terms. As a result, this issue is, without doubt, the most difficult of the case.

[81] Under the interim order of April 1, 2021, which I made in circumstances where Nathan had not had parenting time with G. for several months, Nathan was provided with parenting time every weekend from Thursday after school through Sunday.

[82] That order, however, has led to problems. G. misses school far too often on Fridays. I do not accept Nathan’s evidence that her consistent Friday absences are caused by illness resulting from her need, like that of so many other children, to attend a before and after school program while in Rebekah’s care.

[83] Apart from days in the winter when it would be unsafe to drive G. from London to St. Thomas for school, I find it to be more likely that G. misses school on Fridays because Nathan does not work on Fridays and he sometimes wants her to stay home with him because he does not see her as often as he would prefer.

[84] While I can understand his desire to do so, keeping G. home from school is, in my view, clearly not in her best interests.

[85] The troubling issue is how much time should each parent have G. in their care, given that she will soon be going to school full time and her parents live in different cities. If G. is placed in Rebekah’s primary care, she will attend school in St. Thomas. If she is placed in the primary care of Nathan, she will attend school in London.

[86] It was Nathan who left St. Thomas and moved to London, thereby creating the problem under consideration. Rebekah has neither a car nor the ability to drive one. That means that if G. is placed in Nathan’s primary care, Rebekah will be challenged to retrieve or return her to Nathan unless Nathan is ordered to do all of the driving.

[87] In assessing this issue, I must also consider the fact that Nathan has persuaded his employer to modify his work week so that he can retrieve G. from school on Thursdays.

[88] I must also factor in Nathan’s willingness to have G. return to Rebekah’s care on Sunday morning because he works that day beginning at 7:30 a.m. The offer, however, is somewhat illusory since Rebekah has no apparent way of retrieving G. from London.

[89] I also find that the proposal made by Rebekah for Nathan to have G. in his care one evening per week after school, while understandable, is equally somewhat illusory because Nathan will be required to drive to St. Thomas to retrieve G., drive her back to London if he wishes to spend the time with her there, and then return her back to St. Thomas. All of this driving will leave Nathan with little meaningful parenting time.

[90] Bearing all of these points in mind, while also having regard to my obligation to put G.’s best interests at the forefront, I have decided that the order of April 1, 2021 must be modified for the school year, while provision must also be made affording Nathan additional time with G. during the summer months, when school is not a factor.

[91] I begin by finding that it is in G.’s best interest to attend school on Fridays. It is also in her best interests to have some parenting time with Rebekah on the weekend.

[92] As I see it, the April 1, 2021 interim order providing Nathan with parenting time during the day on Friday was meaningful when G. was not registered for school. However, once she began to attend school on Friday, Nathan’s parenting time on that day became more legal fiction than fact. By that I mean that, while Nathan legally has G. in his care when she is in school on Friday, factually, he is not having any meaningful parenting time with her during school hours. Thus, his meaningful parenting time can only begin after school on Friday.

[93] At the other end of his parenting time, he gains no benefit from having G. in his care on Sundays because he is at work, a point that he has conceded by agreeing that G. can return to Rebekah’s care on Sunday morning.

[94] My order attempts to address these issues. In drafting it, I also took into account s. 24(6) of the CLRA, which requires that, in allocating parenting time I must “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.” In my view, the order that I have crafted gives effect to this principle and is consistent with G.’s best interests even though it may not be consistent with Nathan’s wishes.

Decision-Making Authority

[95] As to this issue, I have decided that the parties, who have demonstrated an ability to work cooperatively and make joint decisions about G. will have joint decision-making responsibility for her, with Rebekah to have final decision-making responsibility only in cases where the parties cannot agree on major issues.

[96] Each party shall have the authority to make day-to-day decisions for and about G. when she is in their care.

Child Support - Arrears

[97] By his own admission, Nathan paid no child support prior to April 1, 2021, when the interim order was made, nor did he pay any offset child support after April 1, 2021.

[98] He did not agree that he owed any child support to Rebekah despite agreeing that he earned more than she does and that the chart produced by Mr. Battin setting out his annual income for previous years, taken from the income tax information that he produced pursuant to an order of Justice King, was correct.

[99] Disappointingly, he further testified that he had no intention of paying child support. I take his statement to be reflective of his view that, while he has not been paying child support in the required manner, he has spent whatever sums he deemed necessary to provide for G. while she has been in his care, a plan he intended to continue if he obtained the order he was requesting in his pleadings.

[100] Nathan’s employment duties sounded difficult and tedious. He is commended for having stuck with the job. He testified that he did so for G., who is his motivation to work.

[101] That employment, and whatever previous employment he had, has provided Nathan with the following incomes since 2019, as taken from Mr. Battin’s chart:

2019: $17,148.00 2020: $30,331.00 2021: $35,907.00 2022: $36,924.00

[102] Similarly, the evidence shows that Rebekah’s income was as follows for the following years:

2019: $19,899 2020: $32,155 2021: $21,059 2022: $19,410

[103] The chart produced by Mr. Battin included claims for child support prior to April 1, 2021 in accordance with s. 3 of the Child Support Guidelines, on the basis of G. being in the primary care of Rebekah, while the calculations after April 1, 2021 reflect the application of s. 9 of the guidelines, given the amount of time that G. was in Nathan’s care under the terms of the interim order of April 1, 2021.

[104] Rebekah has paid no child support to Nathan since April 1, 2021 and the chart produced by Mr. Battin reflects that fact.

[105] Taking into account all the information set out therein, I am satisfied that the child arrears owing by Nathan to Rebekah as of April 30, 2023 amounted to $8,536.00, and that for the months thereafter (May, June, July, 2023) Nathan’s offset child support arrears increased by $672.00 so that, as of (and including) August 1, 2023, the arrears of child support owed by Nathan to Rebekah amount to $9,208.00. That figure is, however, subject to adjustment, as set out below.

Child Support Arrears - Discussion and Analysis

[106] Nathan argued that he has done all the driving for G. since moving to London because Rebekah has neither a vehicle nor a full driver’s license. Additionally, he said that he paid for all costs for G. while in his care including clothing, groceries, and guitar lessons. He also had plans to place her in swimming lessons in the summer of 2023. He seeks some recognition of those costs.

[107] Rebekah, on the other hand, seeks child support on the basis that G. should be in her primary care. She also asked that I set arrears of child support in order that they be paid down on a monthly basis. Lastly, she conceded that Nathan has increased costs because of the driving that he is required to do between London and St. Thomas and suggested a monthly reduction in child support to account for his increased costs in transporting G.

[108] I agree with the parties that, because he has been and will be doing all of the driving of G. for his parenting time, Nathan ought to receive credit for the costs he has and will incur doing so.

[109] In my view, it is reasonable to attribute the sum of $100.00 per month to Nathan for driving costs incurred since the order of April 1, 2021.

[110] As a result, the arrears of child support noted above in Paragraph 105 are to be reduced by the sum of $2,900.00 to compensate Nathan for driving G. to and from St. Thomas for parenting time over the period between April 1, 2021 and August 31, 2023. As a result, the arrears owned by Nathan will be set at $6,308.00 as of August 31, 2023.

[111] Nathan will pay the arrears at the rate of $150.00 per month, commencing September 1, 2023. Because he will continue to incur driving costs in the amount of $100.00 per month, Nathan will receive a credit back of $100.00 per month against his arrears payment obligation, and he will pay a further $50.00 per month to Rebekah against the arrears. Put differently, each month that Nathan continues to do more than 50% of the driving of G. for his parenting time, his arrears will reduce at the rate of $150.00 so long as he pays $50.00 to Rebekah in reduction of the arrears.

[112] In the event that the parties change to a situation where Rebekah drives Grace or arranges for her to be driven for more than 50% of the time that Nathan has parenting time, Nathan will receive a credit of only $50.00 for the cost of transporting G., and he will be required to increase his monthly arrears payment to Rebekah to $100.00.

[113] In the result, and in any event, Nathan’s monthly contribution to reducing the child support arrears, by way of a combination of driving and payment, will always amount to $150.00 until the arrears are paid in full. Thereafter, he will receive a credit against monthly child support of either $100.00, if he does more than 50% of the driving, or $50.00, if he does less than 50% of the driving for his parenting time.

[114] As for the other expenses he has incurred, except for guitar lessons, they are just the cost of having a child in one’s care. Nathan receives no credit for them.

[115] Guitar lessons are a s.7 expense, the cost of which should be contributed to by each party in accordance with their income as a percentage of the total of their joint incomes, so long as both agree to the expenditure. If not, the person wanting G. to be involved in the activity must bear the costs of that activity.

Ongoing Child Support

Given the nature of my parenting order, I have determined that, for the months of September to June, inclusive, Nathan will pay child support to Rebekah in accordance with s. 3 of the Child Support Guidelines, while, for the months of July and August, the parties will each pay child support to the other in accordance with s. 9, with Nathan paying only the set-off amount to Rebekah for those months.

Additional Orders

[116] Rebekah requested that any order I make include a provision which requires that the parties not speak disparagingly of one another in G.’s presence. I agree and one is included in my order.

[117] She also requested that the parties communicate using the Talking Parents communication platform. Given the success that the parties have had with its use to this point, the order also contains such a provision.

[118] Nathan did not dispute the inclusion of either provision in my final order.

Justice T. Price Released: August 14, 2023

Schedule “A”

1. The Applicant, Nathan Huber (hereinafter, Nathan) and the Respondent, Rebekah Sawyer (hereinafter, Rebekah) shall have joint decision-making responsibility for the child G., born [DOB].
2. In the event that the parties cannot make a joint decision (meaning one upon which they both agree) concerning an issue pertaining to G., Rebekah shall make the decision, which she shall communicate to Nathan, in writing, together with her reasons for her decision.
3. G.’s primary residence shall be with Rebekah.
4. At no time will either party speak disparagingly of or about the other in G.’s presence or within her hearing distance.
5. The parties shall continue to communicate using the Talking Parents communication platform.
6. Nathan shall have parenting time with G. as follows: a. between September 1 and June 30: i. from Friday after school (Thursday if Friday is a professional development day) until Saturday evening at 8:00 p.m., three weekends out of every four, not including statutory holidays, which are addressed separately herein; and ii. one evening per week from 4:00 p.m. until 7:30 p.m. b. between July 1 and August 31: i. subject to Paragraph 6(c), from Thursday at 3:30 p.m. until Saturday at 8:00 p.m., five weekends out of eight or six weekends out of nine, as the case may be, with the parties to agree on the weekends that each will have, plus, ii. one evening per week from 4:00 p.m. until 7:30 p.m. c. The parties shall schedule the weekends that each will have G. in their care in the period between July 1 and August 31 no later than May 31 each year. In scheduling their weekends, they shall give priority to G. being in the care of a party for a period of seven consecutive days during the time that the party has a vacation from work during those months.
7. Notwithstanding Paragraph 6(a): a. The parties will share the Easter long weekend equally each year on the following schedule: i. in even-numbered years, G. will be with Rebekah from after school on Thursday until 4:00 p.m. Saturday of the Easter weekend, and with Nathan from 4:00 p.m. on Saturday until 8:00 p.m. on Easter Sunday (or Monday, if he is not required to work on the Monday of Easter weekend); and ii. in odd-numbered years, G. will be with Nathan from after school on Thursday until 4:00 p.m. Saturday of the Easter weekend, and with Rebekah from 4:00 p.m. on Saturday until the commencement of school on Tuesday morning. b. If G. is not otherwise with Rebekah on Mother's Day, she shall have care of her from 12:00 p.m. on Mother's Day until school the following day, when the regular parenting schedule shall resume. c. If Nathan does not work on Father’s Day, he shall have care of G. from 12:00 p.m. until 8:00 p.0m. on Father's Day. d. The parties will share the Thanksgiving long weekend equally each year on the following schedule: i. in even-numbered years, Nathan shall have G. in his care from Friday after school or 3:30 p.m. until Saturday at 8:00 p.m. (or, if he does not work on Sunday, until Sunday at 1:00 p.m.), and Rebekah shall have G. in her care from Saturday at 8:00 p.m. (or, if Nathan does not work on Sunday, from Sunday at 1:00 p.m.) until the resumption of the regular schedule on Tuesday morning; ii. in odd-numbered years, Rebekah shall have G. in her care from Friday after school or 3:30 p.m. until Sunday at 1:00 p.m. (or 4:30 p.m. if Nathan is required to work on Sunday), and Nathan shall have G. in his care from Sunday at 1:00 p.m. (or 4:30 p.m. if he is required to work on Sunday) until Monday at 8:00 p.m. e. The parties will have parenting time with G. on the following statutory holidays on a rotating basis, as follows: i. Nathan will have G. in his care on Victoria Day and, if a holiday for him, the National Day for Truth and Reconciliation in odd-numbered years; ii. Rebekah will have G. in her care on Victoria Day and, if a holiday for her, the National Day for Truth and Reconciliation in even-numbered years; iii. Rebekah will have G. in her care on Family Day, Canada Day and Labour Day in odd-numbered years; and iv. Nathan will have G. in his care on Family Day, Canada Day and Labour Day in even-numbered years. f. In odd-numbered years: i. Rebekah shall have G. in her care from December 24 at 2:00 p.m. to December 25 at 2:00 p.m., and from 2:00 p.m. on January 1 of the even-numbered year immediately following until 9:00 a.m. (or, if applicable, the start of school) on January 2 of the even-numbered year immediately following; and ii. Nathan shall have G. in his care from 2:00 p.m. on December 25 until 7:30 p.m. on December 26 and from 2:00 p.m. on December 31 until 2:00 p.m. on January 1 of the even-numbered year immediately following. g. In even-numbered years: i. Nathan shall have G. in his care from December 24 at 2:00 p.m. to December 25 at 2:00 p.m. and from 9:00 a.m. until 8:00 p.m. on January 1 of the odd-numbered year immediately following; and ii. Rebekah shall have G. in her care from 2:00 p.m. on December 25 until 7:30 p.m. on December 26 and from 2:00 p.m. on December 31 until 9:00 a.m. on January 1 of the odd-numbered year immediately following.
8. Nathan shall not consume any alcohol, marijuana, or other non-prescribed drugs at any time when he has G. in his care or during the 24 hours before she comes into his care.
9. Commencing September 1, 2023 and on the first day of each month thereafter, except for the months of July and August annually, Nathan shall pay child support to Rebekah in the amount of $325.00 per month, based on his 2022 income of $36,924.00.
10. On July 1 and August 1 annually: a. Nathan shall pay child support to Rebekah in the amount of $325.00 per month, based on his 2022 income of $36,924.00 and; b. Rebekah shall pay child support to Nathan in the amount of $157.00 per month, based on her 2022 income of $19,410.00. c. The payments to be made under subparagraphs a) and b) shall be satisfied by Nathan paying offset child support to Rebekah in the amount of $168.00 on each of July 1 and August 1 annually.
11. The amounts payable by the parties for child support shall be adjusted annually as of July 1, based on their prior year’s income. To establish those amounts, each party shall annually provide to the other by June 1: a. a copy of their income tax return for the previous year, as filed with the Canada Revenue Agency; and b. their notice of assessment for the previous year and, if any, notice of reassessment for the previous year.
12. Upon the parties determining the monthly support to be paid for a year commencing July 1. They shall sign a document confirming the figure, which Rebekah shall then forward to the Family Responsibility Office to ensure that its record as to the amount that each should be paying to the other is accurate and up to date.
13. The parties shall each contribute to the cost of G.’s special or extraordinary expenses in proportion to their respective incomes, which means, in the percentage that the income of a party is as a percentage of the total of their joint incomes, so long as both agree to the expenditure.
14. Nathan owes arrears of child support to Rebekah in the amount of $6,308.00 as of August 31, 2023. Commencing September 1, 2023 and on the first day of each month thereafter, Nathan shall pay the sum of $150.00 to Rebekah in reduction of the arrears.
15. Commencing October 1, 2023 and on the first day of each month thereafter: a. for each prior month, commencing with September 2023, that Nathan transports G. back and forth between the parties’ residences for his parenting time on 50% or more of the occasions that such transportation occurs, Rebekah shall pay Nathan the sum of $100.00 to reimburse him for the transportation costs for the previous month; b. for each prior month, commencing with September 2023, that Nathan transports G. back and forth between the parties’ residences for his parenting time on fewer than 50% of the occasions that such transportation occurs, Rebekah shall pay Nathan the sum of $50.00 to reimburse him for the transportation costs for the previous month; and c. for any month, commencing with September 2023, that Nathan does not transport G. back and forth between the parties’ residences for his parenting time, Rebekah shall not be required to pay him any amount to reimburse him for the transportation costs for that month.
16. Rebekah’s obligation to reimburse Nathan for transportation costs shall continue once Nathan’s child support arrears are eliminated, such that, commencing on the first day of the month after the child support arrears have been eliminated, and on the first day of each month thereafter: a. for each prior month that Nathan transports G. back and forth between the parties’ residences for his parenting time on 50% or more of the occasions that such transportation occurs, Rebekah shall pay Nathan the sum of $100.00 to reimburse him for the transportation costs for the previous month; b. for each prior month that Nathan transports G. back and forth between the parties’ residences for his parenting time on fewer than 50% of the occasions that such transportation occurs, Rebekah shall pay Nathan the sum of $50.00 to reimburse him for the transportation costs for the previous month; and c. for any month that Nathan does not transport G. back and forth between the parties’ residences for his parenting time, Rebekah shall not be required to pay him any amount to reimburse him for the transportation costs for that month.
17. For the purposes of Paragraphs 15 and 16, each party shall maintain a written record of the dates each month that Nathan provides transportation for G. for his parenting time, in case any dispute arises between them as to the percentage of time that Nathan provided such transportation in that month.
18. All other claims made by either party against the other are hereby dismissed.
19. Unless this support order is withdrawn from the Family Responsibility Office, it shall be enforced by the Director, and amounts owing under the Order shall be paid to the Director, who shall pay them to the person to whom they are owed.
20. The parties are strongly encouraged to settle the issue of costs. If they cannot, or are instructed to pursue costs, they may forward written submissions, not to exceed five typewritten pages, in Times New Roman 12-point font, at a line spacing of 1.5, to me through the Family Court Trial Coordinator at St. Thomas.
21. The parties’ submissions shall be accompanied by any offers to settle, whether accepted or not. Mr. Battin shall also include a Bill of Costs identifying all persons who worked on the matter, their position, the rate being charged for their services, and a complete and clear description of the work undertaken by each person for whom a claim for costs is being made.
22. Mr. Battin’s submissions are to be delivered by September 15, 2023. Nathan’s submissions are to be delivered by October 5, 2023.
23. If no submissions are received by October 5, 2023, costs shall be deemed to have been settled, neither party shall be entitled to an order for costs, and no such order shall thereafter be made.