COURT FILE NO.: FS-22-59 DATE: 20240313 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Hayley Anne LePage Applicant – and – Anthony LePage Respondent

Counsel: Robert Sager, for the Applicant Ian Gerald T. Smits, for the Respondent

HEARD: February 23, 26, 27, 28 and 29, 2024

Justice David A. Broad

Background

(a) Parties and basic history of the parties’ relationship

[1] The applicant Hayley Anne LePage (the “mother”) and the respondent Anthony LePage (the “father”) commenced their relationship in January 2011, married on April 26 2014 and separated on February 14 2020.

[2] The parties are the parents of two children Noa born March 25, 2015 (almost 9 years) and Owen born October 11, 2018 (5 years).

[3] The mother is employed as a qualified dental hygienist, and also works part-time coaching cheerleading, both on a paid and volunteer basis. The father is employed as an auto body technician in an auto body repair shop.

[4] Pursuant to a de facto arrangement between the parties the children reside primarily with the mother. The father has parenting time with the children on alternate weekends from Friday at 6 PM to Sunday at 6 PM and from after school on each Tuesday to the start of school on Wednesday. Initially following separation, the father had only alternate weekend parenting time and the additional mid week overnight was added by agreement in April, 2021. There is no current temporary order for parenting time and decision-making.

[5] The mother resides alone with the children in a subsidized townhouse in the City of Brantford. The father resides with his partner Sarah Jeffrey (“Sarah”) and Sarah’s daughter Harriett age 7 in a three-bedroom apartment in the City of Brantford. Harriett spends time away from the apartment on parenting time with her father in the City of Hamilton.

[6] The children each attend a French language public school within a short drive of each of the parties’ residence. Both parties are supportive of the children’s continued enrollment in French language education.

[7] Respecting extracurricular activities Noa is involved with cheerleading instruction and competition and Owen is involved with karate. Both parties are supportive of the children’s continued involvement in these activities.

[8] There is no temporary order for child support by the respondent. The father has been voluntarily paying $250 bi-weekly for the past 38 months. The mother claims that, based upon his income, the father is in arrears of child support in the sum of $23,326 pursuant to the Federal Child Support Guidelines.

Relief sought by each party

[9] Based upon her draft order submitted to the court during the trial the mother seeks the following final order:

(a) primary decision-making for the children, following discussion of all major decisions pertaining to the children with the father; (b) primary residence of the children; (c) parenting time to the father with the children every second weekend from Friday at 6 PM to Sunday at 6 PM, and every Tuesday after school to Wednesday morning; (d) other times as agreed by the parties in writing (e) a provision that the father shall not consume alcohol in the 12 hours prior to his parenting time nor while caring for the children; (f) both parties shall be provided in advance notice of all school and health/medical appointments and both parties may attend all appointments; (g) a detailed vacation and holiday schedule which does not differ substantially from that proposed by the father; (h) the mother shall be permitted to obtain and renew any identification documents for the children without the consent of the father; (i) the mother shall be permitted to travel with the children outside of Canada without the need for the consent or authorization of the father; (j) father shall pay monthly child support to the mother in the amount of $1023, based on his approximate income of $67,149 commencing March 1, 2024; (k) the father shall pay to the mother child support arrears in the amount of $23,326 (as revised in submissions); (l) father shall pay to the mother section 7 expenses at the rate of 61% based on the father’s income of $67,149 and the mother’s income of $42,894; (m) the father shall designate and maintain the children as beneficiaries of any group life insurance policy available through his place of employment; (n) father shall designate and maintain the children and the mother on his ongoing health insurance available through his place of employment;

[10] Based upon his draft order submitted to the court during the trial the father seeks the following final order:

(a) Parenting time with the children on a “week-about” basis with a change in residence taking place Monday after school, or Tuesday after school on long weekends, or at 6 PM during the summer months; (b) a detailed vacation and holiday schedule which does not differ substantially from that proposed by the mother; (c) joint decision-making, provided that, if a decision cannot be made, the parties shall first be allowed 10 days to consult with counsel, with each party thereafter having the right to apply to court, or in the alternative, if both parties agree, to seek arbitration and/or mediation; (d) the parties to pay child support in accordance with the child support guidelines and in accordance with the parenting regime put in place; (e) no liability to the father to pay any retroactive child support other than the amount referred to above which the parties agreed upon and which has been paid; (f) section 7 expenses to be shared in accordance with the guidelines; (g) each party shall be able to travel with the children outside the province of Ontario for pre-arranged travel during their parenting time, with 30 days written notice to the other party; (h) each party shall hold the children’s passports for six months of the year unless otherwise agreed; (i) each party shall be entitled to use an income tax deduction for one child and each party shall have access to the Child Tax Credit for one child; (j) the father shall continue to designate and maintain the children as beneficiaries of any group life insurance policy available through his place of employment; (k) the father shall designate and maintain both children and the mother on his ongoing health insurance available through his place of employment; (l) each party to pay their own costs.

[11] Both parties proposed provisions in the order stipulating that they not speak ill of each other or of the parties’ households or families in the presence of the children and that they both refrain from engaging in disputes with each other in the presence of the children.

Issue 1: Parenting time and decision-making

The evidence re parenting time and decision-making

(a) The mother’s evidence

[12] On consent the evidence in chief of the mother and each of her witnesses was entered by affidavit, upon which they were cross-examined by counsel for the respondent.

[13] The mother deposed that she has always been the main caregiver to the children. She is the parent who takes the children to medical appointments and has historically made all the major decisions concerning the children after consulting with the father. The two notable decisions referred to in the evidence were the choice of school the children would attend and the medication that Noa requires following her diagnosis with ADHD. Although the father initially disagreed with the mother’s choice of French language education and treatment of Noa’s ADHD with medication rather than counselling, the father ultimately did not oppose and acknowledged that the decisions have been beneficial to the children.

[14] Although father brings the children to their extra-curricular activities when they are in his care, it is the mother who sets up the activities. She also set up before and after-school care as well as medical and dental appointments.

[15] The mother deposed that she has a strong bond with the children, is with them every day and they do everything together.

[16] The mother deposed that the children have a consistent routine in her home and set out details of weekday morning and evening as well as weekend routines.

[17] The mother deposed that during the parties’ relationship the father mentally and emotionally abused her. She cited the following examples:

(a) excessive alcohol consumption in August 2018 while camping at a conservation area with Noa, age 3 at the time; (b) being unsupportive of her pregnancy with Owen and during and following delivery; (c) he would make fun of her and talk badly about her or her family in front of the children; (d) the father has a “very short fuse” and would yell at her about anything that would bother him; (e) he neglected to pick Owen and her up from the airport in Toronto, as arranged, upon their return from a cheerleading competition in Florida in February, 2020; (f) the father would make homophobic and/or racist jokes in front of the children; (g) father would be very aggressive with the children if he got upset, sometimes grabbing the children and dragging them across the floor when they were acting up or doing something that displeased him;

[18] The mother also led evidence of the father using excessive physical discipline. Upon her return from Florida in February 2020 she noticed bruises on Noa’s arm. Noa told her that while she was on a video call with her grandmother she became excited and the father became upset. He grabbed Noa by the arm and dragged her out of view from the camera to scold her. The mother took Noa to the family doctor to whom Noa reported that “last time when I was being rude, daddy grabbed my arm…When my daddy was squeezing my arm he wanted me to go to the other couch and I was crying…Daddy grabbed me when I was being a bad listener.” The physician reported the incident to Family and Children Services which commenced an investigation. No correspondence or report indicating the outcome of the investigation of this incident was put into evidence. There was no evidence that Family and Children’s Services imposed any restrictions on the father’s contact with the children relating to this incident.

[19] The incident involving the bruising to Noa’s arm led to the parties’ separation.

[20] The mother stated that her concern respecting any expansion of the father’s parenting time relates to the children’s safety. She pointed to the following specific concerns for the children while they are in the father’s care:

(a) a lack of cleanliness of his residence, as exemplified by photographs taken by the mother’s mother Peggy Crerar who was accessing the apartment to attend to the father’s dog while he was away. The photos depicted a pot with dirty diapers in it on the stove and general disarray in certain rooms, including empty beer cans in the vicinity of the children’s beds; (b) the father has left the children in his vehicle alone while he shops; (c) the father has been mentally and emotionally abusive in the past and Noa has experienced very high anxiety as a result, receiving counselling treatment for her anxiety.

[21] The mother’s sister Laura Mattis, her stepmother Agnieszka Varady and her father Scott Varady each provided an affidavit and were cross-examined. The evidence of each was largely historical dating from prior to the date of separation. Each of these witnesses deposed that the applicant was a good mother and that the father, while in the presence of the mother’s family, seemed disinterested in the children, uncommunicative and not engaged.

(b) The father’s evidence

[22] The father testified that he resides with his partner Sarah Jeffrey in a three-bedroom, one bath apartment within a two-minute drive of the children’s school. Ms. Jeffrey’s daughter Harriet and Noa share one bedroom during the father’s parenting time and Owen occupies his own room.

[23] The father met Ms. Jeffrey in early September 2021. The father and the mother had an agreement post separation that if either of them entered into a new relationship the new partner would meet the other parent first before being introduced to the children. This took place between the mother and Ms. Jeffrey and they have met infrequently on other occasions.

[24] Ms Jeffrey holds a Master’s degree in counselling and works as a therapist, both online and in person.

[25] The father testified to his alcohol consumption, indicated that it varies. He consumes alcohol on social occasions when he may have 3 to 4 drinks. In a normal week he consumes between 8 to 10 beers, but not every day. He does not drink and drive.

[26] The father offered an explanation for the dispute over his drinking at the camping outing which the mother described. Over the course of the day and evening he had approximately six beers. The mother did not approve and they argued.

[27] The father denied that he was unsupportive of the mother during her pregnancy and delivery of Owen. He also denied that he made fun of the mother. He maintained that while they were together he and the mother did have difficulty communicating and got into mutual arguments which led to the raising of voices.

[28] Respecting the incident at the airport, the father denied there was a plan for him to meet the mother and Owen at the airport upon their return from Florida. He understood that that they would be transported by others returning from the cheerleading event.

[29] With respect to the incident involving him grabbing and bruising Noa’s arm, the father maintained that Noa was standing on the arm of the couch and appeared to be about to jump over a glass-top table towards an adjacent loveseat. Afraid that she would attempt to jump and hurt herself, he reached his right hand to restrain her by her arm.

[30] The father denied that he dragged the children, but if they were misbehaving, he would place them in the “time out” area.

[31] The father produced letters from Family and Children’s Services dated November 24, 2020 and July 28, 2022 respectively, advising that they were closing their files with no follow-up resulting from two complaints made by the mother post-separation that he had been rough with the children or was using physical discipline with them. No child protection concerns were verified.

[32] In relation to the mother’s allegation that he used homophobic and racist language, he explained that his sense of humour can be “out there”. He acknowledged to the mother that he had been inappropriate but his apologies to her were never good enough.

[33] He did not accept the mother’s allegation that he was very aggressive with the children and had a “short fuse.”

[34] The father maintained that during the relationship, when he was at home he was very engaged in the children’s care, including bathing them and participating in bedtime routines.

[35] Father stated that an equal parenting time regime would be in the children’s best interests. He stated that he and the mother do things differently, have different hobbies and outlooks and exposing the children to more varied experiences would help them develop into well-rounded persons.

[36] The father explained the condition of his apartment as depicted in the photographs taken by Peggy Crerar, indicating that at the time he was away at a convention in the U.S.A. for his work. He was in the process of moving furniture between the children’s bedrooms. The pictures were taken while he was in the midst of rearranging the bedrooms. The children were not exposed to the apartment in that condition. Ms. Crerar testified that was depicted in the pictures did not represent the condition of the apartment she observed on other occasions when she accessed it

[37] The father acknowledged that he left the children in his vehicle on two occasions several years ago, once when he went into a beer store and another time when he entered a gas station briefly to obtain a receipt.

[38] Although he is not involved in booking the children’s doctor’s appointments as he has them for a limited time, he does take them to the pharmacy or walk-in clinic if issues arise while in his care. He recently took Owen for an ultrasound appointment at McMaster Hospital in Hamilton at the request of the mother. He has just recently learned that Owen is to undergo investigation for ADHD.

[39] The father testified at length regarding his and Sarah’s household routines with the children during the weekend and midweek parenting times involving, family time, games, activities and outings.

[40] Ms. Jeffrey testified to her education, training and work experience in day care for eight years and seven years as a kindergarten teacher. She is fluent in French and is able to help the children with homework. She testified to her involvement in household routines and activities during the father’s parenting time with the children. She also testified to the development of positive relationships between Noa and Owen and her daughter Harriet.

[41] Ms. Jeffrey also testified to her and the father’s drinking habits. She rarely consumes alcohol, while the father would have one or two drinks in the evening after the children have gone to bed. Each of them would also drink when they are visiting with friends.

[42] She described father’s disposition as very patient and quiet, and their relationship with the mother as positive.

[43] She indicated that if the court ordered equal parenting time she would be prepared to take on additional responsibility for the children for which her kindergarten and daycare experience would be valuable.

Governing Statutory Provisions

[44] The parenting issues between the parties arise within a divorce proceeding. The applicable legislation is therefore the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). Amendments to the Act came into force on March 1, in 2021. As observed by Gordon, J. in S.K. v D.P., 2021 ONSC 1000, at para. 59, the amendments change the terminology, expand on the matters to be considered and otherwise codify the legal principles developed over time in the case law.

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

Definitions S. 2(1)

"decision-making responsibility" means the responsibility for making significant decisions about a child's wellbeing, including in respect of (a) health; (b) education; (c) culture, language, religion and spirituality; and (d) significant extra-curricular activities;

"parenting time" means the time that a child of the marriage spends in the care of a person referred to in subsection 16.1(1), whether or not the child is physically with that person during that entire time;

16.

16(1) Best interests of child The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

16(2) Primary consideration When considering the factors referred to in subsection (3), the court shall give primary consideration to the child's physical, emotional and psychological safety, security and well-being.

16(3) Factors to be considered In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including (a) the child's needs, given the child's age and stage of development, such as the child's need for stability; (b) the nature and strength of the child's relationship with each spouse, each of the child's siblings and grandparents and any other person who plays an important role in the child's life; (c) each spouse's willingness to support the development and maintenance of the child's relationship with the other spouse; (d) the history of care of the child; (e) the child's views and preferences, giving due weight to the child's age and maturity, unless they cannot be ascertained; (f) the child's cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; (g) any plans for the child's care; (h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; (i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child; (j) any family violence and its impact on, among other things, (i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and (k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

16(4) Factors relating to family violence In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account: (a) the nature, seriousness and frequency of the family violence and when it occurred; (b) whether there is a pattern of coercive and controlling behaviour in relation to a family member; (c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence; (d) the physical, emotional and psychological harm or risk of harm to the child; (e) any compromise to the safety of the child or other family member; (f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person; (g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and (h) any other relevant factor.

16(5) Past conduct In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

16(6) Maximum parenting time In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

16.1

16.1(1) Parenting order A court of competent jurisdiction may make an order providing for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage, on application by (a) either or both spouses; or (b) a person, other than a spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent.

16.1(4) Contents of parenting order The court may, in the order, (a) allocate parenting time in accordance with section 16.2; (b) allocate decision-making responsibility in accordance with section 16.3; (c) include requirements with respect to any means of communication, that is to occur during the parenting time allocated to a person, between a child and another person to whom parenting time or decision-making responsibility is allocated; and (d) provide for any other matter that the court considers appropriate.

16.1(5) Terms and conditions The court may make an order for a definite or indefinite period or until a specified event occurs, and may impose any terms, conditions and restrictions that it considers appropriate.

16.1(6) Family dispute resolution process Subject to provincial law, the order may direct the parties to attend a family dispute resolution process.

16.2

16.2(1) Parenting time — schedule Parenting time may be allocated by way of a schedule.

16.2(2) Day-to-day decisions Unless the court orders otherwise, a person to whom parenting time is allocated under paragraph 16.1(4)(a) has exclusive authority to make, during that time, day-today decisions affecting the child.

16.3 Allocation of decision-making responsibility Decision-making responsibility in respect of a child, or any aspect of that responsibility, may be allocated to either spouse, to both spouses, to a person described in paragraph 16.1(1)(b), or to any combination of those persons.

16.4 Entitlement to information Unless the court orders otherwise, any person to whom parenting time or decision-making responsibility has been allocated is entitled to request from another person to whom parenting time or decision-making responsibility has been allocated information about the child's well-being, including in respect of their health and education, or from any other person who is likely to have such information, and to be given such information by those persons subject to any applicable laws.

Legal Principles

[46] The starting point in reference to the resolution of parenting issues is that, as stipulated in subsection 16(1) of the Act, the sole consideration is best interests of the child, The focus is therefore on the child not on the parents.

[47] As observed by Gordon J. in S.K. v. D.P., 2021 ONSC 1000 at para. 62, past conduct and family violence, specifically addressed in section 16 of the Act as pertaining to the best interests of the child primarily focus on the child. Parental conduct, however meritorious or reprehensible, does not enter into the analysis unless it relates to the ability of the parent to meet the needs of the child. Misconduct, however, that results in the parents having a negative view or attitude towards each other may necessitate consideration when it affects the emotional well-being of the child. Family violence may be a relevant consideration, particularly when considering a shared parenting regime, as the victim might be unable to co-parent due to the trauma and ongoing fear of the perpetrator.

[48] Gordon J. noted that what is known as the maximum contact principle has traditionally emphasized that children shall have as much contact with each parent as is consistent with their best interests. A corollary to this is sometimes referred to as the "friendly parent rule", which instructs courts to consider the willingness of a parent to foster and support the child's relationship with the other parent, where appropriate. Both of these considerations are recognized by the Act at ss.16(6) and 16(3)(c). What is known as the maximum contact principle is only significant to the extent that it is in the child's best interests; it must not be used to detract from this inquiry. The amended Divorce Act recasts the "maximum contact principle" as "[p]arenting time consistent with best interests of child": s. 16(6). This shift in language is more neutral and affirms the child-centric nature of the inquiry. Indeed, going forward, the "maximum contact principle" is better referred to as the "parenting time factor" (see Barendregt v. Grebliunas 2022 SCC 22 paras. 131-135).

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

1. There is no presumption in favour of granting joint decision-making responsibility to both parties in some or all areas;
2. Joint decision-making in some or all areas should only be considered as an option if the court is satisfied as a threshold matter that both parties are fit parents and able to meet the general needs of the children;
3. In order to grant joint decision-making in some or all areas, there must be some evidence before the court that despite their differences, the parties are able to communicate effectively in the areas under consideration for the sake of the child;
4. The fact that there is some evidence of communication and cooperation does not, however, dictate in and of itself that joint decision-making must be ordered. The trial judge must carefully assess in each case whether the parties' ability to cooperate and communicate about issues relating to the child is sufficiently functional to support an order for joint decision-making;
5. The court is not required to apply a standard of perfection in assessing the parties' ability to cooperate and communicate with each other on matters relating to the children. The existence of occasional conflict does not necessarily preclude an order that involves elements of joint decision-making, and the court should consider the entire record of the parties' communication to obtain a clear sense of the nature and extent of the discord;
6. The fact that one party insists that the parties are unable to communicate with each other is not in and of itself sufficient to rule out the possibility of a joint decision-making order in some or all areas. The issue for the court's determination is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis;
7. In analyzing the ability of the parties to communicate, the court must delve below the surface and consider the source of the conflict. One parent cannot create conflict and problems with the other parent by engaging in unreasonable conduct, impeding access, marginalizing the other parent, or by any other means and then justify a claim for sole decision-making in their favour on the basis of lack of cooperation and communication;
8. However, where an objective review of the historical and more recent evidence clearly indicates that there has never been an ability to cooperate or communicate effectively, and that both parties are responsible for this dynamic, joint decision-making is not an appropriate order;
9. The quality of each party's past parenting and decision-making, both during the parties' relationship and post-separation, is a critical factor in determining whether an order for joint decision-making in some or all areas is appropriate;
10. However, the mere fact that both parents acknowledge that the other is a "fit" parent does not mean that it is in the best interests of the child for a joint decision-making order to issue. The determination of the appropriate decision-making arrangement must take into consideration all factors relevant to the child's best interests;
11. In some cases, the parties are clearly able to cooperate and jointly support the best interests of the child in some areas of decision-making but have a pattern of conflict and lack of collaboration in other specified areas. In these circumstances, a hybrid type of decision-making structure that provides for joint decision-making in the areas that have never been problematic but that allocates the remaining areas out to each party for sole decision-making may be the most appropriate outcome;
12. Evidence as to how an interim parenting order has worked, and in particular, whether the parties have been able to set aside their personal differences and work together in the best interests of the child, will be highly relevant to the ultimate decision regarding the appropriate decision-making regime;

[50] The child’s views and preferences, insofar as they can be ascertained, are a factor for the best interest analysis. In the case at bar no evidence respecting the children’s views and preferences was made available to the court and the Office of the Children’s Lawyer declined involvement.

Discussion and findings

(a) Parenting time

[51] As indicated previously, the mother opposes expansion of the father’s parenting time with the children based upon concerns for the children’s safety while in the care of the father. However, with the exception of the photographs of the interior of the father’s apartment taken by Peggy Crerar, most of her complaints respecting the father’s conduct which may raise safety concerns for the children predate the date of separation and the implementation of the current parenting time regime providing for alternate weekends and one additional over night per week.

[52] With respect to the photographs of the father’s apartment, there is no evidence respecting the date that the photographs were taken and moreover Ms. Crerar testified that what the photographs depict was not typical of the appearance of the apartment on other occasions that she accessed it.

[53] It is evident that two complaints respecting the father’s treatment of the children were made by the mother to Family and Children’s Services post-separation, however following investigation Family and Children Services closed both files without identifying any protection concerns.

[54] The evidence indicated that the exercise of parenting time by the father under the current arrangement has been going well and did not disclose any current concerns respecting the ability of the father to meet the needs of the children while they are in his care. As noted above, on the authority of S.K. v. D.P., 2021 ONSC 1000, past conduct and alleged family violence, as pertaining to the best interests of the children, primarily focus on the children and the father’s past conduct does not enter into the analysis in these circumstances.

[55] It is evident from the evidence of the father and Sarah that the children are content while in the father’s care along with Sarah. Although the mother deposed that Noa previously had anxiety about going to the father’s residence, she stated that she is improving in this respect.

[56] I find on the evidence that both parties are able to meet the needs of the children while they are in their care. However, it is clear that both during the relationship and after separation the mother has been responsible for arranging for appropriate and needed medical and dental care, choosing the school the children attend, and arranging for their extra-curricular activities. The father’s role has been largely limited to care-giving and entertaining the children during the times that the children are with him and Sarah, with some occasional medical visits to assist the mother or to address issues which arose during the father’s parenting time.

[57] In my view, in this context, the important consideration is what role the status quo should play in making a determination for parenting time in the children’s best interests.

[58] In the case of Gauci v Malone Baltman, J. made the following observation at para. 16:

As numerous cases have noted, the status quo is an important consideration in a custody case: Denny v. Bartkiewicz; Van Bilsen v. Van Bilsen; Barcier v. Smith. Although there is no formal rule to this effect, barring a compelling reason courts should be wary of disrupting children's lives when they are already coping well in their primary residence and enjoying positive relationships with both parents and their extended families.

[59] In the case of Cochrane v. Myers, 2014 ONSC 2048 Pazaratz, J. cited the foregoing passage from Gauci and offered the following observations at paras. 330-332:

In a final custody determination the court must fully canvas the various positive and negative aspects of an existing arrangement, and consider the impact(s) on the child if one or more components of the current situation were to change.

There is no presumption in favour of the status quo, but it is an important factor, perhaps more so in relation to temporary orders. Among the considerations in determining a final custody order:

a. The length of time the arrangement has existed, and, b. The extent to which the existing arrangement is or has been beneficial to the child. c. The impact of discontinuing the existing arrangement on the child's emotional or psychological health. d. The impact of a proposed new arrangement on the child's emotional or psychological health.

Among the obvious objectives:

a. Don't disrupt or jeopardize routines, arrangements or relationships which are benefiting the child. b. Maintain as much consistency and continuity in a child's life as possible, relating not only to family dynamics, but also community connections such as friends, neighbourhoods, schools, medical services, etc. c. Children in custody disputes have often already experienced the emotional trauma of instability, conflict, and disruption. If their circumstances are now stable, they should not have to experience more changes without compelling reasons. d. Children — especially young children — need stability and consistency. They benefit from routine. Anecdotally they are often described as "resilient to change", but child care professionals warn that such complacency is usually unwarranted. e. Courts are understandably reluctant to abandon an arrangement which is working to a child's benefit, in favour of a speculative arrangement. f. Although it may sound like a gross oversimplification, in considering the status quo there is a very real sense of "don't tamper with success."

[60] In my view, no compelling reason has been put forward by the father to justify a change from the existing parenting time regime to a “week-about” 50/50 regime. The only reason he offered is that equal parenting would offer the children more varied experiences.

[61] There was no evidence that the current arrangement is not working to the children’s benefit. Switching to a speculative “week-about” parenting arrangement would introduce instability where stability and consistency currently exist. Noa suffers from ADHD for which she is being treated with medication and Owen is in the process of being investigated for ADHD. In my view, removing the stability and consistency which the children now enjoy in favour of a new and untested regime would not be in the children’s best interests. I find that continuation of the current parenting regime providing for parenting time to the father on alternate weekends from 6 PM Friday until 6 PM Sunday together with afterschool on every Tuesday to Wednesday at the opening of school would be in the children’s best interests.

[62] The parties’ draft orders correspond with respect to vacation and special days with the exception that that the father’s draft calls for two uninterrupted weeks of summer vacation with each parent, whereas the mother’s calls for two non-consecutive in July and August respectively.

[63] In my view separating the children’s summer vacation weeks with each parent would reduce the time the children are away from the other parent and would be in their best interests at the children’s levels of maturity. The parties will be free to change to consecutive weeks by agreement as the children get older.

(b) Decision-making

[64] As indicated previously, in order to support an order for joint decision-making, there must be evidence that the parties are able to communicate effectively for the sake of the children.

[65] Very little time was spent by the parties during the trial on the issue of the parties’ ability to communicate constructively for the sake of the children. This would suggest that, despite their differences, the parties have been able throughout the four-year period of separation to communicate reasonably effectively. However, the father complained that, in respect of the two major decisions for the children to date, namely the choice of school and the proposed treatment for Noa’s ADHD, although he gave his input on each decision, the mother simply went ahead with her choice unilaterally. As it transpired the father ultimately accepted that the mother’s decision was in the children’s best interests.

[66] In my view it is in the children’s bests interests that a decision-making regime be crafted to allow the father to be more involved and engaged in decision-making and that the children perceive this to be the case. This will help remove the perception of the father as the “weekend” parent which would be in the children’s best interests.

[67] In his draft order the father proposes joint decision-making with the provision that if a decision cannot be made the parties shall firstly be allowed 10 days to consult with her counsel, that each party shall then have the right to apply to court or, if the parties agree, to seek arbitration and/or mediation. In my view, it is important that significant decisions should be made on a timely basis. The delay occasioned by the respondent’s proposal would not be in the children’s best interest.

[68] Moreover, the parties do not have the financial resources to contemplate further litigation, let alone arbitration or mediation to resolve differences in decision-making.

[69] The mother has assumed the role of initiating and organizing medical and dental treatment for the children, the choice of school, and their extracurricular activities. There has been little complaint by the father or dissatisfaction with the mother’s assumption of this role, however, it is appropriate that he be given greater meaningful input and involvement into decisions for the children.

[70] The order shall provide that, prior to exercising decision-making authority for the children, the applicant shall first consult meaningfully with the respondent in respect of all important decisions and will seek his input as follows:

(a) she shall notify him of the particular decision to be made, including disclosure of any relevant documents, and the proposed decision she intends to consider, with brief reasons; (b) unless the circumstances clearly require an earlier response as communicated by the applicant to the respondent acting reasonably, he will respond within three business days as to his views and the decision he supports with brief reasons; (c) if the parties are unable to reach an agreement within five business days after the time permitted for his response, she shall make the final decision; (d) during the consultation process, each party may consult with any third-party service providers pertaining to the decision required to be made; (e) it is only after this consultation process is completed that the applicant will be at liberty to make a decision, which decision shall be communicated by her to the respondent in writing.

(c) Child Support

[71] As indicated previously, the mother claims arrears of child support from the date of separation in the sum of $23,326 to the end of February 2024, giving credit for the payments made by the respondent at the rate of $250 bi-weekly.

[72] The parties agree that the father’s income for child support purposes was $71,172 for 2020, $67,149 for 2021 and $66,999 for 2022. Table child support for those years was $1085 per month for 2020, and $1,023 for 2021 and $1,021 for 2022. The father’ income for 2023 is unknown as is his continuing income for the current year.

[73] The father submits that he should be obliged to continue to pay child support in the sum of $250 bi-weekly in recognition of his assuming joint debt by means of a consumer proposal calling for monthly payments of $433. The parties also recognized that the mother had subsidized housing, whereas the father was obliged to pay market rent.

[74] Undue hardship s. 10 of the Child Support Guidelines was not pleaded by the father. The requirements of s. 10 for a finding of undue hardship have not been addressed the father in evidence. None of the non-exclusive circumstances that may cause undue hardship listed in s. 10(2) have any application.

[75] The father submits that the mother did not claim retroactive child support in her application, and therefore should not be entitled to child support for any period prior to commencement of the proceeding.

[76] I am not satisfied that the mother should be disentitled to claiming child support from the date of separation. It is well known that the claim for child support is that of the children and no prejudice is suffered by the father by the mother claiming child support from the date of separation as it merely serves to enforce an obligation on the father that should have been fulfilled.

[77] It is appropriate that the father be ordered to pay $23,326 for arrears of child support to the end of February 2024 in instalments of $150 per month and ongoing child support in the sum of $1021 per month, based upon his 2022 income of $66,999.

[78] Based upon their respective 2022 incomes of $42,894 for the mother and $66,999.40 for the father, the father should be required to pay 61% of s. 7 expenses including for cheerleading, karate, medication and future orthodontic treatment.

Disposition

For the foregoing reasons, it is ordered on a final basis as follows:

Decision-making

1. The applicant, Hayley Anne Lepage (the "Mother") has primary decision making for the children, Noa Anne Lepage, born March 25, 2015 ("Noa") and Owen Jackson Lepage, born October 11, 2018 ("Owen")
2. Prior to exercising decision-making authority for the children, the mother shall first consult meaningfully with the respondent, Anthony LePage, (the “Father”) in respect of all important decisions and will seek his input as follows: (a) she shall notify him of the particular decision to be made, including disclosure of any relevant documents, and the proposed decision she intends to consider, with brief reasons; (b) unless the circumstances clearly require an earlier response as communicated by the Mother to the Father acting reasonably, he will respond within three business days as to his views and the decision he supports with brief reasons; (c) if the parties are unable to reach an agreement within five business days after the time permitted for his response, the Mother shall make the final decision; (d) during the consultation process, each party may consult with any third-party service providers pertaining to the decision required to be made; (e) it is only after this consultation process is completed that the Mother will be at liberty to make a decision, which decision shall be communicated by her to the Father in writing;
3. In a health emergency, the parent with care of the children at that time shall make the treatment decision, on the advice of medical personnel. If a parent makes an emergency health decision, the parent who has made the decision must immediately contact the other parent.
4. The Father shall be provided advance notice of all school and health/medical appointments. Both parties may attend all appointments. If the Mother is unable to take one of the children to the appointment, the Father will be provided the opportunity to take the child to the appointment.

Parenting time

5. The Mother has the primary residence of the children, Noa and Owen.
6. The Father shall have parenting time with the children Noa and Owen as follows: a. every second weekend from Friday at 6:00 p.m. to Sunday at 6:00 p.m. b. every Tuesday after school to Wednesday morning. c. such further and other times as agreed upon between the parties in writing. d. The Father shall not consume alcohol in the 12 hours prior to his parenting time, nor shall he consume alcohol while caring for the children Noa and Owen.
7. The holiday residence schedule below is in addition to the regular residence schedule above, and overrides the regular residence schedule in the event of conflict;

School Spring Break

(a) During the school Spring Breaks, from leaving school as the Spring Break starts until their return to school following the break, the children will reside: i) with the Mother during the school Spring Break in odd-numbered years, and ii) with the Father in even-numbered years if he has the week off from work, otherwise the parties will follow the regular schedule.

Easter Weekend

(b) The children will reside with the Father for a minimum of one day on Easter Weekend and on Thanksgiving Weekend and with the Mother for a minimum of one day on Easter Weekend and Thanksgiving Weekend.

Mother's Day

(c) If the children are not otherwise with the Mother on this weekend, they will reside with the Mother on Mother's Day weekend, from Saturday at 5:30 p.m. until return to school on Monday.

Father's Day

(d) If the children are not otherwise with the Father on this weekend, they will reside with the Father on Father's Day weekend, from Saturday at 5:30 p.m. until Sunday at 6:00 pm.

Christmas Eve/Morning and Christmas Day

(e) Christmas Holiday will be shared as follows: (i) the children will reside with the Mother on Christmas Eve until 8:00 pm every year (ii) on even numbered years the children will reside with the Father from 8:00 pm Christmas Eve to 1:00 pm Christmas Day and on odd numbered years the children will reside with the Mother from 8:00 pm Christmas Eve to 1:00 pm Christmas Day. (iii) on even numbered years the children will reside with the Mother from Christmas Day at 1:00 pm to Boxing Day at 10:00 am and on odd numbered years the children will reside with the Father from Christmas Day at 1:00 pm to Boxing Day at 10:00 am

Halloween

(f) The children will spend Halloween with the Mother on even numbered years and with the Father on odd numbered years from after school until 8:00 pm.

Summer Vacation

(g) The children will spend two non-consecutive weeks with the Father, one week during the month of July and one week during the month of August. The Father shall advise the Mother of his requested dates by May 1st of each year. (h) The children will spend two non-consecutive weeks with the Mother, one week during the month of July and one week during the month of August. The Mother shall advise the Father of her requested dated by May 14th of each year.

8. The Mother shall be permitted to obtain and renew any identification documents for the children, Noa and Owen including passport or health card without the consent of the Father.
9. Each party shall be permitted to travel with the children outside the province of Ontario for pre-arranged travel during their parenting time, with 30 days written notice to the other party;

Child Support

10. The Father shall pay monthly child support to the Mother in the amount of $1,023.00, based on his approximate income of $67,149.00, in accordance with the Ontario Child Support Guidelines for the children, Noa and Owen, commencing March 1, 2024.
11. The Father shall pay to the Mother child support arrears in the amount of $23,326.00 in instalments of $150 per month commencing March 1, 2024.
12. The Father shall pay to the Mother all money payable pursuant to section 7 of the Child Support Guidelines for the children, Noa and Owen being 61% of all such expenses based on the Father's income of $67,149.00 and the Mother's income of $42,894.00.
13. The Father shall designate and maintain the children, Noa and Owen as beneficiaries of any group life insurance policy available through his place of employment, now or in the future, for so long as the children are eligible for support.
14. The Father shall designate and maintain the children and the Mother on his ongoing health insurance available through his place of employment so long as they are eligible to receive benefits pursuant to the terms of his policy.
15. The parties shall not speak ill of each other or the parties' households or families in the presence of the children.
16. The parties shall refrain from engaging in disputes with each other in the presence of the children.
17. Unless the 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. A support deduction order will be issued.
18. The Father, shall provide to the Mother and the Director of the Family Responsibility Office notification of any change in address or employment, including full particulars about the change, within ten (10) days of the change taking place.
19. This Order bears post-judgment interest at the rate of 7% per annum effective from the date of this Order. Where there is a default in payment, the payment in default shall bear interest only from the date of default.

Costs

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

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

[81] The cost submissions shall be delivered to the Trial Coordinator at Brantford at the email address utilized for the release of these Reasons.

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

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

D.A. Broad, J.

Released: March 13, 2024

COURT FILE NO.: FS-22-59 DATE: 20240313 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Hayley Anne LePage Applicant – and – Anthony LePage Respondent REASONS FOR JUDGMENT Broad, J Released: March 13, 2024