Court File and Parties

Court File No.: FC-21-332 Date: 2024-09-12 CORRECTED DATE: 2024-09-17 Ontario Superior Court of Justice

Between: C.L.B., Applicant And: J.S.B., Respondent

Applicant Counsel: Unrepresented Respondent Counsel: Trevor B. Owen, for the Respondent

Heard: May 31, June 3 and 4, 2024

Corrected Decision: The text of the original decision was corrected on September 17, 2024 and the description of the correction is appended.

Reasons for Decision

McDermot J.

Introduction

1C.L.B. and J.S.B. were married on July 23, 2005 and they separated on December 8, 2019. They have been in litigation ever since, largely concerning the parenting of their three children, M.B. (15), C.B. (12) and A.B. (9). C.L.B. is the father of these children; J.S.B. is the mother.

2When the parties separated, the three children remained in the care of the Respondent Mother in the matrimonial home. The eldest child, M.B., has a number of special needs. In an Assessment Report dated July 25, 2022, [1] M.B. was diagnosed as having an Intellectual Development Disorder. He has also been diagnosed with Attention Deficit Hyperactivity Disorder and has an Individual Educational Plan at his school. He has been a challenge and there have been physical altercations between M.B. and both the Applicant Father and the Respondent’s former partner, M.S. Child welfare agencies were involved as a result of these altercations.

3The two younger girls are nowhere near the challenge that M.B. has been and have no diagnosed special needs. J.S.B. alleges that the Applicant favours the girls over M.B.

4By agreement between the parties, C.L.B. originally saw the children every second weekend after he left the home. This was later changed to three weekends per month. There is no dispute that C.L.B. has exercised this parenting time consistently throughout although, as will be discussed below, M.B. elected to cease contact with C.L.B. in January, 2024. The two girls continue to see their father three weekends per month.

5Since the parties separated, they have come to an agreement on a number of issues. There are final agreements on equalization of property, on a buyout by the mother of the Applicant’s interest in the matrimonial home, on the equal sharing of s. 7 expenses and on final decision making concerning the children.

6Regarding section 7 expenses under the Child Support Guidelines, [2] the parties also say that they have agreed to the payment of all section 7 expenses submitted to the court other than the costs of an EduTravel trip that M.B. went on to Ottawa, Montreal and New York. However, no Agreed Statement of Facts or consent was filed. By consent order dated September 1, 2023, C.L.B.’s section 7 expenses owing at that time were fixed at $2,749.62. Later during the trial, the Respondent filed an exhibit [3] containing a number of s. 7 expenses totalling $3,428.57 which the parties agreed to on the record. The parties agreed at that point that the only section 7 expense in dispute was the costs of the Edu-Travel trip for M.B. In her draft order, the Respondent had inserted the amount owing by the Applicant for s. 7 expenses of $4,591.79 which presumably includes the Applicant’s share of the EduTravel trip that the Applicant disputes.

7The Applicant disagrees with the suggestion that the children remain in the care of the Respondent Mother. He says that it is in the best interests of the children that they live with both parties on a week about basis. He does agree that any parenting time that M.B. spends with him should be according to M.B.’s views and preferences. From January, 2024 to the time of trial, M.B. had elected not to have contact or parenting time with his father.

8Ongoing child support is also in issue, as the parties disagree on the Applicant Father’s income for support purposes (as well as where the children are to reside).

9Therefore, the issues at trial are as follows:

a. Should the children spend parenting time with both parties on a shared residency schedule? b. What base child support is payable by the Applicant Father? c. Should the Applicant pay for one half of the EduTravel trip that M.B. went on to Ottawa, Montreal and New York?

Result

10For the reasons set out below, I have determined the following:

a. The Applicant’s claim for shared care is dismissed and the children shall remain in the primary care of the Respondent Mother; b. The Applicant Father shall have parenting time to C.B. and A.B. three weekends per month as per the present status quo; c. The Applicant Father shall have parenting time to M.B. according to M.B.’s wishes; d. The Applicant Father shall share in the costs of the EduTravel trip subject to the hard cap that the parties agreed upon for s. 7 expenses of $3,000 per annum; e. The Applicant Father shall pay base child support of $847 per month based upon his annual income which I have found to be $42,448 per annum.

Analysis: Parenting Time

11These parties agree that they separated on December 8, 2019. The parties lived separate and apart under the same roof with C.L.B. in the basement until April, 2020, when he. took steps to obtain his own residence. The children remained in the matrimonial home with J.S.B. Until September 2021, C.L.B. saw the children every second weekend; since then, he has parenting time with the children for three weekends per month. That status quo continued until January, 2024; at that time M.B. decided that he would no longer have contact with his father and has ceased attending his parenting time with C.L.B. The two girls, C.B. and A.B., have continued to see their father three weekends a month.

12The parties have settled their property issues and part of that settlement was a buyout by J.S.B. of her husband’s interest in the matrimonial home. No written agreement was submitted to the court at this trial. The children accordingly remain in that home where they have lived since prior to separation. C.L.B. rents a one-bedroom apartment with a den; when the children visit, he sleeps in the den and the two girls share the bedroom.

13The battle lines in this case consist of the oft-repeated request for primary care by one party and the other party’s claim for shared parenting. C.L.B. asks for week about parenting time and believes that the children would benefit from him spending more time with them. He notes that two out of three of the children have expressed that they want more time with him and that he has a close and loving relationship with his two daughters. He says that he can provide the children with a stable and loving home during his parenting time. He acknowledges that M.B. does not want to visit with him right now, and is not insisting on parenting time with M.B. who is now 15 and has some autonomy.

14Ideally, J.S.B. says that she would return to the Applicant having parenting time with the children every second weekend which was in place until September, 2021. However, she says that she would be content that the present parenting time of three weekends per month for C.B. and A.B. remain in place; she also says that M.B. should see his father according to his views and preferences. She says that the Applicant Father is unable to care for the children for more than that and says that he has failed to even address his daughters’ personal hygiene issues on his weekends. She says that the situation continues to be high conflict and that the parties do not communicate adequately to allow them share care.

15At the request of the court, the Office of the Children’s Lawyer conducted a clinical investigation. That report was completed on June 15, 2023, just under a year prior to trial. The investigator suggested parallel decision making, with the mother deciding on education and health issues and the father on religion and extra-curricular activities. She also acknowledged the views and preferences of the children but recommended that the children remain in the primary care of the mother with parenting time to the father every second weekend from Fridays to Mondays along with two weeks in the summer.

16With some variations, the parties acceded to some of the suggestions of the clinician. On September 1, 2023, the parties agreed on a partial final order on parenting issues as follows:

a. The Respondent Mother would have final decision making over education and health; b. The Applicant Father would have final decision making over religion; c. The parties would share decision making over extra-curricular activities; d. The order set arrears of section 7 expenses owing by the father to the mother in the amount of $2,749.62; e. Summers would be shared on a week about basis; f. The parties would equally share March break, the Christmas school break and Thanksgiving and Easter.

17The order left the issue of the schedule for parenting time to this trial.

The Applicable Law

18These parties were married and the Applicant requested a divorce in his Application. The parenting and support issues are therefore corollary relief within the meaning of the Divorce Act. [4]

19Under the Divorce Act a parenting plan must be determined only on the basis of the child’s best interests which are defined in s. 16 of the statute. Primary consideration must be given “to the child’s physical, emotional and psychological safety, security and well-being”: s. 16(2). As well, the court must have regard to the following factors under s. 16(3):

(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.

20The major parenting issues to be considered on the evidence are as follows:

a. The respective abilities of the parties to meet the needs of the children (Divorce Act, s. 16(2) and para. 16(3) (a), (d), (g) and (h)); b. The ability of the parties to communicate with one another in order to provide consistent care for the children (Para. 16(3)(i)); c. The views and preferences of the children (Para. 16(3)(e)); and d. Cultural and religious considerations (Para. 16(3) (f)).

21The court will consider these factors in turn.

Needs of the Children

22Under this subheading, there were several issues raised at trial. These include the issues raised by the Respondent of whether C.L.B. is meeting the personal hygiene needs of the girls and his employment history. In addition, the court must consider the parties’ respective means to provide stable and adequate housing and the issue of physical discipline in each parties’ household.

23As stated, C.L.B. lives in a one bedroom apartment with a den. It does not have a bathtub. J.S.B. testified that the children often come back after their weekends having had neither a bath nor a shower. She says that the apartment is inadequate and does not offer the children their personal space as they have to share the one bedroom in the apartment. She also says that the building has seven units, one of which is an AirBNB, and that there is some risk to the children when they are playing in the common backyard of the building. She also says that the children’s friends are all in close proximity to the former matrimonial home and that these friendships would suffer if C.L.B. cared for the children on an equal basis.

24The Respondent is also concerned with C.L.B.’s employment history. She says that the Applicant has had five different jobs since separation, and seven different jobs since she has known him along with a stint when he could not work due to fatigue and iron deficiency issues. She asks how C.L.B. could offer a stable home where his own employment history is so unstable.

25J.S.B. is also concerned that the Applicant had used “hands on” discipline with the children, spanking them in the past, and is concerned that he will continue to do so in the future. C.L.B. responds by pointing out that his wife failed to protect the children from her former partner who also was physically aggressive with the children.

26C.L.B. argues that the hygiene issues have a lot to do with the limited time that he has with the children. He says that his weekends are short and that he does not have time to bathe the children. He says that he would bathe them more often if he had shared care because he would have more time with the children.

27Under this heading, each party’s respective parenting plans must be considered. As well, there must be an examination of whether the Applicant Father is able to set aside his own issues in favour of the children.

28Finally, the status quo must be considered under s. 16(3) (d) of the Divorce Act. That addresses the issue of who has cared for the children in the past and whether that care has been adequate and has, in the past, met the needs of the children. Does the evidence mandate a change in that status quo, with the disruption that would entail, rather than leaving it in place?

Housing Issues / Personal Hygiene

29C.L.B., as noted above, has a one bedroom apartment with a den. The girls have to share a bedroom. Although he told the OCL investigator he intended to upgrade his residence so that the children have bedrooms of their own, he failed to testify as to this intention at trial.

30In contrast, the Respondent Mother has purchased the Applicant’s interest in the matrimonial home. She works at two jobs so that she can maintain and pay for that home so that the children have a stable home and their own space within that home. She further gave up a portion of her pension in order to effect this buyout.

31No person who is requesting a parenting order should be discriminated against because he or she has reduced financial circumstances as a result of income inequities between the parties. It is clear that J.S.B. has a substantially higher income than does the Applicant. The relatively modest economic circumstances of C.L.B. should not be, on its own, an insurmountable impediment to his parenting claims.

32However, the reason for the economic imbalance is important in this analysis as it affects the stability that the Applicant can offer the children. C.L.B. works as an auto parts counterperson, traditionally at automotive dealerships. As pointed out by Mr. Owen and confirmed in cross examination, the Applicant admitted to five different jobs since separation. One job he lost; the remainder he resigned from. He also had a stint of medical leave between August 2020 to March 2021 because of fatigue issues arising from an iron deficiency. Prior to the medical leave, C.L.B. worked at Jackson’s Toyota. Since his return to work, he has worked at Sunrise Toyota, Liftow and now Lexus of Barrie since August, 2023.

33These job changes have resulted in instability to the children even though he does not have shared or primary residence of the children. J.S.B. works at two nursing jobs, neither of which offer benefits. C.L.B.’s latest job change resulted in a six month delay in enrolling the children in the Respondent’s benefits which has affected their access to dental and medical care. C.L.B. has not been able to upgrade his housing, notwithstanding the fact that he received $80,000 (net of legal fees) from the Respondent’s payout for her purchase of the Applicant’s interest in the matrimonial home. He says that he used that money to pay off debts and buy a better car; it is surprising that it was not used to improve the housing for the children in light of the Applicant’s claim for shared care. The Applicant’s failure to improve his housing contradicts his assertion to the OCL investigator that “the sale of the matrimonial home would allow him to purchase a bigger home for him and the children.” [5] There was no evidence at trial that C.L.B. made any attempt to improve his housing situation upon receiving the payout from the matrimonial home by the Respondent Mother and it is assumed that this payout would have been similar to the amount which would have been received from a sale of the home.

34The housing has also affected the children in other ways. The mother complains that the Respondent does not address the children’s personal hygiene when caring for the children. She says that the children often arrive home after parenting time with the Applicant without having bathed. Initially, this was attributed to the lack of a bathtub in the Applicant’s home, and the Applicant admitted that he did not bathe the children because the weekends were busy and bathing had to take second place to the children’s activities. Ms. D’Ornellas, the investigator appointed by the Office of the Children’s Lawyer, testified at trial that the father told her that the children’s “time was better spent in quality time rather than a bath schedule while in his care”. C.L.B. did not address this issue in his affidavit and the Respondent testified that C.B. still comes home from parenting time without being bathed.

35This conflict in priorities during parenting time is directly reflective to the issue of whether care of the children should be shared or not. C.L.B. has provided evidence of the quality time that he spends with the children, including time at his church including the youth groups that the children want to join in on and would be able to if he had shared care. However, the activities that a parent spends with the children, while enriching the children’s lives, is not the complete story. There is clearly a hierarchy of needs concerning parenting; firstly the parent has to be alive to the physical needs of the children including their housing and personal hygiene. That comes before enriching the children’s spiritual lives and C.L.B. has shown that he is not as concerned with the children’s stability as he is about spending quality time with the children. To obtain a coparenting role with the children, C.L.B. has to demonstrate that he can offer the stability to the children that the Respondent Mother has since the parties separated. He has not done so to date and there is no evidence that he would if he was granted shared care of the children.

Physical Discipline of the Children

36C.L.B. acknowledged in testimony that, during the marriage, he had anger issues. He acknowledged punching holes in the walls and that, at one point, he had to leave the home for several days after a blow-up. M.B. advised the OCL investigator that he had observed his father breaking things when angry and the OCL investigator noted that there had been two investigations by child welfare agencies because C.L.B. caused injuries to M.B. on two occasions when disciplining him. J.S.B. says that, due to M.B.’s special needs, the Applicant had been hands on with M.B. since separation and had also spanked both of the girls as a disciplinary measure.

37C.L.B. acknowledges that he was aware that he had past anger issues. He says that J.S.B. is also angry. He also told the OCL investigator that the “hands on Chris” was the “old Chris” and that this was not his current method of disciplining the children.

38J.S.B. is not entirely innocent in this respect. She failed to protect her children from her former partner, M.S., who became angry at M.B. and dragged him across a room. The C.A.S. became involved as a result, but the net result was that M.B. was assaulted by M.S. while he was in the Respondent’s care. There is no evidence that J.S.B. herself had been physical with M.B. although there was an altercation with M.B. in January, 2024 which she says scared her.

39Both parties say that they have now addressed these issues. J.S.B. says that M.S. is no longer in her life and no longer sees her children. C.L.B. says that he no longer physically disciplines the children but talks to them quietly instead. Both parents have taken parenting courses and C.L.B. has sought assistance through his church.

40In sum, however, it is clear that there is no recent evidence of any physical disciplining of the children while in each party’s care. Although litigation can be harmful to children, it appears that this is a net benefit of this litigation for the children.

41None of the events recounted during trial would result in a finding of family violence within the meaning of the Divorce Act (other than, perhaps, the actions of M.S.).

42I do not find physical disciplining of the children to be a factor in determining parenting time in this case.

Parenting Plans of the Parties

43The parties’ respective parenting plans are set out in the report of the OCL investigator.

44C.L.B.’s plan involves the children living with him on an equal time sharing basis with the Respondent. He appears to have been aware that his apartment was too small to have the children on an equal basis and told the investigator that he intended to purchase a larger home with the proceeds of the sale of the matrimonial home. He said he was also on a waiting list for subsidized housing. He said that he would use the children’s current child care provider used by the Applicant and that he would use his friends “as needed” to provide before and after school care. [6]

45C.L.B. did not specifically address this parenting plan during trial. Since the report was issued on June 15, 2023, the parties have settled the issue of decision making, leaving sole decision making in religious affairs to the Applicant. It was apparent from C.L.B.’s evidence that he intends upon using the resource of his church in parenting the children and in offering them youth groups and activities available through the church. He complained that the fact that primary residence was with the Respondent prevented the children from being more involved in his church, something he says that they enjoy.

46On the other hand, J.S.B. intends upon doing exactly what she is doing right now. She indicated to the OCL investigator that she intended upon remaining in the home, and that they would “transition to the schools they intended.” [7] She said that she would like the children to remain in their current programs and support services. She noted that if she had to leave the home, she could not afford alternative accommodation in her area and suggested that she and the children might have to move to a more affordable community such as North Bay.

47As noted, C.L.B. received funds from his interest in the matrimonial home in the property settlement that was mentioned in paragraph 3 of the Respondent’s affidavit. According to his testimony, he was paid the amount of $114,000 for his interest in the home and after legal fees he received a net amount of about $80,000. Instead of investing this in housing suitable for the three children, he bought a car and paid off some debts. No accounting for the expenditure of those funds was provided by C.L.B., but he certainly did not follow through on the parenting plan disclosed to the OCL investigator, which was to purchase or obtain suitable housing so that the children could live with him full time. C.L.B. also did not provide any update at trial as to his obtaining subsidized housing as also mentioned to the OCL investigator. C.L.B. also did not give any evidence as to arrangements that he may have made with the children’s current child care providers or with friends to provide before and after school care as intended in his parenting plan.

48J.S.B. has, on the other hand, followed through with her plan. She purchased C.L.B.’s interest in the home (which had been previously listed as per the order of Justice Jain made on October 6, 2022). She did not have to request a move with the children to North Bay and they are continuing in their schools and programs. These programs include counselling for the children through the Metis Nation of Ontario and the Choices for Children program through the Women and Children’s Shelter in Barrie. M.B. has been involved in the Special Olympics track and field program and had a school trip to Ottawa, Montreal and New York over the objections of C.L.B. C.B. is involved in the Scouting movement and enjoys those activities. There was no evidence that J.S.B. was not obtaining the clinical and educational assistance that the children need.

49C.L.B. did not, or could not, follow through on his plan to obtain adequate housing. His plan to purchase a property suitable for the children was not addressed at trial, but I assume that his expectations were unrealistic. He did not testify as to whether his application for subsidized housing is still outstanding or where he stands on the waiting list.

50He did testify as to programs available to the children through his church although he did not provide details of those programs. He said that if he was given shared decision making, it was his intention to enroll the children in his church programs which included a youth group. It is unknown whether C.L.B. would remove the children from their present programs so that the children could participate in the church youth group during his parenting time. Considering the benefits to the children from their present programs and activities, I would not find that to be in their best interests.

51I find that the mother is a source of stability to the children and that her parenting plan was realistic and is being followed through on. I do not find the same with C.L.B.’s plan; he has not followed through with the intentions that he advised the OCL social worker of in her interviews with him. His plan was unrealistic but acknowledges that his housing is inadequate. The evidence at trial is that there would be no change in that situation in the foreseeable future.

C.L.B.’s Ability to Set Aside His Own Needs for the Children

52There were a number of concerning incidents which arose during trial where C.L.B. appears to have considered the children’s needs as being secondary to his own. While the Respondent went through the sacrifices necessary to purchase C.L.B.’s interest in the home and to provide the children with both activities and experiences, sometimes at her sole expense, C.L.B. appears to have, at times, ignored the children’s needs in favour of his own.

53Firstly, there has been an ongoing issue whereby C.L.B. has been refusing to permit the children to attend extra-curricular activities during his weekends. On one occasion in February, 2023, according to J.S.B.’s affidavit, he refused to allow M.B. to go to a ski competition and C.L.B. offered to allow him to go only if J.S.B. gave up her one weekend a month that she had with the children. This she was unwilling to do. As well, she testified that M.B. was to attend a Special Olympics qualifying track meet and C.L.B. refused to consent to M.B.’s participation. It was J.S.B.’s evidence that M.B. was participating in javelin, standing long jump, shot put and bocce ball. She noted that M.B. had a silver and bronze in these events for this area and was entitled to qualify for the provincial competitions. C.L.B. refused to allow M.B. to go to one of the qualifying events and J.S.B. was forced to make alternative arrangements to allow M.B. to participate in a subsequent track meet. C.L.B. claims that if he had shared care, he would consent to more extra-curricular activities, but these incidents show that C.L.B. put his own parenting time before M.B.’s needs, making it difficult to coparent in the context of a shared care arrangement.

54C.L.B. also refuses to consent to extra-curricular activities. He refused to agree to a trip through EduTravel for M.B. to take a trip to Ottawa, Montreal and New York. Although C.L.B. said that he was refusing to consent because it was dangerous to travel to the United States, in light of his refusal to contribute to the costs of the trip, I suspect that the real reason for not consenting was because he did not want to pay his share of the program. J.S.B. testified that, because of his special needs, M.B. was not strong academically and that this trip offered him an earned credit for high school, obviously in M.B.’s best interests. C.L.B. ignored that factor and also ignored the broadening experience that the trip would provide for M.B.

55It appears from the above that C.L.B.’s attitude seems to be that he does not think it important that the children participate in extra-curricular activities and this is further reflected by the fact that he received $80,000 from the sale of his interest in the home and says he paid debts from these funds. However, he did not pay the arrears of s. 7 expenses fixed in a previous order which was to reimburse J.S.B. for those expenses paid for by herself. This put him in further breach of that court order which required him to pay those funds within 30 days of the order. In light of the breach of that order and the failure to pay those costs from the funds received from the home, the court cannot help but believe that C.L.B.’s undertakings to allow extra-curricular activities if he receives shared care to be similarly untrustworthy.

56A further example arises from when M.B. refused to continue seeing C.L.B. At the time he was using a cell phone supplied to him by C.L.B. The phone could not be used after 8:00 p.m. on weeknights and had a lockdown time that could only be changed by C.L.B. as it is his account. C.L.B. acknowledged that the lockdown time should be changed but would not change it until M.B. talked to him, something M.B. will not do. He was unable to see that his position might just continue M.B.’s continued anger and alienation from his father. C.L.B.’s own stubbornness and refusal to bend resulted in the continued impairment of the relationship between C.L.B. and M.B., and also failed to achieve a result that C.L.B. acknowledged in testimony was in M.B.’s best interests.

57There has further been an ongoing failure by C.L.B. to consent to therapy for the children. In particular, he refused to sign a consent form for therapy sponsored by the Metis Nation of Ontario because he did not like some of the areas checked off in that form. Although J.S.B. has decision making over medical decisions and could consent to the therapy without C.L.B.’s involvement, she testified that there was a financial consequence to the failure to sign the form as the signing of the form meant that there would be financial support from the MNO.

58I note as well that in September, 2022, C.B. suffered from a ruptured appendix and was hospitalized for seven days. The evidence at trial was that C.L.B. decided to go ahead with a men’s retreat through his church and the care of C.B. during this medical emergency was left to J.S.B. and M.S., who together shared duty to stay with C.B. in the hospital. This does not speak well to C.L.B.’s ability to provide care to the children and it is clear that his own desire to attend at a retreat took precedence over offering comfort to his child while she was hospitalized.

59This is not to say that J.S.B. has been perfect either. She entered into a relationship with an individual who was abusive to her. The children spoke during the OCL investigation about the vicious fights that M.S. and J.S.B. had in their presence. M.S. had a physical altercation with M.B. Although it must have become apparent fairly quickly that this relationship was not in the best interests of the children, J.S.B. continued in that relationship.

60However, this pales compared to C.L.B.’s failure to ensure that the children’s needs were met. He did not allow for extra-curricular activities during his weekends because he felt his time with the children was more important than those activities. He failed to encourage M.B.’s school trip for financial reasons and he did not provide a consent to therapy for M.B., again for his own reasons. He refused to unlock M.B.’s phone until M.B. actually spoke to him, leading to an impasse which resulted in M.B. being unable to use the phone after 8:00 p.m.; it has to be asked who was the adult in that situation? C.L.B. eventually agreed during the trial to unlock the phone, but only after being admonished by the court.

61All of these instances show that C.L.B. has, in the past, failed to address the needs of the children because of his own interests. To share the care of children requires a certain amount of sacrifice, including the parent’s own emotional needs or concerns. Moreover, if C.L.B. fails to allow the children to participate in activities that they like during his shared parenting time as he does concerning his weekends, that would only make the differences between the two households more stark. In sum, If C.L.B. continues to act in the way that he has in the past, a shared arrangement would not be in the children’s best interests.

Status Quo

62Section 61(3)(d) instructs the court to have consideration for the history of the care of the children or the status quo in place at the time of trial. This is related to meeting the needs of the children as success or failure in providing care of the children is one of the best indicators as to the future.

63In the present case, the evidence was that, during cohabitation, the Respondent and her mother provided most of the care of the children. C.L.B. testified that this would not have been his choice, but that he was shut out of the care of the children by both his wife and her mother. But he acknowledged that she was the primary caregiver of the children during cohabitation.

64That continued after separation. When the parties separated, C.L.B. moved into the basement while the Respondent and the children remained upstairs. Then, after he moved out in April, 2020, the children remained in the care of the mother and throughout the period of separation, C.L.B. had weekend parenting time. J.S.B. provided for the basic needs of the children and has now arranged for permanent and stable housing for the children in the matrimonial home in which they resided before and after separation. J.S.B. continued to make decisions for the children, arranging for extra-curricular activities, therapy and medical and dental care for the children. C.L.B. again says that he was willing to assist in these duties but says that there was a lack of consultation by J.S.B. I have addressed this below; suffice to say that I do not find that there was a lack of consultation by J.S.B. although there was a failure to communicate.

65The case law indicates that there has to be good reason to disturb a successful and working status quo: see Shroukralla v. Shroukralla, 2014 ONSC 4209 and Barton v. Sauv, 2010 ONSC 1072.

66As I noted elsewhere in this endorsement, the Respondent indicated to the OCL investigator that she was going to continue doing exactly what she had done in the past. She has provided stability and housing for the children and has met their basic needs throughout. She has arranged for therapy for the children through the Metis Nation of Ontario and has adequately addressed the special needs for M.B. She has addressed the latest crisis involving M.B. notwithstanding the father’s failure to consent to the therapy. The status quo indicates that the children are content and stable in their present placement. For reasons outlined above, it is unclear that these basic needs will be met if care is shared.

67It is also clear that that the children (other than M.B.) presently enjoy the parenting time that they have with their father on weekends. This is part of the status quo that is also successful. As admitted during trial, the father is the “fun” parent, and that is something that is of benefit to the children and should continue. That does not mean, however, that it is in the children’s best interests to provide the Applicant with substantially more time than he has at present.

68The Respondent’s success in addressing the needs of the children, both before and after separation, favours primary residence remaining as per the present status quo, with weekend parenting time with the father.

Communication Issues

69The parties have already agreed on decision making on a final basis. However, communication is also important to the time-sharing arrangements. While not essential, the ability of parties to communicate is important in a shared care arrangement so that the two households can coordinate the children’s activities, doctor’s and dentist appointments and consistent disciplining of the children.

70That remains a concern at present. The parties each agree that this is a high conflict case and the mother described, in testimony, the communication level between the parties as being somewhere between 1 and 2 out of 10. The parents have not been able to communicate or agree to numerous issues concerning the children and, unfortunately, much of this can be traced to the father’s behaviour.

71Both parties blame the other for the lack of communication. For example, the father complained that the mother historically would send one or more of the children to counselling without his consent and would also enroll the children in extra-curricular activities without his consent. The mother denied this to be the case. She said that she would send numerous messages to the father about the issue at hand, only to have those emails ignored. To some extent the father agreed with this when he stated that he failed to respond to the emails because he found them emotionally triggering, stating during testimony that J.S.B. was disrespectful in those communications. Unfortunately, I was not provided by either party with any of those emails or messages in order to allow me to assess the tone used in the mother’s communication with the father.

72The OCL investigator blames the mother for failing to meaningfully communicate with the father. [8] From my review of the report, I do not understand how she came up with this conclusion. There was nothing contained in the report other than the allegations and counter-allegations noted above. [9] The text messages that I was supplied with indicate that both parties were respectful when communicating with one another. [10]

73However, a review of the evidence at trial indicates that it is C.L.B., rather than the Respondent, who has failed to communicate properly or cooperate in decision making concerning the children. Examples include the following:

a. On November 23, 2023, C.L.B. requested permission to take the children to Calgary for a visit with his parents, leaving December 30, 2023. Notably C.L.B. says in his email to the Respondent that his father, who was paying for the tickets, would like to book the flight “as soon as possible.” However, notwithstanding that statement and J.S.B. promptly providing her consent, C.L.B. took until December 28, 2023, two days prior to departure, to provide the flight details. C.L.B. blamed his father for this, stating that his parents were older and did not act promptly. However, if this was the case, he was not telling the truth to J.S.B. when he said that his father was booking the flights right away. [11] b. This trial took place in late May and early June. At the time of trial, C.L.B. had refused to confirm what holiday time that he wanted to take the children for during the upcoming summer school holidays, due to start in three weeks. However, C.L.B. also refused to consent to a backwoods Scout Camp that C.B. wished to participate in because he was afraid of losing two overlapping days of parenting time that he would normally have with C.B.. J.S.B. testified that C.B. wanted to go to the camp, but she was unable to book it to C.B.’s detriment. This repeated what had occurred for March break, when C.L.B. refused to communicate when he would be taking the children. C.L.B. says that he has difficulty in arranging his holiday time with his employer, but if so, he should have given permission for C.B. to attend the camp. In doing so, he appears unable to place his own needs after those of the children. c. There are examples above of a number of times where C.L.B. has failed to consent to extra-curricular activities or counselling for his own reasons. He failed to consent to a school trip for M.B., failed to permit the children to attend their activities during his parenting time and failed to consent to needed therapy for M.B.. In addition to the Scout Camp for C.B. noted above, he also failed to consent to therapy for M.B. through the Metis Nation of Ontario and would not consent to M.B. attending a qualifying track meet which would have allowed him to compete on a provincial level. d. C.L.B. complained bitterly both to the court during this trial and to the OCL investigator about the Respondent’s failure to consult with him regarding extra-curricular activities, the children’s education or their health issues. As noted above, J.S.B. countered by testifying that she sent “hundreds” of emails to him about these issues and C.L.B. did not respond. I noted above that none of these emails were entered into evidence and, other than C.L.B.’s testimony which had little specificity, there is no evidence that J.S.B. was disrespectful in those emails. e. Although C.L.B. complained about lack of consultation in the areas that the Respondent has decision making in, he practiced a double standard when he had A.B. baptized at his church. He arranged for the baptism and scheduled it; only after that did he advise the Respondent of the event so that she could attend and then only at the request of A.B. There was no consultation. Although he was entitled to do this based upon the decision making that was agreed upon, he should not complain about the Respondent’s lack of consultation (which was largely disproven at trial). In effect, he agreed during testimony that his demands for consultation were a “do as I say, not as I do” situation. f. Below, I review the issue of the Respondent’s failure to comply with the September 1, 2023 order requiring him to pay $2,749.62 for s. 7 expenses. He also testified that he refused to pay a share of dental and orthodontal expenses but would not tell the court the reason why, merely stating “I have my reasons.” Although this is not strictly speaking communication between the parties, this all goes to show that the parties cannot negotiate the payment of the children’s expenses between them, something crucial in a shared care arrangement.

74All in all, the communications issue militates against a shared care arrangement for the reasons set out above. Throughout, as well, as acknowledged in the OCL report, J.S.B. has successfully met the needs of the children notwithstanding the lack of communication and this should continue in the future as it is unclear that C.L.B. would cooperate in the children’s activities and medical issues or contribute to the costs of those issues.

Views and Preferences of the Children

75The OCL investigator interviewed the children to determine their views and preferences as to a parenting plan. At the time of the preparation of the report, with the children living with their mother, two out of three of the children wanted more time with their father. M.B. wanted “a week and a weekend” with his father. [12] C.B. asked for week about parenting time. A.B. wanted the parenting time to remain the same.

76Things have shifted since the report was done. During the Christmas break last year, the three children travelled with their father to see his parents in Calgary. The trip was a positive experience for all according to the father’s testimony and he filed pictures taken in Calgary of the four of them together. However, after the children’s return to Barrie in January, J.S.B. walked in on M.B. masturbating while looking at his phone. M.B. had a violent reaction, scaring J.S.B. Since that incident, M.B. has refused to see his father. No one knows why. His refusal to see his father is presumably being addressed in the counselling that has been arranged by J.S.B.

77M.B. is now 15. C.L.B. acknowledged during trial that M.B. did not want to see him and that he was not intent on forcing M.B. to have parenting time with him.

78The change in M.B.’s position indicates the changeability of the views and preferences of children, especially young adolescents. It is a mystery as to why M.B. does not want to see his father especially when the altercation that occurred in January, 2024 involved the Respondent Mother. It may have something to do with the Respondent’s assertion that the Applicant favours the two younger girls over M.B. Suffice to say that in June, 2023, when the OCL report was issued, two of the three children wished more time with their father. There has been no update as to C.B.’s and A.B.’s views and preferences. The only evidence that I have as to views and preferences, assuming the girls have not changed their positions, is that only one of the three children, C.B., wants shared time with their father now. One child is refusing to see the Applicant and the youngest child, A.B., did not want increased time sharing with her father and wished to live with her mother.

79The Ontario Court of Appeal in Ladisa v. Ladisa, [2005] O.J. No. 276 [at para. 16] suggested that siblings should not be split between two different households without compelling reasons. If I accept that C.B. still wishes to reside equally with her father, the question is whether C.B. should live in a shared week about schedule with her father while the other two children live with the mother. There was little evidence given at trial as to the relationship between the children or as to how close they are although both C.B. and A.B. told the OCL investigator that they did not get along with M.B. Considering the change in M.B.’s views and preferences and the fact that the girls’ views were canvassed more than a year prior to trial, I do not find C.B.’s views and preferences as stated in June, 2023 as being sufficiently compelling to split these siblings between two households.

80I note that the OCL investigator recommended that the children continue to live primarily with the Respondent Mother in the face of the children’s views and preferences, when two out of three of the children had told her that they wished to spend more time with the father. It is unclear why the investigator made those recommendations. In her discussion, the investigator stated that she “will be recommending an adjustment to the current parenting time schedule to support more equalized quality time between the parties and the children as well as increased parenting contact between the children and the parties.” In fact, the actual recommendations do not achieve this result as the current schedule at the time of the report gave C.L.B. three weekends a month while the recommendations reduced that parenting time to every second weekend with two weeks in the summer. The final agreement between the parties as to week about parenting time during the summer goes well beyond the recommendations of the investigator of two weeks of parenting time to C.L.B. during the summer months.

81In sum, the discussion in the OCL report purports to give effect to the wishes of the children but that is not borne out in the recommendations. I do not find the views and preferences of the children sufficiently compelling to displace the present status quo concerning C.B. or the other children.

Cultural and Religious Issues

82These children have an Indigenous background as the mother’s family is Metis. The Metis Nation of Ontario was involved in M.B.’s therapy. According to the OCL report, C.L.B. encouraged the Respondent to obtain Metis status for the children and this has now been done.

83Section 16(3) (f) of the Divorce Act instructs the court to take into account the children’s “Indigenous upbringing and heritage” in considering the cultural and religious considerations concerning the children’s best interests.

84Both parents have undertaken to address the children’s Indigenous status during their care of the children. C.L.B. says that he has taken the children to powwows and has emphasized their Metis heritage. J.S.B.’s counsel said that, considering his client’s own Metis status, she is better able to address the children’s Indigenous status.

85However, no evidence was led by J.S.B. as to her involvement in addressing the children’s Indigenous heritage. There was no evidence as to what events she took the children to, and the only party who gave evidence as to Indigenous activities was the Applicant Father. He is, as far as I know, the only party taking the children to Indigenous events and powwows.

86It appears to me that C.L.B. is the individual who is most involved in the children’s religious and cultural life. He described how he wanted the children to be involved in the youth groups available through his church. He described, as noted above, the powwow and Indigenous events that he had attended with the children. This role within the children’s lives is reflected in the recommendation of the OCL investigator that he have decision making over religious issues and this recommendation was included in the final settlement on decision making.

87It appears to me that the religious and cultural factors concerning the children’s best interests would be better met by C.L.B. were shared care ordered for these children. It is his strength and interest. The only concern is that the activities in C.L.B.’s church (in which he is quite involved) may eclipse the Indigenous activities; however, there is no evidence of this from the trial and that issue was not put to either of the parents when they gave evidence.

Conclusion

88Both of these parents deeply love their children and both feel that they are addressing the children’s best interests. They have agreed on decision making which is parallel (other than joint decision making on extra-curricular activities) largely because of their communication difficulties. The only issue is whether the children will live in the primary care of the Respondent or whether care will be shared week about as requested by the Applicant.

89I noted above that the ability to communicate not only affects whether parties can have a parenting plan which includes joint decision making: see Kaplanis v. Kaplanis, [2005] O.J. No. 275 (C.A.). It also affects the ability of parties to share care of children. It is trite to say that to share care of children between two high conflict households with little or no communication between them is not in the children’s best interests. To do so would risk the scenario of children going between two “ships in the night”, each of which does not recognize or even see the other household. It would be difficult, if not impossible, to provide consistent parenting between the two households and this is especially so where the parties are sharing decision making on extra-curricular activities that there have been disagreements on in the past. As stated by Sherr J. in J.T.R. v. L.L.M., 2017 ONCJ 455 (at para. 79):

Similar to joint custody, a higher degree of cooperation and mutual respect is need to make an equal parenting arrangement work effectively. See my comments in P.J. v. T.J., 2017 ONCJ 166. Parents need to be able to coordinate extra-curricular activities and communicate effectively about other important aspects about the child’s welfare. The necessary degree of cooperation and respect is no longer present in this case.

90In the present case, the parties have had nowhere near the level of communication necessary to share care. I find that much of this is the responsibility of the Applicant Father. He has refused to consent to extra-curricular activities during his weekend parenting time and had failed to advise the Respondent of the weeks he would be taking the children during the summer holidays following three weeks after the trial so that C.B. could be registered for a Scout camp that she wished to attend. He refused to consent to the provincial qualifying track meet so that M.B. could qualify for the provincial finals. Implicit in these actions is the fact that C.L.B. felt that his parenting time was more important than the children’s activities which is concerning when he is asking for equal time sharing of the children.

91Outside of the communications issues, the status quo is that the Respondent has been largely responsible for the primary needs of the children both prior to and after separation. C.L.B. says that he was shut out of the medical and educational issues concerning the children and was not consulted on either medical appointments or therapy for the children. However, he acknowledges that he did not respond to the Respondent’s texts and emails about these appointments or various treatment. He also chose to go on a men’s retreat through his church when his daughter was ill with a ruptured appendix. He also refused to consent to therapy for M.B. through the Metis Nation of Ontario when M.B. was obviously troubled and refusing to see him. Although C.L.B. is more involved with the children’s religious and cultural issues, he has never been involved with the primary medical, educational or psychological issues concerning the children and I find that he is largely responsible for this. He cannot blame the Respondent for this and the evidence that she sent him texts about these primary needs without a response was uncontradicted at trial. It is difficult to imagine J.S.B. continuing to meet these needs while the children were living with the Applicant half of the time and considering these parties’ communications issues.

92In addressing the needs of the children, shelter and hygiene are the most basic level of parenting. In reviewing this issue and the two parenting plans of the parties for the children, it is J.S.B. who has managed to provide stable and adequate housing for the children. As pointed out by Mr. Owen during submissions, J.S.B. sacrificed one half of her pension plan so that she could purchase C.L.B.’s interest in the matrimonial home. Because of these sacrifices, the children each have their own bedrooms and are able to continue to attend the schools they always attended. C.L.B., on the other hand, undertook to the OCL investigator that he would obtain suitable accommodation for the children once he received his payout from the matrimonial home. He did not do so; he remains in a one bedroom apartment where the girls have to share a bedroom and M.B., if he attends, has to share a bedroom with his father or sleep in the living room. While entirely suitable for weekend parenting time, the father’s home is inadequate to operate as a full time home for the children.

93Moreover, C.L.B. is still not attending to the basic hygiene of the girls when they visit him now. He blames the restrictions on his time sharing for this. However, those needs are met in the mother’s home and hygiene, especially showers and cleanliness, should not take second place to the activities that the girls participate in over their weekends with their father.

94I am cognizant of the children’s views and preferences as expressed to the OCL investigator. However, it is clear that M.B. has changed his mind drastically and refuses to see his father. If I assume that A.B.’s and C.B.’s views remain the same as they were in June, 2023 (and there is no evidence that their views have changed), A.B. wishes to remain in the mother’s primary care and C.B. wants to live with both parties week about as suggested by the Applicant. Notwithstanding these views and preferences, the OCL investigator recommended that the weekend time be extended to Mondays but only every second weekend; the children would otherwise remain in the care of the mother. Although I noted that I did not understand the basis of those recommendations, I agree that the views and preferences of the children in this case take second place to placement of the children with the party best able to meet the basic best interests of the children. As noted above, I find that this would be the Respondent Mother.

95I am therefore going to order that the children remain in the primary care of the Respondent Mother. I did not hear a “Plan B” from C.L.B.; therefore, I am going to continue the temporary parenting regime as set out in Justice Jain’s temporary order dated October 26, 2022 of three weekends per month. M.B. shall have parenting time according to his views and preferences.

96Holidays and time sharing during the summer have previously been agreed to by the parties along with decision making in the consent order of Justice Krause dated September 1, 2023.

Analysis: Support Issues

97The parties agreed to expenses under s. 7 of the Child Support Guidelines in paragraph 3 of the final order of Justice Krause noted above. That agreement provides that the parties shall equally split the section 7 expenses to a maximum of $250 per month per person or $3,000 per annum.

98Paragraph 4 of that order further provided that the Applicant owed $2,749.62 for s. 7 expenses. That remains outstanding. During trial, the Applicant and Respondent agreed to the Applicant sharing s. 7 expenses set out in Exhibit 16 submitted by the Respondent at trial which created a further obligation to the Applicant in the amount of $3,428.57. Accordingly, this brings the total s. 7 expenses owing by the Applicant to the Respondent to $6,178.19. The only s. 7 expense that the parties could not agree on was the cost of the EduTravel trip that M.B. took to Ottawa, Montreal and the United Nations in New York.

99The parties also were unable to agree to the Respondent’s income for child support purposes. Interim child support has been changed from time to time throughout the litigation according to fluctuations in the Respondent’s income and accordingly final base child support under the Guidelines needs to be set.

Base Child Support

100As noted above, C.L.B.’s income has fluctuated along with his employment. He filed a financial statement at trial dated May 31, 2024 [13] and he had also filed an earlier financial statement dated August 29, 2023. [14]

101C.L.B. attached his Notices of Assessment from 2020, 2021 and 2022 to his first financial statement dated August 29, 2023. His 2023 NOA was, of course, not then available. For his May 31 2024 financial statement, he filed some pay stubs; he again did not provide his 2023 notice of assessment although it would have been available. He failed to disclose his 2023 gross income in paragraph 4 on p. 2 of the May, 2024 financial statement.

102He says in his May, 2024 financial statement that his annual income is $33,428.88. As C.L.B. admitted during cross examination, since 2021 he has never made as little as that. He showed annual expenses of $77,942.88, more than double his gross income. He was unable to explain how he was bearing those expenses considering the fact that he did not show any debt on that financial statement other than some legal fees and about $4,500 in credit card debt.

103He filed pay stubs from his most recent employment at Lexus of Barrie with that financial statement. The pay stubs show year to date income as of May 27, 2024 of $17,015.87. That was week 21 of 2024; extrapolated from that is a weekly income of $810.28. [15] Multiplied by 52 weeks, this gives rise to an income of $42,134.54. This is consistent with multiplying the biweekly income of $1,634.62 set out in the pay stubs by 26 pay periods which results in an estimated yearly income of $42,448.12.

104Mr. Owen calculated C.L.B.’s income as being $53,500 from his pay stubs. It was unclear to me has he came to that figure. C.L.B. has never made as little as he said he made in that financial statement but he has also never made anything like $53,500 per annum. The estimated income of $42,448.12 is consistent with C.L.B.’s income in 2022, which is the first year that he had worked full time since separation (he was on disability between 2020 and 2021). His 2023 income is unknown.

105I find that C.L.B.’s income for child support purposes to be $42,448.12. This would give rise to child support in the monthly amount of $847 which is within dollars of the amount set out in the last interim child support order made by Krause J. on consent on September 1, 2023. There is no purpose to a retroactive adjustment. Therefore, this child support shall commence October 1, 2024.

106There shall be an order for annual financial disclosure by the Applicant under s. 21 of the Child Support Guidelines.

Sharing of Costs of EduTravel Trip

107During his summer vacation in 2024, M.B. was booked by his mother to go on an EduTravel trip to Ottawa, Montreal and New York City. Included in the itinerary were visits to Parliament Hill in Ottawa and the United Nations. According to the receipts for the trip, which was entirely paid for by J.S.B., [16] the cost of the trip was $2,665. C.L.B.’s share would be half of that, $1,332.50.

108J.S.B. testified as to how the travel was in M.B.’s best interests. She said that M.B. was not strong academically, especially in his classroom studies. Apart from the obvious value of travelling to three great cities, she said that the trip would provide M.B. with a high school credit in Civics and Careers which is invaluable to a child who is weak in the classroom and with special needs including ADHD concerns.

109J.S.B.’s evidence regarding M.B.’s classroom abilities is corroborated by the Dalton Associates Psychological Assessment Report concerning M.B. In that report, M.B. was diagnosed follows:

Together, M.B.’s profile indicates low cognitive reasoning skills with below average adaptive functioning skills. As such, his profile is consistent with the diagnosis of Intellectual Developmental Disorder (Intellectual Disability; F71). Though M.B. has some areas of strength and will continue to develop new skills, it is anticipated that his learning will be slower than that of his peers. This may be particularly evident when language demands and curriculum materials increase in difficulty. It is likely that M.B.’s observed anxiety in school is related to his cognitive difficulties when task demands or social expectations are beyond his level of understanding. [17]

110C.L.B. says that the trip is too expensive and unaffordable by the parties. He says that it is not “reasonable” within the meaning of s. 7 of the Child Support Guidelines. And it is true that the reasonableness of an expense involves the nature of the costs being sought to be shared balanced against the means of the parties which may be, as in the present case, modest. However, it is also unreasonable to suggest that the special needs of a child come at no extra cost to the parents. What might be an unreasonable expense for a child without disabilities may be quite reasonable for a child suffering from an intellectual disorder such as M.B. In the present case, where a credit is being offered without time in the classroom, the expense of the trip is clearly reasonable.

111I find this trip to be in M.B.’s best interests, not only because of the academic benefit to him, but also because of his circumstances. M.B. has had a difficult year and is in counselling due to his conflicted relationship with his father. He has difficulty with his own anger issues and has been injured in altercations with his father and with M.S., J.S.B.’s former partner. If anyone deserves an educational trip, it is M.B.

112In their consent order of September 1, 2024, the parties agreed to a hard cap on extraordinary expenses under the Guidelines of $250 per month each or $3,000 per year. During trial, the parties agreed to share special expenses for the children of $3,428.57, some of which was incurred in 2023 and some of which was incurred in 2024. Those amounts were not broken down.

113I find that C.L.B. is obliged to pay $1,332.50 in s. 7 expenses for M.B.’s school trip. However, this is subject to the $3,000 cap on special expenses, which was agreed upon only recently and should govern his share of the expenses that C.L.B. is responsible for in 2024. If this brings him over, he will be liable to pay (including the amount that was agreed to on consent) for a maximum of $3,000 for his share of special expenses for 2024 including the cost of M.B.’s EduTravel trip last summer.

114If I need to fix a different amount, the parties may request to vary the amount of s. 7 expenses by way of 14B motion to be submitted to myself.

Order

115There shall therefore be a final order as follows:

a. In addition to and subject to the holiday parenting time set out in the order of Justice Krause dated September 1, 2023, the Applicant shall have regular parenting time with A.B. and C.B. the first three weekends of each month from Friday after school to Sunday evening at 7:00 to be extended to Monday at 7:00 p.m. in the event that parenting time falls on a long weekend; b. The Applicant shall have parenting time with M.B. according to M.B.’s wishes; c. The children shall otherwise reside with the Respondent Mother; d. The Applicant’s claim for shared care of the children is otherwise dismissed; e. Commencing October 1, 2024, the Applicant shall pay child support to the Respondent in the amount of $847 per month based upon the Applicant’s income of $42,448 per annum; f. Subject to the annual cap of $3,000 per year per child on section 7 expenses, and in addition to the amount outstanding for such expenses under para. 3 of the consent order of Krause J. dated September 1, 2023, the Applicant Father shall pay the following additional amounts: i. On consent, the amount of $3,428.57 for expenses incurred for medical and day care expense in 2023 and 2024; ii. Not on consent, the amount of $1,332.50 for M.B.’s EduTravel trip in the summer school holiday of 2024; g. If the 2024 expenses including the EduTravel expense are in excess of the $3,000 cap on each parties’ share of educational expenses, the parties may submit a 14B motion to me to fix the s. 7 expenses for 2024. h. Support deduction order to go.

116If the parties cannot agree on costs, they may submit written costs submissions to the judicial assistant, the Respondent first and then the Applicant on a ten day turnaround. Costs submissions to be no more than 5 pages not including offers to settle and bills of costs.

Justice J.P.L. McDermot

Date: September 17, 2024

September 17, 2024 – Corrections:

1. Paragraph 23 f. now reads: Subject to the annual cap of $3,000 per year per child on section 7 expenses, and in addition to the amount outstanding for such expenses under para. 3 of the consent order of Krause J. dated September 1, 2023, the Applicant Father shall pay the following additional amounts…

[1] Trial Ex. 12 [2] SOR/97-175 [3] Trial Ex. 16. [4] R.S.C. 1985, c. 3 (2nd Supp.) [5] Investigative Report of the Office of the Children’s Lawyer, trial ex. 1, p. 11. [6] Ibid., p. 11. [7] Ibid., p. 16. It was unclear as to what was meant by this statement concerning transitioning to the schools the children wanted. The OCL report stated that in June, 2023, when the report was prepared, M.B. attended St. Margaret D’Youville Catholic School in Barrie and that he was in his final year, grade 8 at that school. There was no information about what high school he would be attending. There was no information in the report as to what school C.B. was attending. The report mentioned that A.B. attended Hillcrest Public School. There was information in the Appendix as to interviews that the investigator had with the teachers at both St. Margaret d’Youville and Hillcrest Public School but there was no information as to any interviews with any school officials at C.B.’s school, whatever school that might have been. There was nothing in the report about the children transitioning to another school or indicating that the children wanted to go to another school, although M.B. would have been entering high school in September, 2023. No evidence was led at trial about the children’s schooling other than that M.B. had an Individual Education Plan arising from his special needs and would benefit from the credit to be earned from the EduTravel trip to Ottawa, Montreal and New York. [8] Ibid., p. 25 [9] Ibid., p. 3 [10] See trial ex. 3 and 4. [11] See trial ex. 4. [12] Investigative Report of the Office of the Children’s Lawyer, op cit. at p. 19 [13] Trial Ex. 10. [14] Trial Ex. 11. [15] $17,015.87 / 21 = $810.28 [16] Trial ex. 17 [17] Dalton Associates Psychological Assessment Report dated July 25, 2022, Trial Ex. 12, p. 12.