Vickovich v. Martinez, 2011 ONCJ 630

Brampton Registry No. 697-09 DATE: 2011·III·29 CITATION: Vickovich v. Martinez , 2011 ONCJ 630 ONTARIO COURT OF JUSTICE BETWEEN: OLIVIA MARIA VICKOVICH Applicant — AND — ANDRES ALVARADO MARTINEZ Respondent Before Justice P.W. Dunn Heard on February 23, 24 and 25, 2011; March 1, 2 and 3, 2011 Reasons for Judgment released on 29 March 2011 Mark S. Trenholme................................................................. for the applicant Andrea L. Di Battista .......................................................... for the respondent P.W.

DUNN, J.: [ 1 ] Olivia Maria Vickovich, thirty-five, was the applicant and Andres Alvarado Martinez, forty-one, the respondent. They have a child, Maya Melida Alvarado, born 16 September 2002, now eight-and-a-half years old. Each party sought sole custody to permit singular decision making, especially in the areas of Maya’s education and health. There were also travel and special expense issues before the court. Ms. Vickovich sought an order for Mr. Martinez to pay child support. Mr. Martinez did not make the same request, but he did ask that Ms.

Vickovich contribute to Maya’s special expenses, including her private school education. [ 2 ] Ms. Vickovich’s originating document was an application. Ms. Di Battista proposed that the applicant should have brought a motion to change, since the parties had entered a separation agreement in 2005. Regardless of whether an application or motion to change is to be considered as the originating document, the issues between the parties remain the same. [ 3 ] Ms. Vickovich and Mr.

Martinez did sign an agreement on 10 October 2005 that provided for the parties: • to have joint custody of Maya; • to do shared parenting, with Maya spending an equal amount of time with each parent; • to assume some financial responsibility. Ms. Vickovich did not believe the agreement the parties signed on 10 October 2005 was a binding separation agreement because: • she never got a copy; • it was not witnessed; • it was not followed by the parties.

There will be further discussion about this agreement later in the chronology. [ 4 ] Before detailing the facts in this case, it may be helpful to the reader to set out the parties’ perspectives of each other. [ 5 ] Ms. Vickovich believed that Mr. Martinez:

• was controlling in all aspects of the lives of Maya and herself; • would not accept professional opinions from an orthodontist and physician; • had rigid expectations for Maya’s extracurricular activities to be rigorously followed, even in the summer months, that interfered with her travel plans for Maya; • was rude and threatening and Ms. Vickovich feared him; • did not allow telephone contact between Maya and Ms. Vickovich when the girl was at Mr. Martinez’. [ 6 ] Mr. Martinez believed that in her heart, the applicant wanted to be a good mother but problems interceded.

He thought that she: • put her needs ahead of Maya’s; • made poor decisions about their child’s welfare; • had a misplaced overall interest in travel, to the detriment of meeting Maya’s needs; • did not understand Maya’s requirement for the best education possible; • did not fully support Maya’s participation in extra-curricular activities; • made decisions about Maya’s health care that were not well informed; • removed Maya from Ontario in travels by airplane without telling him; • enrolled Maya in school activities without his prior consent; • sometimes denied access and did not foster telephone communication when the girl was staying at the applicant’s.

These concerns were very real to the parties. The case management Justice made diligent efforts to try to come to a meeting of minds, and the parties were assisted by experienced and very competent counsel, but to no avail. A trial was the only avenue that could lead to a resolution. [ 7 ] The parties’ shared parenting was as follows. This plan existed for several years, and they wished it to continue with one summer modification requested by the applicant.

Week One Monday Tuesday Wednesday Thursday Friday Saturday Sunday Applicant Child is with Respondent Applicant Child is Child is Child is takes child Respondent takes child takes child with with with to school and to school. to school. Respondent Respondent Respondent Respondent Applicant Respondent picks up child collects child picks up after school after school. child after school. Week Two Monday Tuesday Wednesday Thursday Friday Saturday Sunday Respondent Child is with Applicant Respondent Child is Child is Child is takes child Applicant takes child takes child with with with to school. to school. to school.

Applicant Applicant Applicant Applicant gets Respondent Applicant

child after picks up child collects school after school. child after school. [ 8 ] The parties were content with this arrangement during the school year. The respondent explained that the Wednesday exchanges meant that Maya would not go a whole week without seeing her other parent. Ms. Vickovich asked that in the summer, Maya should spend an entire week with each party, with exchanges on Fridays, but she did not give a reason for that proposal. Mr. Martinez preferred the school access exchange

schedule to continue in the summer, for the same reason be believed it benefitted Maya during the school year; the little girl found it difficult emotionally to go a week without the presence of her other parent in her life. Mr. Martinez said the parties’ daughter looked forward each week to the mid-week transition. [ 9 ] Turning now to the history of the parties’ relationship, Ms. Vickovich was born and raised in Canada. Mr. Martinez was born in the Dominican Republic and came to Ontario on a visitor’s visa in 1996 at age twenty-six.

The parties met in Peel Region in June 2001, and began cohabitation in late summer of that year. Maya was born on 16 September 2002, and the parties married one month later on 19 October 2002. [ 10 ] The parties and Maya moved to the Dominican Republic in November 2002. Their plan was for Mr. Martinez to apply abroad for Canadian landed immigrant status, to be sponsored by Ms. Vickovich. [ 11 ] After three months of marriage, the parties separated around 5 January 2003 in the Dominican Republic. The applicant did not give a reason for their separation; the respondent said the marriage ended because he found Ms.

Vickovich too demanding a partner. They have not yet divorced. The applicant then returned to Ontario with Maya, but mother and daughter sojourned to the Dominican Republic for week visits at various times in the next several months in 2003. [ 12 ] In November 2003, Ms. Vickovich brought Maya to the Dominican Republic to be looked after by Mr. Martinez on a long term basis. The parties believed that this arrangement would be more economical than paying a babysitter in Ontario while Ms. Vickovich worked.

During this stay in the Dominican Republic, Maya grew close to her paternal grandparents and her much older half- sister. In this period of about a year-and-a-half, Ms. Vickovich often travelled to the Dominican Republic to see her daughter. She acknowledged that the respondent had been taking good care of Maya, and there were no concerns about the little girl’s health. [ 13 ] From June to December 2004, Mr. Martinez had a romantic liaison in the Dominican Republic with a woman of French origin named Linda. The relationship ended when Linda returned to France. [ 14 ] In July 2004, Ms.

Vickovich came to the Dominican Republic and returned to Ontario with Maya. The applicant learned about Mr. Martinez’ intimacy with Linda and in his opinion, the applicant was “furious” over the affair, even though the parties had separated almost a year-and-a-half previously. Ms. Vickovich told Mr. Martinez at her July 2004 departure that she would return with Maya to the Dominican Republic in one month, but that did not happen at all in the next nine months before the respondent moved to Ontario. Mr. Martinez offered to pay Ms.

Vickovich’s travel costs if she would bring Maya for a visit to the Dominican Republic, but she refused. He was also not allowed to talk to his daughter by telephone after Ms. Vickovich moved back to Ontario. Mr. Martinez believed that in this time period (July 2004 to April 2005), that Ms. Vickovich wanted to be alone with their daughter. [ 15 ] Ms. Vickovich’s sponsorship for Mr. Martinez to come to Canada was successful, and he became a landed immigrant in April 2005. He resumed his former employment and he saw Maya. The respondent was interested in reconciling with Ms.

Vickovich from 2003 until 2008, but there was no reciprocation. However, it seemed the parties had enough mutual respect to negotiate their separation agreement in October 2005. They acted on their decision for joint custody in decision making with a shared custody arrangement. Paragraph 7 in the agreement later proved to be contentious. It stated: 7. The Husband and the Wife have joint guardianship of the child…and further agree as follows: (

i) Travel: a parent may travel up to 4 weeks per year, 2 weeks at a time, one month written notice must be given, and exact travel dates and details must be provided. (ii) (

a) School: each parent must pay for half of schooling costs. (

b) Must have consent from both parents for school matters. (iii) Expenses: Mr. Martinez agrees to pay $100. per season for clothing, due on the 30 th of August, October, March and May. Mr. Martinez agrees to pay $184. monthly for daily expenses. Item (iii) was not an issue at trial, because the parties lent/gave relatively large sums of money to each other at various times. [ 16 ] Of particular importance in these proceedings was clause 7(ii)(a). Mr. Martinez stated that the words “each parent to pay one-half of the schooling costs” meant that they were anticipating a private school education for Maya for her primary and secondary

years. If the parties had intended on a public education in Maya’s future, there would have been no costs to pay. [ 17 ] Mr. Martinez said that clause 7(ii)(b) (parents to consent for school matters) applied not to the issue of private or public education, but to choices for extracurricular activities. [ 18 ] It was the respondent’s evidence that he located a draft form of separation agreement on the internet. Then the parties discussed and agreed to the terms of their separation. They took the agreement to the office of a friend of Mr.

Martinez, Fernando Fidalgo, on 10 October 2005 and there, each party signed three copies of the agreement and Mr. Fidalgo witnessed their signatures. It was also Mr. Martinez’ evidence that he gave a signed and witnessed copy to the applicant; he kept two copies, one for himself and one potentially to be filed in court. Ms. Vickovich declined to consult a lawyer before signing, because the agreement seemed straight forward to her and it encapsulated her wishes. [ 19 ] Ms. Vickovich’s evidence was that the agreement was signed by the parties in a living room. Then Mr.

Martinez removed all copies to be witnessed later by Mr. Fidalgo. She stated she never again saw the agreement. She claimed she requested a copy, but the respondent never gave one to her. [ 20 ] I find that the parties intended to enter a separation agreement and indeed did so on 10 October 2005, and it was a valid consent between them. [ 21 ] When pressed by Ms. Di Battista about her understanding of whether the parties acted as joint custodians, Ms.

Vickovich agreed pursuant to separate questions that from Maya’s birth to the parties’ separation in January 2003, and again from that time to the signing of the separation agreement in October 2005, and from then to the filing of the application in May 2009, yes the parties made joint decisions about Maya in general and about her health and school in particular. But then when Ms. Di Battista asked the applicant: Q: Did you share joint custody? A: Not on a 50-50 basis. Q: Did you make major decisions jointly? A: I had more responsibility than Mr. Martinez…in terms of daily decisions and caring for Maya.

This answer did not correlate to Ms. Vickovich’s earlier answers. It was Mr. Martinez’ evidence that the parties made joint decisions until about mid 2008, when complications arose. [ 22 ] The parties agreed to send Maya to a Montessori school when she was about three. That was in September 2005, which was one month before the separation agreement was signed, calling for the parties to provide private schooling for their daughter. Maya attended at Montessori for three years, from September 2005 until June 2008.

The owner of the Montessori school wrote a letter dated June 2010 (exhibit 9) to state: • registration and tuition were done and paid by both parties; • both parents attended parent-teacher interviews, parent nights and open houses. [ 23 ] The Montessori program was successful, because Mr. Martinez said that at age four, Maya could almost read on her own. In these pre-school years, the respondent lived in Toronto and the school was in Clarkson.

For these three years when Maya was residing with him, he drove the one-and-a-half hours it took to transport the child to school. [ 24 ] When Maya at age five was ready for grade one, the parties discussed plans for a private school. Friends recommended Mentor College (Mentor). The respondent researched the school and both parties inspected the premises. On 1 May 2008 at 1:43 p.m., Mr. Martinez emailed the applicant: …I like the kind of organization, controls and discipline that [Maya] will be performing under [at Mentor]. My impressions in general are very good about the school.

I’m sure that it will be a big plus for Maya’s future to have the opportunity to be educated in a school of that calibre. I’m sure Maya will thrive in that environment. Ms. Vickovich agreed with the placement. She replied to the respondent’s email on 1 May 2008 at 2:09 p.m.: As well, I am 100% committed to what is best for Maya. We have a gifted child and I would like to take full advantage of that by giving her a better education…I am willing to commit to Mentor College. Please let me know how you would like to proceed from this point. Mr. Martinez testified: We agreed that a private education is best for Maya.

There would be lots of extracurricular activities and better interaction and control with the teachers in a private school.

[ 25 ] Maya attended grade one at Mentor from September 2008 until spring 2009. Each party paid one-half of the year’s full tuition of $12,500. [ 26 ] In the spring of 2009, when Maya was completing grade one, a decision had to be made about her schooling for grade two, because tuition was payable. On 9 March 2009, the respondent emailed the applicant: Please remember that Maya’s tuition/registration for 2010 is still pending. Also you have not contributed with anything to the present school year, 2009. When can I expect to receive the 50% you agreed to pay in our separation agreement?

It appeared that in the spring of 2009, Ms. Vickovich was intending to help pay her daughter’s tuition in grade two at Mentor for the year 2009-2010. She emailed Mr. Martinez on 16 April 2009: …I am going to help. I don’t have anything for tomorrow. Is there any way you can give them something to secure her spot. Let me know! At trial, Ms. Vickovich did not remember sending this email. However, she did acknowledge to Ms. Di Battista that it was reasonable that she sent it to the respondent, asking him to pay a part of the tuition so Maya could attend Mentor in grade two. Ms.

Di Battista asked the applicant in regard to her email of 16 April 2009: Q. When Mr. Martinez had been asking you for tuition money and you wrote ‘put something to secure her spot’ at Mentor, didn’t you know then that Maya was going to Mentor [for grade two]? Ms. Vickovich gave this non-responsive answer: A. I could not afford Mentor College and Mr. Martinez was pressuring me by emails on a daily basis to contribute, or Maya would lose her place at Mentor. But then Ms. Vickovich sent Mr.

Martinez an email the next day on 17 April 2009 which was confusing, in light of her email of 16 April 2009: In the future, let me pay my portion to the school. [ 27 ] By June 2009, it was clear that Ms. Vickovich preferred a public school for Maya in grade two. She emailed the respondent on 8 June 2009: In the benefit of our daughter’s education, we have to come to an agreement in regards to the choice of her future school. For logistic purposes and financial means, I would like to register Maya in a nearby public school which is serving my district. The applicant was referring to Minneola public school. Mr.

Martinez did research on that school and was not satisfied with its standards. It seemed that Ms. Vickovich accepted his criticism of that school. She then raised the possibility of Maya attending another proximate public school, Forest Avenue, which was in a different catchment area requiring a change of residence for the applicant. Mr.

Martinez talked to the principal of Forest Avenue public school, and he also researched that institution and was open to the possibility of Maya attending there as an alternative to Mentor, but in his mind, no decision had yet been made about Maya leaving Mentor for grade two. [ 28 ] In the summer of 2009, thinking Maya had not yet been enrolled at Mentor, Ms. Vickovich arranged for the girl to attend Forest Avenue public school, without first consulting the respondent. However, registration was not yet completed at Forest Avenue in the summer of 2009. It was Ms.

Vickovich’s belief that Maya had not been enrolled by Mr. Martinez in grade two at Mentor, but she received this email from the respondent on 5 September 2009: As you are aware , Maya’s registration has been accepted by Mentor College for the 2009-2010 school year, second grade. (emphasis added) The email went on to discuss the need for Maya’s school uniform to be ready for the first day of school on 9 September 2009,and Mr. Martinez stated that he had requested Mentor to keep Ms.

Vickovich fully informed on all issues regarding Maya’s education. [ 29 ] Two days later and two days before school was to start at Mentor, the applicant emailed the respondent:

No I was not aware [of Maya’s registration at Mentor]. Thank you for the information. As you know, the school issue has not been resolved. Please know that registration for Maya has also been accepted by Forest Avenue public school ( which [Maya] is not aware of ). (emphasis added) Mr. Martinez testified that at that point, “I was at a loss to understand what Ms. Vickovich was doing”. Maya did attend Mentor for grade two in 2009 and 2010. Mr. Martinez paid the full tuition and extra expenses including uniforms.

Although the applicant did not explicitly consent to Maya attending Mentor for grade two, she did not actively oppose it either. [ 30 ] Ms. Vickovich’s reasons for preferring Maya to attend public school were: • She said she could not afford the tuition at Mentor; • Maya missed the socialization which a public school offered. At a local public school, Maya would have age appropriate playmates nearby. At Mentor, the students arrived by bus from distant neighbourhoods. • Mentor was not benefitting Maya. Ms. Vickovich said teachers told her Maya struggled to keep up to the class.

She was kept in over lunch recess to finish assignments, and the applicant believed that would not leave Maya with a good feeling. • Ms. Vickovich told Ms. Di Battista that “Maya would benefit from a school that would be easier for her”. • If in public school, Maya needed remedial help, that could be facilitated by tutors who would be more economical than the tuition at a private school. Ms. Di Battista asked the applicant: Q. Do you believe Maya would get the same attention and teacher involvement at Forest Avenue Public School? A. Absolutely.

It’s up to parents to talk to the teachers and set up a program for their children. Teachers are there to help and teachers will facilitate that. Ms. Vickovich then agreed that class sizes are larger at public schools. Although she acknowledged to Mr. Trenholme that the quality of education generally is better at private schools, she would not make that same concession to Ms. Di Battista. [ 31 ] Mr.

Martinez’ reasons for preferring a private school for Maya were: • Maya could get extra attention from her teachers; • The girl was by then accustomed to smaller class sizes; • Teachers have more flexibility at private schools, to identify and work with a student’s strengths and weaknesses; • When a student excels in a certain area, emphasis will be put on education in that field; • A homework assignment book travelled daily with the students. Parents can see what assignments are required, and whether they are performed satisfactorily and neatly.

The school can track parental involvement by the parents’ signatures and notes in the book. [ 32 ] Maya was attending grade three at Mentor for this year 2010-2011. Mr. Martinez paid the full tuition again without any contribution from the applicant. The respondent had concerns about Maya’s school performance this year; he did not believe she was achieving up to her standard. [ 33 ] Mr. Martinez arranged for Maya to have an intellectual assessment on 14 July 2010 at the Chisholm Centre, Oakville, by Howard Bernstein, Ph.d., C.Psych. Mr. Martinez participated in the assessment.

The report stated at page 3: Maya’s mother…informed the Chisholm Centre via email that she would be unable to attend the appointment for the intellectual assessment. The report found that Maya had high skills in some areas, but overall was functioning in the high average range. However, the report stated that Maya’s grade two teacher, Pauline Narvaez, noted that the girl was “below average” in terms of reading, comprehension, letter and number formation and spelling skills. Classroom work habits, such as her neatness of work and research skills were described as “below average”. The report mentioned that Mr.

Martinez’ comment to the assessor that Ms. Narvaez told him that more emphasis on homework was needed. The report made the following recommendations:

• Maya would benefit from further stimulation such as additional reading and undertaking extra school projects and improving computer skills; • continue piano lessons; • take summer school in 2010. [ 34 ] Dr. Bernstein testified. He allowed as how Maya would function well in a public system, but there would be advantages to her remaining in a private school. These would include a lack of stressors associated with relocation, and the fact that Maya had developed some above average basic academic skills in the private setting. Dr. Bernstein testified “it would be good if Maya could go [to Mentor College]”.

He complimented the school as being a fine private facility. Dr. Bernstein recommended that Maya continue her placement at Mentor until at least the spring of 2011, but ideally to the conclusion of her fourth year in 2012. Then the parties could reassess their positions, as well as their finances. [ 35 ] In view of Mr. Martinez’ statement that the parties had not discussed school issues in two years, I asked Dr. Bernstein if he had an opinion about that. He said custody litigation often affects a child’s school performance. Parents’ negativity to each other is a contraindication to a child’s future happiness.

He said it is essential for the sound emotional development of a child with separated parents to see them as being civil to each other. Both parties professed their willingness to communicate in a friendly manner with each other, but it has not happened so far. [ 36 ] Prior to this application filed in May 2009, the parties were well aware of their unresolved conflicts. Mr. Martinez suggested mediation as a means of resolution. Ms. Vickovich was of the view that litigation would be the most effective way to settle their disputes.

The respondent wanted to avoid court; as the son of a lawyer in the Dominican Republic, he saw firsthand the effect on children of separation, divorce and litigation. Mr. Martinez found that his fear of the effect on Maya of this litigation was prescient. After May 2009 when this case started, Maya’s grades went into steady decline.

The little girl was not as happy as before; she feared confrontation between her parents on access exchanges, with the added apprehension of her father being taken away by police when the applicant involved them because of her perceived difficulties on access exchanges. [ 37 ] Central to Mr. Martinez’ concern about Maya’s weakened school performance after May 2009 was his mindfulness about the quality of homework the girl was doing at the applicant’s. For his part, when Maya was residing with him, Mr. Martinez said he was punctilious about homework completion.

He projected a two hour duration even on weekends, but some could be done before he collected her after school. He prepared Maya for all tests and followed up later by checking the results. Ms. Vickovich testified that she too placed high importance on Maya’s homework. The respondent disputed whether Ms. Vickovich actually spent sufficient time with Maya on her homework because: • His examination of the homework book showed assignments not well done when Maya resided at the applicant’s; • Maya said sometimes only fifteen minutes of homework was being monitored by her mother; • Maya’s teacher told Mr.

Martinez as recently as 28 February 2011 that at her present pace, Maya will struggle to pass grade four unless there is serious improvement. [ 38 ] I turn now to Maya’s participation in karate, piano and sewing classes, which became an issue between the parties. Mr. Martinez urged that attendance at all prescribed classes was important for Maya to show improvement and avoid regression because of a lack of practice.

The applicant opined that participation in these extracurricular activities, especially in the summer, should not interfere with other activities that she wanted to do with Maya, such as travel and visiting relatives. [ 39 ] In 2007, the parties agreed that Maya would benefit from karate classes. At the time, she was shy and lacked confidence in interacting with other children. Even at present, Ms. Vickovich agreed with Ms. Di Battista that karate was a “valuable activity’ for Maya, and she was helping to pay the fees.

For four years, Maya was scheduled to attend karate classes on Thursdays, Fridays and Saturdays. Protocol called for attendance between eight to ten classes a month to be an “A” student at karate. The classes continued all year. In 2010, so distinguished was the little girl’s participation even beyond her regular classes, the respondent said that she was awarded the title “Youth Assistant for the Year”. Mr. Martinez outlined the advantages be believed karate gave her – self-discipline, self-control and it built her confidence and ability to protect herself. [ 40 ] Mr. Martinez had two complaints about Ms.

Vickovich’s lack of support for Maya’s karate program:

(1) During the school year, the applicant was not taking Maya to classes on Saturdays and some Fridays. The little girl reliably only attended Thursday classes when in the applicant’s care. Ms. Vickovich believed three classes a week were excessive.

(2) In the summer of 2010, Ms. Vickovich rarely took Maya to karate classes. The applicant said that make up karate classes were available. The respondent agreed, if it was only for a few missed sessions, but twenty-five classes could not be replaced. [ 41 ] Mr. Martinez attended all Maya’s karate tournaments and demonstrations, even at Mentor College and Mineola public

school. Maya had a karate practice routine that she did at the respondent’s. It was not clear if the drill was followed at the applicant’s. [ 42 ] Through his attendance at karate school with his daughter, he met the mother of another student who taught sewing. Ms. Vickovich at trial did not express any objection to Maya attending sewing classes. Mr. Martinez took Maya for sewing lessons on several occasions.

The program was dropped when progress abated since the applicant did not take Maya to classes during her access times. [ 43 ] Maya has been attending piano lessons for over a year on Thursdays during the full year after karate practice. Mr. Martinez said he consulted with Ms. Vickovich before starting the lessons and she consented, and even took Maya to her first piano lesson. The applicant testified that the respondent did not consult with her before enrolling her in piano. Then in cross-examination by Ms. Di Battista, this question was asked: Q. Didn’t Mr. Martinez talk to you before enrolling Maya in piano? A.

He could have. I don’t recall. [ 44 ] Mr. Martinez took Maya to make up piano lessons especially in the summer because it was his evidence that Ms. Vickovich rarely took Maya for lessons in the summer. The applicant admitted to Ms. Di Battista “I’m sure I missed one or two lessons”. Ms. Di Battista said to the applicant, Q. You ask not to take Maya to piano lessons in the summer? A. I don’t wish extracurricular activities to dictate our spare time. Maya can only practice at the respondent’s because the applicant did not have a piano. Mr. Martinez offered to buy an electronic piano for Ms.

Vickovich so Maya could practice there but the applicant refused the offer. [ 45 ] Apart from her piano lessons, Maya performed at concerts and recitals with other players in her age group. Mr. Martinez attended the events and told the applicant about them. She only went to one concert in 2010 according to the respondent. Maya did a compact disc with other piano students; Ms. Vickovich did not know about it, but said at trial she would like to hear it. [ 46 ] After the application was launched in May 2009, Ms. Vickovich unilaterally enrolled Maya in swimming and chorus classes at Mentor during school hours.

She testified that because the classes did not interfere with Mr. Martinez’ access, she saw no reason why she could not have done so. Apart from the fact that the enrolment violated paragraph 7(ii)(

b) of the separation agreement, Mr. Martinez did not object, although he would have preferred to have been advised in advance. [ 47 ] Around December 2010, Maya told her father she would like to participate in modelling at school, and an immediate parental approval was required for registration. Mr. Martinez told his daughter he would not consent without first talking to the applicant. [ 48 ] Turning now to how the parties addressed Maya’s medical and dental needs, Ms. Vickovich believed the respondent’s approach was so unorthodox, that it imperilled Maya’s health. In general, Ms.

Vickovich accepted the direction of Maya’s medical and dental practitioners, and did not question their opinions. On the other hand, Mr. Martinez started with professional advice, but then did independent research on issues, to be followed by further consultations with Maya’s medical advisors, and sometimes sought second opinions. [ 49 ] A dispute arose between the parties about vaccinations for Maya. Ms. Vickovich said the respondent was opposed to vaccinations, but she did agree that the child received the recommended vaccinations in her early youth. It was Mr.

Martinez’ evidence that he was only opposed to mercury based vaccinations, because of a possible tie in with autism. Other types of vaccinations were acceptable to him and to be recommended. [ 50 ] The parties also had a serious dispute about orthodontic recommendations for Maya. Ms. Vickovich explained that Maya’s lower jaw was larger than her upper jaw. To expand the child’s upper jaw, an orthodontist advised Ms. Vickovich that a non- invasive type of treatment should start now at Maya’s age of eight-and-a-half years, with the child wearing a face mask at night.

The purpose of an early start was, in the orthodontist’s opinion, a better approach because a child of Maya’s present age will more readily conform to treatment than an older child. [ 51 ] Mr. Martinez was confident that Maya would accept medical care regardless of her age, if a parent requested her to do so. Hence, as far as the respondent was concerned, compliance in the future would not be a difficulty. Ms. Vickovich also conceded to Ms. Di Battista that Maya would assent to medical intervention regardless of age. [ 52 ] It was Mr.

Martinez’ evidence that he was not opposed to the procedure in the future, but after consulting with the same orthodontist the applicant saw, that specialist said the procedure could still be done effectively when Maya is older. The orthodontist conceded that there was no guarantee the procedure would be effective, and it could cause discomfort and stress for Maya and would cost $8,000. It appeared that with Mr. Martinez’ research and further discussion with Maya’s orthodontist, further facts came to light that were not known by Ms.

Vickovich in her discussions with the orthodontist. [ 53 ] There was an issue at the end of the trial as to which dentist/orthodontist the respondent saw, and what type of assessment he did on Maya. The evidence was too confusing to be reliable and was not important in the overall scheme of evidence presentation in this case. There really was no objective orthodontal evidence introduced at all, and indeed this court was not in a position to decide

preferences in orthodontal procedures. What was significant was the nature of the enquiries each party made to inform herself or himself about medical and dental issues for Maya. [ 54 ] An issue that encompassed several aspects about the parties’ lack of comity – their inability to communicate, the applicant’s desire to travel with Maya and the respondent’s belief that the girl needed remedial scholastic help – was the controversy about Maya attending summer school in 2010. [ 55 ] It was Mr. Martinez’ evidence that during Maya’s second year term 2009-2010, her teacher, Ms.

Narvaez at a parent- teacher meeting when both parties were present , recommended summer school in 2010. Remediation was needed because of the child’s declining school performance. Ms. Di Battista’s letter to Mr. Trenholme dated 7 July 2010 alleged that the applicant knew about the respondent’s plans for Maya to attend Mentor College summer school from around June 2010. The Chisholm Centre assessment dated 14 July 2010 said Maya would benefit from remediation in the summer of 2010. [ 56 ] In the end, Maya did not attend Mentor summer school in 2010 and Mr. Martinez said it was because Ms.

Vickovich would not consent. Ms. Di Battista asked Ms. Vickovich: Q. So when you got the Chisholm report [in July 2010], that was the first you learned of any need for remedial tutoring for Maya? A. The school never called me…I didn’t know that the teacher was making recommendations for summer school. [ 57 ] If I understood the applicant’s other answers to Ms. Di Battista’s questions about the 2010 summer school, Ms. Vickovich believed the summer school proposal was intended to thwart her summer vacation plans. [ 58 ] Ms.

Vickovich also professed to believe that Mentor summer school was a day camp without an academic component. She said a school secretary told her that. She could not recall if the respondent had given her a Mentor 2010 summer program. She did admit she received school flyers during the year, but did not pay attention to them. Mr. Martinez produced exhibit 22, which was a document entitled “Mentor College Elementary Summer School Program” which clearly indicated there was an academic component to the school’s summer school. It was evident at trial that Ms.

Vickovich put a greater emphasis on travel in the summer of 2010, than on remedial summer school for Maya. [ 59 ] Another major contention between the parties was travel and virtually every aspect of it. [ 60 ] Mr. Martinez’ complaints and Ms. Vickovich’s responses were as follows:

(1) The respondent disapproved of the applicant’s summer travel replacing scheduled karate and piano lessons and summer school if scheduled. The applicant believed that karate and piano lessons were acceptable during the school year, but were not necessary in the summer. If summer school was essential, Ms. Vickovich believed she should be able to

schedule travel around it.

(2) Mr. Martinez thought Ms. Vickovich should give notice and an itinerary to him if she planned to leave Ontario with Maya and the separation agreement required that, in his opinion. In 2008 and 2009 the applicant made frequent trips to Montreal with Maya, often to see the applicant’s boyfriend. She did not give notice, because she believed she did not have to do so if travel was anywhere in Canada. There also was a privacy issue for Ms. Vickovich. She did not want Mr. Martinez to know about her boyfriend’s presence in Maya’s life. At times, when pressed by Ms.

Di Battista, she could not recall whether she gave notice or not to Mr. Martinez. The only information Ms. Vickovich wanted to share with the respondent in answer to his queries, was that her trips were either in Ontario or Canada. The respondent knew when the applicant was away, because he could not reach Maya.

(3) Mr. Martinez wanted to know each time Maya would be flying with Ms. Vickovich. He had a particular concern in this regard. When Ms. Vickovich had a relationship with one Nicholas Charette (a pilot for Porter Airways, where Ms. Vickovich once worked) from about 2009 to January 2010. She told Mr. Martinez that she, Mr. Charette and Maya could disappear and he would not be able to find Maya. Ms. Vickovich believed it should be acceptable to fly with Maya without notice to the respondent, provided the flying was in Canada.

(4) Mr. Martinez believed Ms. Vickovich should facilitate telephone access when she travelled with Maya, and he provided access when he travelled with the girl. With the exception of one trip to Mexico, the applicant did not arrange for telephone access between Maya and the respondent during her travels.

(5) Possession of Maya’s passport gave power to the passport holder, over the other party’s travel plans. Also the withholding of consent by a non-travelling party to a travelling party’s plans was disruptive. Maya’s passport and travel consent were pawns in the parties’ association that should have been settled by Justice Baldock’s ruling on 15 March 2010. That decision in brief obviated the need for a party’s consent to travel, if notice and an itinerary are given within prescribed times. [ 61 ] Although the parties in their evidence discussed several travel failures due to a lack of Maya’s passport or parental consent, I will give three examples of their impasse over these issues:

(1) The respondent wanted to travel with Maya to the Dominican Republic in late December 2009 to see his ill father and the applicant would not consent. Mr. Martinez brought a motion dated 30 October 2009 seeking the court’s consent for that travel. The motion was eventually granted by Justice Baldock’s ruling on 15 March 2010.

(2) Even though by the summer of 2010, the applicant was represented by counsel and would have known about Justice Baldock’s 15 March 2010 ruling that gave a procedure for travelling without notice, Ms. Vickovich brought a motion on 12 July 2010 seeking leave to bring a motion for imminent travel between 19 July 2010 and 2 August 2010. She sought the court’s permission (and Maya’s passport) for summer vacation travel. Justice Baldock dismissed this motion for failure by the applicant to comply in a timely manner with the travel protocol established by the 15 March 2010 ruling.

(3) Mr. Martinez had been holding Maya’s passport. In December 2010, Ms. Vickovich advised that she wished to do a trip to Buffalo with Maya on February 5, 6 and 7 in 2011, and she requested the passport from Mr. Martinez. It was the applicant’s evidence that Mr. Martinez would not supply the passport unless she undertook to return it to him. Mr. Martinez’ testimony was that through the parties’ go-between, Ms. Christie, he would provide the passport for the trip. Ms. Vickovich did not respond to that message and did not go to Buffalo. It was also his evidence that Ms.

Vickovich asked him to care for Maya on the days when she had planned to go to Buffalo with Maya. [ 62 ] On 23 March 2010, the parties had an altercation and Mr. Martinez was charged with assault. Ms. Vickovich gave no evidence about the incident. Mr. Martinez said a fracas started when the applicant threw a cellular telephone at him. Bail conditions provided that: • there be no communication direct or indirect by Mr. Martinez to Ms. Vickovich. • Mr. Martinez not attend closer than fifty metres of the applicant’s residence; • access arrangements to be made through a mutually agreeable third party or court order.

Mr. Martinez testified that on several occasions Ms. Vickovich threatened that she could complain to police that he breaches bail conditions, which could return him to jail. [ 63 ] The Crown did not proceed with the assault charge. On 28 Janaury 2011, the respondent entered a

section 810 Criminal Code “peace bond” that required that he have no contact direct or indirect with the applicant, except in accordance with the terms of a separation agreement or Family Court order for arranging access to a child, or through a mutually agreed third party. The peace bond expires on 28 January 2012. [ 64 ] Mr. Martinez testified that on 1 March 2011, the fourth day of this trial, he waived at Ms. Vickovich in a friendly manner in the court parking lot. He said that later when he arrived at the courtroom, he was told that the applicant was ready to call the police over his waive to her.

The respondent said he had a particular trepidation over Ms. Vickovich’s resourcefulness in involving police because on some access exchanges, Maya was frightened the police would come and take him away. [ 65 ] On or about 2 March 2011, the fifth day of this trial, Mr. Martinez emailed Ms. Vickovich to offer her access to Maya on Ms. Vickovich’s birthday. He believed he was returning a courtesy, because previously the applicant offered access to him on his birthday (when it was Ms. Vickovich’s time to be with Maya). He did not realize that Maya was already scheduled to be with her mother on her mother’s birthday.

Mr. Martinez later began to fear that this communication could be viewed by Ms. Vickovich as a violation of the peace bond. Ms. Di Battista requested an order retroactive to the date of Mr. Martinez’ email to allow for communication between the parties over access issues. Both counsel suggested wording in the order that was very restrictive about the type of communication that could be permitted. In my opinion, such restrictions are unnecessary and demeaning.

I say so because prior to 23 March 2010, the parties overall addressed each other in emails in a respectful and thoughtful manner, and there is no reason why that approach would not continue. [ 66 ] The form of order given prior to the release of these Reasons was: WHEREAS on 28 January 2011 Andres Alvarado Martinez entered a Recognizance to Keep the Peace, dated 28 January 2011, to extend for one year until 28 January 2012; AND WHEREAS a term of the Recognizance was that Andres Alvarado Martinez have no contact directly or indirectly with Olivia Vickovich EXCEPT IN ACCORDANCE WITH A FAMILY COURT ORDER for arranging access to the child Maya Melida Alvarado, born 16 September 2002; AND WHEREAS the Family Court in Brampton having jurisdiction over these parties now makes an ORDER to permit contact by Andres Alvarado Martinez to Olivia Vickovich about access issues regarding Maya Melida Alvarado; AND WHEREAS Andres Alvarado Martinez and Olivia Vickovich share custody of Maya Melida Alvarado, with this child spending

alternating weeks with each of Andres Alvarado Martinez and Olivia Vickovich; AND WHEREAS this Court must interpret access to include necessary ancillary issues requiring discussion to include health and education, travel, vacations, extracurricular activities, all of which fall under the Rubric of Access. AND WHEREAS this FAMILY COURT ORDER is deemed to be in full compliance with the Recognizance to Keep the Peace dated 28 January 2011.

Effective 1 March 2011, and continuing until 11 January 2012, or sooner varied by this Court: THIS FAMILY COURT ORDERS THAT Olivia Vickovich and Andres Alvarado Martinez may communicate with each other by text messaging or email (or by telephone if there is urgency), about Maya Melida Alvarado concerning access, to include the ancillary issues of vacations, travel plans, health and educational issues including summer school, extracurricular activities and any other concerns or issues involving Maya Melida Alvarado.

THIS FAMILY COURT ORDERS THAT Olivia Vickovich and Andres Alvarado Martinez may attend the child’s tournaments, school events, concerts, exhibitions, practices or any other activity involving their child, in the presence of the other party. AND THIS FAMILY COURT ORDERS THAT access exchanges can be done by the parties in each other’s presence, without any third party intervention. [ 67 ] Because of the effect of the above order, the parties are now once again able to communicate with each other about Maya without fear of violating the peace bond. Fortunately for Maya, they are also able to attend her events.

There has been a great deal of wasted energy and costs by the parties communicating through a third party and doing access exchanges through yet another third party. [ 68 ] The parties had been communicating since March 2010 through a mutual friend, Rebecca Christie. It was awkward because if a party wished to reach the other, the party would first email Ms. Christie who would then (when she was available) email the other party with the message. There were delays, and sometimes further delays when Ms.

Christie took it upon herself to first talk to the message sender before forwarding the message. [ 69 ] During the school year, access exchanges were done there. When school was not an option, the parties used the services of a longstanding friend, Mary Fusco. One party would drop off Maya at Ms. Fusco’s, and the other would pick up the child there. Mr. Martinez paid Ms. Fusco $20. for each exchange; Ms. Vickovich did not know about that charge. [ 70 ] Recently, when Ms. Fusco was not available, Ms. Vickovich had been doing access exchanges at Mr. Martinez’ residence.

The applicant was not satisfied with that access exchange procedure. Mr. Martinez had been accompanying Maya from his building out to Ms. Vickovich’s automobile, where he assisted her into the car seat and buckled her in. Ms. Vickovich would have preferred that Maya just leave the respondent’s building on her own and then proceed to her car. Mr. Martinez’ concern was that Ms. Vickovich would not get out of her vehicle on the access exchanges. The intersection where she parked was a busy one, and Mr.

Martinez believed the child to be safer if he ensured that she entered the car in a protective manner. [ 71 ] The access exchanges and communication through third parties all arose after Ms. Vickovich started this application, because of her invention of fearing Mr. Martinez. Time and again Ms. Di Battista showed emails from Mr. Martinez to Ms. Vickovich that had no elements of threat, intimidation or disrespect. Whatever personal slight the applicant imagined from early contacts with the respondent, his recent communications showed civility to Ms. Vickovich and careful thought about Maya.

It was apparent that Ms. Vickovich’s strategy was to vilify Mr. Martinez to try to further her position in her lawsuit. [ 72 ] A final area of dispute between the parties was each parent’s contention that s/he could not telephone the child at the other party’s residence, during that party’s access. The issue should have been settled by Justice Baldock’s ruling on 18 September 2009. It stated: Each party shall ensure that the child contacts the other at least once during each period of access, and shall assist the child in making telephone contact if necessary. [ 73 ] Ms.

Vickovich complained that generally she did not receive telephone calls from Maya when she stayed at the respondent’s. She said only once in the last year did Maya call her from Mr. Martinez’. The applicant did not want to telephone Maya at the respondent’s on his land line because of the peace bond prohibition on Mr. Martinez having contact with her. Mr. Martinez

bought a cellular telephone for Maya that was intended to travel with her from residence to residence. There were problems with its use; sometimes Maya forgot the cell phone or the charger, and on occasion either the phone was not available or was without charge. [ 74 ] Ms. Vickovich said that when Maya was residing with her, the girl was free to call the respondent on the cellular telephone or on Ms. Vickovich’s land line. Mr. Martinez disputed the applicant’s evidence.

He said that in 2009 and 2010, his ability to reach Maya at the applicant’s was sporadic; months went by without contact, then communication would resume. Mr. Martinez said Ms. Vickovich interpreted Justice Baldock’s 18 September 2009 order to mean that Maya would be permitted to speak to the respondent only once during an entire access week with the applicant. [ 75 ] There were two statements by Ms. Vickovich to Ms. Di Battista that were suggestive of the applicant’s laissez faire attitude to telephone communication between father and daughter. Mr.

Vickovich said: I do not stop Maya from using the cell phone to call Mr. Martinez, but I do not take responsibility for Maya to keep the phone on. It is in her bag. When the applicant was asked whether she arranged for Maya to call her father during his access, she replied “I don’t recall if I always did that”. [ 76 ] The last area to explore in the parties’ history is their finances. Ms. Vickovich was trained as a dental assistant, and for many years she successfully sold dental supplies to dentists.

In January 2011, she started a new job in dental sales earning a salary for the next two years of $5,000. a month, with a car allowance of $200. monthly. She lived in an apartment with Maya. [ 77 ] It was Mr. Martinez’ evidence that Ms. Vickovich had expensive tastes in automobiles, clothes and travel, and that she had difficulty managing money. The applicant inherited $80,000. in 2007, but apparently did not use the funds to pay down debts. In 2009, Ms. Vickovich declared bankruptcy with debts of $73,000. Before this case started, because of her impecuniosity, Ms. Vickovich resided as a tenant at Mr.

Martinez’ residence from November 2006, through all of 2007 and for part of 2008. She would be away on occasion for a month at a time when Mr. Martinez would care for Maya. Ms. Vickovich did not contribute either time or money to the running of Mr. Martinez’ household. [ 78 ] At times, Ms. Vickovich lent money to Mr. Martinez, which he paid back. At many other times, Mr. Martinez lent or gave money to Ms. Vickovich, usually to support her dental supply business. It was Mr. Martinez’ testimony that on occasion when he did not have money to give her, Ms. Vickovich impeded his access. An important request that Mr.

Martinez made in this trial was for Ms. Vickovich to contribute to Maya’s tuition. Ms. Di Battista asked Ms. Vickovich: Q. In 2011, can you afford to pay one-half of Maya’s tuition? A. It’s a possibility. I have goals to save and buy a house for Maya and myself. The cost of tuition would take away from that. Q. You know that Mr. Martinez still lives in a rental apartment? A. Yes [ 79 ] Mr. Martinez had been steadily employed for several years now earning about $66,900. a year. From that he has been paying Maya’s annual tuition of $12,500., with all the ancillary expenses that apply.

Findings of Credibility [ 80 ] There were areas where the applicant’s and respondent’s knowledge of their daughter were remarkably dissimilar. [ 81 ] Ms. Di Battista asked Ms. Vickovich about her familiarity with Maya’s friends: Q. Who is Maya’s best friend? A. At school? Q. Just generally. A. (pause) Maya has different best friends each week. Maya has friends at school and outside school. When Ms. Di Battista asked the same question to Mr. Martinez, he had no difficulty being explicit. At school, Maya’s friends were: Rina (Maya was with her for sleepovers and Rina’s mother helped Mr.

Martinez with Maya when he was away on business and Ms. Vickovich was not available). Kimberly (close friend of Maya’s; Mr. Martinez was distrustful of her because she got Maya into trouble at school).

Madi (Maya and she talked regularly on the telephone). Other friends: Vanessa (Mr. Martinez’ landlord’s daughter) Lauren (daughter of Ms. Christie, the parties’ go-between for communication) [ 82 ] Ms. Di Battista asked Ms. Vickovich this important and obvious question: Q. Does Maya have a preference for a school? A. I don’t know. When the question was put to Mr. Martinez, he said: Maya loves her school. She wrote essays as to why she likes the school. Maya tells me that. In 2009, Maya begged me, ‘don’t let mommy take me out of Mentor; my friends are there.’ [ 83 ] Ms.

Vickovich said she did not know if Maya enjoyed the mid-week access exchanges. Mr. Martinez was sure that she did. Ms. Vickovich purported not to know if Mr. Martinez took Maya to make up karate classes. His evidence was clear that he did. [ 84 ] The above issues, whether Maya liked school, the identity of her friends, would surely be known by any conscientious and truthful mother. It was not to Mr. Vickovich’s credit that she did not. [ 85 ] In giving her evidence, Ms. Vickovich had beliefs that suited her positions in this law suit:

(1) She did not think there was a valid separation agreement. Therefore she did not have an obligation to contribute to private school tuition.

(2) It was acceptable to Ms. Vickovich for Maya to fly with her anywhere in Canada without giving notice to the respondent. Hence she was under no obligation to give notice to Mr. Martinez when she flew with Maya in Canada (which was the destination of most of her flights).

(3) Ms. Vickovich contended that Mentor’s summer school did not have an academic component. Hence, she should have been permitted to take Maya on vacation in the summer of 2010, because the girl would only be missing day camp at Mentor.

(4) Public school education would be as beneficial for Maya as a private one. That would obviate the need for her to pay tuition at Mentor. [ 86 ] Ms. Vickovich’s testimony gave disinformation about the respondent. If she were to be believed: • The respondent was opposed to vaccinations and orthodontic procedures; • Mr. Martinez was a threat to her safety; • Mr. Martinez wanted to control her life as well as Maya’s. [ 87 ] I had other difficulties with Ms.

Vickovich’s testimony: • often she gave one word answers, without supplying reasons for her positions; • her answers frequently were not directly responsive to Ms. Di Battista’s questions; • when asked challenging questions by Ms. Di Battista, Ms. Vickovich paused and then framed answers that were complimentary to her position. [ 88 ] On the other hand, Mr. Martinez: • was thorough in response to questions; his answers were replete with dates and explanations for surrounding circumstances;

• was stalwart in reflecting innuendo from Mr. Trenholme’s questions; • had a very thorough knowledge of Maya, her wants and needs; • was fair to Ms. Vickovich, and he emphasized that he respected Maya’s love for her mother, and the girl’s need to have Ms. Vickovich actively in her life. [ 89 ] Apart from Dr. Bernstein, the only other witness was Mr. Fidalgo, who testified about the execution of the parties’ separation agreement. I accept Mr. Fidalgo’s evidence, because there was no reason for him to be deceitful. [ 90 ] Dr.

Bernstein’s opinions were admitted as coming from an expert. [ 91 ] Hence when the evidence of Mr. Martinez and Mr. Fidalgo diverged from that of Ms. Vickovich, I prefer to accept the testimony of the respondent and Mr. Fidalgo. [ 92 ] There will now be a consideration of subsection 24(2) of the Children’s law Reform Act . It states: The court shall consider all the child’s needs and circumstances, including, (

a) The love, affection and emotional ties between the child and (

i) each person…claiming custody of…the child, [ 93 ] Each party acknowledged that Maya was emotionally attached to the other party. (iii) persons involved in the child’s care and upbringing. [ 94 ] Ms. Vickovich said Maya was close to her mother and brother who lived in Waterloo and Kitchener respectively. Maya and she visited them from time to time, but the applicant did not describe a relationship that connoted warmth and closeness between Maya and her maternal uncle and grandmother. [ 95 ] Mr. Martinez characterized the rapport between Maya and her paternal grandparents and half-sister and other relatives in the Dominican Republic as one of great affection. (

c) the length of time the child has lived in a stable home environment. (

f) the permanence and stability of the family unit with which it is proposed that the child will live. [ 96 ] These clauses are not really pertinent, because Maya will spend an equal amount of time with each party. However the court has a concern about the applicant involving Maya in her boyfriends’ lives. Ms. Vickovich had a relationship with Nicholas Charette from an unknown commencement date in either 2008 or 2009, which ended in January 2010. Then in the same month, January 2010, she began a liaison with Mojtek Magrer which ended in January 2011.

During at least two years if not longer, Maya travelled with the applicant when she was with a boyfriend. There was no evidence about whether these men had a salutary or deleterious influence on Maya. Mr. Martinez justifiably wanted to know whether his daughter was safe with these men, but he had no way of finding out. This clause could be a significant factor if the applicant were to request that Maya live full time with her. [ 97 ] There was no evidence of Mr. Martinez having a relationship with a partner. The focus of his life seemed to be on his daughter. (

d) the ability and willingness of each person applying for custody…to provide the child with guidance and education, the necessaries of life and any special needs of the child. (

e) the plan proposed by each person applying for custody of…the child for the child’s care and upbringing. (

f) the ability of each person applying for custody…to act as a parent [ 98 ] I appreciate that the preceding history of the parties’ relationship was lengthy and perhaps exceedingly so, but it did show the parties’ attitudes and concerns on a myriad of issues. Ms. Vickovich is a good person, and she has proven herself competent in the working world, but the evidence was clear that Mr. Martinez had a greater ability and willingness to provide Maya with guidance and

education. When her own needs conflicted with Maya’s, sometimes Ms. Vickovich’s came first. I considered the following in making the above statements: 1. Maya’s private school placed heavy emphasis on the value of homework, but Ms. Vickovich did not make it a priority in her household. 2. Ms. Vickovich thought Maya would be better served by attending a neighbourhood school with less stringent standards, which would be easier for Maya to keep up.

The concept of there being any betterment for a student of Maya’s high calibre to attend an easier school is questionable, but really what was being masked by the suggestion was the applicant’s desire to avoid paying private school tuition. 3. The benefit to Maya of attending karate and piano all year is arguable, but Ms. Vickovich was not even fully committed to Maya’s participation during the school year. 4. Mr. Martinez was stymied in his efforts to make decisions about Maya’s education, because the applicant would not talk to him about school issues. (I appreciate that for a period, Mr.

Martinez’ bail conditions and peace bond requirements inhibited direct discussions, but this non-communication arose before the troubles in March 2010.) 5. Dr. Bernstein was definite that a child needs to see her parents be civil to each other, otherwise emotional and scholastic problems can arise. That was exactly what Mr. Martinez said was happening with Maya; her school performance was slipping and she was less happy. Mr. Martinez was very willing to communicate with Ms. Vickovich. She on the other hand was not. Ms. Vickovich preferred to hide behind her shield of fear that Mr.

Martinez was somehow going to affect her safety because of his alleged past improprieties. 6. Mr. Martinez consistently made sacrifices for Maya. He drove her to the Montessori school when he lived far from the school. He made personal sacrifices to pay Mentor’s tuition. He took Maya to many, many extracurricular activities. He was prodigious in monitoring Maya’s school performance and homework. In contrast, Ms. Vickovich considered her money better spent saving for a house rather than on Maya’s education.

The applicant found it easier to do fun things with Maya rather than attend so many karate and piano classes and exhibitions and tournaments. 7. While Ms. Vickovich was prepared to take the advice of Maya’s physician and orthodontist, I did not find that she informed herself as well as the respondent about medical and orthodontal alternatives. 8. I am also concerned that Ms. Vickovich would be less willing to follow advice from such professional advisors as the Chisholm Centre or even from Maya’s teachers.

She did not attend the Chisholm Centre when invited to do so, and she thought there was no problem with Maya’s schooling, because the teacher did not call her. Mr. Martinez has proven himself to be the better advocate for Maya if she faces difficulties. [ 99 ] Both parties were equally able to provide Maya with the necessaries of life. However, this child has special requirements at this stage. She needs a parent who will ensure that all the stops will be pulled to ensure she receives the most from the educational system.

She also may benefit from professional help in understanding her parental conflict, unless Ms. Vickovich can learn to be amiable with Mr. Martinez. If the applicant did not see any difficulties in these two areas (educational reinforcement and parental comity), she can hardly be expected to do anything to improve them. [ 100 ] In the result, I find that Maya’s best interests require an order that Mr. Martinez have sole custody so that right decisions will be made about this little girl’s future, regardless of the cost or personal effort required by a caregiver. [ 101 ] FINAL ORDERS : 1.

Andres Alvarado Martinez (Mr. Martinez) shall have sole custody of Maya Melida Alvarado, born 16 September 2002 (the child). 2. Mr. Martinez will consult with Olivia Maria Vickovich (Ms. Vickovich) on matters pertaining to the child’s health, education, extracurricular activities, religious upbringing and professionals giving assistance to the child, recommendations by professionals for the child’s welfare. All final decisions will be made by Mr. Martinez. 3. Mr. Martinez and Ms.

Vickovich shall share access to the child as follows: Week One Monday Tuesday Wednesday Thursday Friday Saturday Sunday Applicant Child is with Respondent Applicant Child is Child is Child is takes child Respondent takes child takes child with with with to school and to school. to school. Respondent Respondent Respondent

Respondent Applicant Respondent picks up child collects child picks up after school after school. child after school. Week Two Monday Tuesday Wednesday Thursday Friday Saturday Sunday Respondent Child is with Applicant Respondent Child is Child is Child is takes child Applicant takes child takes child with with with to school. to school. to school. Applicant Applicant Applicant Applicant gets Respondent Applicant child after picks up child collects school after school. child after school. 4. Mr. Martinez and Ms.

Vickovich shall be civil to each other in the child’s presence, especially on access exchanges, school or extracurricular events. 5. Subject to any other order of this or any other court, Mr. Martinez will make all decisions about the time and place for access exchanges. 6. When the child resides with Ms. Vickovich, she shall ensure that the child telephones Mr. Martinez at least once a day during the residency period. 7. When the child resides with Mr. Martinez, he shall ensure that the child telephones Ms. Vickovich at least once a day during the residency period. 8. (1)Either Ms. Vickovich or Mr.

Martinez may travel with the child within or outside Canada during the child’s school vacations without the written consent of the other, provided: (

a) no more than two weeks shall be consecutive; (

b) travel shall not be more than four weeks in total; (

c) at least thirty days notice shall be given by email or otherwise in writing; (

d) a full itinerary will be provided at least fourteen days before the scheduled trip setting out: (

i) destination details including telephone contact numbers; (ii) travel arrangements, including proof of return flight if travel is by air; 8. (2)In the event either party plans to travel with the child during the school year, such that the child will miss more than two consecutive days in school, the consent of the other party is required. 9. Mr. Martinez may apply for and retain the child’s passport without the signature, consent or approval from Ms. Vickovich. 10. Mr. Martinez will give the passport to Ms. Vickovich when being advised of the itinerary as referenced in paragraph 8(i)(

d) herein.

11. Ms. Vickovich shall immediately return the child’s passport to Mr. Martinez upon the child’s return from a trip. 12. The parties will maintain the child in private school education up to and including grade twelve. 13. Ms. Vickovich forthwith shall pay Mr. Martinez the sum of $6,250. being one-half of the child’s tuition for grade 3 at Mentor College for the year 2010-2011. This sum shall be paid to the Family Responsibility Office. A Support Deduction Order shall issue. There will not be an order for Ms.

Vickovich to contribute to the child’s tuition for grade two in the year 2009-2010, because there was some confusion about whether the child would be attending Mentor College that year. 14. Ms. Vickovich shall pay $6250. to Mr. Martinez on 15 April 2011, being one half the tuition for the child’s grade four year at Mentor College in the year 2011 and 2012. The sum shall be paid to the Family Responsibility Office. 15. Ms. Vickovich shall pay $6,250. to Mr. Martinez on the 15 th day of April 2012, and on the 15 th day of April of each year thereafter, as long as the child is registered by Mr.

Martinez in a private school. The sum shall be paid to the Family Responsibility Office. It is the intention of this order that Ms. Vickovich pay one-half of the annual tuition for the private school where Maya attends. If one-half of the annual tuition is greater or lesser than $6,250., then Ms. Vickovich shall pay the greater or lesser amount. 16. Ms. Vickovich shall forthwith pay one half of the tuition for summer school and/or tutoring when Mr. Martinez provides a bill to Ms. Vickovich. 17. Ms. Vickovich’s request for Mr.

Martinez to pay child support is dismissed. [ 102 ] If a party requests costs, the submissions shall be sent by facsimile transmission to the judicial secretary, Ruth Evans, at 905-456-4829 and served on counsel for the other party by 13 April 2011. [ 103 ] If a party wishes to Answer to a request for costs, the Answer shall be sent by facsimile transmission to the judicial secretary as above and served on counsel for the other party by 27 April 2011. [ 104 ] The party requesting costs may send a Reply to the responding party’s Answer, by facsimile transmission to the judicial secretary as above and serve upon counsel for the other party by 11 May 2011. [ 105 ] I thank both counsel for their very careful presentation.

Released: 29 March 2011 ________________________ Justice P.W. Dunn