Rowles v. MacDonald, 2011 ONCJ 686

Toronto Registry No. D40241/04 DATE: 2011·VIII·12 CITATION: Rowles v. MacDonald , 2011 ONCJ 686 ONTARIO COURT OF JUSTICE BETWEEN: ALANA ROWLES Applicant — AND — THOMAS M.F. MacDONALD Respondent Before Justice Geraldine F. Waldman Heard on 21 and 25 July 2011 Reasons for Judgment released on 12 August 2011 Alana Rowles ........................................................................................................ on her own behalf Renata Kirszbaum .......................................... counsel for the respondent, Thomas M.F. MacDonald [ 1 ] JUSTICE G.F.

WALDMAN:— This case is about the child Aiden James Rowles MacDonald, born April 11, 2003. He has a mother and stepfather and father and stepmother, all of whom love him very much. Unfortunately, they have become engaged in a very acrimonious relationship that now requires intervention from this court. Both parents are seeking sole custody of the child. 1: BACKGROUND [ 2 ] The parties met when mother was sixteen years old and had a brief relationship prior to Aiden’s birth. They began living together in or about September 2003 when Aiden was about five months old and actually lived together for about one year.

The parties separated in or about September 2004. They were able to make arrangements between themselves about Aiden’s care for some time. Based on the evidence, I conclude that mother was the primary caretaker during this period with father very involved in Aiden’s life. [ 3 ] This litigation began in January 2007. The situation between the parties has been difficult from the outset. The Applicant mother alleged that she had always been the child’s primary caretaker, that the child resided with her and she had received very little financial assistance from the Respondent father.

The Respondent disputed the allegations, alleged that the child was in fact living with him for a time because the Applicant had an abusive boyfriend, complained that the Applicant was unstable, was living with an abusive boyfriend who threatened him and restricted his access, and alleged that he had provided financial assistance. [ 4 ] The Applicant mother acknowledged that she had lived with an abusive boyfriend for a period of time but that, as soon as he assaulted her, she separated and has moved forward with her life in a very positive way. [ 5 ] Notwithstanding the high level of ongoing conflict and after many court attendances, the parties entered into a consent order on December 24, 2008, in which they agreed to have joint legal custody of the child, that there would be no support paid, and they would share the cost of daycare and uninsured medical and dental expenses equally.

They agreed to share information and both agreed not to move more than10 kilometres from their then address without the prior consent of the other. There was no explicit access

schedule in this order but, according to the

schedule in the previous order, the child was with father from Tuesday after daycare to Thursday at the start of daycare and one weekend each month from Saturday morning to Sunday night.

[ 6 ] The parties were back in court in October 2009 with access disagreements. They again came to court about access disputes in June 2010. By order dated July 9, 2010, Justice Brownstone set out a new access schedule. The child resided with father on alternate weekends from Saturday at noon to 6:00 pm on Sunday. In the intervening weeks, the child resided with the father one week Tuesday overnight to Wednesday and, on the alternate week, Tuesday overnight for two nights, returning Thursday morning at the beginning of school.

While this continues to be the schedule, there have continued to be significant issues between the parties. [ 7 ] The Applicant’s then counsel brought an Application in August 2010 in which she sought original relief including a restraining order and permission to videotape access exchanges and requested that the order granting the parties joint custody be varied to give the Applicant sole custody. The mother also brought a motion seeking an order that the Respondent father be found in contempt in October 2010 because of issues relating to access.

In response to the contempt motion, I made an order on October 26, 2010 varying the access order. The parties appeared before me several times during 2010 and into 2011. I made an order on December 21, 2010, setting out the

schedule for Christmas access and relating to daycare payments. Until this point, father was unrepresented. Mother had a lawyer initially but she ceased acting for mother after the summer of 2010. I therefore did my best to try and support this family in making positive changes. Father retained counsel in March 2011. The situation did not improve and I therefore directed that the motion would be decided by me, based on the affidavit materials filed, an Answer to be filed by father and a viva voce hearing in which each parent and his/her partner would give evidence.

While the paper process was not as required by the Family Law Rules, this case needed to be resolved over the summer because it involved issues of school attendance and because this child had been caught in this conflict for too long. I am satisfied that each party has had the opportunity to put their evidence before the court in a manner that allows me to come to an appropriate decision for this child. 2: CURRENT CIRCUMSTANCES 2.1: Mother [ 8 ] Mother was about 16 years old when Aiden was born. She received support from her family and lived at the Massey Centre for some time.

Mother acknowledged that she lived briefly with an abusive partner but was clear that she was unwilling to expose either herself or Aiden to the abuse and she ended that relationship. She enrolled in a five-year carpentry program because she needed a skill which would allow her to earn a reasonable income and is now able to work as a carpenter. She is a member of a union and earns $25.00 per hour when she works. She is currently living with Kerry William Beaton. They have one child, Liam, who is ten months old.

Mother has just completed her maternity leave but has postponed her plans to return to work because the cost of daycare for two children makes her working not economically feasible. She plans on remaining at home as a full-time parent for another year. It is clear that mother has grown up while she has parented Aiden and that she has moved forward in her life in a positive way. [ 9 ] Mr. Beaton has known Aiden for about 5-1/2 years. According to both mother and Mr. Beaton, he and Aiden have a close father/son relationship. Mr. Beaton testified that he sees himself as having a parental role with Aiden.

He testified that: “I try and instil moral values such as respect for others. I read to him, help him with his school work…six out of seven days we play after work.” He testified that: “He is very much like a son to me” and “I love him as if he is my own.” [ 10 ] Mr. Beaton, mother, Aiden and Liam recently moved to a three-bedroom townhouse in a private complex with its own playground about 11 kilometres away from their last residence and about fifteen to twenty minutes away from father by car. She previously lived about ten minutes away from the Respondent by car.

Mother testified that the parties were living very close to each other when the original order was made in 2007 and that they have both moved several times since, with most moves expanding the distance between the households. She tried to stay within the ten-kilometre radius but the most suitable housing was slightly farther. She hopes to have the order amended to allow her to move out of Toronto to one of the suburbs where she can afford to buy a house. [ 11 ] According to mother and Mr. Beaton’s evidence, Aiden has a close relationship with them and his brother, and he enjoys his large extended family.

I note that mother also arranged visits for Aiden with father’s family when father had some difficulties with his family. 2.2: Father [ 12 ] Father is currently 28 years old. He was about twenty-two years old when Aiden was born. He currently works as an overnight stocker at Walmart where he has worked for the past nine years. His hours of work are 11:00 pm to 7:00 am. He sleeps from 10 am to 2 pm and is available for Aiden after school. He earns about $22,200.00 a year. He has known his current partner, Starr Dorion, for about six years and they have lived together for the past 4½ years.

They have three other children: Jordan 3, Dakota 2, and Payton who is five months old. Father is currently involved in litigation involving another child, Seth, but the issue of his paternity remained outstanding at the trial. Starr is a full-time parent. The family lives in a three-bedroom apartment. The parents share their

room with Payton. The two other children share a bedroom and Aiden has his own room. [ 13 ] Ms. Dorion testified that she has a close relationship with Aiden. Father supports this evidence and describes their relationship as very close and loving. She has known Aiden for more than four years and she considers him to be part of the family. It was the evidence of both Ms. Dorion and father that Aiden has a very close relationship with the other children. They play together and Aiden acts like a big brother. Ms.

Dorion testified that Aiden calls her Starr, that she “treats him as I treat my own” and “I treat him as my child.” 2.3: Aiden [ 14 ] According to the evidence, Aiden is a bright and engaging eight-year-old child. Both his parents and step parents testified that he enjoys sports. He played soccer with his father and enjoyed this very much. He enjoyed the gymnastics program he attended with his mother. Both father and stepfather testified about outdoor activities that they each engage in with him. Mr.

Beaton described him as a “great little guy with a lot of potential.” According to the evidence, he is good in spelling reading and math. He was described as having poor listening skills, having a loud voice and liking to talk. His current report card shows him to be an average student. I note that his teacher has included concerns about Aiden’s classroom behaviour. Given the evidence, I conclude that Aiden needs support and encouragement to get his school work done.

He was described as a “high strung child.” [ 15 ] Both parents and both stepparents testified about what Aiden tells them about what is happening at the other house, much of it negative. It is clear given this evidence that Aiden is well aware of the conflict between his parents and that he is very much caught between the two households. [ 16 ] I conclude, based on the evidence, that Aiden has a close relationship with both of his parents and both of his stepparents.

He is also very attached to all of his half siblings. 2.4: Relationship between the Families [ 17 ] It is clear that mother and father do not get along and cannot communicate with each other. Both allow their anger to interfere with their good judgment. It is equally clear that each parent’s partner participates equally in the conflict. Both sides blame the other and neither side takes any responsibility for their behaviour describing it as necessarily responsive to what the other side has done.

It is equally clear that Aiden has been put in the middle of this dispute. [ 18 ] Some examples of the behaviour of both parents include: • Father acknowledged that he took Aiden out of school early on several occasions. He explained that he did this because mother would take Aiden from school and not produce him for access visits on father’s weekends. It was mother’s evidence that father unilaterally decided that it was his access weekend, even though Aiden was supposed to remain with her and that, in fact, she had very little time with Aiden for a period as a result of father’s unilateral actions.

Mother, in her original materials, included as exhibits: a letter from the daycare centre in June 2010 relating to Aiden not coming to daycare as expected after school and cautioning the family, attendance records showing days missed from school on days, according to the Applicant, that the child was with the Respondent, and two notes from the school confirming that Aiden was removed from school early by father.

I note that this was resolved in large part after a court attendance in the fall of 2010 during which I made the court’s expectations clear. • On one occasion after father removed Aiden from school early, mother and Mr. Beaton saw Aiden with Ms. Dorion and his siblings at the bus stop on Saturday morning. They stopped the car and insisted that Aiden come with them. The parties became involved in a verbal and physical dispute over Aiden in his presence as well as in the presence of Ms. Dorion’s other children. The police were involved in this dispute. Mr.

Beaton testified that Aiden was terrified. • On the 2010 Easter weekend, the parents had a disagreement about whose weekend it was. It was father’s position that mother took Aiden out of school early to prevent him from having access. He went to the apartment to get Aiden and tried to get help from the police. The families met while shopping in No Frills. Mother believed that father followed her there. Father testified that the meeting was accidental. The parties became involved in a dispute in the store and in Aiden’s presence. Aiden hit his head during the dispute.

The police were called to the store. • Aiden required urgent dental work. I conclude, based on the evidence, that the work was delayed because of the parents’ inability to communicate. • There are many angry email exchanges between the parents. The email exchange about Father’s Day is typical. Father wanted Aiden from early Sunday overnight. Mother offered father several hours but only if father provided the transportation. As a result of the

angry emails and inability of the parties to compromise, Aiden did not see his father on Father’s Day and both parties blamed the other. • Father registered Aiden for soccer and told mother that he would let her know the day his group played. Mother signed Aiden upfor swimming on Thursday afternoons because Thursday was the only week day that she always had Aiden. Father was told at thebeginning of the soccer season that Aiden’s group would be playing on Thursday and that the game started one half hour after Aiden’sswimming class ended.

Father suggested that Aiden come to soccer right after swimming which, given the times, would have been veryrushed and stressful for Aiden. The parties were unable to resolve this dispute. Again, each blamed the other. • Both parents gave evidence about the negative comments the child makes to him/her about the other household. Mother testifiedthat Aiden complains that he is not treated the same as the other children in that household. Father complained about the parenting in theother house and in particular the parenting of Mr. Beaton. He gave as an example Aiden’s allegation that Mr.

Beaton pulled out a loosetooth with a string in a manner that frightened Aiden. • For a period of time Mr. Beaton videotaped all of the access transfers. According to Mr. Beaton he had to do this because fathercalled the police many times and accused Mr. Beaton of threatening him. On one occasion someone called the police and told them Mr.Beaton was videotaping because he was a pedophile. • The police have frequently been involved in disputes between these families. Mr. Beaton testified that he called the police at leasttwenty times.

According to the evidence, the police told the parents that this was not a police matter but that it needed to be resolved infamily court. • Father unilaterally enrolled Aiden in a different school.

He did not advise mother and she only became aware of this via theschool. • The parties have provided me with numerous transcripts of telephone calls and numerous copies of emails documenting refusals toreturn the child, inability to make appropriate arrangements and written and verbal abuse. [19] Father also testified about neglect on mother’s part relating specifically to Aiden requiring dental work and a letter from thedentist threatening to report mother to the Children’s Aid Society, which letter is filed as an exhibit in this proceeding. Each provided adifferent version of events.

Mother alleged that she required father’s consent for the dental work because Aiden would need ananaesthetic and that she had tried to have father agree to the dental work for some time but he refused because it involved Aiden’s babyteeth and was expensive. According to the estimate she had received, it would cost $3000-$4000. It is her evidence that she made theparticular dental appointment resulting in the note and asked father to take Aiden. It was her evidence that, as a consequence of thisdentist’s position about the urgent necessity for the work, father agreed to Aiden having the work done.

They then had a further delaywhile they had to agree on the actual dentist. Father acknowledged that mother had made the appointment with the dentist that resultedin the letter threatening to contact the Children’s Aid Society and that she asked father to take Aiden.

He however denied beingresponsible for any delay in the dental work and testified that he made arrangements to take him to a dentist and cooperated in having thework done. [20] Father also testified that he had to take Aiden to the dentist on another occasion because a fragment had remained in Aiden’sgum after a baby tooth fell out or was removed when loose by mother or Mr. Beaton. It was Father’s evidence that Aiden told him thatMr. Beaton had removed the tooth by tying a string around it and pulling. Mr. Beaton denied doing this and testified that he removed thevery loose tooth with a tissue.

While I accept the evidence of father that Aiden required dental treatment as described, I do not concludethat this is evidence of neglect. 3: THE LAW 3.1: Variation [21] A variation of an order relating to custody and access is permitted under

section 29 of the Children’s Law Reform Act only if“there is a material change in circumstances that affects or is likely to affect the best interests of the child.” [22] I find that the increasingly high level of conflict between the parents is a material change in circumstances that is affectingAiden’s best interests and that is likely to affect his best interests in the future. Given this material change in circumstances, a variationin the current order is appropriate. 3.2: Joint Custody [23] The Ontario Court of Appeal in Kaplanis v.

Kaplanis, , 194 O.A.C. 106, 249 D.L.R. (4th) 620, 10 R.F.L.(6th) 373, [2005] O.J. No. 275, 2005 Cars​well​Ont 266, sets out the following principles in determining whether a joint custody order isappropriate:

1. There must be evidence of historical communication between the parents and appropriate communication between them. 2. It can’t be ordered in the hope that it will improve their communication. 3. Just because both parents are fit does not mean that joint custody should be ordered. 4. The fact that one parent professes an inability to communicate does not preclude an order for joint custody. 5. No matter how detailed the custody order, there will always be gaps and unexpected situations, and when they arise they must beable to be addressed on an ongoing basis. 6.

The younger the child, the more important communication is. [24] Joint custody should not be ordered where there is poor communication and the parties fundamentally disagree on too manyissues affecting the child’s best interests. Graham v. Bruto, 2008 ONCA 260, 165 A.C.W.S. (3d) 103, [2008] O.J. No. 1306, 2008 Cars​-well​Ont 1906 (Ont. C.A.); Roy v. Roy, , 27 R.F.L. (6th) 44, [2006] O.J. No. 1872, 2006 Cars​well​Ont 2898 (Ont.C.A.). [25] Given the nature of the relationship, courts do not expect communication between separated parties to be easy or comfortable,or free of conflict.

Perfection is not required, and is generally not achievable. See Griffiths v. Griffiths, 2005 ONCJ 235, 141 A.C.W.S.(3d) 265, [2005] O.J. No. 3090, 2005 Cars​well​Ont 3209 (Ont. C.J.). The issue is whether a reasonable measure of communication andcooperation is in place, and whether this is sustainable in the future, so that the best interests of the child can be ensured on an ongoingbasis. See Warcop v. Warcop, , 66 R.F.L. (6th) 438, [2009] O.J. No. 638, 2009 Cars​well​Ont 782 (Ont.

S.C.). [26] The Court of Appeal has upheld joint custody in the absence of reasonably effective communication between the parents whereit has been necessary to sustain a child’s contact with a parent who has been subjected to a campaign of alienation. For example, such anorder was upheld where a mother had laid down a pattern of resisting the father’s access and was found by the trial court to be unable toappreciate the importance of the father’s relationship with their children. See Andrade v. Kennelly, 2007 ONCA 898, 46 R.F.L. (6th)235, [2007] O.J. No. 5004, 2007 Cars​well​Ont 8271 (Ont.

C.A.). [27] A parent who is found to be the person primarily responsible for creating the conflict should not be able to use the conflict asjustification to oppose a joint or shared parenting order. To do so allows an obdurate parent to engineer a result in his or her favour. However, where the conflict is extreme and there is substantial blame to be levelled against both parents, a joint or shared custodyapproach is not appropriate. See Geremia v. Harb (No. 5), , 90 O.R. (3d) 185, 54 R.F.L. (6th) 274, [2008] O.J. No.1716, 2008 Cars​well​Ont 2483 (Ont. Fam.

Ct.). [28] Ultimately, the court must decide if a joint custody order is in the child’s best interests and consider the factors set out insubsection 24(2) of the Children’s Law Reform Act in reaching this decision. This subsection reads as follows: Best interests of child

(2) 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 entitled to or claiming custody of or access to the child, (ii) other members of the child's family who reside with the child, and (iii) persons involved in the child's care and upbringing; (

b) the child's views and preferences, if they can reasonably be ascertained; (

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

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

e) any plans proposed for the child's care and upbringing; (

f) the permanence and stability of the family unit with which it is proposed that the child will live; (

g) the ability of each person applying for custody of or access to the child to act as a parent; and

(

h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 4: ANALYSIS [ 29 ] I was struck by the level of animosity present in the evidence from each of the parties and their partners about the other parent and his/her partner. All of them are unable to take any responsibility for the current situation and are totally committed to the other parent and his/her partner as the source of the problem.

Each side is totally committed to the belief that she or he is the wronged party and justify their behaviour as a response to what each sees as the other parent’s inappropriate behaviour. They have persisted in their inappropriate behaviour over an extended period of time. While both sides express the sentiment that it would be better if they got along, no one has taken any step to invoke change. Neither side seems able to develop any insight into the consequences of their behaviour on Aiden. Aiden has repeatedly been caught in the middle of the dispute.

In some situations he has been put in the middle of actual physical altercations. Aiden has had his life disrupted when he was removed from school early. He has missed activities that he might otherwise have participated in such as soccer. He has had necessary treatment to his teeth delayed because of his parents’ inability to communicate. [ 30 ] I do not intend on engaging in an analysis in order to determine who is to blame. I am not certain that the evidence would allow me to come to a conclusion about this even on the balance of probabilities.

In any event, both families are so invested in their own belief system that my conclusion would not change anything. I therefore do not conclude as do the parents that one side or the other is responsible. Each side must take some of the blame. As I said in court how you see the situation depends on where you put your foot down first. At various points, one or the other has been more responsible but both have contributed to the present circumstance.

At this point, there has been a total breakdown in communication as evidenced most recently by the parents’ inability to even arrange something as straightforward as Father’s Day access. Having reviewed the email exchange, I conclude that both parents were inappropriate and the net result was that Aiden did not see his father on Father’s Day. [ 31 ] Given all of the above, there is no reasonable measure of communication and co-operation in place and no likelihood that this will improve in the future. I am satisfied that neither party is intentionally obdurate for the purpose of avoiding joint custody.

I am also satisfied that an order of joint custody is not required in order to avoid Aiden being alienated from one of his parents. This case therefore does not fall within the exceptions which would allow the court to order joint custody notwithstanding the hostile situation between the parents. [ 32 ] Both parties and their partners took the position that joint custody was no longer in Aiden’s best interests.

The reasons given by each in their evidence were consistent: • a total inability to communicate • the inability to communicate has resulted in problems concerning exchanging information about Aiden’s school and school work and as a result Aiden’s school work suffering • inability to plan activities for the child resulting in conflict and Aiden’s inability to participate in sports and other activities • inability to communicate around health issues relating to making necessary joint decisions and relating to sharing of important medical information. [ 33 ] I find based on a review of the evidence that joint custody is no longer in Aiden’s best interests. [ 34 ] Having considered the evidence, I find that Aiden has a close relationship with both his mother and her partner and his father and his partner.

Aiden also has four half siblings with whom he shares a close relationship. Any order made must support and preserve these relationships while hopefully minimizing the opportunities for conflict. [ 35 ] I do not accept father’s evidence that mother and her partner do not provide appropriate parenting. I am satisfied that mother was appropriate in trying to arrange Aiden’s dental care. I accept mother and Mr. Beaton’s evidence that Mr. Beaton removed Aiden’s very loose tooth. I found Mr. Beaton to be a credible witness.

I conclude based on his evidence that he has good parenting skills and that he enjoys a close and loving relationship with Aiden. I also accept mother’s evidence that she does not leave Aiden inappropriately un- attended and that, when he plays in the “park,” he is playing in an area immediately outside of her house, in a play area in her townhouse complex and within her sight.

Mother acknowledged some time ago that she did not tell father that he was overpaying for Aiden’s daycare and this issue was addressed in a previous proceeding. [ 36 ] I do not accept mother’s evidence that Aiden is or feels mistreated at father’s home. I accept father’s evidence that he and

Aiden share a close and loving relationship. I found Ms. Dorion to be a credible witness. I accept Ms. Dorion’s evidence that she has aclose relationship with Aiden and that all of the children are treated equally. [37] I have considered the criteria set out in section 24(2) of the Children’s Law Reform Act. I note the following: • I find that, while father has been very involved in Aiden’s life, mother has been Aiden’s primary caregiver.

Aiden has over theyears and particularly in the early years spent more time with her and she has been and remains the “executive parent” or parent mostresponsible for organizing and making decisions about Aiden and Aiden’s life. • both parents have appropriate parenting skills except for their responsibility in the conflict. • both parents have presented appropriate plans for Aiden’s care. • while not a significant factor, I do have concerns about father’s housing and financial circumstances given his current income, hiscurrent housing and his three other children.. • I cannot ascertain Aiden’s views based on the evidence before the court because each parent has testified that Aiden makesnegative comments about the other parent and stepparent. • each family has a stable household and Aiden has close relationships with his step-parents and half siblings. [38] Given that it is not in Aiden’s best interests that these parents continue to have joint custody, I must determine which parentought to have sole custody.

Having reviewed all of the evidence and the considerations in section 24(2) of the CLRA, I conclude that it isin Aiden’s best interests that mother be granted custody. While I have come to this conclusion, I do not mean to minimize father’ssignificant and important role in Aiden’s life. [39] Mother has moved about 11 kilometres away from father. The order of December 24, 2008 provides that neither party shallmove more than ten kilometres from their current (2008) residence without the prior written consent of the other or court order.

TheApplicant testified that her current home is just above the ten-kilometre limit in the previous order. Given the housing situation inToronto, I quite frankly do not find this unreasonable. The distance, however, does create some difficulty because father does not have acar. 5: ACCESS [40] The test for determining access is what order is in the best interests of the child.

In making this determination, I haveconsidered the “best interest” factors set out in subsection 24(2) of the Children’s Law Reform Act, as well as all other relevantconsiderations. [41] The child should have maximum contact with both parents if it is consistent with the child’s best interests. See Gordon v.Goertz, [1996] 2 S.C.R. 27, 196 N.R. 321, 141 Sask. R. 241, [1996] 5 W.W.R. 457, 114 W.A.C. 241, 134 D.L.R. (4th) 321, 19 R.F.L.(4th) 177, [1996] R.D.F. 209, , [1996] S.C.J. No. 52, 1996 Cars​well​Sask 199. [42] I have considered these principles when determining the appropriate access order.

Both parents have taken the position thatAiden ought to live with him/her and that there should only be weekend access. It is my position that it is important to support Aiden’sclose relationship with his father while attempting to reduce the opportunities for conflict. Given the high level of conflict between theparents, access transfers should wherever possible occur at school. In addition, the parties have demonstrated an inability to be flexible.

Therefore, the access provisions must be detailed and specific. [43] Father shall have access as follows: 1) On alternate weekends from Friday at the end of school to Monday at the beginning of school. The child shall not be removed fromschool before the end of the school day and must be returned to school on time.

If Aiden is late for school on Monday morning afteraccess visits more than two times in any school semester as recorded by the school, then the access shall end at 7:30 pm on Sundaynight. 2) In the week following mother’s weekend, father shall have access from Monday after school to Tuesday at the beginning of school. The same rules relating to pick-up and drop-off as above apply to the Monday visit.

If Monday is a holiday or PD day and is father’saccess day, then father’s access shall commence at noon with pick up at the current location. 3) If father’s access falls on a holiday weekend, or if there is a PD day on the Friday or Monday of father’s weekend, then he shallhave the Friday or Monday and the access shall begin or end with the holiday as the case may be.

4) For one half of the Christmas holiday, father shall have the half which includes Christmas in even years and mother in odd years. The parent who does not have Aiden for Christmas Day in each year shall have Aiden from 4:00 pm to 8:30 pm on Christmas Eve. 5) Father shall have Aiden for an uninterrupted two weeks each summer commencing with the first access weekend in July and ending at the end of the second access weekend in July.

Mother shall have Aiden for two uninterrupted weeks in August commencing with her first weekend with Aiden in August and ending with father’s Wednesday overnight access after the two weeks are concluded. Commencing in the summer of 2014, each parent shall have Aiden for one month in the summer; father shall have July and mother August. 6) Father will have Aiden for March Break in even-numbered years commencing with Friday after school and ending seven days later. Mother shall have Aiden for March break in odd years.

The parent who does not have Aiden for March break will have him for the weekend before school resumes commencing on Friday at 5:00 pm. 7) Any special access set out above will suspend the normal access weekends and the

schedule shall resume thereafter with the parent who did not have the child the weekend before the special access even if that results in the child spending consecutive weekends with one parent. 8) If Father’s Day or Mother’s Day does not fall on father’s or mother’s weekend, then Aiden shall spend the period between 2:00 pm and 7:00 pm with the other parent.

If Aiden’s birthday does not fall on father’s Monday or father’s access weekend, then father shall see Aiden for dinner from 4:00 pm to 7:30 pm the night before his birthday. 9) Each parent may remove Aiden from Ontario for the purpose of a vacation provided they give the other at least thirty days’ notice of their intention to travel and a complete itinerary. 10) The parties will cooperate in ensuring that Aiden has a valid passport if required. Mother shall retain the passport but shall give it to father if he requests it. Each shall advise the other if he/she intends on taking Aiden out of Canada.

The parents shall co- operate and give each other the necessary consent to travel. 11) Neither parent shall enrol the child in an activity that includes the other parent’s time with the child without the other parent’s prior written approval. 12) Both parents shall ensure that the other knows his/her address and telephone number at all times. 13) Mother has the right as custodial parent to choose the child’s school.

Father has the right to obtain information from the school concerning Aiden independently and has the right to attend all parent/teacher meetings. 14) Mother shall keep father informed of all major decisions and issues concerning the child’s health, education and well- being. 15) Father shall be responsible for all pick-ups and drop-offs for access to and from school.

The parties shall share all other access exchanges and shall continue to use the current location. 16) Mother shall not move a distance which will increase father’s travel time or which will preclude father from using the TTC to pick up and return Aiden to and from access visits without father’s prior approval or further order of the court. If the parties cannot agree on this, then the move will have to be determined by the court after reviewing the circumstances as they then present themselves. 17) The parents shall limit their communication to necessary exchanges of information involving the child.

Communication should be to the point and respectful. 18) The new access

schedule shall start with the commencement of school in September 2011. Father shall have the first weekend after the commencement of school, and alternating thereafter. 6: MOTHER’S ABILITY TO MOVE [ 44 ] I am not prepared to determine how far mother can move from father beyond what I have included in the terms of the order until this is more than speculation. When mother is considering a move, if she and father cannot agree, then this matter can be addressed before me or another judge.

The court will then consider all of the circumstances including the distance, the reason for the move, Aiden’s age, the access arrangements as they are at the time, the proposal for ensuring ongoing access and all of the relevant circumstances. 7: ARREARS OF CHILD SUPPORT [ 45 ] It is mother’s position that father owes her mother for child care and other extra expenses based on his agreement to share the costs. She has presented the court with a calculation of these arrears. Father’s income is modest and he supports a partner and three other children.

It is unclear to me that father would have had this obligation if support had been properly calculated. Given father’s current financial circumstances, I am not prepared to order him to make payments for these expenses. If the parties wish to address me

on the issue of child support and to include these arrears in that discussion, I would be prepared to entertain that motion or application. Released: 12 August 2011 Signed: “Justice Geraldine F. Waldman”