Romita v. Humphries, 2018 ONCJ 18

ONTARIO COURT OF JUSTICE CITATION: Romita v. Humphries , 2018 ONCJ 18 DATE: 2018 01 05 Brampton 875/15 BETWEEN: MICHAEL ROMITA Applicant — AND — JENNIFER HUMPHRIES Respondent Before Justice Philip J. Clay Heard on August 29, 30, 31, September 1, 5, 6, 7, 8, and December 13, 14, 15, 2017 Reasons for Judgment released on January 5, 2018 Ms. S. Moss ………………………………………………………………….for the Applicant Mr. M.

White ……………………………………………………………… for the Respondent CLAY J.: PROCEDURAL BACKGROUND [ 1 ] The Applicant father Michael Romita (”Michael”) brought an urgent without notice motion to this court seeking an order to prevent the Respondent mother ( “Jennifer”) from moving with their child Logan Humphries, born April 4, 2014, from Mississauga to Deer Lake Newfoundland (“N.L.”) At the same time he issued an Application seeking custody of the said child.

I have referred to the parties by their first names as some of the evidence relates to a period when they were not parents of a child and because Michael’s brother and the mother’s father gave evidence and I wanted to avoid any confusion over last names. [ 2 ] On September 2, 2015, the Honourable Justice P.W. Dunn made a without prejudice temporary order that the child was not to be removed from the Region of Peel. Jennifer then filed an Answer in which she sought custody and the right to move with the child to Deer Lake. [ 3 ] The matter was case managed by the Honourable Justice S.V. Khemani.

She made two temporary orders and both were pursuant to Minutes of Settlement. On November 25, 2015 a without prejudice order was made that the parties shall share joint custody of the child and his primary residence shall be with Jennifer. That order set out Michael’s access and required that he pay child support in the amount of $594 per month. On May 12, 2016 a temporary order was made that provided for Michael to have phased in overnight access to the child. This access

schedule was still in place at the time of the trial. [ 4 ] The matter was scheduled for a seven day trial to begin during the sittings that started August 28, 2017. It soon became apparent that the matter could not be concluded in that sitting and it was adjourned for three more days and was completed on December

15, 2017. EVIDENCE ORDERS [ 5 ] The order made at the Trial Management Conference required that all witnesses with the exception of the parties and the clinical investigator from the Office of the Children’s Lawyer shall give their direct evidence by way of affidavit and be available for cross-examination. [ 6 ] The parties each filed voluminous document briefs. They were filed as exhibits as each document in the briefs had been disclosed prior to the trial. Both parties wanted to play audio recordings at the trial.

I expressed some concern with the secret taping of the other party in the course of a custody proceeding and noted that there were public policy concerns if the court were to condone this behaviour. Both counsel emphasized that these recordings were critical evidence upon which they had based their trial strategy. As its admission was on consent I permitted the parties to play audio recordings. I should note that at least one of the parties was aware of the taping in every instance and that neither party had any real concerns with respect to misleading editing. Ms.

Moss had obtained a transcription of the audio recordings that she wished to introduce though the work had not been done by a certified reporter in the province of Ontario. Mr. White had not had the audio tapes transcribed but Ms. Moss had her office prepare a transcription of the audio tapes that Mr. White wanted to rely upon. [ 7 ] Counsel agreed that the evidence before the court was not the uncertified transcripts but the audio actually played in court. That being said no issue was taken at the trial as to the accuracy of the transcripts of those recordings that were played.

The uncertified transcripts were received and marked as Exhibit A. The transcripts were filed as an aid to the audio evidence. Both counsel said that it was necessary that the audio tapes be played in order to understand not just the content of the tapes but the tone of voice used by each of the parties in the disputes recorded. [ 8 ] As is usually the case in a family law trial there were basic facts that were not in dispute. There were other facts upon which the parties completely disagreed and there were yet more facts to which they each brought their own

interpretation. There were vigorous, indeed aggressive, cross-examinations of each party. I think it is most useful to provide a brief overview of the history of the parties, their relationship, their parenting and their ability to communicate and then to explore the evidence in more detail in each area. OVERVIEW [ 9 ] This matter is ultimately about whether Jennifer should have custody or whether there should be joint custody of three and a half year old year old Logan.

If Jennifer obtains custody the issue is whether she can move his primary residence to Deer Lake. [ 10 ] The parties met in 2005 at their workplace Boston Pizza in Peel region. Michael was a 17 year old high school student who was living with his parents. Jennifer was a 24 year old manager at the restaurant and at that time lived on her own. By 2007 the parties were dating on and off. After they began dating Jennifer moved back in with her parents. [ 11 ] The relationship continued to be off and on and the parties were on a year-long break when Jennifer unexpectedly became pregnant in the late summer of 2013.

By October 2013 the parties moved into an apartment at 14 John St. in Brampton. Both parties stated that they continued to argue and fight. Despite the poor relationship Jennifer testified that she wanted to marry Michael. They became engaged just before Christmas 2013. Logan was born on April 4, 2014. Michael was then employed on a full time basis in downtown Toronto. In or about August 2014 they were evicted due to all of the yelling and screaming. They then moved into a basement apartment at 114 Bayhampton Road in Brampton.

Both parties admitted that throughout their entire relationship they continued to argue frequently. Both admitted that the arguments did result in some physical altercations. The nature of the altercations was very much in dispute. [ 12 ] On August 9, 2015, Michael had finally decided that the relationship was not going to work and he told Jennifer that he was leaving and would not return. Michael was clearly determined to have a major role in the child’s life.

While aspersions were cast on his motivations for wanting to be so involved there was no doubt that from the beginning of the separation he exercised access at just about every opportunity and asked for more time with the child than Jennifer was willing to agree to. [ 13 ] The spectre of the move to N.L. has made this matter incredibly contentious. Jennifer seeks an order that Logan can be relocated to Deer Lake to live with her and his maternal grandparents Tom and Wanda Humphries.

Michael seeks an order that Logan remain in the Peel region where Jennifer and Michael should share joint custody and equal time. [ 14 ] The Maternal Grandparents (“MGP”) are still in Peel region but not because they want to be. The Maternal Grandfather (“MGF”) has not sold his specialized sandblasting business only because his daughter and Logan reside with him and his retirement plan includes providing a home for Jennifer and Logan in their home town of Deer Lake. [ 15 ] The MGPs retirement plans have been put on hold pending a determination of whether Logan will be permitted to reside in Deer Lake.

In the last two years Logan has developed a close and loving relationship with Michael, Michael’s parents, Michael’s three brothers and all of the extended family in the Greater Toronto Area. [ 16 ] The above overview will hopefully provide some context for the consideration of the evidence set out below. THE ISSUES 1. Should Jennifer have custody of the child or should a joint custody order be made?

2. Should Jennifer be permitted to move with the child to Deer Lake, N.L.? 3. If the move is permitted what access should the child have to Michael? 4. What amount of child support should Michael pay to Jennifer and when should it begin? 5. What order should be made for the child’s s.7 expenses under the Child Support Guidelines? 6. What amount of spousal support should be paid by Michael to Jennifer and what terms, if any, should be placed upon that support? [17] Most of the evidence in this trial was directed to the custody and mobility issues. I will address those issues first.

I will set outthe applicable law, the evidence with my factual findings and then my analysis which will be the application of the law to my factualfindings. I will then turn to the financial issues. CUSTODY AND MOBILITY LAW Custody [18] In this matter it is necessary to make a determination as to custody before moving on to the issue of mobility. In Bjornson v.Creighton (ON CA), 2002 CarswellOnt 3866 (Ont. C.

A) Austin J.A. addressed the custody/mobility issue atparagraph 19 as follows; [19] In applying the guidelines provided by Gordon to the instant case, two matters require consideration. The first is that at the outset ofthe trial, the parents were "equally entitled to custody". As a result, for analysis purposes, the parents could not be divided into "custodialparent" and "access parent". The second is that the organization of his reasons is such that the trial judge appears to have decided thequestion of mobility first and the question of custody second.

With respect, that strikes me as putting the cart before the horse. [19] In the matter before me there is a without prejudice joint custody order that designates Jennifer’s home as the child’s primaryresidence. It is necessary to consider the parenting roles taken on by each of the parents to identify the parenting arrangement that existedat the time of trial.

This is because the case law dealing with the mobility issue addresses the merits of a move by reference to thecustodial designation and the parenting arrangement. [20] The statute that governs the custody and access issues in this matter is the Children’s Law Reform Act. The relevant

section is s.24 and the sections relevant to this matter read as follows; Merits of application for custody or access 24

(1) The merits of an application under this

Part in respect of custody of or access to a child shall be determined on the basis of the bestinterests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1). 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, including a parent or grandparent, 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; (

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

e) the plan proposed by each person applying for custody of or access to the child 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; Past conduct

(3) A person’s past conduct shall be considered only, (

a) in accordance with subsection (4); or

(

b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1); 2016, c. 23,s. 7 (2). Violence and abuse

(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence orabuse against, (

a) his or her spouse;

(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence orabuse. 2006, c. 1, s. 3 (1). [21] In this matter Jennifer sought sole custody. Michael sought sole custody in his pleadings but his counsel made it clear at theoutset of the trial that at that time he sought joint custody with shared parenting time and what is often described as a parallel parentingregime.

The latter term is not set out in legislation but has been adopted in some cases where each parent makes a final decision in onearea, i.e., health decisions by one parent, i.e., education decisions by the other. [22] In determining whether this is an appropriate case for joint custody I must look to the case law. The leading case in Ontario isKaplanis v. Kaplanis (Ont. C.A.). In that case the Court of Appeal set out a number of factors that must be present fora court to consider a joint custody order. They can be summarized as follows: 1.

There must be evidence of historical communication between the parents and appropriate communication between them. 2. It cannot 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. [23] In Graham v. Bruto, 2008 ONCA 260, the Court of Appeal stated clearly that the joint custody and parallel parenting option wasnot in the best interests of the child of that family because the parents disagreed on too many important issues that affected the child’sbest interests. [24] There is a line of cases that have awarded joint custody notwithstanding intense conflict between the parents. It begins withLadisa v. Ladisa (ON CA), 2005 O.J. No.275 (C.A.).

In that decision, released at the time of Kaplanis, the court didnot interfere with the joint custody order. Despite the intense conflict between the parents, in emergencies and when the parents had anopportunity to consider the real interests of their children, they behaved appropriately. They coexisted at the doctor, at school functionsand at activities. The court found that those circumstances supported a joint custody order. [25] In Ursic v. Ursic (Ont.CA) the court found that joint custody or parallel parenting was considered necessaryto keep the “innocent” parent in the child’s life.

The Ontario Court of Appeal has upheld joint custody or parallel parenting in theabsence of reasonably effective communication between the parents only where it has been necessary to sustain a child’s contact with aparent who has been subjected to a campaign of alienation. A joint custody order was upheld where a mother had laid down a pattern ofresisting the father’s access and was found by the trial court to be unable to appreciate the importance of his relationship with theirchildren. Andrade v. Kennelly, 2007 ONCA 898.

Mobility [26] Any analysis of mobility law in Canada begins with the seminal case of Gordon v. Goertz (SCC), [1996] 2S.C.R. 27. The key principles to be applied are set out by McLachlin J. (as she then was). In paragraphs 49 and 50 of the judgment shesets out the ultimate task for this court. The first three sub-paragraphs of 49 deal with variations of final orders that are not applicable tothe facts herein. The others are; 4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views areentitled to great respect. 5.

Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the

case. 6. The focus is on the best interests of the child, not the interests and rights of the parents. 7. More particularly the judge should consider, inter alia : (

a) the existing custody arrangement and relationship between the child and the custodial parent; (

b) the existing access arrangement and the relationship between the child and the access parent; (

c) the desirability of maximizing contact between the child and both parents; (

d) the views of the child; (

e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child; (

f) disruption to the child of a change in custody; and (

g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know. 50. In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child's access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new? [ 27 ] In Porter v.

Bryan , 2017 ONCA 677 the court found that the mother had a valid and compelling parenting-based reason for the move: it was necessary to enable the primary caregiver to remain financially viable while providing care for the child. The Court found that the trial judge had made an error in not identifying the mother as the primary caregiver. They held that just because there is a joint custody order and shared parenting that does not preclude one parent from being the primary caregiver.

EVIDENCE ON CUSTODY AND MOBILITY The parties’ early relationship [ 28 ] There was a great deal of evidence led as to the nature of the relationship between the parties. This evidence was relevant to the important issues of whether there was domestic violence and a power imbalance between them that impacted upon their ability to parent and to communicate with each other. [ 29 ] Michael stated that he was seven years younger than Jennifer and initially she was his manager at work. Jennifer appeared to have no other friends and she changed jobs frequently.

Jennifer always seemed quite dependent upon her parents both emotionally and financially. He said Jennifer’s parents were traditional and very strict and Jennifer was fearful of doing things her parents would not approve of. She did not want to tell her parents that she was pregnant until she could tell them she was engaged. In giving evidence Michael expressed on many occasions his frustrations with Jennifer.

He felt that she needed help in order to succeed, financially and otherwise, and as he had done well at such a young age he thought she should take his advice and follow his direction. [ 30 ] Michael clearly had a plan to get ahead financially. He also presented as very eager and even anxious to become a father when he learned that his erstwhile girlfriend was pregnant.

Michael presented as someone who had a plan for his life and this resulted in him convincing himself that he could mould his girlfriend into the wife and mother he wanted her to be. [ 31 ] Jennifer was 25 when the parties met and 36 at the time of trial. While Michael had a plan for his life Jennifer had a dream for

hers. Jennifer presented as somewhat emotionally immature. She had left her parent’s home in Deer Lake N.L. to attend St. Mary’s University in Halifax. She was unable to succeed socially or academically. She yearned to return home and she did so after the first term. After 18 months back in Deer Lake she made another attempt at St. Mary’s but she was academically dismissed when she failed or dropped too many courses. [ 32 ] By this time Jennifer’s parents had moved to Mississauga and she moved to join them. She found a few jobs but never settled anywhere.

She moved out of her parent’s home but remained very connected to them both financially and emotionally. She was 25 years old when she became very attracted to a 17 year old high school kid who worked on her shift. It was telling that Jennifer had no other emotional relationships in her life outside of her parents and her young, on again off again, boyfriend. [ 33 ] In the early years of their relationship the parties spent time at their respective parent’s homes. Jennifer and the paternal grandparents appear to never have enjoyed a close relationship.

The evidence was that the couple had arguments in front of both sets of parents. Michael was quick to point out that he was not the dominant one in the relationship because Jennifer had no issue raising her voice at his family’s house. He noted that she would even yell at his parents. Much later it appears that she acted in more of an adolescent role at her own parent’s home when she called 911 on her own father for not permitting her to leave his home to go back with Michael. Mr.

Humphries had determined that Michael had acted in an abusive manner with Jennifer and he wanted to protect her from harm. [ 34 ] Michael’s position throughout the trial was that there was no domestic violence or power imbalance in this relationship because Jennifer was much older, yelled at him more than the reverse and always tried to prevent him from leaving her. The evidence taken as a whole shows the age gap to be illusory.

Jennifer was socially isolated and in her relationship with her parents often acted more like a teenager than a mature adult. [ 35 ] Jennifer’s plan in October 2013 was to marry Michael and be a stay at home mother to their young child. Jennifer’s plan at trial was to be the primary caregiver to Logan while finishing off her university education to be in a position to obtain a better paying job once Logan was in full time school. Michael had a three year college diploma in architectural technology and had worked his way into a full time job with Stantec a large company that design institutional buildings.

When he obtained that job in downtown Toronto his salary jumped to $65,000 a year. He had a plan to be a successful architectural technician and an active and involved father. Jennifer had dreams of a university degree and a well-paying job. She had not really done anything to fulfill those dreams. Both parties presented as emotionally insecure people who desperately wanted to prove themselves to be good parents. When they felt that their plans and dreams were being thwarted by the other they acted in ways that were mutually destructive.

Domestic violence [ 36 ] The parties moved in together in October and became engaged in late November 2013. They had a terrible argument just after Christmas 2013. Jennifer said it was on Boxing Day. It was clearly quite a few days before January 4, 2014. Jennifer said that Michael became enraged and pushed her against the door with his hands at her throat. She says he punched her pregnant belly with a closed fist. She said she was terrified. She did not call the police. Her parents were in Deer Lake for Christmas. She was supposed to pick them up at the airport on January 3.

Her text message to her father that day said that Michael was angry and she could not leave the home. She took photos of her body on January 4. The photos were filed in the document brief. They depict a faint purple roundish bruise on the belly, and long yellow and purple marks/bruises from the neck area to near the end of the clavicle. [ 37 ] Jennifer said that she was worried on January 6 that she could not feel the baby’s heartbeat. The parties went to the Brampton Civic hospital together. Jennifer was examined. She told the doctor and/or nurse that she had bruised her belly when she ran into a door knob.

It appears that the bruising all around her neck was not noted. Jennifer was assured that the baby was fine and the parties went home. Jennifer did not tell Michael about the photos that she had taken until he was shown them at the questioning in this matter in June 2016. Michael was aggrieved that Jennifer had taken photos of herself without telling him and that she had saved them for possible use later. He felt betrayed by that. He became very emotional and tearful when he was shown the photos and asked if he hit Jennifer when she was nearly six months pregnant.

He said that he had never used force upon Jennifer during her pregnancy. He denied punching her in the belly. He said that “I would never hit my child in the womb”. He stated that being accused of that gets him angry. He said that to allege that he would hit his unborn child was the lowest allegation a person can make. It did appear that Michael was most concerned about an allegation of harm to his unborn child and not so much about an allegation of harm to Jennifer. [ 38 ] Under cross-examination Michael said that the conflict between the parties was “consensual violence”.

He explained this odd phrase to mean that if he hit Jennifer it was always in self-defence and usually when he was trying to leave the apartment. He admitted to the OCL that there had been some physical altercations but he did not admit that he caused bruising to Jennifer when she was pregnant. Michael said that he too was abused. Jennifer often scratched and clawed him. With respect to the level of bruising Michael said that Jennifer bruises easily. He was not sure that the purplish yellow marks around her neck were caused by him and even suggested that Jennifer might have caused them herself.

This might explain why they never talked about the incident and why she never told him she had taken photos. Michael denied that he was insistent on attending the hospital with Jennifer to prevent her from explaining what happened. He said they were anxious first time parents and on two occasions he accompanied her to the hospital when she was concerned about lack of fetal movement.

Michael stated throughout a vigorous cross-examination that Jennifer was not a victim - the parties were equally responsible for the arguments that led to physical conflict. [ 39 ] It was quite clear that if he was not confronted with the photo evidence that Michael would never have admitted any physical confrontations with Jennifer when she was pregnant.

Even while staring at the photos and being reminded that there was no one else in the house who could have caused the bruises Michael dissembled and finally reluctantly conceded that it was possible that the bruises were the result of an incident in which Jennifer was yelling at him and “he may have pushed her away defending himself”. He insisted that he never slapped her or punched her. Michael said that he did not grab Jennifer by the neck. He said he simply pushed her away with a flat hand against the upper part of the chest (he showed the sternum area).

It is quite possible that Michael is ashamed and cannot bring himself to believe that what he did could have caused such extensive bruising. It is also possible that he was in a blind rage and did not intend to actually punch his pregnant fiancée.

[ 40 ] Jennifer’s account of what occurred was clear and unshaken by cross-examination. It was consistent with the photographic evidence. Jennifer claimed that the first violent incident occurred on December 26, 2013. She said that Michael wanted to leave but she wanted to talk it through. He became “really, really angry”. She said he did have his hands around her throat and he did punch her. She also stated that shortly after the incident Michael said he was sorry and that he did not mean to cause her harm. That is why she did not call the police. She said she “wanted to believe” that it would not happen again.

She took the photos because Michael would not admit that he punched her. She kept the photos and did not tell him about them because she hoped he would change and she would never have to use them. I think that in some part of her mind she knew that the relationship might not improve and she might require some proof of what had gone on. [ 41 ] Neither party could accurately remember the exact sequence of events between December 26 and the attendance at the hospital on January 4. Jennifer said there was a terrible argument with yelling and screaming on January 3, 2014.

The text between Jennifer and the MGF was filed in which she tells him that she cannot pick him up from the airport because Michael is in an angry mood and she did not want to leave. [ 42 ] Jennifer said Michael choked her on two occasions. One was when he had his hands around her neck and punched her in the belly. She says that the other was when she tried to block him from leaving the apartment and he “strangled” her. She said when he was doing this she spit at him in an effort to get free. She ran into the bedroom, grabbed her cell phone and tried to record what was happening. Mr.

White played the tape in court. The tape was chilling. Michael could be heard yelling in a very angry voice that he was trying to suppress through clenched teeth. He said that Jennifer had spit on him while he was working on the computer. Jennifer said that Michael was trying to “choke her out”. In a later audio recording Jennifer tried to get Michael to admit that he strangled her while she was pregnant.

He did not directly do so but he was somewhat mocking of her allegations and said “did you pass out?” [ 43 ] The evidence was that Jennifer did not seek medical attention until January 6 and when she did so it was to report a lack of fetal movement not to have her injuries looked at. She claimed that the unlikely doorknob explanation was a way to get the hospital staff to enquire further as to what really happened. She may well think that now, but at the time Jennifer still wanted to believe Michael would change and she still had plans of marrying him.

She chose to ignore or explain away the mounting evidence that this always dysfunctional relationship had now become abusive. [ 44 ] Jennifer provided photos of another incident in which she sustained bruising to her arms. She testified that this incident occurred in March 2015 and she took the photos on March 16 and 19 of that year. One year old Logan’s face can be viewed in one photo. There was evidence that the police were called to the home on March 24, 2015 but the parties told the police it was a verbal argument only and no further action was taken.

The conflict between the parties worsened over the spring of 2015. Michael left the apartment on a few occasions to stay with one of his brothers. The longest time he was out of the home was for three days in May 2015. The parties had argued over what they called “crib training”. They had not slept together since the child was born as Jennifer insisted on co-sleeping with the child. Michael thought that at a year old it was well past time that Logan be introduced to a crib though even he thought that this could be a trial and error process that would take some time.

Jennifer refused to budge and Michael simply left the apartment. He imposed some conditions for his return. Jennifer said she felt abandoned and vulnerable so she agreed to his terms. [ 45 ] It is not difficult to conclude that as a first time parent Jennifer was overly protective of the child and afraid to allow Michael to do much more than play with the child in the first year.

However, by this time Jennifer had been physically and emotionally abused by Michael for some time and while she could not bring herself to leave the relationship she had no confidence and trust in Michael. [ 46 ] There was a very concerning incident when Logan was about one and a half years old. The parties started yelling at each other when Michael was holding Logan. Jennifer tried to take Logan from Michael and he resisted her. Michael said that she tried to physically pull the child away from him and he tried to twist away leading to a literal tug of war over the child.

He alleges that when she hit him on the head with her closed fist he released the child and walked away. Not surprisingly Jennifer recalls the incident differently and said that it was Michael that struck her with one hand while holding Logan with the other. [ 47 ] There was a lot of evidence that Michael did not simply make suggestions to try to constructively work with Jennifer as new parents. He insisted that he knew better and used the threat of leaving the relationship to try and get his way. He left on more than one occasion for an indefinite period (albeit they ended up being short).

Intentionally or otherwise he took advantage of her insecurities and vulnerabilities to impose his own conditions. Michael knew Jennifer was financially and emotionally dependent upon him. He was not fully committed to the relationship. He wanted to be a father to Logan on his terms. He was prepared to leave his young son with the young child’s distraught mother to get his way. He has stated in this litigation that leaving was the only way to ensure that he would be allowed a fair opportunity to parent.

In fact, I find that Michael left Jennifer because he was never fully committed to the relationship and he was not committed to co-parenting with Jennifer. He simply felt that he should have the child at least half of the time. Other witnesses [ 48 ] Both parties filed affidavits from family members and friends that touched upon the issue of whether there was domestic violence and a power imbalance in this relationship. They also commented on the ability of each party to parent the child. [ 49 ] Neither party alleged that the other was not a competent parent.

Each of them loved Logan and enjoyed a very positive relationship with him. Both parties had the ability to meet Logan’s instrumental needs. Both would ensure that he was well cared for and they would attend to his medical, educational and all other needs. The real issues for a custody determination were whether there was a power imbalance between the parties due to domestic violence and their dysfunctional interpersonal relationship and whether the parties had the ability to communicate effectively by putting Logan’s best interests ahead of their own needs.

Ambalavaner Sivarajh [ 50 ] Michael filed an affidavit dated July 14, 2017 from his landlord Ambalavaner Sivarajh. The landlord rented out the basement of his home on Bayhampton to the parties in or about August 2014. Both parties lived there until the August 9, 2015 separation. Michael left then but moved back in by the end of the month when Jennifer went to live with her parents. [ 51 ] Mr. Sivarajh stated in his affidavit that he never heard a male voice yelling at any time in the apartment. The only raised voice he ever heard was Jennifer’s. It was clear that the landlord and Jennifer did not get along.

She was home all day while Michael was at work. She complained to him about the heat, smoke (which he said she should have known was incense) and the ability to do laundry. On the other hand Mr. Sivarajh reduced the rent when Michael kept the apartment and they have become friends over time. [ 52 ] Mr. Sivarajh was about a poor a witness as it is possible to call. He adamantly denied speaking to Ms. Haroon from the OCL and then after much prompting recalled the conversation.

The only thing that can be gleaned from his evidence is that he never personally witnessed the conflict between the parties and that Jennifer had a tendency to raise her voice. Jenna Revell [ 53 ] Ms. Revell was Michael’s former girlfriend. They met in college in 2009. She had dated Michael in 2012 during a time when he had broken up with Jennifer and then again on a few occasions when the parties were on a break from their relationship in the spring and summer of 2013. The evidence was that Michael had been dating Ms.

Revell just prior to the time when he had sex with Jennifer in the late summer of 2013 and Logan was conceived. Once Michael decided to be exclusive with Jennifer his romantic and sexual relationship with Ms. Revell ended. They stayed friends and dated again from October 2015 to October 2016. [ 54 ] Ms. Revell said that Michael told her that the parties argued a great deal although she never personally witnessed an argument. Michael complained to Ms. Revell about how Jennifer was always in his space and not giving him any privacy.

After Logan was born Michael was pretty distant and she just heard from him once in a while. When asked if Michael ever complained about Jennifer or about her restricting his time with the child Ms. Revell paused for a long time. Finally she said she did not recall that. She remembered him talking about how proud he was of his son but not that he was having difficulties with Logan’s mother. Under cross-examination Ms. Revell did reveal that Michael would allege that Jennifer tried to egg him on and start fights. She conceded that the bruising shown on the photos would be domestic abuse.

She chose her words carefully as she tried to reconcile the person she said she knew with a person who could cause such bruising. The audio tape was played to her wherein Michael refers to Jennifer as a “fucking idiot” with barely suppressed rage. She seemed stunned by the tape. Ms. Revell said that she had been in a lengthy abusive relationship with another man and knowing what she now knows if she had heard Michael say what he did on the tape she would leave him. She was careful to say though that this was not the man that she knew.

She thought there must have been triggers for Michael to snap in the way that he did. Anthony Romita [ 55 ] Anthony Romita, Michael’s brother gave evidence. He is a special constable in the Peel courthouse. His two older brothers are police officers in Toronto and Peel respectively. Anthony admitted that he had seen a lot of conflict in Michael’s relationship with Jennifer but he never witnessed anything that crossed a line. The arguments he witnessed did not involve either party belittling the other. He thought the couple were trying to force something that was not there.

Michael had admitted to him that there had been physical altercations prior to Logan being born. It was always put to him as Michael wanting to leave and Jennifer blocking his way. It was a toxic relationship. Anthony said he advised Michael numerous times that the relationship was not going anywhere. He did not observe Michael to have any passion about the relationship. He did see that his younger brother was very frustrated. [ 56 ] Anthony also chose his words very carefully when he was asked to listen to the tape and see the photographs.

He said the photos and the tone and language on the tape were shocking and disturbing. He said he had never witnessed anything like this between them. Anthony noted that Jennifer could be very controlling about time with Logan. She seemed to have Logan attached to her. Anthony said that Jennifer was very overprotective. Frank Romita [ 57 ] Frank was the eldest of the Romita brothers and he works as a police officer in Toronto. He was not living at home when Jennifer and Michael stayed there so he did not personally witness any arguments.

He was made aware by Michael and other family members about the difficulties in the relationship. Frank said that Jennifer tried to elicit his assistance later on in her relationship with Michael. She would call Frank from time to time to tell him her concerns about Michael. She would say Michael was depressed and perhaps bi-polar. Frank followed up by speaking to his youngest brother and making sure he was fine. [ 58 ] Frank said that he did let Michael come and stay with him from time to time when he and Jennifer fought.

He said he remembers one night and another period of about three days when Michael stayed over. Frank said that over the course of their entire relationship Michael and Jennifer would have spent time with himself and his wife Erin and their then infant son Marcus about seven times. He recalled arguments about money, Jennifer’s pursuit of education and the quality of time that Michael was able to spend with Logan. Frank said that he observed that Jennifer was somewhat controlling of Michael especially when it came to Logan.

He was especially concerned about Jennifer trying to enlist his help to enforce time sharing at Thanksgiving in 2016. He did not see Jennifer as dominated by Michael but saw Jennifer as the parent who set the rules. He said given their relationship they would have trouble co- parenting. [ 59 ] Frank was very careful when asked about the photos and audio tapes. He was careful to note that as a police officer that he always had to have both sides of a story. It was clear that he wanted to support his brother but the evidence with which he was confronted was troubling. Rita Romita

[ 60 ] Mrs. Romita is Michael’s mother. She said that she had some reservations about Jennifer and Michael being together due to their seven year age difference. Mrs. Romita noted that Jennifer would always be talking about marriage and Michael never mentioned it. She would tell Jennifer that she did not see her youngest son as being as serious about the relationship as Jennifer was. She perceived that Jennifer was trying to mould Michael into the person she wanted him to be. She said that she could not change him and if she was not happy she should find someone with whom she is more compatible. [ 61 ] Mrs.

Romita said she learned that Jennifer was pregnant in the late summer of 2013. She had deep concerns about Michael’s commitment to the relationship. She saw Jennifer as anxious to be in a long term relationship especially after she became pregnant. By way of contrast Michael never talked of getting engaged and never spoke in a way that suggested that he had found “the one” in the way that her other sons did. Mrs. Romita said that despite all of the stress of the litigation and Michael’s frustration over his access time he always says that he wants everyone to respect Jennifer.

Tom Humphries [ 62 ] Tom Humphries is Jennifer’s father. He is 61 years old and resides with his wife Wanda Humphries and his daughter and grandson Logan. He has resided on and off in Ontario since 1979. He moved back to his hometown of Deer Lake from 1993 to 1999. He then divided his time between Deer Lake and Ontario until he moved to Mississauga on a full time basis in 2009. In 2013 he planned to sell his specialized sandblasting business and retire to his home in Deer Lake. He put his plans on hold when Jennifer became pregnant.

He and his wife planned to support their only daughter through the pregnancy and in the first few months of raising Logan. [ 63 ] In August 2015, when Michael left Jennifer and Logan and did not offer to pay any support Jennifer moved in to Mr. Humphries’ home. In September 2015, he put his business up for sale on the expectation that the four of them would move to Deer Lake as soon as it was sold. He obtained a willing buyer fairly quickly. He was surprised when Michael obtained the order blocking the move.

Since then he has put the business sale on hold and continued to provide a home for Jennifer and Logan. [ 64 ] Mr. Humphries said over the seven years that the parties were together he observed good and bad times in their relationship. He said there were often lengthy bad periods. He said that Michael “is selfish, has a temper and a controlling personality”. He observed that Michael was abusive to Jennifer. He admitted that his daughter can be strong willed and will at times verbally fight back when she feels attacked. He felt that Michael predominantly caused the “bad spells”. In his affidavit Mr.

Humphries stated that since the separation Michael continued to act in a manner towards Jennifer “which is abusive, controlling, dismissive and disrespectful”. Mr. Humphries came to his conclusions not so much by what he heard from his daughter but from what he heard himself. He was present when Michael yelled at Jennifer and called her harsh and derogatory names. Jennifer always contacted her father by phone or text when she was afraid of Michael or upset by his actions. He could hear Michael’s voice in the background during the calls.

The audio recordings were played for him and he confirmed that the very angry voice heard through clenched teeth was the voice that he would hear when Jennifer called him when in crisis. Once she called him from her car when she and Logan were inside it and he could hear Michael’s voice as he pounded on the car roof. Mr. Humphries said that Michael always wanted to know where Jennifer was or what she was doing. After the separation he would overhear Michael’s voice on Jennifer’s phone, even though he stood a few feet away, demanding to know where Logan was and demanding to see him. [ 65 ] Mr.

Humphries related that he had received phone calls from Jennifer late at night and she would tell him that she had taken Logan and barricaded herself in the bedroom. She said she was afraid of Michael. He could hear Michael clearly in the background banging on the door and demanding to be let in. He would tell Jennifer to leave with Logan and come to his house. Often Mr. Humphries would drive to their home to ensure that his daughter was all right. By the time he got there Michael had calmed down or left the apartment. [ 66 ] Mr.

Humphries said that on a number of occasions he observed Michael insist on arguing and fighting with Jennifer even while she was holding Logan in her arms. Sometimes he would yell and other times he would speak in a low and seething voice and pace back and forth. Mr. Humphries said he was not aware of the assaults in which his daughter was injured until these proceedings were commenced. [ 67 ] Mr. Humphries was always nearby when Michael picked up Logan for access visits.

He said that Michael continued to berate Jennifer and made inappropriate comments to Logan such as “do you know where my money for child support is going because it isn’t being spent on you.” Mr. Humphries intervened on a few occasions to prevent the conflict at the doorstep from escalating. It was clear from the evidence of each of the parties that Michael respected Mr. Humphries and sought his approval. Michael gave very emotional evidence that Jennifer’s texts and phone calls had tried to undermine his good relationship with her parents.

Jennifer said that her father was very good at calming Michael down and Michael liked him. Mr. Humphries was not shaken in cross-examination. He was prepared to find fault with his daughter when warranted. Notwithstanding his knowledge that Michael had assaulted his daughter on more than one occasion he had continued to facilitate access and he thought it important that Michael be involved in his son’s life. [ 68 ] It was clear that Mr Humphries and his wife had gone to some significant personal sacrifice to be available to their daughter and grandson. It was also clear that Mr.

Humphries had always tried to make the best of a bad situation and had always put Logan’s best interests above all else. In one recording made by Michael Mr. Humphries is the one who told both Michael and Jennifer to stop arguing and he walked Michael to his car and tried to defuse the situation. There were no examples given of any situation in which Mr. Humphries lost his temper with Michael or verbally attacked him in any way. In all of the circumstances I find this to be quite remarkable. Mr.

Humphries is clearly a man of good character and integrity who would do anything he could to make his grandson’s life as good as it could be. Dwayne Langdon [ 69 ] Mr. Langdon is Jennifer’s second cousin - they share a great-grandmother but he is a generation older. He lives in Deer Lake. He filed an affidavit and attended via Skype for cross-examination. He has two young kids and there is another relative with young kids in Deer Lake. His evidence of a large extended family in N.L. was somewhat blunted in cross-examination when he confirmed that some of the family was in St.

John’s which was a six and a half hour drive away. Ms. Moss prepared and filed a chart of the extended family

on both sides to show that there were more children close to Logan’s age in the Brampton area family than there were in the Deer Lake family. Mr. Langdon was a good witness though, clearly a nice man who would be a family contact for Jennifer if she was able to move. Parenting history [ 70 ] Michael made it clear that he always wanted to be a father. Even though the child was conceived when the parties were “on a break” once he learned that Jennifer was pregnant he resolved to be there for the child. He said that he wanted to be present for the entire pregnancy experience.

He wanted to talk to his child in the womb. While giving this evidence Michael became very emotional. He began crying uncontrollably and needed to pause in his testimony to collect himself on a few occasions. [ 71 ] Michael proposed that Jennifer and he move in together in October 2013. He told his parents early on about the pregnancy and was frustrated that Jennifer did not want to tell her parents until she was engaged. He proposed to Jennifer before her parents left for Deer Lake that Christmas. The period immediately after Christmas 2013 was a time of high conflict and violence as noted above.

Michael said accompanying Jennifer to the hospital on January 6, 2014 was not unusual. Jennifer was very anxious throughout the pregnancy about something being wrong and he accompanied her to the hospital at least one other time when she was worried about a lack of fetal movement. Michael was present at the child’s birth and both parties were prepared for him coming home. Michael took two weeks off work. He said that he wanted to be able to do everything with the newborn baby that Jennifer could do. He said that in the first few weeks Jennifer was so nervous and cautious that he did most of the diapers.

Jennifer was breastfeeding and they were both concerned that Logan was losing weight. Michael stated that they worked together in those first two weeks that he took off work. [ 72 ] After he returned to work and Jennifer gained more confidence around her newborn child it was apparent to Michael that she felt that she no longer needed him for daily tasks. From then on he said her way was the right way. When he was home he wanted to help with everything but Jennifer insisted that she do it all she would not let him do anything. In Michael’s view the parties only really co- parented for two weeks.

After that he had to fight to be actively involved in his son’s life. By May 7, 2014 Jennifer was already denigrating his parenting and calling him an idiot to her parents. [ 73 ] In addition to the parenting issues, money or more properly the lack of it, continued to irritate Michael. He said that Jennifer had no understanding of finances. His salary was only $45,000 in 2014 and Jennifer was on maternity leave. He tried to get her to stick to the budget he worked out but she could not seem to do so. [ 74 ] Michael recalled a fight on February 7, 2015.

He told Jennifer that he was going to call U-Haul to rent a truck to move his things out of the apartment. Jennifer panicked and called her father. She told him that her father said that this threat was probably something abusers do. Michael was very upset by any negative comments that Jennifer made about him to her parents. He became very emotional when he said that she was trying to sabotage the good relationship that he had with them. He made it clear that it was very important to him that people think well of him.

He was very upset with Jennifer for telling her parents about their arguments and the physical altercations. [ 75 ] The parties continued to fight only now it was in the presence of their infant child. Jennifer accused Michael of hitting her when she was holding Logan. Michael emphatically denied that and stated that Jennifer would rip Logan from his arms when they were arguing. The separation [ 76 ] As time went on Michael started to leave the house sometimes overnight. He began planning to end the relationship. He did not tell Jennifer this.

On August 9, 2015, Michael told Jennifer that he wanted to end the relationship. He would be moving out and she could stay. Jennifer says that she asked how she and Logan would manage and he said that “Logan is your problem now” Michael denies saying this. I accept Jennifer’s evidence on this point. [ 77 ] Michael did move out without making any plans for the financial support of Jennifer and Logan. The texts filed make clear that he wanted her to let him know if she was going to stay in the apartment. At that time she had no employment and no income.

After a few days she realized that Michael was not coming back and she decided to move to her parent’s home. She said she had no choice as she could not afford to stay in the apartment. In the pressure of the moment it did not seem to occur to her that she could insist that Michael financially support her and the child so that she and the child would not be the ones that had to move. Michael says it was her decision to move and when she did so it made sense for him to move back in.

It appears that he did not intend to support her at this time and just made the assumption that she would move to live with her parents who had always emotionally and financially supported their daughter. He seemed to think that that was the natural thing to do. Logan would live with his mother and the MGP and he would have as much time with Logan as he could get unfettered by the rules and controls that he felt Jennifer was imposing upon him.

In this way Michael decided right from the time of a separation that he initiated that Jennifer would primarily look after Logan and in so doing she would either need or benefit from the unqualified support of her parents. [ 78 ] Throughout the entire length of their relationship Michael had complained that Jennifer had not pursued education diligently and was not planning to work.

It is not clear if he wanted Jennifer to become more emotionally and financially independent because it would be good for their life together, or if in the back of his mind he always intended to end the relationship at some point and he wanted her to be more financially independent of him. He was frustrated with her and this caused him to denigrate and demean her throughout the relationship. [ 79 ] It seems clear that after she became pregnant Jennifer did not give much thought to her financial future.

She admitted that she had grown up in a home where her father was the breadwinner and her mother played a traditional role. She saw gender roles through that lens. In a conversation that Michael surreptitiously taped she said that she was a mother and he was a father and that meant that she was the primary caregiver for the child. She clearly felt that fathers cannot do what mothers do for young children. In 2017, with the exception of breast feeding, we know that this is not true. [ 80 ] There is no doubt that Jennifer spent far more time with Logan than Michael did.

She said that Michael did not attend for all of his access and when he did have Logan he did not focus his attention upon him. That is not the evidence. I find that Michael did seek

access immediately after the separation and attended for all access possible. He worked in downtown Toronto so initially he was unable to attend at the apartment for mid-week access. I find no lack of effort in exercising access and no fault with what Michael did when he had Logan with him. Having said that, Michael was excessively worried about Jennifer’s intentions. He stated that he was “terrified” that he was being “alienated” from his young child. When he said that he was seeing his son three times a week for three hours at a time. There is no evidence of alienation in this matter.

There is evidence that the Jennifer was angry with Michael for ending the relationship and in the early days lashed out at him. Michael said she obtained his phone and deleted all his messages. He said that he gave her all of his photos of Logan but she failed or refused to provide him with any photos on her phone. Had Jennifer continued this pattern Michael might have a point. However, access began immediately after the separation and Jennifer told Michael that he could see his son every day.

He was unable to do so because of his work hours in downtown Toronto but the amount of time he had was not unreasonable in all of the circumstances. [ 81 ] There were restrictions on Michael during these early days. I do not see this as evidence of alienation but as evidence of an anxious, insecure mother wanting to establish herself as Logan’s primary caregiver. Jennifer had not succeeded with her education or a career and her main adult romantic relationship was abusive and dysfunctional. The evidence supports a finding that she was absolutely determined to be a good mother to Logan.

She did not want to exclude Michael from his son’s life but she did want to ensure that she would make all of the decisions about Logan. She had already defined her life as being Logan’s primary caregiver a phrase she repeated throughout this lengthy trial. When the parties separated Logan was 16 months old. Jennifer insisted that she supervise all access. She did limit access due to the need for breast feeding on demand and naps which she said could only occur in her presence.

She did not see a way that the parents could co-parent Logan and she did not see a way for her to successfully raise Logan without the emotional and financial assistance of her parents. [ 82 ] Jennifer retained a lawyer who sent a letter to Michael setting out her desire to move to Deer Lake with Logan. Michael immediately went to court and on September 1 he obtained a without prejudice order preventing a move. That order was effectively made a temporary order when it was not overturned on a motion review. The matter was then adjourned to October 15.

In the period September 1 to October 15, 2015, Michael stated that his role as a father was minimized. He said that he thought it only fair that the parties share joint custody and 50% of the time with the child.

While much was made over the fact that Michael had sought sole custody it appeared that this pleading was simply to make it clear that if Jennifer was to move he was ready, willing and able to care for his young son with the assistance of his own mother. [ 83 ] Jennifer’s evidence was that she felt that Michael was trying to intimidate her into giving up her plans to move by threatening to take her son away from her. She said in her testimony that Michael said he would keep Logan with him as a “power move”.

Michael denied using this expression but it was consistent with the tone of many of his emails in which he essentially asserted that he had a good education and a good job and she was a failure. [ 84 ] It may be that Jennifer’s insecurities together with her fear of what Michael might do caused her to be less generous with access time than she otherwise might have been. It is clear from her evidence that Jennifer was determined to follow the exact wording of a court order and willing to believe that Michael will stop at nothing to take Logan away from her.

Objectively there was little to no risk of Michael and his family keeping Logan with them if Jennifer was a little more flexible with access. Subjectively Jennifer saw Michael as an abusive man who was charming and well-liked by everyone he encountered. She seemed to feel that she was at constant risk of being manipulated by him. I find that this attitude caused her to unduly delay the expansion of Michael’s time with Logan.

Further down the litigation road it caused her to oppose the appointment of the Office of the Children’s Lawyer and to oppose the release of the therapist’s notes because the therapist was provided by Michael’s employee assistance plan. She felt that Michael would present well and she would not or that Michael had more power than she did. This attitude is consistent with the profile of a person with low self-esteem who has been the victim of domestic violence. [ 85 ] Michael and his counsel went to great lengths to show that Jennifer was unreasonable and controlling.

He said she was inflexible when it came to time with Logan. There were examples of inflexibility. Michael had changed the

schedule to accommodate a visit by Jennifer’s aunt. Jennifer denied Michael a little extra time for an anniversary party when the child was 27 months old. Jennifer did wait 12 days to respond to a request to change an access day. Conversely in the middle of that time frame she asked him if he wanted to go out with her and Logan on Halloween. She was slow to agree to overnight access but she sent Michael an e-mail before Easter inviting him to select the time he would like with their son.

Both parties were guilty of exaggerating the other’s faults and errors and presenting themselves as always fair and reasonable. [ 86 ] There was other seemingly contradictory evidence. In general the parties exchanged texts that were reasonably polite and focused. Their emails were another matter. Hundreds of emails were included in the documents briefs. There were many in which Michael was quite demanding and on occasion demeaning. Jennifer’s emails might be described as passive/aggressive at times.

She would fail or refuse to answer Michael’s queries which just resulted in more emails that were more insistent and more demanding. Michael admitted that he forwarded his e-mail to his counsel. There was no evidence that anyone other than the parties themselves wrote the emails. Nevertheless the emails were clearly written knowing that they would be used in litigation. The evidence of both parties was that outside of these emails they were able to communicate about their son by text and sometimes at exchanges at the MGPs home.

Mr Tom Humphries was instrumental in ensuring that conflict was kept to a minimum at exchanges but there were some troubling encounters. [ 87 ] Michael decided at the time of the separation to put his cell phone in his pocket to record all of the discussions at exchanges. He claimed that he needed to protect himself from false allegations. He made hundreds of recordings and went to the trouble of having them transcribed and filed. Ms. Moss chose a few to illustrate what Michael thought was Jennifer’s unreasonable behaviour. Mr.

White chose a few of Michael’s own recordings to prove that he was obsessive and demanding. Overall Michael’s decision to record did not assist his case. He taped Jennifer surreptitiously so he knew he was being taped but she did not. This seriously diminished the evidentiary value of the recordings. Furthermore, it showed that he did not respect boundaries. He used access exchanges as evidence gathering exercises. One example stands out. Ms. Moss spent some time exploring with Michael how Jennifer had failed to inform him that his son could have allergies.

He only discovered it after poring over medical records after disclosure. He confronted her with this at the doorstep in an aggressive way. Jennifer, the one who was unaware that she was being recorded, responded calmly and reasonably. Logan could be overheard in the background as Michael quizzed Jennifer. Jennifer’s mother took Logan out of earshot and Jennifer’s father who is

always nearby at exchanges did a masterful job at defusing the situation and guiding Michael outside to his car. [ 88 ] This confrontation ended up being over nothing. Logan did not have allergies and nothing was being hidden from him. I find that Michael was determined to use these tapes not to protect himself but to condemn Jennifer. He was spectacularly unsuccessful in these efforts. In the few tapes that were played Jennifer was almost always calm and Michael almost always anxious and demanding. [ 89 ] Not all of the exchanges were confrontational. Some were uneventful.

Jennifer testified that there were a few others that were simply embarrassing. On one occasion Michael was on the front driveway yelling at her when Logan was just inside the open door. A neighbour noticed when Michael yelled loudly that he could not wait to go to court. [ 90 ] Michael’s compulsion with proving himself to be a loving and devoted parent was also somewhat counter-productive at times. Michael would make a point of arriving 15 to 30 minutes early for exchanges. He testified that he did this because he does not get much time with Logan and wants to see him as much as possible.

What it really demonstrated was that Michael was putting pressure on Jennifer to give him Logan before the time that they had both agreed upon. Communication issues [ 91 ] Michael also made a huge issue of not being informed in advance of every medical and dental appointment the child had so he would have an opportunity to attend. There was e-mail and text evidence that Jennifer ultimately kept Michael apprised of all health issues. Michael was very upset when he heard that Logan needed “dental surgery” (chipped teeth and a cavity) and he insisted that he be able to attend. Jennifer agreed.

Unfortunately Michael overslept. He explained that he had been up all night because his father was having brain surgery to combat Parkinson’s. When he texted to say he was still coming Jennifer agreed to wait for him. The dentist had already put the wrist band on the MGF (as only two adults could be present) when Michael came through the door. To his credit Tom Humphries stepped aside and to her credit Jennifer suggested that Michael take Logan in for his surgery. [ 92 ] The nadir of the e-mail exchanges may have been the napping issue.

Michael accused Jennifer repeatedly of terminating Logan’s napping long before it should have ended for the express purpose of delivering to him an exhausted child. He e-mailed her websites on the issue of the ages that children should nap. Perhaps Jennifer did end the afternoon naps earlier than some parents might have done. The fact is that the child was with her most days of the week. She said that ending the naps did not impact Logan’s energy levels for his swimming and gymnastics classes.

I can accept Michael’s evidence that his son fell asleep soon after he was picked up at four or 4:30 p.m. for mid-week access. I cannot accept that any reasonable parent would complain about it to the degree that he did. It is common knowledge that the movement of a car often causes children to fall asleep when they might not have done so otherwise. The evidence was that it was a 20 to 30 minute drive from one home to the other.

So what if the child was asleep on the drive and a little groggy at the beginning of a three hour visit. [ 93 ] Michael also complained repeatedly that he was not informed by Jennifer about Logan’s extra-curricular activities. To some degree he had a point. Jennifer registered Logan for gymnastics and a new more expensive swim program without providing Michael with the details. She was evasive in her testimony as to why she did not do so and basically suggested that he should have found out about the activities himself. This issue does not reflect well on Michael either.

He knew his son was taking swimming lessons when he left in August 2015. He knew Jennifer had no independent source of income. On August 17 Jennifer asked if Michael was going to help with the cost of the swimming lessons. Jennifer said that Michael responded with the “Logan was now her problem” comment. Then he called back and said he would bring a cheque but he never did. [ 94 ] From his frequent access Michael knew that Logan was in some sort of gymnastics program but he made no inquiries about it and did not offer to contribute any money.

Finally Michael was most aggrieved that Jennifer did not let him sign Logan up for soccer when he suggested it in the spring of 2017. Interestingly he took no steps to look into any programs and no steps to sign Logan up himself. The parties had a joint custody order. He could have found a program, sent the information to Jennifer, and then offered to sign up his son. Instead he broached the subject of soccer and became incensed that Jennifer signed him up for soccer without giving him the chance to do so. Jennifer invited him to attend all of the games on the condition that he not interfere with the coach.

He did attend all but three games, he did not contribute to the cost and he did speak to the coach which is the one thing he was asked not to do. [ 95 ] Another area of e-mail confrontations dealt with the regular access

schedule itself. It is important to note that both parties were represented by experienced family law counsel throughout. Notwithstanding that Michael sent Jennifer many emails either requesting or demanding that she provide him with more time with Logan. The most egregious examples of trying to pressure her directly on issues being addressed the lawyers came after the parties negotiated comprehensive Minutes of Settlement to resolve a motion that was scheduled for May 12, 2016.

Two weeks after an order had been made based upon these Minutes Michael began sending Jennifer emails stating that he was pressured into signing Minutes with which he did not agree. He claimed that Jennifer refused to negotiate in good faith as the Minutes signed were substantially the same as an offer she had made some two months before. He said her refusal to be reasonable caused him to have to give in or face the costs of a contested motion. He testified that he was “terrified” that he was being “pushed out” of his son’s life.

He claimed that he assumed that there would be flexibility after the final phase of access expansion was reached but that was not done. He said that he feels that Logan could easily have more time with him and that he has to fight for every minute of time with him. [ 96 ] Jennifer responded quite rightly that they had both agreed to an order with their lawyers present and she was going to stick to the wording of that order.

This was not enough for Michael who was frustrated by the pace of the expansion of access was determined to keep pushing until Jennifer agreed with the 50/50 time sharing that he had decided was fair and in Logan’s best interest. Michael asked for make-up time for a work related trip and Jennifer did agree to a change in the

schedule but not exactly what he wanted. Michael testified that “He is the main provider and she is reluctant to work around my work schedule”. Discussion around move to Deer Lake [ 97 ] In his evidence Michael noted that Jennifer had been born in Mississauga and had spent most of her life here. The uncontested evidence was that Jennifer’s parents had grown up in Deer Lake and moved to the Mississauga area prior to Jennifer’s birth in 1981. The family moved back to Deer Lake in or about 1993 when Jennifer was 12. She attended high school in Deer Lake. She was then accepted

into St. Mary’s University in Halifax to take a business degree. She moved into residence there in 1999. Jennifer’s evidence was that she did not enjoy the busy social life of campus living and the transcripts filed show that she did not do well in her courses. Jennifer returned to her parent’s home in Deer Lake for Christmas 1999 and then returned to Halifax for the winter term. She obtained a D on one course, failed two others and dropped out of the fourth one.

She received an academic dismissal. [ 98 ] Jennifer then returned to Deer Lake in the spring of 2000 and her evidence was that she lived with her parents and worked. She returned to Halifax to take a business diploma program in the fall term of 2002. She passed three of her four courses that term but withdrew from all of her classes in the winter term. At this time her parents had decided to move back to Mississauga and Jennifer moved to join them. By 2005 she was living on her own and working at Boston Pizza where she met Michael.

She moved back into her parent’s home during this time before finally moving in with Michael in October 2013. [ 99 ] Jennifer’s close ties to Deer Lake were evident during the parties’ relationship. When they were dating Michael accompanied her to Deer Lake for Christmas one year. Michael was quite close to Jennifer’s parents so that he was well aware fairly early on in the relationship that they had maintained a home in Deer Lake and planned to move there when Tom Humphries retired. [ 100 ] After Jennifer became pregnant Michael asked her if she planned to return to Deer Lake to raise the child.

Jennifer filed a copy of a Facebook Messenger conversation with Michael concerning the move. She said the conversation was shortly after she learned that she was pregnant in around August 2013. The excerpt of the conversation filed reads as follows; M. Do your school Then you won’t be stuck anywhere no matter what happens J. I’m going to be stuck here if we do this, you’ll (unreadable) mind about what? M. I TOLD you If you’re not happy here I WON’T KEEP YOU HERE J Will u try to keep the baby in ON? M. No… J.

K. bc I can’t decide if I want to live here forever this fast, I don’t even know what it will be like and it’s stressing me out making a decision so quickly. [ 101 ] Jennifer said that over the next few weeks she was focused on their relationship. She wanted to move in with Michael and get engaged before she told her parents of the pregnancy. She wanted to be married sooner rather than later. [ 102 ] When this discussion was put to Michael he said that this was only one of many discussions about the possibility of Jennifer moving to Deer Lake.

He denied that he had given Jennifer the impression that if the relationship did not work out that she could move with the child. Even after Michael obtained the September 1 order that prevented Logan from leaving he entered into discussions with Jennifer about the possibility of her moving if the travel costs for him were deducted from the child support. Michael’s evidence on the Facebook message and any discussions about a move to Deer Lake were confusing at best.

In a roundabout way he said that he was only prepared to discuss what her move could look like, but he never would have agreed because he would lose his close relationship with his son. [ 103 ] There is no doubt from the evidence that Michael was aware throughout the relationship that if their relationship did not work out that Jennifer would want to move back to Deer Lake with her parents. In his own evidence Michael spoke about how Jennifer had been unable to make any friends in the Greater Toronto Area notwithstanding all of the jobs that she had where she worked with the public.

He had known her for nine years by the time of separation and their relationship had been on and off over many of those years. Michael had dated other women when they were “on a break” but Jennifer had not gone out with anyone else. He also knew that apart from a first cousin in Cambridge, whom she had not seen in a long time, that she did not have any extended family in southern Ontario. There was never any discussion of both parties moving to Deer Lake. Michael had a good job in Toronto and a large and loving family in Brampton.

Travel to Deer Lake [ 104 ] Jennifer has not been to Deer Lake since this proceeding began on September 1, 2015. There is an order that prevents either party from removing the child from Peel and Jennifer was quite clear that she would not leave Logan even for a visit to N.L. [ 105 ] This travel issue is a good example of the parties’ inability to co-operate in Logan’s best interest. Michael said he wants Logan to know his family in Deer Lake and he will encourage Jennifer to take him there once it is clear that Logan will remain living in Ontario.

Jennifer said that it had been very difficult for her to not be able to spend Christmas 2015 and 2016 in Deer Lake and implied that Michael had frustrated her ability to go there simply out of bad faith. Michael’s position has been that he will not negotiate holidays for Jennifer without there being a negotiation of additional time for him. He said he was prepared to agree to Jennifer going to Deer Lake if he could get a few extra days of holiday time with his son.

Jennifer’s position was that this was an example of Michael always pushing her for more concessions. [ 106 ] In the end result the parties, with the assistance of counsel, did work out a time sharing arrangement over Christmas in 2015 and 2016. Michael noted that he did not get the time he proposed. He wanted 50% time sharing over the holidays but when he calculated it out he realized that he only received 16% of the Christmas holiday.

[ 107 ] I find fault with both parents over the holiday issues. In May 2016 when Logan was only two years old they consented to an order. Paragraph 21 of that order stated; 21. The

schedule does not determine holiday schedules and the parties will rearrange the

schedule as needed in the case of holidays and special events which may include travel outside the province. [ 108 ] Notwithstanding this order, with a few minor exceptions to accommodate an aunt here and a work conference there, the parties have been unable to agree upon any holiday schedule. They are both so focused on the litigation and so determined that the other not gain any advantage that they have both missed opportunities.

More importantly Logan has lost out on extended time with his father and his family and with the chance to spend time at Christmas with his mother, her parents and the extended family in Deer Lake. [ 109 ] They contemplated holiday time and out of province travel in May 2016 but they were unable or unwilling to come to any sensible compromise. They both put their own needs ahead of the best interests of their son. They demonstrated that they are completely unable to work co-operatively to ensure that Logan has the advantage of an extended period of time with each of their families.

Child’s documents [ 110 ] Michael was very emotional when he spoke about the fact that Jennifer had not registered him as Logan’s father on the Statement of Live Birth. Jennifer said that when she completed the form about a month after the birth she and Michael were getting along poorly. She decided that since they were not married and she was not sure what would happen in their relationship that she would not list him. She said that she could always add him on later. Michael considered this to be a momentous decision that showed that Jennifer wanted to exclude him from his son’s life.

In addition Jennifer was slow to provide him with a copy of Logan’s health card. She did not agree to provide Logan’s Social Insurance Number (“SIN”) number until after the questioning in June 2016. It is arguable that Jennifer was overly protective of Logan’s legal documents. Mrs. Romita could not begin an RESP without the SIN number and this delay was not good for Logan. There was no need to hide the birth registration particulars.

Jennifer’s actions were consistent with her unreasonable but very real fear that Michael would somehow use the information to his advantage. [ 111 ] Michael grossly overacted to the documents issue. He became very angry at the lack of disclosure. He allowed himself to think that the child not bearing his surname was somehow an attack on him as a father. This was one of many examples when in his testimony Michael completely broke down. He presented himself as a victim, a man just trying to be a good father to his son. He complained bitterly that Jennifer was trying to control and manipulate him at every turn.

A constant theme in his testimony was his unflinching effort to be able to be a father to his son and all of the hurdles and roadblocks Jennifer put in his way. The emotion he displayed on these points was genuine but it was out of all proportion to the

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