Carter v. Mackie, 2017 ONCJ 541

ONTARIO COURT OF JUSTICE CITATION: Carter v. Mackie , 2017 ONCJ 541 DATE: June 6, 2017 COURT FILE No.: D143/15 BETWEEN: David-Lee Carter Applicant — AND — Jordanah Dawn Mackie Respondent Before Justice Jane E.

Caspers Heard on April 19, 2017 and April 27, 2017 Reasons for Judgment released on June 6, 2017 Allen Wilford.......................................................................................... counsel for the applicant Luke Weiler......................................................................................... counsel for the respondent CASPERS J.: 1 : INTRODUCTION [ 1 ] The parties to this proceeding David-Lee Carter (“the father”) and Jordanah Dawn Mackie (“the mother”) have agreed to an order for joint custody of their one child, Daidan Amour-Mackie Carter, born February 26, 2006 ( “Daidan”), who is now 11 years of age.

The court is asked to make a determination with respect to the child’s primary residence and to address any incidents of child support. 2: HISTORY OF THE LITIGATION [ 2 ] Although there have been several orders over the years, this is still an application. This file started in Brampton, Ontario. It was transferred to Guelph on September 1, 2015.

Since then, this proceeding has been case managed by me and all interim proceedings, except for the settlement conference held on September 7, 2016 and the speak to date of October 16, 2016, have been heard by me since that date. [ 3 ] The father commenced his Application on May 20, 2015 [1] seeking sole custody of Daidan. In the alternative, he requested joint custody of Daidan with a term that he should have primary residence. He also requested relief incidental to custody, specifically relating to passports and an order that mother not remove the child from the province of Ontario without his written consent.

Child support in accordance with the Child Support Guidelines was requested as was a claim for costs. The reason advanced for his filing of the Application was based primarily on mother’s refusal to allow him regular, unfettered physical and telephone access to his son. [ 4 ] A review of the evidentiary record indicates that mother brought a procedural motion returnable on June 18, 2015 [2] seeking to file her sworn financial statement without her 2013 and 2014 income tax assessment forms attached. That order was granted by Justice Parent.

In her Answer [3] dated June 17, 2015 and filed on July 9, 2015 mother requested sole custody of Daidan, the right to obtain and maintain the child’s passport, an order that she be permitted to travel outside of Canada without father’s written consent, child support

and costs. Mother also requested a transfer of the proceeding to Guelph. [ 5 ] On July 9, 2015 at the request of the Rule 40 clerk, the proceeding was placed before Justice Parent on the issue of jurisdiction. On the same date the parties entered into an interim Consent whereby Daidan was to reside with his father on alternate weekends from Friday at 6 pm until Monday at 7 pm. Daidan was to remain with mother at all other times.

The proceeding was adjourned to a case conference on September 1, 2017. [ 6 ] On July 27, 2015, the father brought a motion, without notice, before Justice Parent seeking an order prohibiting mother from removing Daidan from the province of Ontario without his permission.

The motion was dismissed as the proceeding was brought without notice and a case conference had been previously scheduled for September 1, 2015. [ 7 ] At the case conference before Justice Sullivan, the parties, pursuant to interim Minutes of Settlement, agreed to keep each other advised of their addresses and contact numbers; father’s access was adjusted with respect to his parenting times on alternate weekends such that visits took place from Friday at 7:00 pm to Sunday at 8:00 pm; additional access was agreed to on alternate Tuesdays from 5:00 pm to 7:00 pm; father agreed to be responsible for all transportation; and telephone access was afforded to father on an unrestricted basis.

A police assist order was made to ensure enforcement. Mother was ordered to deliver her updated sworn financial statement with her most recent pay stub and 2013 and 2014 notices of assessment.

The matter was transferred to Guelph returnable for a case conference on October 14, 2015. [ 8 ] At the case conference held before me on October 14, 2015, on an interim basis, mother was again ordered to file an updated, sworn financial statement with attachments; the OCL was requested to engage; father was granted Christmas access from after school on December 18, 2015 until noon on December 15, 2015; child support was ordered in the amount of $779.00 per month commencing May 1, 2015 based on a line 150 income for 2014 of $87,183.00 annually. [ 9 ] On November 16, 2015 [4] mother brought a motion seeking to travel to Disney World during the Christmas holiday.

The motion was brought as father refused to give his consent. That order was granted with the proviso that mother provide to father a detailed itinerary and contact information within 7 days. As protection concerns were raised, Family and Children’s Services of Guelph and Wellington County (“society”) was ordered to investigate and report to the court by affidavit on or before December 14, 2015. Criminal record and driving record checks were ordered to be produced by both parties.

The proceeding was adjourned to December 14, 2015. [ 10 ] On December 14, 2015 police records were ordered with respect to both mother and father. Child support payable by father was adjusted to $289.00 per month based on $33, 670.00 subject to any readjustment to May 1, 2015. The time for Tuesday access was varied such that father’s access occurred from 6:00 pm to 8:00 pm, in order to accommodate his work schedule.

The proceeding was adjourned to February 22, 2016. [ 11 ] On February 22, 2016, pursuant to father’s request and mother’s consent, father was permitted to travel with Daidan to Mexico from March 14, 2016 to March 17, 2016. March 13, 2016 was the date set for the exchange of the passport, health card and confirmation of up to date vaccinations.

The proceeding was then adjourned to May 2, 2016 to monitor the OCL involvement in light of the anticipated April 29, 2016 disclosure meeting. [ 12 ] The proceeding was adjourned from May 2, 2016 to June 15, 2016. [ 13 ] It was on June 15, 2016 that the parties agreed to a final order for joint custody. Interim summer access was addressed on the basis of a two week rotation. Father’s Day and Mother’s Day were addressed as were future March Break weeks which were shared by the parties in alternate years.

The issues of primary residence, parenting time and child support were adjourned to a settlement conference on September 7, 2016. [ 14 ] The written Report of clinical investigator, Todd Perrault (“clinical investigator”), from the OCL, dated May 20, 2016, was received by the court on May 24, 2016. [ 15 ] On September 7, 2016, the parties attended, unrepresented, before Justice Borghesan for a settlement conference. In order to allow the parties an opportunity to consider their respective positions, the matter was adjourned to October 6, 2016.

As there was no resolution, Justice Rogers addressed Christmas access and adjourned to January 23, 2017 for a trial management conference. [ 16 ] On January 23, 2017, a trial management conference continuation was scheduled for February 8, 2017 as father had retained counsel who was unavailable. A Notice of Change in Representation noting Mr. Wilford as father’s counsel was filed on January 23, 2017. [ 17 ] From the outset, both parties appeared before the court as self-represented litigants. On February 8, 2017 father attended with retained counsel, Mr. Wilford. Mother continued to act in person.

On that date a Views of the Child (“VOC”) Report was requested from the OCL. Telephone access between father and Daidan was ordered to take place daily at 7:00 pm. An order was made permitting email service upon the parties of all future documentation. In order to afford the parties an opportunity to receive and review the VOC Report, the trial management conference was adjourned to March 16, 2017. No resolution having been achieved, the proceeding was adjourned to trial scheduled for April 19 and April 27, 2017. [ 18 ] In the intervening period mother retained the legal services of Mr.

Weiler. [ 19 ] Both parties were represented at the trial. Preliminary Motion

[ 20 ] As a preliminary matter prior to trial, Mr. Weiler brought a motion seeking to enforce an Offer to Settle made by father as attached to his settlement conference brief on September 7, 2016 when the parties appeared, unrepresented, before Justice Borghesan. Mr. Wilford opposed the relief sought. Mr. Weiler provided me with three cases which addressed the issue of enforcement of Offers to Settle [5] all of which I carefully considered. Following submissions, I declined to make the order requested for the following reasons: (

a) both parties until fairly recently were unrepresented; (

b) Mr. Wilford was unaware of the Offer to Settle advanced by father at the settlement conference as he had yet to be retained; (

c) Mr. Carter believed that the Offer to Settle was null and void after the settlement conference had been concluded; (

d) at no point during the six or so months until the commencement of trial had mother sought enforcement of the Offer to Settle despite numerous court appearances and a mutual request that this matter proceed to trial; (

e) the matter had been outstanding for 699 days; and (

f) the trial was ready to proceed. [ 21 ] At trial the parties tendered oral evidence and were subject to cross-examination. . Both parties provided additional evidence from collateral witnesses. The father was supported in his position by Linda Amour-Grant, the paternal grandmother. The mother’s position was bolstered by the evidence of Tracey Mackie-Vlietstra, the maternal grandmother and by the mother’s step-father, Mark Evans. [ 22 ] The court also relied on the Trial Record [6] and Document Briefs [7] filed by both father and mother. No expert evidence was tendered.

No cross-examination of any third party, other than family members referenced at paragraph 21, was requested [ 23 ] Written submissions were ordered. 3: POSITION OF THE PARTIES [ 24 ] Father and mother have agreed to an order for joint custody. The remaining issues to be determined relate to primary residence, child support and costs. 4: BACKGROUND [ 25 ] The pleadings for the most part are so ill-defined that the court has had great difficulty following the chronology of events.

Nevertheless, I shall endeavor to outline the history as I understand it from the documentary evidence filed and the oral testimony presented. Although there may be some minor variables in terms of dates, the evidence about the couple’s relationship since 2005 appears to present the following narrative. [ 26 ] The parties met in 2005 when both were living in Ontario. Father candidly acknowledged to the clinical investigator that when the couple first met he was partying and selling drugs [8] . Mother became pregnant shortly after the relationship began. Daidan was born on February 26, 2006, in Guelph.

Mother did not disclose her pregnancy to father for approximately five (5) months. [ 27 ] On April 10, 2008 the couple moved to Alberta. Daidan remained with his maternal grandparents for a time and then was brought to Alberta to be with his parents. [ 28 ] Between 2008 and 2012 the family remained in Edmonton. There was tension in the relationship as evidenced by the fact that mother moved back to Guelph on a couple of occasions between 2008 and 2012. Most of the conflicts appear to have been about finances.

In July, 2009, mother moved back to Edmonton with Daidan and remained there until sometime in or about September, 2012 when she and the child returned to Guelph. [ 29 ] In December 2012 the parties reconciled. At the time father was working in Edmonton but would fly home every six (6) to eight (8) weeks. [ 30 ] In September, 2013 father took a position that allowed him to work in, I believe, Fort McMurray, Alberta for two (2) weeks and in Guelph for one (1) week. In June, 2014 father secured a job in Guelph and moved in with mother and Daidan. Conflict persisted.

The couple continued to have challenges relating to finances and again in September, 2014 they separated and father moved to Brampton. The parties reconciled again in either November or December 2014, and together they moved to Brampton. [ 31 ] Despite the move, to the credit of both parents, they endeavoured to afford Daidan some stability by ensuring his continued attendance at Holy Trinity School in Guelph.

Mother continued to work in Guelph so she assumed the responsibility for driving him to school daily. [ 32 ] In April, 2015 the final separation occurred following which mother and Daidan moved to Guelph to live with the maternal grandmother, Ms. Mackie-Vlietstra. Father remained in Brampton. [ 33 ] Currently access between Daidan and his father takes place alternate weekends from Friday between 6:00 pm and 7:00 pm until Sunday at 8:00 pm and every other Tuesday from 6:00 pm to 8:00 pm pursuant to orders dated September 1, 2015 and December 14, 2015.

In accordance with the order of February 8, 2017 telephone access is to take place daily at 7:00 pm. [ 34 ] Both parents concede that during the early years of their relationship both parties were physical with each other during conflicts which required some intervention by police and the society [9] . Later the physical aspects lessened and the arguments involved more yelling and screaming much of which, it is agreed, took place in front of Daidan. Communication continues to be difficult 5: EVIDENCE 5.1 Father’s current situation [ 35 ] Father’s evidence was relatively brief.

He is 35 years of age and since August 2015 has resided in a bungalow at 124 Avondale Blvd., Brampton with his fiancé, Erika Cober and her mother . Ms. Cober is employed on a full time basis at the Peel District School Board. She has no children. Together father and Ms. Cober have no children. She has no criminal record nor any prior

involvement with child protective agencies. In December, 2016 father undertook a remodelling of the basement which now has a small kitchen, 2 bedrooms, a living room, dining room and a 3 piece bathroom. Daidan has his own room with a window which is up to code standards. [ 36 ] Daidan is a very important part of his life and he sees him as often as he can. Pursuant to court order that includes alternate weekends and every Tuesday. As his son enjoys sports, and basketball in particular, his father has enrolled him in skills basketball sessions in Brampton.

When the two are not participating in or watching sports, they “hang out” or play video games. Father has a number of relatives in the Toronto/ Brampton area and has a close relationship with his mother, Ms. Amour-Grant, who testified at this trial. He submits that he has an extended family who love and support him. [ 37 ] Father acknowledges the importance of education and to that end ensures that Daidan always has his homework done when his son is with him. He maintains ongoing contact with the school. [ 38 ] Father testified that it is important for Daidan to know the difference between right and wrong.

Father was direct and candid in acknowledging a lengthy criminal record [10] . He has served time in jail and probation for some of the offenses. He voluntarily disclosed that he sold drugs prior to and during his relationship with mother although he is no longer engaged with the drug culture, a fact which mother concedes. In 2015 he was charged with driving over the speed limit with Daidan in the car which he conceded put the child at risk. His licence was suspended from July, 2015 to October, 2015.

He testified that he has learned from his experiences with the criminal justice system and does not want his son to make the same mistakes that he did as a young man. [ 39 ] Father is employed as a journeyman pipe fitter earning $34.76 per hour. His work hours are usually 7am to 3pm. However his company has recently received a contract which will allow him to adjust his

schedule so as to commence his work at 8:30 am instead of 7:00 am. Once a month he will have to cover an extra four-hour shift but daycare will not be an issue. If he is unavailable due to work commitments, Daidan could be cared for by his fiancé’s mother or by Ms. Cober. [ 40 ] Based on an income of $33,670.00 father is paying child support to mother in the amount of $289.00 per month in accordance with the order of December 14, 2015. He anticipates a 2017 income of approximately $72,000.00. 5.2 Mother’s Current situation [ 41 ] Mother is 27 years of age.

When the clinical investigator prepared his Report, she was living with Daidan at the home of the maternal grandmother, Ms. Mackie-Vlietstra, in Guelph. In July, 2016, she relocated to a 3-bedroom home in Guelph with her brother and his girlfriend. They reside downstairs and mother and son reside upstairs. The house is within close proximity to Daidan’s current school. [ 42 ] Mother is employed as a pharmacy technician at Shopper’s Drug Mart. When the clinical investigator began his investigation, mother was working day shifts [11] : Monday, Thursday and Friday from 9:00 am to 5:00 pm.

Tuesday from 9:00 am to 5:00 pm or 1:00 pm to 9:00 pm. Wednesday from 4:00 pm to 12:00 am. By the time the Report was completed mother had reportedly changed her shift such that she was working the night shift Monday to Friday from 11:00 pm to 7:00 am. She works an extra shift on the Sunday that Daidan is with his father. [ 43 ] According to her financial statement dated April 18, 2017, mother earns $44,460.00 annually [12] .

No 2016 tax information for mother was filed [ 44 ] Mother has no criminal record but does have a driving record with multiple entries, a copy of which was filed in these proceedings on December 14, 2015. [ 45 ] Mother testified that she is in regular communication with the school and maintains a close relationship with Daidan’s teachers with whom she regularly exchanges information. In support she has provided an exchange of text messages and an entry on Daidan’s agenda [13] [ 46 ] Daidan was described as a happy, healthy, emotionally well-adjusted boy. All of his health and dental needs are being met.

Mother spoke of the close relationship that she has with her son and that she and Daidan are able to ”talk things out” even if it means texting each other from one room of the house to another. [ 47 ] Mother has a stable support network. She has a new boyfriend, a local boxer from Orangeville, whom she says is close to Daidan and is a good role model for him. He has no criminal record of which she is aware. In addition she has her family most of whom appear to reside in the Guelph and Brampton areas, have embraced Daidan and have been caregivers from time to time. 5.3 Daidan [ 48 ] Daidan is 11 years of age.

Father described Daidan to the clinical investigator, as “awesome, compassionate, intelligent, affectionate and a little timid.” [14] Mother has described him as “funny, competitive, strong willed, compassionate, a quick learner and a great kid.” [15] Much of the information about Daidan has been elicited from the OCL Report and the VOC Report. [ 49 ] There is no question that Daidan loves both of his parents and that they are committed to him. [ 50 ] Daidan is a grade 5 student at Holy Trinity Catholic School, Guelph. According to information disclosed to the clinical investigator [16] from Principal Mr.

Goodwin and Daidan’s grade 5 teacher, Ms. Uyede, academically Daidan struggles with math. His language is reported to be below the provincial standards in reading and writing. He struggles with self-regulation. Daidan’s teachers reported that during the 2015/2016 academic year Daidan was regularly late for school. Since mother relocated to a residence closer to Daidan’s school some of the concerns have been remediated. The evidence suggests limited contact by mother with the school during the 2015/2016 academic year.

Although the dates are not clear [17] it appears that father has had at times, had “a great deal of contact” with the school, via telephone when he was in Ontario and in Alberta. As at May, 2016, the contact appears to have lessened to the point

where there has been no contact at all. [18] He has now reengaged. [ 51 ] Aggressive behaviour has been a critical issue. For two years Daidan worked with a Child and Youth Worker at the school. In 2016 his behaviour appeared to improve and this resource did not seem as necessary. In 2014/2015 the school suggested that Daidan be seen by a doctor to address this impulsivity. There is no evidence as to whether that was done. Similarly it was recommended that mother have Daidan attend counselling to deal with stressors related to his parents’ separation.

This was not done. [ 52 ] Both parents agree that Daidan does best with firm boundaries. [ 53 ] Daidan is athletic and engages in a number of different sporting activities promoted by both parents. Specifically he enjoys basketball. His favourite subject in school is physical education. [ 54 ] He has friends in his current neighbourhood.

Although he has no friends in Brampton where his father lives, he enjoys spending time with his cousins and extended family members 6: ANALYSIS 6.1 Parental Concerns [ 55 ] Father commenced this Application because he believed that mother was trying to exclude him from Daidan’s life. He therefore seeks a primary residence order to ensure that this does not happen. His complaints about the mother can be summarized as follows:

a) She frequently denies him access. She does not facilitate his telephone contact with his son.

b) Communication between the parties has been difficult because mother does not respond to his phone calls or text messages

c) Daidan has been regularly late or absent from school.

d) Mother does not spend sufficient time with Daidan

e) Mother leaves him alone overnight while she works.

f) That mother will attempt to relocate to Alberta and take Daidan with her. [ 56 ] In her evidence mother raised concerns about father which can be summarized as follows: (

a) Father continues to contact the police and protective agencies regarding allegations of abuse directed towards Daidan all of which are unfounded. [19] (

b) Father continues to discuss court proceedings with Daidan. [20] Access [ 57 ] The evidence conflicts on the issue of just why Daidan resides with his mother. Father disputes that he ever acquiesced to mother taking Daidan with her during their several separations. It is his position that Daidan was removed without his consent. Mother posits that Daidan always remained with her by agreement.

Nevertheless the fact is that the child resided with his mother since the separation in April, 2015 and father did nothing to change that status quo as long as he was having access. [ 58 ] The evidence establishes that the mother is sometimes difficult when it comes to facilitating physical access between father and son. For instance on July 31, 2015, mother refused to allow father access until he produced documentary evidence of his address notwithstanding that he was entitled to access and had advised her verbally of his address [21] .

The police were called by father in an effort to enforce the prevailing order with respect to his access entitlement. He eventually went to Staples to print off documentary evidence from his cell phone. The address which he produced was precisely what he had advised. Mother took an unreasonable position. The court is not aware of father having threatened to remove Daidan from the care of his mother, although she references her concern in her Answer, and there is no evidence to suggest that he would do so. Mother’s own testimony belies any concern that father would remove Daidan.

She testified that father “is not a bad parent” and that while she does not like him or what he has done he is “quite reliable, picks up Daidan on time” and “calls if he can’t be there”. She reported to the clinical investigator that father could make good parenting decisions for her son and that he is a “good dad”. [22] She just doesn’t like him as a person. I conclude that it was simply an effort to delay and frustrate access. [ 59 ] In the VOC Report which is the most recent statement of Daidan’s views and preferences, the child has raised some concerns about the current parenting arrangement.

Sometimes he is late for access or misses access visits altogether “which he does not feel good about because he misses his father.” Specifically he cited the missed appointment with Camisha Sibblis which was scheduled for February 21, 2017 and which was to be an observational visit between Daidan and his father. He stated to Ms. Sibblis: “One time my mom took me to a car show so we missed the appointment with my dad and then I didn’t see him until the weekend.” The child was disappointed.

Mother’s response to this very important meeting in advance of the pending trial, was surprising and indicative of just how dismissive she is of the process and the important issue of parental engagement with a child. Ms. Sibblis included in her VOC Report that the child has told his mother how he feels about missing visits and “she doesn’t really say anything.” A

surprising response from mother under the circumstances and demonstrative of an acute lack of empathy. [ 60 ] Mother’s refusal to facilitate telephone access with Daidan has been a theme since 2015 following the parties’ separation . Father argues that from the beginning, his access and especially his telephone access, has been blocked. He alleges that despite a court order that permits him access every evening at 7:00pm, he has only sporadic contact with his son and this, when it does take place, occurs closer to 8:00 pm., despite repeated calls.

Father testified that as a result of his inability to speak regularly with his son, he has had to contact Daidan at school or he and Daidan have had to engage in clandestine telephone calls. Based on the totality of the evidence I accept this. [ 61 ] Father testified that he was blocked by mother from his son’s iPad thus restricting his ability to communicate with his son. Mother’s evidence appears to be that she did not install the parental block but if she did then Daidan, who is technologically literate, could remove it.

There is no evidence to confirm the veracity of this statement either way. [ 62 ] This refusal to facilitate access is an important factor to take into consideration as from the outset father has sought access and there is substantial evidence through the affidavit of Craig Walraven, the OCL Report and the VOC Report that at a minimum the child wants more contact with his father. [ 63 ] Mother has found an ally in her crusade against father in the maternal grandmother, Ms.

Mackie-Vlietstra, who freely acknowledged refusing to permit calls between father and son even when Daidan was with her and his mother was in Alberta as was the case on July 21, 2015 [ 64 ] In her testimony, Ms. Mackie-Vlietstra unabashedly acknowledged that she told father that he would have to contact mother, who was out of province, wasting time and money, to secure her consent to speak to his son who was standing beside his grandmother and within an arm’s reach of the phone. As an educated woman who is very closely allied with her daughter, Ms.

Mackie-Vlietstra must have been aware of the order and her obligation to comply with it. The only obvious conclusion is that the position she took was sanctioned by mother and that the two together knowingly and deliberately blocked father’s access. [ 65 ] The father’s evidence with respect to Ms. Mackie-Vlietstra impeding access was corroborated by the paternal grandmother, Ms. Amour-Grant. She testified that following the separation of the parents she tried to call Daidan but was prevented from doing so by mother and the maternal grandmother. Ms. Amour-Grant testified that she was told by Ms.

Mackie-Vlietstra that she was not to call the house to speak with Daidan under any circumstances. This is particularly unfortunate as Ms. Amour-Grant has been identified as someone with whom Daidan has a very close, emotional bond. According to the police report filed on July 21, 2015, Daidan identified Ms. Amour-Grant “as a person he likes to talk to about any issues.” When the police arrived, Ms. Mackie-Vlietstra was informed by the police and the social worker, Tracy Kennedy, that Daidan was distressed and wanted to speak with Ms. Amour-Grant. Yet she refused to provide a telephone number.

Her response was simply “That’s his dad’s deal”. Hardly a child-focussed response. [ 66 ] On the issue of interference with access by mother and maternal grandmother, I accept the father’s evidence and submissions that it has been challenging to exercise his access in accordance with the court order. Communication [ 67 ] The parties each agree that communication has been difficult. Schooling [ 68 ] Father has raised concerns regarding Daidan’s schooling.

Particularly he voiced his concerns about his son’s attendance, behaviour and lacklustre academic performance. [ 69 ] Daidan’s report card for June 27, 2016 [23] indicated 28 days late for the academic year and 6 absences. Mother admitted that this was unacceptable and in her words “she did not do her job.” For the child it must have been embarrassing to be continually late. The evidence on the issue of precisely why Daidan was late for school was inconsistent and difficult to reconcile.

For example, were Daidan’s late arrivals at school attributable to the nutritious breakfast of cereal, eggs, and bacon and pancakes which mother said she prepared every morning after returning from work at 7:30 am or, as the mother and maternal grandmother later testified was Daidan’s lateness attributable to the fact that “we are not morning people”? [ 70 ] For the first 7 months after returning to Guelph she and Daidan lived with the paternal grandmother and she says life “was chaotic.” So she made some changes in her routine which included, in March, 2016, changing from the day shift to the night shift and moving closer to Daidan’s school in July, 2016.

These changes she testified made “a real difference.” [ 71 ] Unfortunately mother’s observations that Daidan’s academic progress has improved during the 2016/2017 academic year as a result of her relocation and her change in work

schedule is not supported by the evidence. The report card dated November 15, 2016 references inconsistent and disorganized work habits and only short lived improvements in behaviour. [24] The most recent report card dated February 14, 2017 indicate that Daidan has “moved away from the strategies he was using in the first part of the year and is having more difficulty in all areas of his learning skills and work habits.” [25] One of the themes which emerges from the evidence dealing with his schooling is that Daidan’s homework is not always completed [26] .

Daidan himself disclosed the difference in approach between his mother and father to Ms. Sibblis who notes in the VOC Report: “…both his father and his father’s fiancé help with his homework in effective ways. By contrast Daidan reported: “[mom] is not as patient with me.

When she does it her way and I do it my way, it is hard for us to understand each other.” [ 72 ] According to the clinical assessor, Daidan was suspended from school on three occasion: in 2013 for choking another student and twice for laying hands on another student in 2015. [27] Yet mother had little contact with the school during the 2015/2016 academic

year [28] . In 2014/2015 the school suggested that Daidan be seen by a doctor to address his impulsivity. There is no evidence that this was done. It was also recommended that mother have Daidan attend counselling to deal with stressors related to his parents’ separation.

No evidence was tendered as to whether this was done but it is highly unlikely given that mother testified that she was unaware of this particular recommendation having been made. [29] [ 73 ] The fact that Daidan was in the full time care of his mother during this period in no way absolves father from his failure to engage on these fundamental issues. Father testified that mother “blocked” him from receiving any information from the school. He remained particularly in the dark about Daidan’s aggressive behaviour. There is no evidence to support or disprove this statement.

Once he learned of it he testified that he contacted the school. There is evidence that he is available to resolve issues which may arise, as in the case when the police officer admonished Daidan for crossing the road improperly. The message to mother from the school was sent at 10:50 am. Another text was sent at 4:11 pm but by that time father had dealt with the matter. No responding texts from mother were produced. [30] That involvement continues although he admits that he has had less current involvement due to his work schedule.

Mother’s Time with Daidan [ 74 ] Father has raised the fact that mother does not spend sufficient time with Daidan. He testified that this is what he has been told. Mother works nights and there is no evidence that this will change. This has been established. During the week days she is with Daidan before school and after school until she goes to work. Mother and father share alternate weekends. According to the VOC Report Daidan has disclosed to Ms. Sibblis that: “.. he spends most of his time alone while his mother sleeps in her room. He watches television by himself….” The image is one of a lonely child.

Whether this is reflective of the norm as father would have the court believe or whether it was one isolated occurrence which prompted the remark as mother has suggested, is unclear. Mother denies that Daidan is lonely and in fairness to mother it does appear from the evidence extrapolated on this point that she engages in activities with her son such as movies and car shows. She also seems to spend time with Daidan in the company of friends and family. Therefore, in considering all of the evidence I find that I have insufficient information to make the determination that father seeks. Mother’s Work

Schedule [ 75 ] Mother is employed as a pharmacy technician at Shopper’s Drug Mart. Until March, 2016, she was working day shifts.

She then changed to night shifts – 11:00 pm to 7:00 am. (I note that this evidence conflicts with the evidence contained in the letter from her employer, Robert Chm [31] , dated April 17, 2017 which states that her hours of employment are from 9:00 pm to 5:00 am but “could be rearranged to accommodate her family in the future.”) She works an extra shift on the Sunday that Daidan is with his father. [ 76 ] Father believes that mother is actually working the night shift commencing 9:00 pm and not 11:00 pm as she has told the court.

He has proffered some text messages in support of this position. [32] Whether this is true or not is really of little consequence. The fact is, mother has elected to work a night shift and in so doing she is not with her son overnight while he sleeps. If she worked the day shift she could start work at 9:00 am, have breakfast with her son prior to commencing her employment and be back home by 5:00 pm, an hour or so after he returns home from school.

Mother presented no credible evidence as to why this is not a more palatable option. [ 77 ] Mother shares a home with her brother and his partner who live in the basement. She maintains that they are always there in the event of an emergency while she is at work. But there are concerns with this arrangement: (

i) Her brother and partner are not always there. As I understand it, her brother’s girlfriend works. On mother’s evidence the court is told that there have been at least two or three occasions when the brother has gone out so that there was no one in the basement apartment. Although mother says the issue has now been resolved, who is to say that there may not be other matters that require the brother’s attention outside of the home.

His partner is not related to Daidan and really should not be expected to make herself available. (ii) Even if the brother is in the apartment that does not necessarily resolve the safety issue. The child has disclosed to Ms. Sibblis, that during the night time when mother is at work, he: “...is virtually on his own since his uncle, who lives in the basement with his girlfriend, stays in his apartment downstairs. He described fights between his uncle and his girlfriend which frighten him, stating that they sometimes “smash things”.

When questioned, rather than acknowledging that her son felt isolated and was frightened by what he heard, mother focussed on the dynamics of her brother’s personal relationship and the reaction to his partner’s pregnancy. While the information conveyed to the court may be true, mother has completely lost sight of the fact that being on his own, coupled with the fighting caused her son distress and from his perspective it was frightening. (iii) There is no landline at the house .

If there is an emergency then Daidan would have to FaceTime mother on her iPad, contact the uncle downstairs if he is there or go to the home of a friend down the street. The only cell phone is one that mother takes with her to work. There is no landline in the home which

creates safety concerns in the event of an emergency. I agree. [ 78 ] By mother’s own testimony, Daidan does not know that there are “bad people.” Yet she has made the decision to work nights and to leave him alone without a guarantee that someone will be available . Mother’s relocation [ 79 ] Father testified that he is concerned that mother will relocate with Daidan away from Guelph – possibly to Alberta – and that all ties with his son will be severed.

It was Daidan’s disclosure to his father in the summer of 2015 that his mother wanted to move to Alberta that prompted him to bring his motion on July 27, 2015 to prevent any removal of his son from the province of Ontario by the mother without his written consent. While the evidence shows that mother has resided in Alberta from time to time, there is nothing to suggest now that she has any intention to relocate. Boundaries [ 80 ] Father has raised concerns about boundary setting for his son. According to father, Daidan has no boundaries or structure.

He calls his father occasionally late in the evening when he should be in bed. He has no routine for doing his homework. He feels he does not have to listen to adults, other than his parents and is frequently chastised for misbehaving in school. The parents have been told by the school that Daidan requires consistency, structure and routine. Each parent acknowledged this.

The OCL Report [33] emphasized the need for boundaries based on information derived from the school. [ 81 ] When he prepared the Report, the clinical investigator, who supported continued placement of Daidan with his mother under a joint custody regime, queried whether “moving to a new city, new home, new parenting arrangement and a new school would provide a greater benefit to Daidan than his current living arrangements” which afford stability. At the time this was a reasonable assumption. But since the release of the Report in May, 2016, circumstances have changed.

Allegations of Abuse [ 82 ] The following incident highlights just how toxic the relationship is between Ms. Mackie-Vlietstra and father. [ 83 ] On July 21, 2015 Daidan apparently made a clandestine call to his father from home, which at the time was with the maternal grandmother, when his mother was in Alberta. Daidan was being cared for by Ms. Mackie-Vlietstra. Father testified that on the voice message left he thought he heard Daidan say “stop” and he believed that he heard someone slap his son and then the phone dropped.

He tried to call back but the number was blocked so he contacted the police as he was concerned about his son’s well-being. He also contacted the society. When asked on cross-examination whether it was not unreasonable, after the phone went dead, for father to call the house, make inquiries and, when there was no answer, to call the police, she disagreed. The police attended at the home of Ms. Mackie-Vlietstra to speak to mother and Daidan. It was noted in the police report [34] that the maternal grandmother “had a hatred” for Mr. Carter and wanted no contact with him at any point.

Upon discussing the issue with Daidan it appears that the child was unaware that a message had been left and that he was, in fact, fine. Daidan was encouraged to call his father to let him know that he was alright. The police report indicates “Ms. Mackie-Vlietstra was not happy with this comment stating that police were encouraging [Daidan] to be manipulatives like his father.” [ 84 ] Father contacted the police again on July 31, 2015 for reasons previously addressed [35] and the police once again attended at the maternal grandmother’s residence. [ 85 ] Ms.

Mackie-Vlietstra has opined about feeling compromised and embarrassed at having the police attend at her home when she is employed as a Child and Youth Counsellor with the Upper Grand District School Board. The optics she noted are not good. She is correct but the situation is of her own making. Father’s Discussions regarding ongoing litigation [ 86 ] Father admits to some limited discussions with Daidan about the court process but he says only to the extent that he discusses pick up and drop off times.

Mother says the conversations are more extensive than that and reported such to the police when they attended at Ms. Mackie-Vlietstra’s home on September 2, 2015 [36] . The evidence conflicts on this point and I have no way of determining the veracity of either submission other than to not the observation in the OCL Report that Daidan had indeed spoken with his father about parenting arrangements and his father said that he would like his son to live with him. He did not speak to his mother.

The extent of any discussions beyond that is unclear. [37] Needless to say neither parent should be discussing adult issues or any aspect of this litigation in the presence of the child. 6.2 Best interest factors in subsection 24 (2) of the Act [ 87 ] Subsection 24 (2) of the Children’s Law Reform Act sets out eight considerations for the court to consider in determining

custody. No one factor has greater weight than the other, nor is one factor particularly determinative of the issue before me. See: Libbus v. Libbus , [2008] O.J. No. 4148, (Ont. SCJ) . The court will review these considerations below. Factor #1: 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. [ 88 ] The court finds that the parents love Daidan very much. The court also finds that the child loves his parents. [ 89 ] The child also appears to have a positive relationship with extended maternal and paternal families. Mark Evans is mother’s step-father. His home appears to be the hub for much of the family activity.

His evidence, although brief, emphasized the importance of a close knit family. [ 90 ] Similarly the evidence of both grandmothers emphasized the importance of extended family in Daidan’s life. Ms. Amour- Grant, the paternal grandmother spoke about her affection for her grandson and that she wished him happiness whether with his father or his mother. From her observation she thought that Daidan, his father and his fiancé had a positive relationship. She testified that father was committed to Daidan and that he was able to set boundaries and meet his ongoing needs. She presented as a caring grandmother.

Although her evidence was brief, I found it to be child-focussed and presented in an honest and frank fashion. [ 91 ] Ms. Mackie-Vlietstra described her grandson as quiet, content and one who respects her rules. She too spoke of the support network in place for mother and Daidan. [ 92 ] It would have been helpful to the court to have received an affidavit or to have heard from the respective partners of each of the parents as well as from the maternal uncle and his partner.

Nevertheless, based on the information which has been provided, I find that the child benefits from spending extensive time in the homes of both parents. Factor #2: The child's views and preferences, if they can reasonably be ascertained [ 93 ] The child’s views and preferences were independently ascertained. [ 94 ] Daidan was interviewed regarding views and preferences on three different occasions and has been consistent on each of those occasions that he would like to live with his father, or in the alternative, have more contact with him. (

i) On November 26, 2015, social worker Craig Walraven [38] met with Daidan at school at that time Daidan shared with him that he would like to live with his father and with his father’s girlfriend.

If that could not happen he would like to see his father more often and if that couldn’t happen he would like to have more telephone contact. (ii) The OCL Report filed in May, 2016 notes that Daidan indicated his desire to live with his father consistently at two interviews. [39] He would like to see his mother on alternate weekends and on Wednesdays and Fridays. (iii) Finally, the recent VOC Report filed on March 10, 2017 notes Daidan’s desire to live with his father, attend a local school in Brampton and have regular visits with his maternal and paternal extended family who live in Brampton and Toronto.

He would see his mother on Wednesdays after school and on alternate weekends. (iv) The child has presented a cogent and thoughtful rationale for his position: [40] “[Daidan] stated that his father elects to do activities that are appealing to him and the other children there. He noted spending a lot of quality time with his father, whereas when he is at home with his mother, he spends most of his time alone while his mother sleeps in her room.

He watches television by himself and has to wake her up when he is hungry.” “…Although he did say that his favourite thing about being home was spending time with his mother, he finds the opportunities to do so are limited and on his weekends with her, his mother prioritizes what she wants to do rather than his interests.” (

v) Although the OCL Report completed in May, 2016 notes a closeness between Daidan and both of his parents, we are told that the child tends to turn more to his father than to his mother when it comes to discussing feelings and personal issues. We know from the police report dated July 21, 2015 he feels an emotional bond with his paternal grandmother, Ms. Amour-Grant. [ 95 ] Daidan was described by Ms. Sibblis in the most recent VOC Report, as an intelligent, mature, straightforward young man who gave thoughtful and candid responses.

This is a significant factor to take into account when assessing the weight that should be given to views and preferences of an 11 year old child. Factor #3: The length of time the child has lived in a stable home environment.

[ 96 ] It is unassailable that Daidan has lived for most of his life with his mother. [ 97 ] Both parents currently offer stable home environments for the child. [ 98 ] Daidan knows Brampton. Relatives on both the maternal and paternal sides live there. According to mother’s evidence she spends one weekend a month in Brampton.

Factor #4 : The ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child. [ 99 ] I accept that both parents are capable of providing for Daidan. [ 100 ] Daidan is not advancing as well academically while in his mother’s care. She has made changes to her living arrangements and her work

schedule in the hope that any school concerns relating to absences, lateness, behaviour and academic performance would be ameliorated. This has not happened. [ 101 ] Father has not had the opportunity to demonstrate his ability to support Daidan’s schooling and so there is no assessment of his skills in that regard. [ 102 ] I am satisfied that both parents are capable of providing the necessaries of life. [ 103 ] Daidan has no special needs. Factor #5 - Any plans proposed for the child's care and upbringing [ 104 ] Both parents provided detailed plans for the child.

Father’s Plan [ 105 ] If the court permits Daidan to live with his father on a full-time basis he would be in a position to offer Daidan his full attention. Daidan would continue to reside with his mother in Guelph until the end of the school year at Holy Trinity Catholic School. Daidan would then transition to a new school in Brampton to begin in September, 2017. [ 106 ] Daidan would reside with his father and Ms. Erika Cober, with whom he has been in a relationship since June 2015 and her mother in the newly renovated basement of the bungalow in Brampton. He would attend St.

John Fisher Catholic School. [ 107 ] Daidan would be enrolled in two (2) extracurricular activities of his choice, per season. [ 108 ] The child’s doctor would change to Dr. Manning in Brampton [ 109 ] In his testimony father described a detailed daily routine for Daidan. The child would be up at about 7:00 am. Father would make his son’s breakfast and lunch; initially he would walk Daidan to school until he made friends to accompany him. Either father would pick him up after school or Daidan would walk home with friends. Upon arriving home, he would do his homework or attend an extra-curricular activity.

Dinner would be at 6:00 pm. and afterwards there would be time to relax. Daidan would be in bed by 8:30 pm. [ 110 ] Father has a strong family support network in Brampton. They will assist where necessary. [ 111 ] If awarded primary residence then Daidan would have liberal and generous access with his mother to include alternate weekends and time during the week if that could be arranged given the distance between the parties. Holidays would be shared. As well there would be unfettered telephone and Skype contact between mother and son.

Mother’s plan [ 112 ] Mother has now relocated to a new home with her brother and his girlfriend. They reside in the basement while mother and Daidan live upstairs. [ 113 ] Mother, like father, presented a snapshot of Daidan’s daily routine: Mother arrives home from the night shift between 7:00 am and 7:30 am. She calls Daidan 10-15 minutes in advance of her arrival to wake him up. Once home she gets out food for Daidan’s lunch and then gets him up. She notes that he is very independent and that he cleans his teeth puts on clothes of his own choosing and then determines what he needs to take to school.

While he is doing this, mother is making him a substantial breakfast of bacon and eggs or pancakes. At the same time she is making his lunch. I believe it was her evidence that 2 days a week she has breakfast with him. If she is not having breakfast then she is preparing food for the evening meal. While Daidan is at school she does the laundry and finishes the dinner preparation. She sleeps until 3:00 pm-3:15 pm. Daidan is always home by 4:00pm. Once home he either does his homework or plays with friends. Dinner is between 5:30 and 6:00pm.

He is permitted to play outside if he wishes until 7:30 pm at which time he is to be in the house and preparing for bed which is 9:00pm. She leaves the house at 10:50 pm to be at work for 11:00 pm. [ 114 ] Daidan will continue in his current school with his friends and pursue the activities he enjoys. [ 115 ] Presumably mother will continue to work the nightshift. Family members will offer support. [ 116 ] I find that both parents are committed to Daidan. Each parent is capable of making decisions that are in his best interests.

[ 117 ] That is not to say that either comes to court with clean hands. Father has a historical criminal record and a recent driving record. He also has a past history of drug use. There is nothing to suggest any ongoing involvement with the drug culture. There is reference to mother’s occasional use of marijuana. Mother has a notable driving record. Ms. Mackie-Vlietstra has a historical criminal and driving record [41] . Mother smokes but Daidan has advised that she does not smoke near him or in the car with him. Although mention needs to be made of these matters, I find that none poses a problem today.

I trust that all participants have learned from their experiences and have modified their behaviour. Factor #6: The permanence and stability of the family unit with which it is proposed that the child will live [ 118 ] This is not a major factor. Both family units appear to be stable. Factor #7: The ability of each person applying for custody of or access to the child to act as a parent [ 119 ] The parents presented with different strengths and weaknesses. [ 120 ] The father presented with the following strengths: (

a) He loves and cares about the child and the child loves him. (

b) He is a strong advocate for his son. (

c) He is hardworking. (

d) He has ensured that the child is involved in activities. (

e) He has a large extended family and the child is an important part of that family. The father supports the importance of family. (

f) The father is able to look after the instrumental needs of the child, such as feeding, clothing and hygiene. (

g) The father is in a stable relationship. (

h) Father has an income to support the child. (

i) The father is a capable parent, able to make competent decisions for the child. His flaws primarily relate to his interaction with the mother. [ 121 ] The father also presented with flaws, including: (

a) The father refused to allow mother to travel to Florida. She required court intervention to obtain this. (

b) The father has a lengthy criminal record. [ 122 ] The mother presented with the following strengths: (

a) She loves the child and the child loves her (

b) She is hardworking. (

c) She has an income which would permit her to support her son. (

d) She has historically been the primary caregiver for the child. (

e) She has ensured that the child is involved in activities. (

f) She is able to look after the instrumental needs of the child, such as feeding, clothing and hygiene. (

g) The mother is a capable parent, able to make competent decisions for the child. Her flaws primarily relate to her interaction with the father. . [ 123 ] The mother presented with the following flaws: (

a) Mother has frustrated access by refusing to allow father to collect Daidan at the appointed time.

(

i) On July 31, 2016 mother refused to release Daidan for access until she was provided with father’s address. This access wasto begin on the Tuesday at 6:00pm. The request was not made until 6:40 pm. The address she requested was already in her possession. (ii) Mother failed to take Daidan to the meeting scheduled for February 21, 2017 at which Ms. Sibblis was to observe theinteraction between Daidan and his father for the purpose of preparing the VOC Report. This was father’s access time. Instead she tookDaidan and went to the Auto Show in Toronto.

She told no one and could not be reached. (iii) The maternal grandmother has blocked access between Daidan and his father by imposing unreasonable restrictions. (iv) Although the mother has been Daidan’s primary caregiver I find that she has deliberately excluded the father and his familyfrom Daidan’s life during a crucial period of his upbringing and has continued to marginalize the father's role. I find that the mothercannot be trusted to assume the role of the primary caregiver who would respect the importance of the father in the child's life. Themother had nothing positive to say about the father.

She does not trust or respect him as a parent. She could not identify one positiveattribute. (

b) Mother has not satisfactorily addressed Daidan’s academic needs as evident from his most recent report cards. (

c) Mother works the night shift. I assume that mother will continue to work the night shift. It is perhaps incorrect tocharacterize this as a flaw but her decision does carry with it significant concerns. (

d) It was very informative to the court that the mother focused so earnestly on her rights. She showed little recognition thatparenting is not just about parental rights -- that parenting is primarily about obligations and responsibilities, including a parent'sresponsibility to protect his or her child and to ensure that child’s safety and security. She voiced her concern that if Daidan were to livewith his father then she would be forced to give up her “parenting moments” which she testified she was not prepared to do.

Factor #8: The relationship by blood or through an adoption order between the child and each person who is a party to the application. [124] This was a neutral factor in making this decision. 6.3 Final Analysis [125] When considering the parenting requests of the parents, I must determine what orders are in the best interests of the childpursuant to

section 24 of the Children's Law Reform Act, and consider the applicable factors set out in subsection 24 (2). I have donethat. I have also considered that children should have maximum contact with both parents, provided that such an order is consistent withtheir best interests. See: Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27. Joint custody [126] In my view, the time has come for the court to convey to both parents in the strongest possible terms that they are equallyimportant in Daidan’s life, regardless of the hostility and acrimony they feel towards one another.

The parents have agreed to an order ofjoint custody and I agree that this is the appropriate disposition that would meet Daidan’s best interests. [127] An order of joint custody requires both parents to be equally responsible for the care and upbringing of a child including jointlymaking decisions about all aspects of a child's life. This is regardless of where the child resides. Ideally, a child benefits if both parents,despite not being able to get along as partners, are still able to get along as co-parents and discuss and agree upon issues that affect theupbringing and care of their child.

I trust that mother and father will work toward this objective. Primary Residence [128] The fact that mother has been the primary caregiver for Daidan since the separation of the parties in April, 2015 is unassailable.I have given careful consideration to that very important fact in formulating my decision. [129] This proceeding was commenced by Application. The parties separated in April, 2015. Father commenced his application veryshortly thereafter. It is trite to say that following separation the passage of time may create a status quo as parents seek to explore goalsof reconciliation and parenting agreements.

However the weight to be afforded to the issue of status quo in the ultimate determination ofthe best interest considerations before the court is a question of fact for determination by the trial judge and must be considered againstthe backdrop of what is in the best interest of the child given all the articulated legislative considerations. [130] The argument has been made that over the past two years Daidan has benefitted from a level of comfort or stability that givenhis age should not be interrupted. Disruption to the child is always a primary consideration in assessing best interests.

For a child, achange from the status quo is a disruption and disruptions are generally the antithesis of stability. However, the court could stilldisregard the status quo if it determines that an order reflecting it is not in the child's best interests. Decision [131] Despite his flaws, the court finds that it is in the child’s best interests that the father be granted primary residence of the Daidan.In

summary, the court makes this finding for the following reasons: Views and Preferences [132] Notwithstanding the strong connection that Daidan has with both of his parents, the child has consistently requested to live withhis father, or, in the alternative spend more time with him.

[ 133 ] In his submissions Mr.

Weiler cautions the court about placing too much emphasis on Daidan’s views and preferences and in so doing cites a number of sources. [42] Globally the cases stand for the proposition that if a child is under the age of 12 years, the court must be careful not to assign their views and preferences too much weight, that views and preferences should not be considered absolute and necessarily determinative on the issue of custody and that any consideration of views and preferences must be considered within the wider context of best interests. [ 134 ] On April 29, 2016, the Coroner’s Jury, at the end of the Inquest into the Death of Katelynn Angel Sampson, cited as its first recommendation what has come to be known as “Katelynn’s Principle”. “Katelynn’s Principle” states that “A child must be at the centre where they are the subject of or receiving services through the child welfare, justice and education systems.

A child is an individual with rights: • Who must always be seen • Whose voice must be heard • Who must be listened to and respected ….. Actions must be taken to ensure the child who is capable of forming his or her own views is able to express those views freely and safely about matters affecting them.

A child’s view must be given due weight in accordance with the age and maturity of the child….” [ 135 ] Children involved in any type of family case - whether to remove them into care or disputes about child care and parenting arrangements following divorce or separation - must be able to have their views heard when decisions are made that will affect them. In keeping with this principle, I have received and heard what Daidan has had to say. [ 136 ] While I have considered Daidan’s views and preferences they do not constitute the sole rationale for my decision.

There are other best interest considerations which have shaped my judgment. The views and preferences of the child have been assigned no greater weight than any other statutory criteria to be considered in addressing best interests. However, insofar as I have considered the child’s wishes, I have done so mindful that he is a mature, intelligent child of 11 years of age.

I also note that research has shown that children are very adaptable, and they can adapt quite readily to alterations that occur in access arrangements. [43] Daidan has himself has moved on several occasions between Alberta and Ontario with no discernable ill-effect. Change since the OCL Report May, 2016. [ 137 ] In May, 2016, the clinical assessor recommended a joint custody regime. This order will, with the consent of the parties, give a nod to that recommendation. The OCL Report recommended continued placement with mother.

However the circumstances have changed since the clinical investigator released his Report. (

a) mother and Daidan are no longer living with the maternal grandmother whom the assessor found to be a support. (

b) mother continues to work the night shift at Shopper’s Drug Mart. In his submissions, Mr. Weiler comments that that mother’s important life decisions were made out of concern for Daidan’s well-being. This included the decision to work overnights to “to be with Daidan before and after school”. The suggestion that the move from day shift to night shift was to give her more time with her son, given the concerns with this arrangement, I find to be logically inconsistent. Mother told the clinical investigator [44] that if Daidan found her overnight work

schedule too difficult then her employer assured her that her “shift would change Monday to Friday from 9:00 am to 5:00 pm.” Knowing that Daidan was uncomfortable with the overnight schedule, the option was there to make a change in his best interest. Nothing was done. (

c) more information has been forthcoming with respect to Daidan’s academic progress which shows that he is not performing as well as one might expect or hope. Access [ 138 ] Mother has repeatedly frustrated access. The parties now find themselves at trial because mother interfered with father’s time with his son. We are at trial because of mother’s actions. The mother had nothing positive to say about the father personally notwithstanding that she conceded he was a good father. Nor does Ms. Mackie-Vlietstra with whom she is very close. Neither trust nor respect him.

If the mother had primary residence and the sole authority to make the decisions, it is clear that she would not consult with the father as she does not seek or value his input. Mother says that she would consent to generous unfettered access. I am not satisfied based on the evidence that she would comply with such an order.

[139] I note that the maternal grandmother works regularly with children but seems oblivious to the impact her behaviour might haveon her grandson. The paternal grandmother has remained fairly neutral wishing Daidan happiness wherever he resides. It is clear fromthe observations about their relationship that they are close and she is an emotional support for him. [140] Father has said that he would offer liberal access to mother. I accept this. I believe that father would encourage and respect theimportance of the mother in the child's life. Employment

Schedule [141] I am not persuaded that mother has been totally honest about her work schedule. There are emails which father has producedwhich suggest that mother may be starting work earlier than she has suggested. Nevertheless that is only conjecture. I have no evidence.There are other emails that suggest that mother is not always available when Daidan is alone.[45] What I do accept is that mother hasmade the decision to works nights, although a day shift is an option, and leaves Daidan alone and that this is not a situation in which hefeels comfortable.

She has presented a rationale for her decision which I do not find convincing. [142] Finally, it is important for Daidan that both parents continue to be involved in his life. As he gets older more decisions will haveto be made. However, both parties distrust each other and this has made and will continue to make communication, co-operation and jointdecision making difficult. It is the expectation of this court that the father will consult with the mother via email, with respect to majordecisions affecting Daidan and that it will be done in a respectful and considerate manner.

In the event that there is no consensus then thefinal decision will be that of the father. In that regard I expect him to use his decision making authority responsibly and not as a means ofperpetuating conflict. Parenting

schedule [143] A child should have maximum contact with both parents if it is consistent with the child’s best interests. See: Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27. It is in the child’s best interests that the parenting

schedule address the followingobjectives:

a) Ensure that the child has maximum contact with his mother and the maternal family.

b) Reduce the interactions between the parties.

c) Provide the child with stability during the school week

d) Spend weekend time with both parents. This will allow the parents to participate in more activities with the child.

e) Spend dedicated time with the parents during holidays, including having time to travel with them.

f) Permit contact with the other parent when the child is in the other parent’s care. [144] The court will set out specified rights for the mother to ensure that her relationship with the child is not compromised. [145] It is appropriate that Daidan should remain with his mother under the current parenting regime until the end of the school year. 6.4 Child Support [146] Neither parent has addressed the issue of child support in submissions. [147] According to mother’s financial statement dated April 18, 2017 she earns $44,460.00 annually. The associated child supportobligation for one child is $402.00 per month.

Having received no submissions on the issue of child support, I find that it appropriate thatthe child support should commence July 1, 2017. All child support payable by the father shall terminate June 1, 2017. [148]

Section 7 expenses should be shared proportionate to the incomes of the parties based on the line 150 income for the precedingtaxation year. 7. ORDER 1. This order shall take effect upon the completion of the 2016/2017 academic year. 2. Daidan Amour-Mackie Carter, born February 26, 2006 (hereinafter "Daidan") shall remain primarily resident with the ApplicantFather. 3. Daidan shall be in the care of the Respondent Mother for regular access as follows:

(

a) Two consecutive weekends out of every three, from 6:00 p.m. on Friday until 7:00 p.m. on Sunday, this access to continue to 7:00 p.m. on Monday in the event that Monday is a statutory holiday; (

b) Midweek access in accordance with the wishes of the child and as arranged by the parties taking into account Daidan’s school routine/schedule. 4. The Applicant Father and the Respondent Mother shall share the transportation for access. The Applicant Father shall deliver Daidan to the home of the Respondent Mother for access and the Respondent Mother shall return Daidan to the home of the Applicant Father following access. 5. The following special holiday

schedule shall override the regular access and primary residence schedule: (

a) Daidan shall be in the care of the Respondent Mother from 8:00 a.m. until 7:00 p.m. on Family Day in even-numbered years. (

b) Daidan shall be in the care of the Applicant Father from 8:00 a.m. until 7:00 p.m. on Family Day in odd- numbered years. (

c) Daidan shall be in the care of the Respondent Mother for the March Break from 7:00 p.m. on the preceding Friday until 7:00 p.m. on the Sunday at the end of the March Break period in even-numbered years. (

d) Daidan shall be in the care of the Applicant Father for the March Break from 7:00 p.m. on the preceding Friday until 7:00 p.m. on the Sunday at the end of the March Break period in odd-numbered years. (

e) Daidan shall be in the care of the Respondent Mother from 5:00 p.m. on Good Friday until 7:00 p.m. on Easter Monday in odd - numbered years. (

f) Daidan shall be in the care of the Applicant Father from 5:00 p.m. on Good Friday until 7:00 p.m. on Easter Monday in even- numbered years. (

g) Daidan shall be in the care of the Applicant Father from 8:00 a.m. until 7:00 p.m. every Father's Day. (

h) Daidan shall be in the care of the Respondent Mother from 8:00 a.m. until 7:00 p.m. every Mother's Day. (

i) Daidan shall spend an equal amount of time with each party during the summer holiday. Unless the parties determine otherwise by mutual consent, in writing prior to the commencement of the summer holiday commencing in 2017, Daidan shall be in the care of the Applicant Father for the first two weeks of the summer holiday beginning at 7:00 p.m. on the Sunday following the end of classes. Daidan shall spend the following two weeks in the care of the Respondent Mother. Exchanges shall take place at 7:00 p.m. on the Sunday. This

schedule shall continue until the Sunday prior to the commencement of classes, at which time the regular primary residence and access

schedule shall resume. (

j) Daidan shall be in the care of the Applicant Father from Friday at 7:00 p.m. until Monday at 7:00 p.m. on the Thanksgiving Weekend in even-numbered years. (

k) Daidan shall be in the care of the Respondent Mother from Friday at 7:00 p.m. until Monday at 7:00 p.m. on the Thanksgiving Weekend in odd-numbered years.

(

l) Daidan shall be in the care of the Respondent Mother for the Christmas holidays as follows: annually commencing at 6:00 p.m. on the final day of classes until 6:00 p.m. eight days later, however Daidan shall be in the care of the Applicant Father from 1:00 p.m. on Christmas Day until noon on Boxing Day in odd numbered years and from 1:00 p.m. on Christmas Eve Day until noon on Christmas Day in even numbered years. Daidan shall otherwise be in the care of the Applicant Father until the resumption of classes in January. 6.

Daidan shall be permitted to contact either parent via telephone or other forms of electronic communication as he wishes. 7 . Neither party shall speak in a disparaging or negative manner about the other party or allow or encourage others to do so in the presence of the child. 8 .

Neither party shall discuss with the child, or with another party in the presence of the child, present or past legal proceedings or issues between the parties related to present or past legal proceedings, including any financial issues relating to the parties or the child, or regarding conflicts between the parties relating to parenting issues. Each parent may respond briefly, in a reasonable manner, to questions with respect to such matters initiated by the child. 9 . If one party requests information or a temporary change in the parenting schedule, the other party shall respond within 48 hours.

Requests made giving less than 48 hours’ notice shall be responded to as soon as possible. In the event of an emergency or truly time-sensitive matter, the parties shall telephone or text each other. If a reply requires more time than 48 hours, an email shall be sent advising that the reply cannot be reasonably given with this time period and advising when the response can be expected. 10 . Any discussions between the parties at transition times, activities or other special events where the child is present or nearby shall be limited to brief and cordial interchanges.

If one party considers that the discussion is not courteous, both shall discontinue the conversation and shall take up the issue later by email. 11. Before making any final decision the Applicant Father shall meaningfully consult with the Respondent Mother via email and shall seek her input. It is only after this consultation process that the Applicant Father shall make the decision and upon doing so, shall notify the Respondent Mother. No major decision shall be made by the Applicant Father without 30 days written notice to the Respondent Mother. 12.

The child’s health card shall travel between the residences. 13. Each party shall be responsible for making day-to-day decisions for routine emergency medical care while the child is in his/her care, and shall keep the other party fully informed, by e-mail. 14. Each party shall be entitled to receive copies of all medical, dental, school and other reports related to the child and shall be entitled to consult with the child's teachers, caregivers, physicians, dentists, and other health care providers concerning the general well-being of the child.

Each party shall be listed on all documents pertaining to the child and shall be entitled to attend any of the child's scheduled appointments. Both parties are to execute consents or authorizations to all persons, including teachers, doctors, dentists and others involved with the child to speak fully and openly with both parties. 15. Neither parent shall move from his or her current residence without providing 30 days’ written notice to the other parent and shall provide full particulars with respect to the new address. 16.

Should either party desire to take the child from the Province of Ontario for vacation purposes, they shall advise the other party in writing of dates of travel, location, flight details (if applicable), address and phone numbers where the child can be reached where they are going. 17. Should a passport be required for the child, the parties shall cooperate with each other in providing the necessary information to make the application or facilitate a renewal. The Applicant Father shall keep the passport at his residence and it will be made available to the Respondent Mother as required.

Both parties shall provide necessary authorizations to allow the other party to travel outside the country with the child.

18. Commencing June 1, 2017 and on the first of each and every month thereafter, the Respondent Mother shall pay child support to theApplicant Father for the child Daidan in the amount of $402.00 per month, based on an income of $44,460.00 as recorded in her financialstatement dated April 18, 2017. 19. Commencing in 2018, the Respondent Mother shall provide to the Applicant Father by June 1st annually, a copy of her Income TaxReturn as filed with Canada Revenue Agency and her Notice of Assessment.

The child support payable for Daidan shall thereafter bevaried on July 1 of each year in accordance with line 150 income for the Respondent Mother as recorded on her Notice of Assessmentfor the previous taxation year. 20. The parties shall share special and extraordinary expenses for Daidan, in proportion to their respective incomes for the precedingtaxation year as recorded in their Notices of Assessment and in accordance with

section 7 of the Child Support Guidelines. The partiesagree that the costs associated with Daidan's participation in soccer, lacrosse, basketball and other sports shall be counted as special andextraordinary expenses under this clause. Prior to incurring any expense for which he expects a contribution, the Applicant Father shallseek the consent of the Respondent Mother, which consent shall not be unreasonably withheld. The Respondent Mother shall reimbursethe Applicant Father for his share of any eligible expense within fourteen (14) days of receiving a copy of the receipt for the same. 21.

The Respondent Mother shall notify the Applicant Father, in writing, immediately upon any change of employment status whetherfull-time or part-time and shall provide full particulars. 22. If either party is seeking costs, brief written submissions of no more than three pages with a Bill of Costs and any Offers to Settle areto be submitted by the party seeking costs within 14 days and the other party shall have 14 days to respond. Released: June 6, 2017 Signed: Justice Jane Caspers [43] Warcop v. Warcop, (ON SC), [2009] O.J. No 638.