Senkyere v. McLeod, 2016 ONCJ 610

COURT FILE NO. D70099/14 DATE : August 11, 2016 CITATION: Senkyere v. McLeod , 2016 ONCJ 610 ONTARIO COURT OF JUSTICE RE: CONSTANCE SENKYERE Applicant KEMAL MCLEOD Respondent BEFORE: Justice Melanie Sager COUNSEL: Lauren Israel Counsel for the Applicant Kemal McLeod Acting for himself Douglas Millstone Counsel for the Child HEARD ON: May 30, 31 st and June 1 st , 2016 I. Introduction History of the litigation [ 1 ] The parties met in approximately 1996 when they lived in the same neighbourhood.

In 2002 the Applicant (mother) became pregnant with Tamari McLeod (Tamari) who was born on April 10, 2003 and is 13 years old. Tamari is the subject of this litigation. [ 2 ] The mother commenced this Application on January 21, 2014, seeking orders for custody and child support as well as a restraining order against the Respondent (father). In the father’s Answer and Claim dated February 18, 2014, he seeks orders for custody, child support and a restraining order against the mother. [ 3 ] On December 10, 2013, the mother was charged with assaulting the father.

Following this incident, the child remained in the father’s care until the mother brought a motion for an order compelling the father to return Tamari to her care. On April 8, 2014, Justice Carolyn Jones heard the motion and ordered the father to return the child to the mother’s primary care the next day.

In addition to requesting the involvement of the Office of the Children’s Lawyer (OCL), Justice Jones ordered that the child’s primary residence shall be with the mother and the father shall have access to Tamari on alternate weekends from Friday after school until Monday morning return to school and on alternate Tuesdays with pick up from school and return to school on Wednesday morning. [ 4 ] On April 16, 2014 the mother brought a contempt motion against the father alleging repeated breaches of Justice Jones’ order of April 8, 2014.

The mother also sought, i. a restraining order; ii. an order restricting the communication between the parties to either text messages or emails; and, iii. an order restricting the father’s attendance at the child’s school when she is scheduled to be picked up or dropped off by the mother. [ 5 ] Justice Jones ordered the father not to attend at Tamari’s school “within one hour prior to or following the commencement of classes or the school dismissal bell” on the days Tamari is either delivered to or picked up from school by her mother.

Justice Jones also made an order restraining the father from coming within 100 metres of the mother’s residence or any place the mother is known to be, except to attend court. The parties were also ordered not to discuss the litigation or any issues in dispute between the parents in the presence of the child and to restrict their communication, which shall be via email or text messages, to issues directly effecting Tamari.

[ 6 ] On June 20, 2014, the OCL accepted the referral of the court and appointed counsel to represent Tamari. On October 27, 2014, OCL counsel requested the assistance of a clinical investigator, who was assigned to the file on October 31, 2014. [ 7 ] On June 25, 2014, the court granted the mother’s motion for the release of the records of the Children’s Aid Society of Toronto (the society) in relation to the parties and Tamari.

The father was ordered to pay the mother’s costs of the motion fixed at $575.00 to be paid within 14 days. [ 8 ] On December 15, 2015, the mother brought a motion for an order striking the father’s pleadings for his failure to pay Justice Jones’ costs order of June 25, 2014 or in the alternative, an order for security for costs pursuant to subrule 24(13) of the Family Law Rules (the Rules). Upon hearing the motion, Justice Jones ordered the father to pay $3000.00 in security for costs before he can take any further steps in the litigation.

On February 17, 2016, Justice Jones ordered the father to pay $988.75 in costs to the mother for the June 25, 2015 motion. II. Issues for trial [ 9 ] The trial of this matter proceeded on May 30, May 31 st and June 1 st , 2016. The issues to be determined by the court are as follows: i. Custody of Tamari; ii. Location of Tamari’s primary residence; iii. Access by Tamari to the parent with whom she does not primarily reside; iv. Restraining orders sought by both parents; and, v.

The mother’s claim for child support payable by the father. [ 10 ] At trial the mother’s position was that the court should make an order granting her sole custody of Tamari, make final the father’s access as ordered by Justice Jones on April 8, 2014, direct the police to enforce the terms of the final custody and access order, maintain the restraining order of Justice Jones dated April 16, 2014, and, order the father to pay child support on an imputed annual income of $45,000.00. [ 11 ] The father’s position at trial was that the court should grant him sole custody of Tamari who will have her primary residence with him and the mother should have access as he currently does, more specifically, alternate weekends from Friday to Monday and alternate Tuesdays overnight with pick up and drop off at school. [ 12 ] The OCL supported the father’s position at trial as it is their position that Tamari has very clear, consistent and independent wishes to reside primarily with her father and have regular access to her mother.

III. The Facts Background Information Tamari [ 13 ] Tamari is 13 years old and just completed grade 7 at Joseph Howe Public School. [ 14 ] The OCL clinician gave evidence that Tamari is a well-rounded, smart, confident and social girl with many friends. [ 15 ] Tamari was described by witnesses as a happy girl. She likes d ancing, trampoline, art, music and she is creative.

She is also involved in athletics, particularly track and field. [ 16 ] Tamari struggles academically but her teacher describes her to the society as “happy” and said that he does not have any concerns about her. [ 17 ] Tamari is a healthy young woman who does not have any special needs. The Parties’ Relationship [ 18 ] The mother is 33 years old, is currently single and resides on her own. Tamari is the mother’s only child. [ 19 ] The father is 39 years old and resides with his girlfriend Ms. Nariman Nariman who he has been in a relationship with since 2004.

Tamari is the father’s only child. [ 20 ] The parties disagree as to when they were involved in a relationship and when they lived together [1] . The mother’s evidence is that they met in 1996 when they were neighbours and began a relationship when the mother was 15 years of age. [ 21 ] The mother describes an extremely abusive relationship during which she claims to have been the victim of “numerous incidents of domestic violence”. The mother says that when she was 18 years old the father “beat me so badly I had a miscarriage”.

The mother says that on one occasion the father “came at me with a knife” and she “threw a glass at him which cut his face. He held me at knifepoint and threatened to kill me.” She says she was afraid of the father and that she ended their relationship permanently in 2011 after “the Respondent went to punch me and instead, by mistake, hit the baby.” The mother gave evidence that she never went to the police

and that she lied about the abuse blaming it on her “clumsiness”. [ 22 ] While the mother did not report the alleged abuse to the police, she did attend at the hospital and she relies on the hospital records from these visits as evidence of the domestic violence she claims to have suffered. The records demonstrate that the mother did not advise the treating physicians that the father abused her. [2] In a report dated February 4, 2005, the mother reported she fell and broke her nose.

In a report dated April 6, 2006, the mother reports that an “exercise machine bar fell on her left middle finger”. [ 23 ] The father’s evidence is that he met the mother in 1997 not 1996 and that they did not begin a relationship when the mother was 15 years old. His evidence is that the parties tried to have a relationship after Tamari was born but they were never successful in establishing a relationship.

The father’s evidence is that the parties ended the attempts to establish a relationship in 2005 and not 2011 as the mother claims. [ 24 ] The father’s evidence is that he has never been physically abusive towards the mother and claims that he has been the victim of violence at the hands of the mother. The father’s evidence is that the mother “has a violent nature” and that she assaulted him in 2006, 2008 and 2013. [ 25 ] On December 15, 2014, the mother was found guilty of threatening death and failure to comply with the terms of her recognizance, both in relation to the father.

On August 7, 2015, the mother was convicted of failure to comply with the terms of her recognizance. The mother has also been charged with two counts of assault with a weapon against the father stemming from an incident in 2008 in addition to the two counts of assault causing bodily harm against the father as a result of the incident in 2013. These criminal charges had not yet been resolved as of the date of the trial.

The terms of the mother’s release are that she is prohibited from having direct or indirect contact with the father except through counsel or a family court order. [ 26 ] The mother denies being violent towards the father and gave evidence that her actions in 2013, which led to the criminal charges against her, were in self-defense. She says that on December 10, 2013, the father came to her home and the parties had an argument about their daughter. She says that the father was the aggressor and she protected herself with the keys in her hand.

Care of Tamari [ 27 ] The mother’s evidence is that she has always been Tamari’s primary caregiver and that after separation, the father “had infrequent and inconsistent access with our daughter”.

The mother’s evidence is that the father did not appear interested in parenting Tamari and he “would often not show up for access even after promising our daughter that he would come.” [ 28 ] The father’s evidence is that the mother is not being truthful about his involvement in Tamari’s life as he claims that, “There wasn’t a moment in Tamari’s life I wasn’t apart [sic] of.” The father’s evidence is that he spent a lot of time at the mother’s apartment after separation in order to care for his daughter.

He said that he has “always provided for the Applicant and my child everything they required.” The father’s evidence is that he has always spent time with Tamari and they enjoy each other’s company. He deposed that they “have the most incredible bond since her birth” and that he has always been there for Tamari emotionally. The Events Leading up to this Litigation [ 29 ] On December 10, 2013, there was an incident between the parties that led to the mother being charged with two counts of assault of the father. The mother’s version of what occurred is as follows: (

a) On December 10, 2013, Tamari had plans to see her father after school. When the father refused to bring her home, the mother told Tamari that she would come pick her up and this made Tamari unhappy as she did not want to go home with her mother. (

b) After the mother picked Tamari up at her father’s home, Tamari was “very rude and disrespectful and I acknowledge that I was yelling at her”. (

c) While alone in the car when the mother was picking up their dinner, Tamari called her father and when they arrived at the mother’s home, the father was waiting for them. The father looked angry and the mother was afraid so she knocked on her neighbours’ doors and asked them to call 911. (

d) The father “backed me against the elevator and started to assault me. I fought back and was holding my keys to get into the apartment.” The father called the police and the mother was charged with assault. The mother claims that she acted in self-defense. [ 30 ] The terms of the mother’s bail allowed her contact with Tamari either pursuant to a family court order or at the direction of the Children’s Aid Society. As a result, Tamari remained in the father’s care immediately following the criminal charges. [ 31 ] The father’s version of what occurred on December 10, 2013 is as follows: (

a) The father picked Tamari up from school. While at the father’s home, the mother called Tamari to tell her she was coming to pick her up. Tamari was crying and upset as she did not want to go with her mother. The father encouraged her to go with her mother. (

b) Shortly after leaving with her mother, Tamari called her father crying and told him that her mother slapped her in the face. He said she was crying so hard that he could hardly understand what she was saying. (

c) The father went to the mother’s apartment and no one answered the door when he knocked. He waited at the elevators and could hear the mother screaming at Tamari as the elevator doors opened. (

d) When the mother and Tamari exited the elevators the father asked the mother what happened and why she hit Tamari. The mother told the father that Tamari is her child and she can do what she likes and then she reached into her purse and “pulled out something sharp and attacked me while I was trying to hold Tamari’s hand. The Applicant stabbed me in the face and took off down the hallway

knocking on everybody’s door screaming, “call the police”.” (

e) The father called the police and when they arrived and questioned him he told them of another assault by the mother in 2008. The mother was charged with assault for both the current incident as well as the incident that took place in 2008. [ 32 ] After the mother was arrested, her evidence is that the father unreasonably restricted her contact with Tamari even after the society investigated and advised the parties in writing on January 14, 2014, that they had no concerns about Tamari residing with her mother or having access with her.

The father says he did not restrict contact between Tamari and her mother as he bought Tamari a cell phone immediately after the mother was charged so that she could have contact with her mother. His evidence is that the mother refused to speak to Tamari as she blamed Tamari for being arrested.

He said that while he had very serious concerns about the mother’s care of Tamari, he had no intention of eliminating contact between his daughter and her mother. [ 33 ] The father’s evidence is that he was not satisfied with the society’s investigation and he felt that the society had to complete a more thorough investigation of the mother’s care of Tamari as Tamari had reported some disturbing information to the father and he said she is scared of her mother. He made his concerns known to the society, who re-opened the file and made further enquiries.

After further interviews of Tamari, the society maintained their position. [ 34 ] The mother commenced litigation and brought an urgent motion seeking an order having Tamari returned to her care. On April 8, 2014, Justice Jones made an order placing Tamari in the primary care of her mother and granted the father access. The Events following the Order of Justice Jones dated April 8, 2014 [ 35 ] When the mother attended at Tamari’s school with Justice Jones’ order, she was met by the police and charged with breach of her recognizance for attending at the school on February 4, 2014 and visiting Tamari.

She was arrested and handcuffed in front of Tamari and spent two days in jail. Upon her release, the mother was able to pick Tamari up from school and bring her into her care. [ 36 ] The mother claims that since Tamari returned to her home, the father has been “terrorizing” her by making multiple reports to the society, reporting her to Toronto Social Services and the Toronto Housing Authority. [ 37 ] The mother also gave evidence that after being in the father’s care for almost 4 months, Tamari returned to her care “full of anger” and “oppositional”.

The mother blames Tamari’s behaviour on the father claiming he is “inciting this behavior”. [ 38 ] The father’s evidence is that Tamari would like to live with him as she shares a closer relationship with him and her relationship with her mother is fraught with difficulties. He says that the difficulty the mother has with Tamari is due to her parenting style, which includes yelling at Tamari and hitting her. The father points to the mother telling Tamari to go live with her father on Mother’s Day in 2012 when she was upset with Tamari as evidence of her questionable parenting.

Tamari was 9 years old and the father’s evidence is that the mother was being verbally and physically abusive towards Tamari who responded by telling her mother that she hated her. The mother called the father and asked him to come pick Tamari up and take her to his home. While at his home, the father’s evidence is that he encouraged Tamari to write a letter of apology to her mother.

He said he helped to restore the relationship and returned Tamari to her mother’s care. [3] [ 39 ] To her credit, the mother acknowledges yelling at Tamari and says she has worked hard in counselling “to be more patient and not to raise my voice at Tamari.” The Involvement of the Children’s Aid Society of Toronto [ 40 ] The parties filed the society’s records as evidence at the trial. There were no objections to the court relying upon any of the content of the records. The society became involved with this family after the mother was charged with assaulting the father on December 10, 2013.

A society worker first met with Tamari on December 27, 2013 at the father’s home. Tamari told the worker that she wanted to stay at her father’s home as her mother slapped her in the face. Tamari reported that her mother has slapped her on the arm or leg and once across the face.

At this same meeting, Tamari told the worker that at her mother’s home “she plays with her IPAD, computer or watches television because her mom works a lot sometimes from 6 a.m. to 1 a.m. the next day and she stays with family.” [ 41 ] The society’s records state that on December 27, 2013, Tamari told the worker that “when the three of them lived together, her parents used to fight but not a lot. She has seen them both hit each other and she would go into her room and cover her ears so that she did not hear it.

Now since they do not live together there is no fighting.” [ 42 ] The worker spoke with the mother on December 27, 2013 and the society’s records show that the worker suggested to the mother that, “she look at other methods of discipline then slapping, she stated that she has slapped her on the bum because of the way she will speak to her.” [ 43 ] On January 14, 2014, the society provided the mother with a letter advising that they had no concerns about Tamari visiting or living with her mother.

On February 4, 2014, the mother took the society’s letter to Tamari’s school and saw her for the first time in two months. [ 44 ] The father was not satisfied with the society’s investigation and on February 19, 2014 met with the intake worker and her supervisor to request that the file be re-opened and his concerns further investigated. It was agreed that the father would provide the society with an email setting out his concerns and they would re-open the investigation. [ 45 ] The society re-opened the file on March 10, 2014, and a new worker met with Tamari on March 13, 2014.

Tamari told the worker the following:

i) Her mother has used physical discipline in the past; ii) Her mother yells at her; iii) She did not always have a consistent routine at her mother’s home; iv) Her mother often worked late and she would spend time at other people’s homes when she was not with her father;

v) She sometimes slept overnight at the home of someone she did not really know which worried her and she felt like she was being bounced around; vi) Her mother often ran late and she was late for school and sometimes did not have enough time to eat breakfast; vii) She felt like her mother did not spend a lot of time with her and was not there to assist her with her homework like her father is; viii) Her father’s home is a bigger space, better neighbourhood and close to her friends and school; ix) She feels less pressure at her father’s home because they have more of a routine;

x) She feels safe at both parents’ homes but there are more things at her mother’s home she would change; xi) Her mother communicated with her by yelling and Tamari often did not know why her mother was yelling at her and wished they could talk more about what she has done as that is what her father does; xii) Her mother hits and spanks her; xiii) Her father does not physically discipline her; xiv) Her father talks to her when she misbehaves and she knows from his tone of voice that she is in trouble; and, xv) She would like to remain living with her father but would like to see her mother. [ 46 ] The worker summarized her meeting with Tamari as follows: “Tamari was a polite and articulate child who appears well cared for by her father.

She explained if she had the choice [she] would stay with her father but if she had to go back to her mother’s care she would.” [ 47 ] On April 9, 2014, the mother attended at the school to pick up Tamari in accordance with Justice Jones’ order of April 8, 2014. The Vice Principal of the school contacted the society, and advised that Tamari was in her office after her mother attempted to pick her up and she refused to go with her mother and returned to the school. The Principal then spoke to the worker and advised her that Tamari “said that my mom hits me and I’m afraid of her”.

The Principal told the worker that Tamari is “very credible and bright” and he believes she is truly scared of her mother. [ 48 ] On April 10, 2014 a society worker met with Tamari at her school to discuss what had occurred the day before. The final entry on the note from this meeting says, “Tamari did not present as distraught to return to her mother’s care rather it appeared to be more of a preference to be living with her father.” [ 49 ] On April 14, 2014 the worker met with Tamari again as she was to be returned to her mother’s care that day.

The society’s notes state that Tamari became very emotional and began to cry. She told the worker that her mother physically disciplines her. The worker writes in the notes, “I explained that I have spoken to her mother about the physical discipline and she advises she would [use] alternate ways of discipline such as loss of privilege (i.e. taking away something like her ipad for a period of time)." [ 50 ] On April 14, 2014, the worker asked Tamari “what could happen to make her more comfortable.

She explained she would like to see her father more.” Tamari also said that she “wants to speak to him on the phone every day”. [ 51 ] Tamari returned to class and the worker met with the mother and the maternal grandmother at the school. They discussed how to stay focused on Tamari’s feelings, leave the past and move forward, and, resources available to the mother. Tamari was then brought into the room with her mother and grandmother. Tamari hugged her grandmother and then her mother.

The society’s notes state that the mother “assured her that things would be different and she will try her best to have more patience and will not be using physical discipline.” The Evidence of the Office of the Children’s Lawyer [ 52 ] The evidence of the OCL is contained in the affidavit of the clinical investigator, Laura Barlas sworn May 18, 2016. In addition to interviews with the parents and school officials, Mr. Millstone and/or Laura Barlas met with Tamari on 12 occasions between August 13, 2014 and May 3, 2016.

The OCL also reviewed the pleadings, the society’s file and police records. [ 53 ] The OCL supported the father’s position at trial. The OCL’s evidence is that Tamari has expressed a very strong desire to reside full time with her father. This desire is described by Ms. Barlas as “consistent, strong and independent”. [ 54 ] Tamari has provided the OCL with logical and comprehensive reasons for why she would prefer to reside primarily with her father. Tamari describes a closer relationship with her father then she shares with her mother.

Tamari feels that her father is more emotionally supportive and that he interacts with her much more than her mother. In describing her relationship with each parent, Tamari recalls being hit and yelled at by her mother as well as being called “stupid” and an “ungrateful piece of shit”.

[ 55 ] Tamari reports that her father does not hit her and there is no screaming in his home. Tamari further stated that her father does not speak negatively about her mother and in fact tells her to respect her mother. Conversely, Tamari reported to the OCL that she does not feel that her mother supports her relationship with her father.

Tamari recalls her mother saying to her “why don’t you go live with your so called angel of a father” and “you think he loves you; he is buying your love.” Tamari told the OCL on June 2, 2015, that before their meeting her mother told her to say she wanted to live with her. [ 56 ] The OCL describes in their evidence a conflicted relationship between Tamari and her mother. Tamari feels her mother is too hard on her and makes hurtful comments like “you want to put me in jail?” Tamari is confused by her mother’s behavior.

Conversely, Tamari says she feels that her father treats her with respect. [ 57 ] While Tamari’s desire to reside primarily with her father did not change or even waiver over time, her reasons for maintaining this wish did. The OCL gave evidence that when they met with Tamari on April 19, 2016, she advised that the relationship with her mother is much improved. Her mother no longer resorted to name calling, put downs or physical discipline. She said that her mother and her still do not engage as much as she does when with her father, as Tamari and her mother are each on their phones when in her mother’s care.

Tamari reported that she still feels a closer connection to her father. [ 58 ] At this meeting, Tamari reported that the main reasons for wanting to reside primarily with her father had changed. Her wishes were fueled by the following: (

a) Her father’s home is closer to her school; (

b) She is late more often for school when in her mother’s care [4] ; (

c) She is too rushed for breakfast when at her mother’s home; (

d) Her father’s home is closer to her friends; and, (

e) Her father’s home is closer to her dance studio. [ 59 ] Overall the OCL reports that Tamari’s desire to reside primarily with her father and visit her mother on alternate weekends and once per week is supported by her feeling that her father “is more attuned to her, engages and interacts with her more” and her father’s home has a “better vibe”. Tamari considers her father to be more nurturing and understanding while she describes her mother to be more rigid. [ 60 ] When the OCL discussed a

schedule that would have her spending one week at a time with each parent, Tamari was very clear that she did not wish to have this

schedule and preferred to reside primarily with her father. [ 61 ] The court finds that the evidence of the OCL and the society’s records corroborate one another and are consistent in so far as they report Tamari’s views and preferences. The society’s records also provide support for the OCL’s evidence that Tamari’s views and preferences have been consistent, strong and independent. The Mother’s Relationship with Tamari [ 62 ] The court has no doubt that the mother loves Tamari and Tamari loves her.

The court finds that the mother was Tamari’s primary caregiver since birth and as such she has undeniably contributed significantly to Tamari growing up to be the bright, articulate, happy and social young woman described by the witnesses and in the documentary evidence.

Unlike the father, the court gives the mother a lot of credit for raising a young woman who is clearly confident enough to speak her mind about her views and preferences with respect to her living arrangements. [ 63 ] The evidence shows and the court finds that the mother has been involved in Tamari’s education, her extracurricular activities and her young but successful acting career. In many ways the mother has been a good mother. [ 64 ] While the mother is capable of meeting Tamari’s needs, she has done so with some difficulty.

The use of physical discipline, name calling and yelling as a means of communication has damaged her relationship with Tamari. Furthermore, as Tamari’s experience in her father’s care has been very different from that in her mother’s care, she identifies her father’s parenting style as preferable to that of her mother’s.

It is likely for these reasons that Tamari describes her father as more attentive, nurturing and attuned to her emotional needs. [ 65 ] The court acknowledges that the mother was able to admit her shortcomings as a parent and successfully address them in counselling and by actively making changes to the way she parents her daughter. This will no doubt serve to strengthen an already strong bond between the mother and Tamari and will be of significant assistance to them both as they move forward in their mother-daughter relationship.

The Father’s Relationship with Tamari [ 66 ] The court finds that the father shares a very close and loving bond with Tamari and that she looks to him for guidance and encouragement and feels safe and protected in his care. He is a very attentive and caring father. He is involved in her schooling, medical care, extracurricular activities and he helps her with her homework.

The evidence is that the father listens to Tamari and respects her views. [ 67 ] The father has demonstrated that he is very capable of meeting all of Tamari’s physical, emotional, psychological and educational needs and the court finds that he is willing and able to continue to do so and on a full time basis. [ 68 ] There was no evidence of any difficulties or conflict between Tamari and her father in any of the oral or affidavit evidence of the

witnesses or in the documentary evidence including the society’s records. The Evidence of Ms. Nariman Nariman [ 69 ] Ms. Nariman is the father’s girlfriend. She gave evidence that she has been in a committed and exclusive relationship with Mr. McLeod since 2004. [ 70 ] Ms. Nariman’s evidence is that she has known Tamari since 2005 and Tamari considers Ms. Nariman to be a friend. They spend a lot of time together and they enjoy baking and cooking and watching classic movies together. [ 71 ] Ms.

Nariman says that she shares an easy, natural relationship with Tamari who loves to talk to her especially about her social life at school. Ms. Nariman’s evidence is that she is in contact with Tamari daily, mostly via text messaging. [ 72 ] Ms. Nariman was asked how she would respond to Tamari if she was resisting going to her mother’s home while in her father’s and Ms. Nariman’s care. Ms. Nariman said, “I w ould encourage her to see her mother. I have a really close relationship with my mom and dad and I want that for Tamari.” [ 73 ] The court found Ms. Nariman to be a believable and reliable witness.

She gave her evidence in a forthcoming and thoughtful manner and was very child focused. IV. The Law Custody and Access [ 74 ] Subsection 24(2) of the Family Law Act (the 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. 5.7. Best interest factors in subsection 24 (2) of the Act 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. [ 75 ] The court finds that the parties love Tamari very much. The court also finds that Tamari loves her parents and is comfortable in either’s care. [ 76 ] As stated above, while Tamari loves both parents and is bonded to each of them, she shares a closer connection to her father. There was no evidence at all that Tamari’s feelings were not genuine or were influenced by the father.

In fact, the mother acknowledges that Tamari is close with her father. Tamari’s feelings towards her mother are based on and formed by her experiences with her mother and her parenting style; not by anything the father has said or done to Tamari. [ 77 ] Tamari shares a close and loving relationship with the father’s partner, Ms. Nariman. Factor #2 The child's views and preferences, if they can reasonably be ascertained [ 78 ] For two and a half years Tamari, who is 13 years old, has expressed a clear, consistent and strong preference to live with her father and have access with her mother.

Her views have not changed at all throughout this litigation. What is important to the court is that Tamari has provided logical and understandable well thought out reasons for having these views. [ 79 ] Nothing in the evidence suggests that Tamari’s views are being influenced or manipulated in any way by either parent. Her views are clearly her own and they have remained consistent for a long time. [ 80 ] When Tamari was in her father’s care for almost 4 months she consistently said she wished to reside with him and by all accounts she was doing well in his care.

Factor #3 The length of time the child has lived in a stable home environment. [ 81 ] The court finds that the mother was Tamari’s primary caregiver since birth and that the father was very involved in her care. The court does not accept the mother’s evidence that the father was hardly involved in Tamari’s care prior to the events of December 10, 2013. [ 82 ] While the mother has been Tamari’s primary caregiver, the evidence is that at times she was unable to provide Tamari with a stable home or consistent routine.

This has caused Tamari some upset and uncertainty that contributed to her feeling unsettled at times while in her mother’s care. [ 83 ] Conversely, the father has provided Tamari with the consistency and routine she craves. This makes Tamari feel settled and content. She reported to the society that she does not like not knowing where she is sleeping from one night to the next or not knowing who is picking her up from or taking her to school. Her sense of security is heightened when in her father’s care and weakened when with her mother.

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. [ 84 ] Both parents have demonstrated that they are able to provide Tamari with guidance and education and the necessaries of life. Both parents have been visible at Tamari’s school and involved in her extra currricular activities. The mother has taken the initiative in pursing Tamari’s acting career, which Tamari enjoys.

Other than the mother bringing Tamari to school late on occasion, the school did not have any complaints about either parent. There are no issues with Tamari’s attendance at school. [ 85 ] The evidence is that the father is more active in assisting Tamari with her homework but that could be due, in part, to the mother’s work schedule. [ 86 ] Both parents have been involved in Tamari’s medical care and there is no evidence to suggest that either parent has been negligent in meeting Tamari’s medical or dental needs. [ 87 ] Where the parents differ is in the emotional support and guidance they provide Tamari.

The evidence of the OCL and the society is that Tamari finds her father to be more emotionally supportive. She also appreciates the manner in which he communicates with her and feels that he respects her. She did not speak this way about her mother. [ 88 ] As stated above, the mother acknowledged to the society that using physical discipline was not appropriate and that she had to reconsider how she communicates with Tamari who feels she yelles too often and does not explain why she is upset. In her affidavit evidence in chief, the mother does not acknowledge physically disciplining Tamari.

She only acknowledges that she has lacked patience with Tamari in the past and raised her voice. [ 89 ] The mother has addressed the issues raised by the society and Tamari reports a better relationship with her mother. Unfortuantely, the mother does not seem to accept that her parenting of Tamari has contributed to Tamari’s strong desire to reside with her father. It is naturally very difficult for the mother to accept that her daughter finds the father, a man who she descibes as extremely violent and abusive towards her, to be a more nurturing caregiver.

Factor #5 - Any plans proposed for the child's care and upbringing Mother’s position [ 90 ] The mother’s plan is to maintain the status quo. Tamari will continue to be in the mother’s primary care and visit with her father pursuant to the current

schedule set by Justice Jones on April 8, 2014. She did not explain how she will address Tamari’s overwhelming desire to spend more time with her father. In this respect, the mother’s plan is deficient. [ 91 ] When the mother was asked about her views on an alternate parenting

schedule in which Tamari would spend a week at a time in each parent’s home, she said she would be agreeable to such a schedule. [ 92 ] The mother gave evidence that she does not believe that Tamari’s desire to live with her father is as strong as the OCL reports. She does not believe that over 2.5 years Tamari has never expressed a wish other than to live primarily with her father. The mother questions the consistency of Tamari’s wishes as reported by the OCL. Father’s Position [ 93 ] The father’s plan is for Tamari to live primarily with him and his partner Ms.

Nariman and visit with her mother alternate weekends and every other Tuesday overnight. Tamari will continue to attend Joseph Howe Senior Public School, which is across the street from the father’s home. [ 94 ] The father’s evidence is that Tamari could attend Sir Oliver Mowett Collegiate Institute or Birchmount Park Collegiate Institute; a school Tamari has mentioned which is geared towards students involved in athletics. If Tamari were to go to Birchmount Park Collegiate Institute she will be driven to school by the father or Ms.

Nariman. [ 95 ] When the father was asked about his views on Tamari spending a week at a time in each parent’s care he said he does not support such an arrangement as it will not provide Tamari with the routine and structure she needs. He does not feel that this would be a healthy arrangement for Tamari and that it would not allow her to be settled where she is most happy. He does agree to an alternating week

schedule in the summer.

[ 96 ] The father takes no issue with Tamari’s views and preferences as reported by the OCL or as set out in the society’s notes. Factor #6 The permanence and stability of the family unit with which it is proposed that the child will live [ 97 ] The father’s family unit is stable. He and Ms. Nariman have been in a committed and supportive relationship for 12 years. They own a home together.

There will be little adjustment for Tamari should she reside primarily with the father as she is intimately familiar with the community as that is where she goes to school and her friends reside. [ 98 ] The mother did not give any evidence suggesting her living arrangements would change or that Tamari would attend a different school in September 2016. Factor #7 The ability of each person applying for custody of or access to the child to act as a parent [ 99 ] Both parents are capable of parenting Tamari.

They have both contributed to the care and nuturing of a happy and healthy young woman. [ 100 ] While both parties have their strengths and weaknesses when it comes to parenting Tamari, the mother’s weaknesses have harmed her relationship with her daughter. The use of physical discipline and name calling have consequences that can be long lasting and in the context of this case cannot be ignored. [ 101 ] When asked to describe her relationship with Tamari the mother said it was never in trouble but it was “strained” because of things the father was doing although she did not describe what he was doing.

She admitted that she use to snap quickly when speaking to Tamari but that she has had a lot of “self-growing” and conselling to address her issues.

She also said that now she feels like she is “walking on egg shells” when interacting with Tamari, worried she might do something wrong. [ 102 ] Even though the mother has made changes to the way she interacts with and disciplines her daughter, these changes do not necessarily address the past for Tamari; they more likely address the future. [ 103 ] The court noted that while the mother acknowledged her deficiencies as a parent and described how she has addressed them, she blamed the father for the strain in her relationship with Tamari.

The mother must be more introspective and give true consideration to how her behaviour has affected her relationship with Tamari. It is important that the mother not blame Tamari or the father for Tamari’s feelings and her views and preferences. [ 104 ] The mother has also created some instability for Tamari in terms of her day to day care. She has trouble getting Tamari to school on time on a consistent basis and on occasion Tamari has not had breakfast. Tamari has difficulty being late for school as this causes her stress.

Tamari has also had some difficulty with her mother leaving her in the care of others when she is working, sometimes overnight. While the mother says she rarely does this and only leaves Tamari with people she knows, these experiences have informed Tamari’s views of what is best for her and where she wants to live. [ 105 ] Also significant to the court in reaching a decision is the fact that the mother has made her views of the father known to Tamari and that has no doubt been difficult for Tamari who loves her father very much.

The mother referred to the father as her “Disney dad” and his access to Tamari as “play time”. Tamari reported to the OCL that her mother did not support her relationship with her father. [ 106 ] T he father’s major flaw is his inability to recognize the positive role the mother has played in raising a daughter who he believes to be a smart, beautiful and outgoing child. When asked to say something positive about the mother, the father could not think of anything positive to say about her as a parent other than she gave birth to Tamari.

He was then asked if he is solely responsible for all that is good in Tamari’s life and he said, “yes, according to her [Tamari]”. The father’s attitude is very concerning as the court must consider the possibility of Tamari adopting her father’s views of her mother if she resides primarily with her father. [ 107 ] A review of the evidence of the OCL and the society’s notes do not reveal anything to suggest that the father has negatively influenced Tamari’s views of her mother in any way.

The evidence is that the father has managed to ensure that his daughter is not subjected to his negative opinions of her mother. That is quite a feat considering the numerous domestic violence allegations and criminal charges, the high conflict litigation and his inability in his evidence to say anything positive about the mother. There was no evidence at all to suggest that Tamari’s views and preferences are being influenced or manipulated by her father or his experiences with the mother. As stated above, Tamari’s views and preferences were supported by logical and reasonable explanations for how she feels.

The manner in which Tamari’s views and preferences were reported by the OCL and the society paints a picture of a mature, confident young woman. [ 108 ] There was nothing in the evidence to suggest that the father is attempting to minimize the role the mother plays in Tamari’s life.

In fact, the evidence suggests the opposite to be true as Tamari reported that her father tells her to respect her mother. [ 109 ] An example of the father’s ability to recognize the importance of fostering a healthy relationship between Tamari and her mother was his answer when asked by the court how he would respond to Tamari if she did not want to go to her mother’s home when in his care. He said he would want to know the reason why Tamari does not want to go to her mother’s home and if it was because, for example, she wanted to be with her friends, he would tell her that her mother is her priority.

He said if the mother was being verbally or physically abusive with Tamari and she was sincerely scared of her mother, that might require addressing Tamari’s concerns but that he could see no other reason to discourage Tamari from spending time with her mother. [ 110 ] The father has demonstrated a strong understanding of Tamari and her needs. He implements structure and routine

in her life when she is in his care. He is attuned to her needs emotionally and despite his negative views of the mother, he encourages hisdaughter to love and respect her mother. The father sees the importance of education and both he and Ms. Nariman help Tamari with herhomework. [111] The mother has been unable to keep her opinions of the father and what she believes is his motivation for seekingcustody of Tamari from her daughter. She minimizes the relationship Tamari shares with her father by referring to him as “Disney dad”and claiming that he is attempting to buy her love.

By doing this the mother sends the message to Tamari that she is incapable ofrecognizing the real reason for her father’s love and attention and that is hurtful to Tamari. Tamari needs her mother to validate herfeelings and acknowledge the special bond she shares with her father. Until she can do that there will be strain in her relationship withTamari. Factor #8 The relationship by blood or through an adoption order between the child and each person who is a party to theapplication. [112] As the parties are the biological parents of Tamari, no analysis is required under this factor.

Domestic violence [113] The court also considered subsection 24(4) of the Act which reads as follows: Violence and abuse 24

(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; (

b) a parent of the child to whom the application relates; (

c) a member of the person’s household; or (

d) any child. [114] In assessing both parties’ claims and their ability to act as a parent, the court considered the evidence of both partiesin relation to allegations of domestic abuse as well as Tamari’s reports of inappropriate physical discipline and verbal abuse by hermother. [115] The mother’s allegations of violent abuse by the father over a long period of time are strenuously denied by thefather. The father’s evidence is that he was never abusive and in fact he has been the victim of violent abuse by the mother on threeoccasions.

The mother admits to striking the father in his face with keys in her hand on December 10, 2013 but claims that she acted inself-defense. She also admits to having thrown a glass which “happened to hit” the father. [116] In assessing the mother’s credibility on this issue, the father also asks the court to consider the fact that the motherwas not only charged with assaulting the father but she was charged and convicted of uttering death threats directed at the father andviolating the terms of her bail.

In addition, four counts of assault charges against the father are still outstanding. [117] The mother’s evidence on this issue was inconsistent with other evidence about the father. The evidence of thefather’s relationship with Tamari; the evidence of the OCL, more specifically, how Tamari described her parents past and presentrelationship; and, the evidence of the father’s relationship with his long-time partner, Ms. Nariman, all create a very different picture ofthe father.

The mother’s criminal charges and convictions in relation to the father and her admitting to being physical towards him, albeitin self-defense, create irreconcilable inconsistencies with the mother’s evidence that the father was extremely abusive towards her duringtheir relationship. [118] I am not making any conclusions as to whether the mother was a victim of domestic violence. Even if I acceptedthe mother’s evidence on this issue, it would not change the decision of this court, which is based on careful consideration and weighingof all of the evidence. V. Parenting

Schedule [119] The court acknowledges that a child’s views and preferences are not determinative of where they live and whenthey visit the other parent. The views of a 13 year old, such as Tamari, should be given consideration but those views do not trump allother considerations. In Decaen v. Decaen, 2013 ONCA 218 , the Ontario Court of Appeal enumerated important factors toconsider when assessing the significance of a child’s wishes. They are, (

i) whether both parents are able to provide adequate care; (ii)how clear and unambivalent the wishes are; (iii) how informed the expression is; (iv) the age of the child; (

v) the maturity level; (vi) thestrength of the wish; (vii) the length of time the preference has been expressed for; (viii) practicalities; (ix) the influence of the parent(s)on the expressed wish or preference; (

x) the overall context; and (xi) the circumstances of the preferences from the child’s point of view. [120] The court’s order setting out when Tamari will be in each parent’s care is based on the following findings:

a) Both parents are capable of meeting Tamari’s needs;

b) Both parents are capable of fostering a relationship between Tamari and the other parent;

c) Tamari is a confident, mature 13 years old girl;

d) Tamari shares a closer bond and emotional connection with her father;

e) Tamari has demonstrated very strong, consistent and independent wishes to reside primarily with her father over the past 2.5 years;

f) Tamari has not waivered in her views at all and has provided reasonable, logical and understandable explanations for her feelings and views on where she wishes to reside and when she visits with the other parent;

g) The evidence is that Tamari is an intelligent, bright and social young woman. There is no evidence that she is immature for her age. To the conrary, her discussions with the OCL and the society are those of a thoughtful, articulate pre-teen and teenager;

h) Tamari’s school and many of her friends are in very close proximity to the father’s home;

i) Tamari’s views and preferences are not being influenced or manipulated by either parent; and,

j) Tamari’s views and prefernces are informed by her own experiences. [ 121 ] Given the findings made in paragraph 120 above, the court finds that it ought to give Tamari’s views and preferences significant weight when crafting the parenting schedule. [ 122 ] As the court has found that both parents are capable of meeting Tamari’s needs and fostering a relationship between Tamari and the other parent, the significance of Tamari’s views and preferences dictate that it is in Tamari’s best interests that her primary residence be with her father and an order will be made accordingly.

Custody Order [ 123 ] Both parties ask the court to make an order granting them sole custody of Tamari. Neither party has asked in the alternative for the court to make a joint custody order. [ 124 ] There is no evidence to suggest that a joint custody order would be appropriate in the circumstances of this case. The parties lack the ability to communicate effectively, which is absolutely necessary if they are to be required by the court to make major decisions affecting Tamari jointly.

Furthermore, as the parties do not respect one another, a joint custody order would be a recipe for disaster in this case. [ 125 ] To order these parties to share joint custody of Tamari places too much risk on Tamari and her future. As these parents have no respect for one another, there is no reason to believe that they would listen to and give the other parent’s views on a major issue affecting Tamari the thoughtful consideration they ought to give.

Parents granted joint custody of a child must be able to put their differences aside and put the child first when it comes to making decisions that affect the child [5] . When a major decision has to be made for Tamari she will not be held hostage by her parents’ inability to reach a consensus on what decision is in Tamari’s best interest because they cannot engage in respectful and effective communication. [ 126 ] The inability to commit to making decisions about their child jointly compels this court to decide which parent must be entrusted with decision making when major issues arise affecting Tamari.

The court finds that both parents are capable of carrying out the duties of a custodial parent. The court finds that both parents have been involved in Tamari’s day to day care as well as making major decisions i.e. education, extra-curricular activities, medical care and her acting career. [ 127 ] The overwhelming concern for this court when deciding the issue of custody of Tamari is the parents’ total lack of respect for one another.

The parents’ extremely unfavourable opinions of each other and their inability to communicate effectively dominates the court ’s deliberations when deciding the issue of custody. [ 128 ] The evidence is that the father has not shared his views of the mother with Tamari; he has not negatively influenced Tamari’s views of her mother; he has not allowed others to do so; and, the father’s views of the mother have not been adopted by Tamari.

Therefore, the evidence does not support the mother’s claims that the father will alienate Tamari from her if he is given primary care and custody of Tamari. [ 129 ] As Tamari will have her primary residence with her father who has demonstrated an ability to care for and guide Tamari appropriately, the father will have custody of Tamari.

The father will be required to consult with and involve the mother before making any major decisions affecting Tamari. [ 130 ] As the role the mother plays in Tamari’s life is an important one that must continue to be nurtured, the mother will be involved in all major decisions affecting Tamari. The mother will continue to have significant input in decisions affecting Tamari’s life so that Tamari knows that her mother has an important role to play in her life. VI. Restraining Order [ 131 ] The parents were involved in an altercation in December 2013 which resulted in criminal charges against the mother.

As a result of the charges, the mother is prohibited from having direct or indirect contact with the father except through counsel or a family court order. The parents have had little if any contact other than in court since that incident. [ 132 ] On April 16, 2014, Justice Jones made a temporary order restraining the father from having direct or indirect contact with the mother except through counsel, the OCL or through text message or email for communication relating directly to the child.

The father was also restrained from coming within 100 metres of the mother’s residence or any place the mother is known to be.

[ 133 ] The restraining order made by Justice Jones is terminated. Neither party called any evidence at trial, which would justify making a final restraining order. The evidence does not support making a restraining order under the Family Law Act or the Children’s Law Reform Act as neither party demonstrated that they are fearful of the other such that a restraining order should be granted. [ 134 ] This court’s order requires the parties to communicate with one another with respect to Tamari and the father is required to consult with the mother before making any major decisions affecting Tamari.

The court will not allow either party to claim that a restraining order from this court was a barrier to the parties being able to communicate and discuss issues affecting their daughter. A restraining order is not appropriate in these circumstances and will only lead to further conflict. [ 135 ] The mother is currently restricted by the terms of her release while awaiting trial on the assault charges from communicating with the father either directly or indirectly except through a family court order.

This court will order the parties to communicate directly or electronically when discussions regarding Tamari are necessary. VII. Child Support [ 136 ] The mother requested child support from the father in her Application issued on January 14, 2014 which was served on the father on January 23, 2014.

In the mother’s evidence she asks that income be imputed to the father in the amount of $45,000.00 annually for the purpose of fixing his child support obligation. [ 137 ] The father also seeks an order for child support from the mother. [ 138 ] As Tamari will have her primary residence with the father as of September 2016, the court must address the mother’s claim to child support prior to that time and the father’s claim for child support as of September 2016. Mother’s Claim to Child Support [ 139 ] The father has not paid the mother child support for Tamari.

His position is that he has paid for many of Tamari’s expenses and has always taken care of her needs. The mother did not come before the court at any time prior to January 2014, seeking support from the father. The mother does not claim retroactive child support in her Application and at no time during the litigation did the mother bring a motion for temporary child support. [ 140 ] The father’s evidence is that he has been selling vintage clothing for 10 years.

His income tax returns disclose the following gross business income for the years of 2010 to 2014: 2010 2011 2012 2013 2014 $22,100.00 $23,246.00 $29,370.00 $22,800 $20,400.00 [ 141 ] The father’s income for the purpose of determining child support is unknown because the father has not provided sufficient disclosure or evidence to determine what his true income is. His 2014 Income Tax Return discloses taxable income of $11,560.44. [ 142 ] The father did not file an updated sworn Financial Statement for the trial despite being required to do so under the Family Law Rules .

He also did not serve and file his 2015 Income Tax Return and Notice of Assessment. [ 143 ] In the two and a half years this matter has been before the court, the father has only served and filed one financial statement, sworn February 18, 2014. [ 144 ] In his evidence the father acknowledged that his financial statement sworn February 18, 2014 is deficient as there is a significant amount of information missing including car expenses for his 2007 Lexus ES350 and several bank accounts [6] .

He also fails to disclose on his financial statement interest in a home he bought with his girlfriend but registered in her name only, to which he clearly has a legal interest in. [ 145 ] The father gave evidence that the he contributed the down payment towards the acquisition of the house that he lives in with Ms. Nariman but is registered in her name only. Ms. Nariman’s evidence is that the father made the down payment on the house and that she has paid most of the mortgage over the last few years to equal out their contributions.

The father was quite evasive about the details of the purchase including being unable to recall how much he contributed towards the purchase price. [ 146 ] With respect to the mortgage on the home he owns with Ms. Nariman, the father was unable to recall how much the monthly mortgage payments are or what percentage of the payments he makes each month. He guessed that the monthly mortgage payment is $1700.00 [7] . [ 147 ] The father’s evidence is that the property taxes on the house are $3000.00 per year and that he and Ms.

Nariman both pay the utlities but he could not say with certainty what the monthly utility costs are. [ 148 ] The father had not filed his 2015 Income Tax Return and could not say what his gross income was for 2015 or to date in 2016. [ 149 ] The father’s evidence on the issue of child support was woefully inadequate and completely unhelpful to the court as he provided little reliable information upon which the court can rely to determine his income for the purpose of quantifying his child support obligation.

[ 150 ] It is unacceptable that the father did not provide the mother with child support after being served with her Application in January 2014 in which the mother requested that child support be paid. The court will not and cannot condone the father’s actions. The mother is entitled to child support for Tamari as of the date of her Application. [ 151 ] The court’s inability to determine the father’s true income for the purpose of fixing his child support obligation is due entirely to the conduct of the father.

The mother asks that the father’s income be imputed at $45,000.00 per year and that child support be determined based on that income. Imputing an income to the father of $45,000.00 per year is entirely reasonable for the following reasons:

i) The father owns a house with his girlfriend; ii) The father has owned and operated his own business selling vintage clothing for 10 years; iii) The father’s budget as set oun in the one financial statement he swore on February 18, 2014 is $21,684.00 and did not include any car expenses [8] ; and, iv) On December 22, 2015, Justice Jones noted in her decsision following the mother’s motion for security for costs that the the father admitted that he discharged his car loan by paying the amount of $15,116.00 towards the debt over an 18 month period after swearing his financial statemnt in Febraury 2014; [ 152 ] The court finds that that father either earns or can earn $45,000.00 per year and that his child support obligation will be fixed on this income for the period of April 1, 2014 up to and including August 1, 2016.

The father’s child support obligation will terminate effective August 30, 2016. Prospective Child Support Payable by Mother to Father [ 153 ] The father did not call any evidence in cross examination in relation to child support and the mother’s ability to pay support. The mother’s financial statement sworn May 12, 2016 in preparation for trial discloses a current annual income of $11,280.00 based on the receipt of Employment Insurance Benefits.

In 2015 the mother’s annual income was $43,236.00. [ 154 ] Currently the mother’s ability to pay child support is limited but the court has no authority to reduce her obligation to pay child support in accordance with the Child Support Guidelines in the absence of a successful claim for undue hardship. Accordingly, commencing September 1, 2016 the mother shall pay the father child support for Tamari fixed at $25.00 per month based on her current annual income and the Child Support Guidelines.

Payment by Father to Mother of Child Support Arrears [ 155 ] The court is now faced with determining how the child support arrears owing by the father to the mother shall be paid. This issue is complicated by the fact that the child will now be residing primarily with the father and the mother will be contributing $25.00 per month towards Tamari’s support until she obtains employment. [ 156 ] The court is mindful that an order requiring substantial payment towards the arrears of child support owed by the father may have a negative impact on Tamari.

Given that the purpose of a child support order is to provide a direct benefit to the child for whom the support is payable [9] , this court’s order setting out the payment terms for the arrears of child support owing to the mother will reflect the facts that: 1. The father’s income is found to be $45,000.00; 2. The mother’s ability to pay child support for Tamari is currently limited; and, 3. The father will have primary care of Tamari and will be primarily responsible for her support. Order to go as follows: Custody 1.

The Respondent shall have custody of the child of the relationship namely, Tamari McCloud born April 10, 2003. 2. Tamari shall have her primary residence with the Respondent commencing at 8:00 p.m. on the Sunday before the 2016-2017 school year begins, unless the parties agree otherwise. 3. The Respondent shall advise the Applicant in advance of making any major decisions effecting Tamari. He shall involve the Applicant in any meetings, appointments etc. regarding the decision before it is made; and, he shall ensure that he obtains the Applicant’s opinions on the issue before making the final decision. Access 4.

Tamari shall be in the Applicant’s care alternate weekends from Friday after school until Monday return to school; every week from Tuesday after school until Wednesday return to school; and, such other and further times as the parties agree taking Tamari’s wishes into consideration.

5. The parties shall share all school and statutory holidays equally. 6. Notwithstanding the above paragraphs, the parties will at all times maintain a reasonable and flexible position respecting the access arrangements for Tamari and at all times the best interests of Tamari will prevail. Accordingly, if special occasions, excursions or other opportunities become available to Tamari, or to either party, neither party will insist that the access arrangements set out herein be adhered to without exception. 7.

The parties shall have reasonable telephone, email or Skype access to Tamari when she is in the other parent’s care. Incidents of Custody and Access 8. The parties shall cooperate to obtain a Passport for Tamari if she does not have one or if it expires. The Respondent shall hold the passport and provide it to the Applicant when she is scheduled to travel with Tamari. The passport shall be returned to the Respondent upon the Applicant’s return to Ontario with Tamari. 9.

If either party plans a vacation with Tamari, that party will give the other a detailed itinerary at least 14 days before it begins, including the name of any flight carrier and flight times, accommodation, including address and telephone numbers, and details as to how to contact Tamari during the trip. 10. If either party plans a vacation outside Canada with Tamari, the travelling party will provide the other party with a draft letter authorizing Tamari to travel, for the other party to execute and have notarized.

The travelling parent shall be responsible for the cost of the non-travelling parent to obtain the notarized travel consent. 11. The parties shall provide each other with 90 days’ notice of their intention to move their permanent residence. 12. The parties shall provide each other on an ongoing basis with the following information: a. Email address; b. Home telephone number; c. Cellphone number; d. Home address; and, e. Work telephone number. 13. Each party shall be allowed to attend Tamari’s extracurricular activities regardless of the regular parenting schedule. 14. With respect to Tamari’s education: a.

Both parties may attend all school functions and events regardless of the regular parenting schedule; b. Both parties may attend parent-teacher meetings; and, c. Each party will obtain his or her own school calendar and school notices. 15. Pursuant to subsection 20(5) of the Children’s Law Reform Act , the Applicant may make inquiries and shall be given information by Tamari's teachers, school officials, doctors, dentists, health care providers, summer camp counsellors or others involved with Tamari.

If, for whatever reason, this order itself is not sufficient, the Respondent shall cooperate and execute any required authorization or direction necessary to enforce the intent of this order and allow the Applicant to access information about Tamari. 16. The Applicant shall notify the Respondent of each audition Tamari has as soon as it is scheduled. If an audition requires Tamari to miss school and the parties cannot agree if Tamari should miss school for the audition after consultation with Tamari’s teacher, the Respondent shall make the final decision as to whether Tamari attends the audition.

Communication between the Parties 17. The restraining order of Justice Jones dated April 16, 2016 shall terminate. 18. The parties may communicate directly or through electronic means for the purpose of discussing Tamari and any of her needs whether major or day to day needs. Child Support 19. Commencing April 1, 2014 and on the first of each month thereafter up to and including August 1, 2016, the Respondent shall pay the Applicant child support for Tamari in the amount of $406.00 per month based on an imputed annual income to the Respondent of $45,000.00 and the Child Support Guidelines.

Child support payable by the Respondent to the Applicant shall terminate effective August 30, 2016. 20. The arrears of child support owing by the Respondent to the Applicant pursuant to paragraph 19 above shall be paid by the Respondent to the Applicant at the rate of $125.00 per month commencing September 1, 2016. The payment towards arrears shall be reviewed if Tamari no longer has her primary residence with the Respondent, if Tamari is no longer entitled to child support or if there is a change in the Respondent’s annual income justifying a review. 21.

Commencing September 1, 2016, the Applicant shall pay the Respondent child support for Tamari in the amount of $25.00 per month based on her current annual income of $11,289.00 and the Child Support Guidelines. 22. The Applicant shall notify the Respondent immediately upon obtaining employment and provide him with the particulars of her employment including her rate of remuneration and cooperate to provide the Respondent with child support for Tamari based on her employment income and the Child Support Guidelines . 23.

The parties shall exchange their income tax returns and notices of assessment by no later than June 1st each year commencing with the 2016 tax year. Costs 24. Given the divided success on this trial, if either party is seeking an order for costs of the trial, they shall serve and file their cost submissions within 20 days of the date of this order. Those submissions may not be longer than 5 pages not including attachments or a Bill of Costs. A party responding to the other’s request for costs may, within 15 days, serve and file a response to the cost submissions.

The Response to Cost Submissions shall not be longer than 5 pages not including attachments. 25. The parties’ cost submissions should address the payment made into court by the Respondent as security for costs pursuant to the order of Justice Jones dated December 23, 2015. If neither party is seeking costs of the trial, the parties shall make submissions as to how the court ought to disperse the $3000.00 paid into court by the Respondent. ___________________________ Justice Melanie Sager DATE: August 11, 2016