Shirley v. Campbell, 2018 ONCJ 871

ONTARIO COURT OF JUSTICE CITATION: Shirley v. Campbell , 2018 ONCJ 871 DATE: 2018 12 11 COURT FILE No.: Toronto DFO-13958/16 B2 BETWEEN: ALICIA SHIRLEY Applicant — AND — DANE CAMPBELL Respondent Before Justice Alex Finlayson Heard on May 9, 11, 14, 16, 22, June 27, July 10, September 14 and 21, 2018 Reasons for Judgment released on December 11, 2018 Mitchell Wong............................................................... counsel for the applicant Lauren Speers.......................................................... counsel for the respondent ALEX FINLAYSON J.:

PART I: NATURE OF THIS JUDGMENT [ 1 ] The Applicant in this case is the mother, Alicia Shirley, who is 46 years old, and the Respondent is the father, Dane Campbell, and he is 48.

These parents have four children together, namely Dainique Campbell, born […], 1993 (now age 25), Dane Jr., born […], 1994 (now age 24) (referred to as “DJ”), Dante Campbell, born […], 1999 (now age 19) and Daineil Campbell, born […], 2005 (age 13). [ 2 ] What follows is my judgment about the issues raised during a multi-day trial of the Respondent’s Motion to Change the Order of Justice Jane Kerrigan-Brownridge dated October 25, 2012 and the Applicant’s Response to Motion to Change that Order. [ 3 ] The governing Order of Kerrigan-Brownridge J. dated October 25, 2012 provides: (

a) The parents shall have joint custody of Dante and Daineil [1] ; (

b) Dante and Daineil shall reside with their mother primarily; (

c) The father has access to Dante and Daineil on alternating weekends from Fridays until Sundays at 8:00 pm. The father’s weekends extend to include the Friday or the Monday if his weekend falls on a statutory or other holiday on the Friday or Monday; (

d) The Order contains a detailed holiday schedule; (

e) The father pays child support in the amount of $600 per month commencing on November 1, 2012. The Order states that this monthly amount was intended to be for all four children; (

f) The parties shall share special and extraordinary expenses pursuant to

section 7 of the Child Support Guidelines, O. Reg.

391/97 as amended (the “ Guidelines” ) in proportion to their incomes, after deducting any contribution of the child; and (

g) The parties shall exchange disclosure annually pursuant to

section 24.1 of the Guidelines . [ 4 ] The consent Order neither specifies either party’s income at the time, the percent pursuant to which the parties were to share

section 7 expenses, nor whether the monthly amount of child support ordered is supposed to be the table amount, or a departure from it. [ 5 ] Although both parties’ claims were not fully or properly pleaded, the trial proceeded on the understanding that both parents were seeking to change both the parenting and child support terms of the Order.

And although the mother was the responding party to the Motion to Change, at a Trial Management Conference held on February 26, 2018, Justice Manjusha Pawagi directed that the mother would be the applicant and would present her case first based on the state of the pleadings at the time. So the trial proceeded in that order, in accordance with Pawagi J.’s direction.

PART II: THE PARTIES’ POSITIONS A. The Parties’ Positions Concerning the Parenting Issues [ 6 ] Despite their consent to joint custody in 2012, it was clear throughout the trial that the parents strongly dislike each other. They have been unable to communicate civilly with each other about their children for quite some time. In fact, this inability to communicate pre-dates the 2012 Order. [ 7 ] Consequently, the mother seeks an order for sole custody of Daineil, the only child who remains a minor. She says that the parental conflict is impacting Daineil negatively. The mother is content that the holiday

schedule in the Consent Order remain unchanged. She is prepared to agree that the father’s regular access weekends should extend somewhat, to be from Fridays to Mondays, in accordance with an interim order that Pawagi J. made prior to trial. The mother says that the father should do all of the pick-ups and drop-offs of Daineil at his school when he has access though. [ 8 ] The mother also seeks an order that the father must take Daineil to his basketball practices and games during his weekends. The mother says she will provide the father with the basketball

schedule at the beginning of each season to ensure that he knows when and where to go. There has been conflict about Daineil getting to his basketball in the past, hence the need for a term in the order about this. [ 9 ] The father’s primary position is that he should have sole custody of Daineil. Alternatively, he says that custody of Daineil should remain joint, and the parties should use Our Family Wizard to communicate with each other.

He asks that the Court order the parties to attending counselling. [ 10 ] Regarding the parenting schedule, the father asks the Court to order a shared parenting schedule, with Daineil residing with him on Mondays and Tuesdays, with the mother on Wednesdays and Thursdays, and then with each parent alternating the weekends. Alternatively, the father says that Daineil should live with him on Saturdays after his basketball games, through to Tuesday morning, drop-off at school. B.

The Parties’ Positions Concerning Child Support [ 11 ] It was the father who commenced the proceeding respecting child support in his Motion to Change. He did so only on October 3, 2016. Regardless, both parents want the Court to vary the Order retroactively to a date that precedes October 3, 2016. [ 12 ] The father’s proposed retroactive date is September 2013. He submits this is the first month after Dainique moved out of the mother’s house.

So he says that starting in September of 2013, he should not have been paying child support for four children, which is what the Order of Kerrigan-Brownridge J. dated October 25, 2012 provides. [ 13 ] After that, there were more changes to two other children’s status or residential arrangements. As of February 2015, DJ came to live with him. Although it was not properly pleaded, the father wants a finding that DJ remains a dependant since he was hospitalized.

In his opening trial statement, his counsel said he is seeking child support for DJ. [ 14 ] Next, he says that child support for Dante ended too when Dante finished high school, so there would be a third adjustment. [ 15 ] In short, the father’s position requires multiple adjustments to the child support Order. He says that he over paid and he wants a “credit for excess funds” paid to the mother. [ 16 ] On November 30, 2017, Pawagi J. gave the father leave to amend his pleading. He failed to do so.

While the question of when the father’s child support payments to the mother for DJ ought to have terminated was pleaded, a claim for retroactive and ongoing child support from the mother to the father for DJ was not. This potentially impacts DJ. [ 17 ] Despite the deficiency in his pleading regarding child support, the trial proceeded with both parties understanding that there was a claim for DJ. The father said this in his opening statement. Both parties called considerable evidence about DJ’s past and present circumstances.

Throughout the trial, both parties were aware both that DJ’s past status and ongoing child support for him was in issue. [ 18 ] The Court will decide all the child support issues raised about DJ. As I will explain, the Court is finding that DJ suffers from an illness and he remains dependant on his parents at this time.

If the Court were to do otherwise, the Court would be concerned about potentially denying a dependant’s entitlement to child support simply because of the deficient pleading, even though both parents were given a fair opportunity to call evidence fully about the dependant (and they in fact did call such evidence). [ 19 ] The mother’s position about retroactivity changed at least twice during the trial. In her Opening Trial Statement, the mother asked the Court to vary the Order retroactively to October of 2013, which is 3 years before the commencement of this proceeding.

In her closing, she asked the Court to vary the Order only back to 2014.

[ 20 ] The mother’s position about the father’s income changed at least four times during the trial. In her trial affidavit sworn May 30, 2018 she says that he can earn $150,000.00. Later in that same affidavit, she said that at least $100,000 should be imputed to him. At trial, she admitted that she wanted $150,000 imputed to him in the prior proceeding, but then abandoned that position and consented to the 2012 Order. [ 21 ] In her Opening Trial Statement, she said she wanted the Court to impute an income to the father of $70,000 during the years in question.

Even though the children’s circumstances changed since the 2012 Order such that the mother is no longer entitled to child support for three of the four children, she says that the father ought to have paid her more child support because the income on which the 2012 Order was based, was too low. [ 22 ] By the end of the trial, she modified her position and asked the Court to impute $75,000 in each year since 2014. [ 23 ] As the mother has also claimed

section 7 expenses and because the case involves retroactive support, it is not just the father’s income that is in issue. The Court must determine both parents’ incomes. The mother’s income is straightforward. She is currently employed at the Ontario Lottery and Gaming Corporation. According to her year end pay stub for 2017, she made just under $40,000.00 . The documentary evidence that she filed maps out her income in each year since the 2012 Order.

Neither parent argued that anything other than the mother’s Line 150 income ought to apply. [ 24 ] The determination of the father’s income was made unnecessarily more complicated than it ought to have been as a result of the positions that both parents took at the trial. [ 25 ] Since mid-2017, the father works as a truck driver for a company called TrinCan Global Logistic Inc., delivering tires from a warehouse in Mississauga, to various locations in southern Ontario. He is not a salaried employee. He is paid a different amount per day to drive trucks depending on where he goes.

To do this job, he needs his own vehicle and he is responsible for paying for the costs associated with the vehicle’s use, like gas, insurance and maintenance, himself. [ 26 ] According to the mother’s trial affidavit sworn May 9, 2018, the father is a “self-employed contractor that operates under the company email: buildbyunason@hotmail.com . The [father] earns income by purchasing vacant real-estate property and building custom-built residential homes [2] that are then sold for a profit.” [ 27 ] The mother based her request to impute an income to the father retroactively on sections 19(1) (

a) and (

f) of the Guidelines . Her submissions heavily focused on her arguments that he is a “property developer”. Although she did not specifically refer to sections 19(1) (e), (

g) and (h), her arguments also engage those provisions of the Guidelines . [ 28 ] The mother’s end position that $75,000 should be imputed to him was arrived at by taking a four year average of what she says was the combined profit from the sale of one of the father’s properties and various loans the father received, divided over four years. She says that the Court should treat the loans as gifts.

In closing submissions, I was told that the aggregate of those various figures, averaged over four years is actually about $85,000 per year, but she says a conservative approach would be to impute only $75,000. [ 29 ] What the evidence revealed at the trial though is that the father used money that was gifted to him by way of an early inheritance, combined with construction loans and various other loans from private lenders, friends and family, to build one house that he wanted to then sell to turn a profit. He soon realized that he couldn’t afford this undertaking, and he actually lost money.

He had little understanding of the mechanics of construction financing or what was entailed in building a house, until the project was underway. The project that he embarked upon took 7 years to complete. He sold the house that he tried to build in an unfinished state and he still owes people money. [ 30 ] If the Court does not follow the mother’s averaging approach and does not impute $75,000 per year to him, then the mother’s alternative submission is that the father could earn between $50,000 and $60,000 per year.

But as I will explain later, the father has never made that much money from employment since the 2012 Consent Order. He lacks the necessary education and employment experience to earn this level of income from employment. [ 31 ] The mother also argues that the father failed to provide financial disclosure and that the Court should draw an adverse inference against him for this. When pressed for specifics though, the mother was only able to point to a single mortgage application that she says was not produced. Meanwhile, the father’s counsel exposed non-disclosure on the part of the mother during the trial too.

The Court is finding that the manner in which disclosure was dealt with by the parties was problematic in certain instances, but not to the extent that income should be imputed to the father as a consequence. I will explain why later in these reasons. [ 32 ] By contrast, the father’s position about his income is that the Court should use his Line 150 income in the relevant years, or alternatively that the Court should impute the same wage to him upon which the 2012 Order was based.

Were the Court to go back in time and readjust the child support using the father’s Line 150 income alone (quite apart from the changes in the children’s circumstances over time), it would result in a reduction to the level of income that he effectively agreed to in 2012 and a further overpayment of support to the mother. [ 33 ] Finally, the mother says that the father should pay for 50% of certain education expenses for DJ and special or extraordinary expenses relating to Daineil’s basketball commencing in 2015 pursuant to

section 7 of the Guidelines . She says she is owed $2,985. [ 34 ] The mother further asks the Court to empower her to enrol Daineil in whatever basketball programs she wants going forward. During closing submissions, I asked whether this would mean that the father would then have to automatically share in those expenses if she selected programs without advance discussion.

Although the mother is adamantly opposed to communicating with the father about any parenting issues and she cited basketball as one of the main areas about which the parents will have conflict in the future (thus prohibiting a joint custody order in her view), the mother agreed to discuss the financial cost sharing arrangements regarding basketball in the future. [ 35 ] She gave this concession through counsel in response to my question in closing submissions only.

PART III: THE BASIS OF THE ORDER OF KERRIGAN-BROWNRIDGE J. DATED OCTOBER 25, 2012 [ 36 ] In order to assess properly the parties’ competing claims, the Court must understand the basis of the Order sought to be varied. [ 37 ] Regarding the parenting issues, as set out above, Kerrigan-Brownridge J.’s October 25, 2012 Order was a Consent Order. This means that the parents agreed to joint custody in 2012. [ 38 ] In order for the court to vary the parenting terms of the Order, there must be a material change in circumstances within the meaning of

section 29 of the Children’s Law Reform Act, R.S.O. 1990, c. C 12 , as amended (the “CLRA” ). It is not disputed that the parents’ communication today is essentially non-existent. And when they do communicate, it is in a dysfunctional way. [ 39 ] Both parents essentially argue that each should be awarded sole custody of Daineil now largely because of this inability to communicate. The mother links the importance of good communication to the management of Daineil’s basketball going forward.

According to the mother, Daineil is now getting older, he is playing competitive basketball and decisions will have to be made about where he will go to high school and university, but in order to play basketball. Financial decisions will also have to be made. And there may be medical decisions to be made. She says these are material changes in circumstances. Since the parents can’t communicate, decision making will be a problem. [ 40 ] The father is more general in his assertion of what is the material change. He says there is a “heightened unwillingness to communicate and cooperate” on their part.

He says he is willing to try to communicate with the mother, but she is not. He blames the mother for this. [ 41 ] It is not disputed by either parent that their inability to communicate was the state of affairs back in 2012 when they agreed to joint custody in the first place. An inability to communicate about the children is not new for these parents. [ 42 ] Regarding the financial claims, the 2012 Consent Order is not clearly drafted.

One the one hand, it is clear from the face of the Order (and from the parties’ evidence) that the order was based on all four children then living with the mother primarily (even though DJ was away in the US completing high school on a basketball scholarship when the consent order was entered into). It is not disputed that since the 2012 Order, Dainique and Dante ceased being dependants, and DJ now lives with his father. These are changes in circumstances within the meaning of section 37(2.1) of the Family Law Act, R.S.O. 1990, c. F.3 , as amended (the “FLA” ) and

section 14 of the Guidelines . [ 43 ] But the 2012 Order does not specify the father’s income on which the monthly amount of child support was based. While it makes provision for the future sharing of

section 7 expenses, the Order does not specify the percentages for sharing, nor does it specify the mother’s income so that the parents could figure those percentages out either. It might have been an easy adjustment for the parents to simply agree that the father’s obligation to pay support changed from four children, to three and then to two, had the Order been properly drafted by them when they agreed to it, but that was not done.

It was also unclear to me at first blush, whether the Order even provided for child support in accordance with an applicable child support table in 2012, or whether it was based on some form of a departure from the applicable table. [ 44 ] This posed a preliminary problem at this trial, since the Court cannot assess the degree to which there has been a change in circumstances without this baseline information. [ 45 ] At the trial, the mother essentially claimed that the amount of child support in the 2012 Order was arbitrary.

She said the father wanted to pay her only $300 per month and that he separately promised to “take care of” her and the children apart from the child support order. She says that his proposed figure of $300 was not agreeable to her. Although her litigation position was then that income of $150,000 should be imputed to the father, she said in the result, she wanted him to pay $600 per month, and the parties ultimately agreed to this. [ 46 ] The father’s position is that he agreed to pay child support based on imputed minimum wage income.

This yielded the $600 monthly amount for the four children. [ 47 ] I have reviewed both the financial documentation put before me at this trial and considered the oral evidence I heard. The father’s 2011 and 2012 Income Tax Information- Regulars reveal that the father reported no income at all in those years.

As I will explain, the father lacks the education and work history to earn anywhere near the $150,000 that the mother was then seeking to have imputed to the father. [ 48 ] I am led to the conclusion that the child support order was intended to be in accordance with the applicable table, and that it was based on an imputed income of $24,000 to the father for two reasons. [ 49 ] First, as there were two children who were then over the age of majority, the table was not necessarily presumptive for them.

But neither parent argued that a portion of the monthly child support in the 2012 Order was based on section 3(2) (

b) of the Guidelines , rather that the straight application of the table . [ 50 ] As such, in order for the child support Order to have otherwise departed from the table, it would have had to be based on the parents’ consent. For the Court to have done so, it would have had to be satisfied that there were “reasonable arrangements” in place for those children. See sections 33(14) and (15) of the FLA .

The Order makes no mention of “reasonable arrangements”, and during this trial I heard absolutely no evidence from either parent to suggest that there were in fact “reasonable arrangements” put in place. [ 51 ] Therefore, the only conclusion that I may draw from the evidence is that the parties agreed to an amount of child support that was intended to be based on the applicable table. I accept that that figure was a compromise, and the parties may have even worked backwards by coming up with a number that was affordable to the father and agreeable to the mother. But as part of this compromise,

the parents necessarily had to agree to an income figure for the father, if not expressly than impliedly.

Section 13 of the Guidelines requires that the incomes be determined. [ 52 ] The income required at the time of the 2012 Order to yield a monthly payment of $600 per month for four children according to the December 31, 2011 tables then in place was $24,000 per year. By comparison, Ontario’s minimum wage was then $11 /hr. I note that $24,000 per year would have been slightly higher than the minimum wage back in 2012 (assuming full time hours), but it was close.

I find the amount of child support the father agreed to pay to be consistent with his belief that he agreed to an imputed minimum wage income. [ 53 ] Therefore, I find that the Order of Kerrigan-Brownridge J. included child support for four children in accordance with the applicable table based on an imputed income to the father of $24,000.00. As income was imputed to the father, the test that applies in a variation proceeding is more nuanced than simply comparing the father’s reported income in the subsequent years to the income he had at the time of the Order.

Nor is it a foregone conclusion that just because his Line 150 income was less than $24,000 in the years since the Order that he should have paid less child support and that he will now get a reduction and a credit for an overpayment. [ 54 ] Then there are the mother’s various arguments about whether even more income ought to be imputed, which I will address.

PART IV: PRIOR LEGAL PROCEEDINGS [ 55 ] The Court made a number of interim orders prior to trial. The Court attempted to organize the parties to ensure that the case would proceed smoothly. Unfortunately, a number of disclosure issues arose throughout the prior proceedings and during the trial. [ 56 ] The prior interim orders that are relevant to this trial are: (

a) On December 21, 2016, at a case conference, Pawagi J. noted an admission, that the parties agreed that DJ left the mother’s care in February of 2013, and Dainique in June of 2013 [3] . Pawagi J. otherwise directed the parents to exchange certain disclosure with each other. The mother was to provide her income tax returns and notices of assessment for 2013 to 2015, her year end pay stubs for 2013 through 2016 and her bank and credit card statements for 2013 to 2016.

The father was to provide the mother with the exact dates he says that DJ and Dainique were in his care, copies of mortgage applications for his Winston Churchill and Caledon properties, and his bank and credit card statements for 2013 to 2016. Pawagi J. also endorsed that the parties could request additional disclosure of each other in writing and that each was to respond in writing prior to the next court date; (

b) On January 20, 2017, Pawagi J. adjourned the scheduled court date at the father’s request. The father had changed lawyers and he had not provided the disclosure that he was previously ordered to provide by this date. Pawagi J. reserved costs of this attendance; (

c) On March 9, 2017, in a related enforcement proceeding, Pawagi J. ordered the father to make a child support payment of $2,399, and she ordered that ongoing child support be held by the FRO pending the disposition of the Motion to Change; (

d) On April 5, 2017, Pawagi J. terminated the hold that she had ordered on March 9, 2017 and she varied child support on a temporary basis to be $360 per month commencing December 1, 2016 for two children, based on an imputed income of $24,100. She ordered that the father would have access to Daineil on alternate weekends from Friday to Mondays, with pick-ups and drop offs at school, commencing April 7, 2017, and she made an order for the release of information concerning Daineil and Dante to the father; (

e) On April 12, 2017, Pawagi J. granted the father leave to amend his Motion to Change and to seek child support for DJ and for Dainique. She imposed deadlines for this (that were not followed by the father). Pawagi J. ordered the father to produce his statement of business activities for 2014 to 2016 setting out his income and expenses, and a medical report for DJ setting out his medical condition and how it impacts his ability to work.

Pawagi J. also ordered the mother to provide confirmation of how she paid for a home that the parties previously lived in and her 2016 income tax return and notice of assessment, if available. Finally, Pawagi J. ordered that the mother was to place the father on the pick-up list for Daineil’s school, that the father could pick Daineil up early from school, and that the father would advise the mother by email about this if he planned to do so. She ordered the parents to exchange email addresses [4] ; (

f) On July 6, 2017, the father did not attend court, and by that date, he had not provided the disclosure ordered on April 12, 2017. Pawagi J. ordered him to pay costs of $100 for the wasted appearance; (

g) On September 26, 2017, Pawagi J. made a further disclosure order directing the mother to provide an itemized list of all the disclosure she sought, proof of Dante’s full time attendance at school, the exact wording of the order she sought regarding child support, s. 7 expenses and access, and the exact dates and times of all sports practices that Dante and Daineil are required to attend on access weekends. Pawagi J. ordered the father to provide his response to the disclosure list, a medical report previously ordered and the exact wording of the order he sought.

And Pawagi J. ordered the father to pay $1,800 to the FRO by November 1, 2017 to bring himself up to date, and she ordered him to take Dante and Daineil to practices and games on his access weekends if addresses and times had been provided to him in writing; (

h) On November 8, 2017, Pawagi J. ordered both parents to provide a number of disclosure items to each other. She made a temporary default order that the father would pay ongoing support of $360 per month commencing December 1, 2017 and arrears of

$1,800 by January 15, 2018, failing which there would be certain committal terms for missed payments; (

i) On November 30, 2017, Pawagi J. again ordered the parents to exchange amended pleadings by specified dates, which was not done; (

j) On February 26, 2018, Pawagi J. conducted a Trial Management Conference. Unfortunately the father was unrepresented at the time of this conference. He was later able to retain counsel again. In any case, Pawagi J. made an order containing various trial directions, including about the order of presentation at the trial as I stated above; (

k) On March 19, 2018, O’Connell J. scheduled a two day trial to proceed in the May 2018 trial sittings. She also scheduled a further trial management conference before Pawagi J. on April 16, 2018; (

l) On April 12, 2018, Pawagi J. vacated the April 16, 2018 date and scheduled a trial management conference before me as the trial judge instead on April 18, 2018; (

m) On April 18, 2018, I presided over a trial management conference. Based on my discussions with the parties, I imposed deadlines for the parties to deliver trial briefs, I listed the documents to be included in the briefs and I specified who the witnesses would be. I also memorialized the time estimates that the parties had provided for the various witnesses to testify. At that point, the time estimates were such that there would be 9 ½ hours of testimony. As a result, I endorsed that a 3 rd trial date may be required; (

n) On May 4, 2018, I granted the father’s 14B Motion and set fixed trial dates for May 9, 11 and 16, 2018 to accommodate scheduling issues that the father’s lawyer was facing. I also made certain adjustments to timetable for the delivery of trial documents; (

o) The parties and their counsel were unable to complete the trial in the allocated time. The Court had to book additional trial dates. And twice during the trial I made production orders as a result of the evidence that unfolded; (

p) On May 16, 2018, I ordered the mother to obtain and produce certain documentation at the father’s request; and (

q) On July 10, 2018, I ordered the father to produce his complete tax returns for 2009 to 2012, his notices of assessment or reassessment for 2009 to 2012 and his notices of reassessment for 2013 to 2016 and 2017 if applicable and available. I ordered him to produce proof that an audit is underway by the CRA and proof that he had actually filed his T1 adjustment requests with the CRA. I also adjourned the trial to permit the mother more time to prepare to cross-examine the father’s accountant. I will explain this particular endorsement in more detail below, the reasons for it and how it impacted the trial and the issues before the Court.

PART V: IMPORTANT FACTS CONCERNING THE CHILDREN’S CIRCUMSTANCES A. Dainique, Age 25 [ 57 ] As set out above, Dainique is now 25 years old. She is an independent adult. There is no claim for ongoing child support for Dainique, but the period of time that the mother was entitled to child support for Dainique in the past was disputed for most of the trial. The mother claimed to be entitled to support for Dainique for about an extra two years beyond what she was entitled to. The admission that Pawagi J. noted in her December 21, 2016 endorsement was within two months of the actual date of Dainique’s departure.

But then the mother challenged the admission, saying she felt pressure to agree. It was only after the Court heard evidence about this, including from Dainique, that the mother abandoned the position that she took at trial about Dainique in this regard. [ 58 ] I begin with the mother’s evidence about Dainique’s educational history. It was unclear. According to the mother, Dainique graduated high school in 2011 or 2012. After high school, she attended Sheridan College. She changed programs twice and eventually graduated from a marketing program with honours.

According to the mother, Dainique took a 5 year program. [ 59 ] The mother also testified that she helped Dainique secure employment at Shoppers Drug Mart. The mother worked there too. At one point Dainique held part-time employment at Cineplex as well. [ 60 ] I did not find the mother’s evidence about Dainique’s departure from her house to be credible. It is common ground that Dainique started spending time at her paternal aunt, Rosemary Gordon’s house, after she graduated from high school as Ms. Gordon lived closer to Sheridan College.

But to support her position that the father should pay support for Dainique right up until 2015, the mother claimed that Dainique lived with her paternal aunt, Rosemary Gordon (she didn’t say as of when), only temporarily and because it was more “beneficial” for her to get to school from the aunt’s house. The mother claimed that Dainique only stayed there at times, for example when she had early morning classes. [ 61 ] The mother testified that Dainique’s move to the aunt’s house only became permanent in 2015. She insisted that until 2015, Dainique hadn’t really moved out.

She claimed that Dainique went back and forth between households, and that she kept her belongings in her mother’s house. She also testified that Dainique’s mail continued to come to the house after 2013 thus maintaining that the house remained Dainique’s primary residence. [ 62 ] To respond to this evidence, the father called both Dainique and his sister, Ms. Gordon, to testify. I found both Dainique’s and Ms.

Gordon’s evidence about Dainique’s departure from the mother’s home to be more credible than the mother’s and I prefer their evidence on this point. [ 63 ] During Dainique’s evidence, it became quickly apparent that Dainique has not lived with the mother at least since the summer of 2014. Dainique could not remember the specific date of her move, but she recalled that she had spent at least “four Christmas-es” in her aunt’s house. Dainique’s aunt, Ms. Gordon, later confirmed that Dainique’s move actually became permanent as of August of 2013. Ms.

Gordon was able to place the move temporally with another event that occurred in her life that summer when explaining why the move

became permanent in August 2013, as opposed to in 2014. [ 64 ] What happened that summer is that the mother told Dainique she could no longer live in her home as a result of a dispute about money. The mother wanted Dainique to pay between $100 and $150 per pay cheque (every two weeks) towards rent. Dainique did not agree. In August of 2013, Dainique was in fact at her aunt’s temporarily for convenience while taking a summer course at Sheridan.

While there, the mother had a friend of Dainique’s telephone Dainique to tell her not to come home, unless she was prepared to agree to pay money to the mother for rent. [ 65 ] Ms. Gordon testified that she was present at home when Dainique received the telephone call from the friend about the rent request. She observed Dainique to be upset in tears. [ 66 ] It also became readily apparent to the Court during the trial that Dainique and her mother do not enjoy much of a relationship together anymore. Dainique testified that they do not really talk. When they do, heavy topics are off limits.

They are more or less estranged. They have not enjoyed much of a relationship since Dainique left in 2013. [ 67 ] The mother described the nature of her relationship with Dainique differently. She called it “strange”. She referred to Dainique as a “daddy’s girl”. The mother also said she believes that Dainique was resentful towards her for not have any “dealings” with the father. [ 68 ] I prefer Dainique’s evidence about the nature of their relationship over the mother’s description.

I find the mother avoided acknowledging the true state of affairs. [ 69 ] While the mother claimed that Dainique’s termination date shouldn’t be until 2015, the mother also called evidence that was inconsistent with her position on this point. Both of the mother’s friends confirmed that the mother had told them about the dispute over the rent. The mother’s friend, Arlene Bailey, has been the mother’s friend for 24 years. While she and the mother do not see each other in person as often as before, they speak daily on the telephone to one another. Ms.

Bailey was aware of the rent dispute, and in fact she testified about what she had been told by the mother. She said Dainique “decided” to go live with her aunt as a result of this dispute about money. The mother’s other friend of many years, Sheryl Stewart, also testified on this point. Although to some extent she repeated the mother’s version of events that Dainique went back and forth between households, she was aware of the dispute. [ 70 ] During the trial, the Court expressed concerns about the parents having put Dainique in the middle of this dispute between them.

There had already been some form of an agreement by then about Dainique that Pawagi J. reflected in the December 21, 2016 endorsement. It was more or less accurate about Dainique’s departure date within a couple of months. But then the mother litigated this issue anyway. [ 71 ] Although she is 25, Dainique was clearly nervous and visibly upset during her evidence. And to make matters worse, early on during Dainique’s evidence in chief, I observed the mother to be staring at her from the left side of the court room, while the father cried from the right side.

The Court intervened and asked the parents if they would agree to leave the court room during Dainique’s evidence, with only their lawyers remaining. They agreed. The Court ordered a transcript of Dainique’s evidence to provide to the parents. [ 72 ] It ought not have been necessary to have Dainique testify at the trial. B. DJ, Age 24 [ 73 ] DJ lived with his mother until January of 2015. The parties agree that he went to live with his father as of February 1, 2015. This happened right around the time he was diagnosed with schizophrenia. He still lives with his father today.

The mother wants child support for DJ up until his move with his father, but then she asks that it abruptly terminate. The parents do not agree whether the father is entitled to support for DJ as of February 1, 2015 when he moved in with his father. [ 74 ] At the time of the 2012 Order, DJ was in high school. He did not live with his mother entirely during high school though. Rather, when DJ was in grade 10 or 11 (he was taking courses in both grades in one year), he was ‘scouted’ to play basketball.

The mother testified that DJ obtained three different scholarships to attend different high schools in the US to play basketball. [ 75 ] The mother did not consult with the father about this aspect of DJ’s education. Rather, she and her friend, Ms. Bailey, went on a trip with DJ to visit one of the schools that had offered him a scholarship, which was in Syracuse, New York. Upon seeing it, the mother said, “it wasn’t quite what [they] expected”. But she continued to explore the other schools that had offered DJ money.

Again without consulting the father, the mother settled on DJ finishing high school in Houston, Texas. She testified that she and Ms. Bailey moved DJ to Texas in the summer of 2012. This pre-dates the 2012 final joint custody order, which nevertheless provides that the father would be paying child support for all four children. But neither parent seriously contested that the father ought to have paid for DJ even though he was away for high school in the US. [ 76 ] Unfortunately, DJ did not finish high school in Texas.

According to the mother, the school was “red-flagged by the NCAA”, there was a “huge law suit” and the mother also said she couldn’t “financially afford it”. I do not fully understand what this all means, but the evidence was that as a result, DJ was back in Canada by the end of 2012, or early 2013 [5] . According to the mother, DJ did not even complete a full year in Texas. The evidence was unclear as to where DJ completed high school.

The father testified that he did complete high school in Georgetown. [ 77 ] According to the mother, at some point after coming back from Texas, DJ obtained another offer, this time for a full scholarship from Niagara College to play basketball at the college level. The mother ended up moving DJ to Welland, Ontario. She said he moved there in about April of 2013. [ 78 ] The mother says that she borrowed money for DJ’s first and last months’ rent, but that DJ otherwise applied for and received

OSAP to fund the cost of his education. [ 79 ] The mother testified that DJ’s mental health started to deteriorate after that. The mother was unclear about what exactly happened to DJ while in Welland, but there was an incident one night that led to his return to his mother’s home. Although the mother was not present, she told the Court that DJ’s landlord had evicted him following an incident involving garbage, holes in the wall, and other boys playing a trick on DJ. Whatever it was that happened that night, in the result, the mother went to get DJ from Niagara and he dropped out of Niagara College.

She said this happened in or around January of 2015. [ 80 ] The father was not fully aware of what happened to DJ in Welland either. He testified that he asked DJ about it, but DJ said he was “ok” and “handling it”. The father never asked the mother to explain what had happened. Instead, he told the Court “there’s no one else for me to ask”. [ 81 ] After DJ returned to the mother’s house at the beginning of 2015, the mother started to notice behaviours in DJ that were concerning to her.

She said DJ was wearing multiple layers of clothing, he wasn’t showering and she noticed that he had become aggressive towards Dante. She was concerned that he was doing drugs. [ 82 ] Her friend, Ms. Stewart, testified that she noticed similar concerning behaviours. On Ms. Stewart’s advice, the mother called the father and had DJ go and to live there with his father. The father described DJ’s departure from the mother’s home as the mother having “kicked DJ out of her house”. [ 83 ] In his evidence in chief, the father partially blamed the mother for DJ’s condition.

The father testified that DJ had told him that he didn’t want to play sports anymore, but his mother forced him to do so, so that he would get a scholarship. He said the mother had “shipped [DJ] off” without financial or emotional support. There is no evidence that the father made any effort to speak to the mother about his concerns when this was happening, nor that the mother tried to involve the father in discussions about DJ’s education. [ 84 ] At some point in March of 2015, the mother testified that she received a telephone call from a friend of Dainique’s, who told her that DJ was not well.

As a result, the mother went to pick up DJ and took him to the emergency department at the hospital. The mother made no effort to speak to the father as this first health crises unfolded. [ 85 ] The mother and her friend Ms. Stewart were present at the hospital. The mother testified that she was told by an unnamed doctor in the emergency room, that DJ was exhibiting signs of schizophrenia. The mother did not telephone the father to tell him of this news; rather she had Ms.

Stewart do it. [ 86 ] When DJ was discharged, the father came to pick him up from the hospital. [ 87 ] In or around later in March of April of 2015, DJ was hospitalized again. Both parents agreed that this was done pursuant to a “Form 2”. The mother testified that the father became DJ’s “substitute decision maker” because he had filled out the “Form 2”. But she later took steps to change that. [ 88 ] The father said that he had to obtain multiple “Form 2’s” during the time DJ was residing with him. I am not clear about the number of hospitalizations that DJ was subjected to as a result of a “Form 2”.

The evidence appeared to be that only one was acted upon. Regardless, DJ was hospitalized for a number of months. The mother testified that he remained in the hospital for about 4 months. [ 89 ] Upon his release from the hospital, DJ went back to his father’s home. The mother testified that DJ was placed on a “Community Treatment Order” after that. She explained that the police would compel DJ to follow his prescribed medical treatment if DJ did not do so voluntarily. I did not hear any evidence that the “Community Treatment Order” had to be acted on.

The mother acknowledged that the father took DJ to get injections every 28 days, and DJ also took his oral medication as prescribed. However, this then became a problem about 2 years later, in 2017. [ 90 ] The mother testified that at some point in the first part of 2017, she telephoned a social worker involved with DJ’s care to get an update (as opposed to the parents speaking to each other) and she discovered that the “Community Treatment Order” had been “cancelled”. She said that the father had cancelled the order and had taken DJ off his medication.

For his part, the father claimed he did this in consultation with DJ’s treating health care providers on a trial basis to see if he could come off his medication, but this was not the evidence that I heard at the trial. [ 91 ] The mother testified that she was “livid” and “disgusted” that the father had done this. She also testified that she believes the father took him off the medication “wilfullly”, “to provide that he would have to look after DJ”, so he could “collect child support”. [ 92 ] At the trial, she criticized the father for not consulting with her first before taking DJ off his medication.

Yet she didn’t speak to him at the time. [ 93 ] Instead, and despite her criticism that he had acted unilaterally in cancelling the medication, she then responded in kind. She went to the hospital and tried to see DJ’s treating physician, Dr. Ohine Darko, but she was unable to see him in the moment, so she booked an appointment. She also asked DJ’s social worker to help get DJ back on the “Community Treatment Order”.

While there, and also without any communication with the father, the mother completed some more forms to now make herself DJ’s “substitute decision maker”, even though DJ remained living with his father. [ 94 ] As a result of these steps, a meeting with the parents, the social worker, Dr. Darko and another person involved in DJ’s care, Lloyd Connell, was convened. The mother’s friend Ms. Bailey was also present. The meeting happened on April 28, 2017. [ 95 ] The mother testified that on May 26, 2017, DJ began taking his injections again. [ 96 ] I was told that the mother intended to call Dr. Darko at the trial.

Then she did not call him. She did call Mr. Connell to testify.

[ 97 ] Mr. Connell has worked for the John Howard Society for about 3 years. For the past 1 ½ years, he has worked as a case management officer with “Peel’s Alternative to Choosing Hospitalization” Program (the “PATCH program). He explained that his job entails helping with client care. He said he attends hospital visits and provides counselling services for clients. He explained that the purpose of the PATCH program is to help stabilize people, who have had multiple hospital visits, in the community. He said he assists with housing first, and then does long term case management thereafter. [ 98 ] DJ became Mr.

Connell’s client in about January of 2017. Mr. Connell testified that his work with DJ has involved counselling and accompanying him to appointments. He also said they also work on DJ’s future goals together. He testified that DJ says he wants to get a job, so Mr. Connell has made referrals to programs for DJ and has supported him to get into the work force. [ 99 ] Mr. Connell confirmed some of the mother’s evidence about the father’s conduct surrounding having DJ taken off his medication. Mr.

Connell testified that at the aforementioned meeting, the father said that DJ didn’t need either injections or oral medication. [ 100 ] Mr. Connell testified about DJ’s progress since becoming involved in his care starting in January of 2017. He said he speaks to DJ on a regular basis and sees him at least once per month. He testified that DJ has recently completed a 16 week work program offered through the YMCA, which included a job placement.

While he testified that DJ did “excellent” (this was hearsay evidence, the source being a worker at the YMCA program) and actually obtained a job after the program, the job didn’t last. [ 101 ] Mr. Connell testified that he thinks DJ’s work goals are attainable. But by the same token, the job that DJ obtained involved factory work, it didn’t last and Mr. Connell testified that the job wasn’t “the right fit”. Mr.

Connell did not know how many hours per week DJ actually worked, whether he could handle more or less hours (as he did not know the amount of work), what DJ actually earned nor the reason for the job not working out. [ 102 ] Mr. Connell has referred DJ to employment counsellors. He also referred him to a course so DJ can learn about how to create a resume, how to undertake a job search and to obtain interview skills. But as of the time of this trial, DJ hadn’t found a job. Mr.

Connell was concerned that DJ hasn’t been proactive with the employment counsellor. [ 103 ] To some degree there is an acknowledgement by the mother that DJ is not yet self-supporting. She testified that she told DJ to be more aggressive in his efforts to find a job. On her own admission in her evidence in chief, the mother testified that DJ has a “little way to go”. [ 104 ] Finally, there was no evidence about DJ having applied (or not applied) for ODSP. In closing submissions, I was told that DJ did not want to apply. C. Dante, Age 19 [ 105 ] Dante now lives on his own.

The mother initially testified that Dante’s primary residence is currently with her, but she also testified that he actually lives in housing near Yorkdale Mall. [ 106 ] Dante graduated high school in June of 2016. He is trying to be a professional athlete. He plays soccer for the Toronto Football Club. He is on the Canadian National Team. He has also been selected to compete in the Olympics for Canada. [ 107 ] The mother testified that after high school, Dante signed a two year contract with the Toronto Football Club. [ 108 ] The mother explained that Dante is paid $700 per month to play soccer.

The Toronto Football Club also pays for Dante’s residence, but Dante pays for his own meals. [ 109 ] The mother’s testimony about Dante happened on the May 11, 2018 trial date, which was the second day of trial. As of that date, she said that she had previously made an agreement with Dante for him to start post-secondary education in January of 2018, but it had not happened. She claimed she would be revising this discussion with him in September of 2018. By the end of the trial (in September 2018) I heard no updating evidence about Dante having enrolled in a post-secondary program.

To the contrary, the evidence throughout the trial is that Dante is 100% focused on soccer. There is also an agreement that child support ends for him as of the end of high school. The evidence is that Dante is pursuing a career as a professional athlete. D. Daineil, Age 13 [ 110 ] Daineil is now 13 years old. He lives with his mother primarily, which has been the case since the separation and after the 2012 order. He is in grade 8 at […]. He is the only remaining child who is the subject of the current parenting dispute between the parents.

There is no question in this trial either that Daineil remains entitled to child support.

PART VI: LAW AND ANALYSIS REGARDING CUSTODY AND ACCESS A. Applicable Statutory Provisions [ 111 ] A number of legal principles govern the custody and access claims before the Court. Of course, various sections of the CLRA govern this proceeding. They are: Merits of application for custody or access 24

(1) The merits of an application under this

Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).

Best interests of child

(2) The court shall consider all the child’s needs and circumstances, including, (

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

i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child, (ii) other members of the child’s family who reside with the child, and (iii) persons involved in the child’s care and upbringing; (

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

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

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

e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing; (

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

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

h) any familial relationship between the child and each person who is a party to the application. Past conduct

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

a) in accordance with subsection (4); or (

b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. Violence and abuse

(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse 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. Powers of court

(1) The court to which an application is made under

section 21, (

a) by order may grant the custody of or access to the child to one Or more persons; (

b) by order may determine any aspect of the incidents of the right to custody or access; and (

c) may make such additional order as the court considers necessary and proper in the circumstances, including an order, (

i) limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child, (ii) prohibiting a party or other person from engaging in specified conduct in the presence of the child or at any time when the personis responsible for the care of the child, (iii) prohibiting a party from changing the child’s residence, school or day care facility without the consent of another party or an orderof the court, (iv) prohibiting a party from removing the child from Ontario without the consent of another party or an order of the court, (

v) requiring the delivery, to the court or to a person or body specified by the court, of the child’s passport, the child’s health card within the meaning of the Health Insurance Act or any otherdocument relating to the child that the court may specify, (vi) requiring a party to give information or to consent to the release of information respecting the health, education and welfare of thechild to another party or other person specified by the court, or (vii) requiring a party to facilitate communication by the child with another party or other person specified by the court in a manner that is appropriate for the child.

Order varying an order 29 A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontariounless there has been a material change in circumstances that affects or is likely to affect the best interests of the child. Child entitled to be heard 64

(1) In considering an application under this Part, a court where possible shall take into consideration the views and preferences of thechild to the extent that the child is able to express them. B. Applicable Legal Principles Concerning the Custody and Access Claims

(1) Material Change In Circumstances [112] As there is already a final custody and access order in place, this is a variation proceeding that is governed by

section 29 of theCLRA. This Court may not make an Order that varies Kerrigan-Brownridge J.’s Order unless “there has been a material change incircumstances that affects or is likely to affect the best interests of the child.” Therefore, the Court must first determine whether therehas been a material change in circumstances that affects or is likely to affect the best interests of the child.

The party seeking to changethe order bears the initial burden of establishing that there has been a material change in circumstances. [113] The leading case, both as to the requisite material change threshold that the Court must apply, and then the analysis that follows ifa material change is found, is Gordon v. Goertz, (SCC), 1996 CarswellSask 199 (S.C.C.). Although Gordon v. Goertz was decided as a variation pursuant to

section 17 of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), its principles apply to cases decidedunder the CLRA. [114] At ¶ 10-16 of Gordon v. Goertz, McLaughlin J. defined what will amount to a material change. She wrote, “[c]hange alone is notenough; the change must have altered the child’s needs of the ability of the parents to meet those needs in a fundamental way”… and

“[t]he question is whether the previous order might have been different had the circumstances now existing prevailed earlier”. And, “…the change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order.” [115] In a case like this, where the 2012 Order was based on the parents’ consent, the new circumstances must not have been forseen orreasonably contemplated by the by the parties. See L.M.P. v. L.S., 2011 SCC 64.

(2) Custody [116] Concerning the scope of the inquiry, at ¶ 17 of Gordon v. Goertz, McLaughlin J. wrote, “once a material change is found, theCourt should consider the matter afresh without defaulting to the existing arrangement”. If the Court finds there is a material change,then it must consider all factors relevant to the children’s best interests in light of the new circumstances.

As McLaughlin J. held at ¶47, “There is neither need nor place to begin this inquiry with a general rule that one of the parties will be unsuccessful if he or she failsto satisfy a specified burden of proof”. [117] In considering the children’s best interests if a material change is found, the Court must be guided by the statutory criteria set outin section 24(2) of the Act. In accordance with Van de Perre v.

Edwards, 2001 SCC 60 at ¶ 10, the Court should consider the applicablestatutory factors in light of the evidence before it. [118] One of the main questions in this case is whether the joint custody order respecting Daineil should continue, or whether the Courtshould award sole custody to either of the parents. [119] In Kaplanis v. Kaplanis (ON CA), [2005] O.J. No. 275 (C.A.), the Ontario Court of Appeal set out a numberof principles relevant to determining whether joint custody is appropriate. In a nutshell, the parents must have the ability to makeeffective decisions about their children.

Joint custody should not be used as a tool to force parents to communicate better. No matterhow detailed the custody order, there will be gaps that arise. [120] One the one hand, courts do not expect communication between parents to be free of conflict. The standard of perfection is notrequired. But there must be a reasonable measure of cooperation in place. See Griffiths v. Griffiths 2005 ONCJ 235 , 2005CarswellOnt 3209 (C.J.); see also Warcop v. Warcop, (Ont. S.C.J.). [121] Nevertheless, courts sometimes order joint custody even in the absence of reasonably effective communication.

For example, ajoint custody order might be appropriate where it is necessary to preserve the balance of power between the parties, such as in a casewhere both parties are caring and competent parents, but one party has been primarily responsible for the conflict between the parties: see Roloson v. Clyde, 2017 ONSC 3642; or where one parent is not promoting the relationship with the other parent: see Andrade v.Kennelly, 2007 ONCA 898.

(3) Access [122] The test for determining access is also to be decided based on the best interests of Daineil. Like respecting its determinationabout custody, the Court must decide access based on the best interest factors set out in subsection 24(2) of the CLRA, in light of theevidence before it. [123] I am also mindful that the Court should strive to order a result that maximizes the time that each parent may have with Daineil,insofar as that is consistent with his best interests. C.

Has There Been A Material Change in Circumstances? [124] As I said already, the only real area that the mother identifies that the parties may need to agree about in the future for Daineil inthe future is basketball. Even decisions about his education are tied to basketball in the mother’s view. Other issues, like health, may ofcourse arise, but no such issues are currently envisioned. Daineil is healthy. [125] I begin by acknowledging that the mother has done more of the heavy lifting respecting parenting historically (and after the 2012Order).

Regarding their communication, the mother said that her inability to communicate with the father stemmed back to 1998. Shesaid she was “ok” with a joint custody order in 2012 because even though she said they had never gotten along, she agreed to it on thebasis that they would be “amicable” with one another”. [126] I will come back to this later, but I note that in spite of the historical division of labour about parenting and their already existingvery poor communication in 2012, they agreed to joint custody.

Yet now both parents want the Court to vary the joint custody order forDaineil based largely on an inability to communicate. [127] The Court initially questioned whether there had been any material change in circumstances at all. Simply, there was conflictwhen the parties agreed to joint custody in 2012, and there is conflict now. [128] However, as the evidence unfolded it became clear that the existing joint custody order and the access terms have not beenfollowed. In my view continued joint custody risks that Daineil will continue to be placed in the middle of parental conflict.

I find thatthe conflict between the parents has worsened. I agree that their “heightened inability to communicate” and their inability to makedecisions in Daineil’s best interests is a material change in this case. [129] I say this for the following reasons. [130] I heard almost no evidence of any joint decision ever having been made since the 2012 order. The mother testified that she has nocommunication with the father at all about Daineil. She said there is “zero communication” and they have never made decisions

together. Since having counsel, the mother sends messages through her lawyer. [ 131 ] The mother is not even willing to try to communicate with the father. She does not want to share school information with the father. She says the father should make his own parent-teacher interviews. When asked whether she would communicate with the father about Daineil’s school lunch program, she responded that the information was on the internet and there was no need to communicate. [ 132 ] As I alluded to earlier in these reasons, the father, by contrast, said he is willing to try to communicate with the mother.

He said he does not have any “personal issue” with the mother and “as far as my kid goes, I can work with anyone”. [ 133 ] He did however acknowledge that the parties’ current level of communication is insufficient for them to resolve issues concerning Daineil together. [ 134 ] But he did not acknowledge the role he played in creating the current situation. [ 135 ] The parents’ communication is so poor that they did not even know where each other lives. It was astounding to hear counsel for the father submit this in closing arguments.

I had to order the parties to exchange addresses, which they then did on the spot. I do not understand why they had to wait for the Court to order them to tell each other their current addresses. I note that Pawagi J. previously ordered the parents to exchange email addresses as part of an interim order in an apparent attempt to regulate communication between them. [ 136 ] While the mother claimed to have been “ok” with the joint custody arrangement to which she agreed back in 2012, very soon after the Order was made, her feelings about it clearly changed.

It is clear that the mother views herself as the primary decision maker for the children and she views the father as involved with the children only when it suits him. She has acted as if she had sole custody. [ 137 ] As I have already explained to some degree when summarizing the evidence about the children’s circumstances, the mother made decisions about the children’s health, education and activities almost always without input from the father.

There are more examples of this beyond those to which I have referred above. [ 138 ] Moreover, there is at least one example of the mother failing to even acknowledge the father’s existence. In 2013, the mother completed school forms for Dante when he was starting high school. She indicated that she was his sole custodial parent. In fact, there is no mention of the father on the forms at all. Rather, the mother listed Dainique as the second parental guardian, and her friend, Ms.

Bailey as the emergency contact. [ 139 ] In cross-examination, she said she was “well aware” that the order provided for joint custody, but she justified the manner that completed the form by saying that she was the “primary decision maker” and the father was “MIA” (missing in action). [ 140 ] The parents did not follow the

schedule in the 2012 Order, and this led to conflict between them. The parents were not only having the older children arrange their access with the father directly, but they were sometimes using the older children as conduits to arrange Daineil’s access too. Or sometimes the father and Daineil spoke directly to one another about the access arrangements, albeit this was not without problems. I heard considerable evidence about conflicts over scheduling, even though the schedules in the governing order and a subsequent interim order that Pawagi J. made prior to trial were clear.

In some instances, Daineil was clearly placed in the middle of the conflict, or at least made aware of it. [ 141 ] The mother accused the father of not having followed the schedule, and the father accused the mother of acting unilaterally to change it, and of not communicating. I will highlight some of the examples of conflict around scheduling that I heard about. [ 142 ] The mother testified about an incident that she said occurred two or three years ago. According to her, when Daineil was in grade 5, the father tried to pick the child up from school, but he had never done so before.

According to the mother, the school principal had to become involved. [ 143 ] I accept that the mother found it inappropriate for the father to just show up at the school unannounced. I agree it was inappropriate to do so and there should have been advance discussion. [ 144 ] But then the mother escalated the situation unnecessarily. She responded by telling the father that she would go to court to get “an enforcement order”. She also candidly admitted in her evidence in chief that she then went into the school and gave a direction that the school should inform her if anyone was trying to pick Daineil up.

She said she sent an email to the father’s lawyer. Most concerning, she involved Daineil, telling him that “at no point was anyone allowed to pick him up without [her] consent”. She made this comment because his father tried to pick him up. [ 145 ] On another occasion, the mother planned a trip for two of the children to the United States without telling the father. This would have impacted the schedule. But that was not the father’s complaint. He felt there ought to have been advance discussion before the children left the country (which there should have been).

The father said he only learned about the trip from DJ, when he and Daineil were already en route to the airport. Although DJ was an adult at the time, Daineil was travelling too. The father did not know where the children would be. The parents do not speak to one another, so he tried to ask questions and eventually sent a message to DJ that he would meet the boys at the airport. Then, DJ’s cell phone got turned off. [ 146 ] So the father drove out to the Toronto airport but the boys were not there. The father later learned that the mother had the boys fly out of Buffalo.

The boys came back at the end of the summer. I was not told who was taking the boys to the airport when the father was trying to get information about the trip on the day of. But in any case, the mother did not tell the father about the trip. [ 147 ] The father testified that he later learned where the boys were, not from the mother, but only because the maternal grandmother telephoned him. He said the grandmother felt he should know where the children were. [ 148 ] More generally, the father questioned the propriety of the mother having sent the boys to Florida to spend time with her mother at

all, saying that the mother’s relationship with her mother (the grandmother) was not “pleasant”. [ 149 ] Although it was the subject matter of a dispute between them several years earlier, the father’s ability to pick Daineil up at school continued to be a problem well into this litigation. On April 5, 2017, on consent, Pawagi J. made an order that the father would have access to Daineil on alternate weekends.

Then seven days later, on April 12, 2017, again on consent, Pawagi J. ordered that the mother was to place the father on the pick-up list for Daineil’s school, that the father was allowed to pick Daineil up early from school, and that the father would advise the mother by email if he planned to do so. She ordered the parents to exchange email addresses. [ 150 ] While I acknowledge these were consent orders, their subject matter then remained contentious issues between the parties such that these further orders were made.

Indeed, in cross-examination at the trial, the mother admitted that prior to Pawagi J. having made these orders, the father was still not authorized to pick up Daineil at school. [ 151 ] There has been police involvement with this family. The mother has telephoned the police to complain about the father at least twice while these proceedings were ongoing. [ 152 ] The first such telephone call happened at some point in 2017. According to the mother, Daineil had been in his father’s care the weekend before the incident involving the police. The next weekend, the father was dropping off Dante at her house.

Meanwhile, Daineil was apparently getting ready to go to Canada’s Wonderland with the mother’s new boyfriend. According to the mother, the father ordered Daineil to get in the car. So the mother telephoned the police. [ 153 ] The mother involved the police again at Christmas time in 2017, this time alleging that the father had threatened her. According to the mother, Daineil had been with his father from Friday, December 22, 2017 to Christmas day. Regarding the following weekend, the father apparently sent Daineil a text message saying that he would be picking him up.

According to the mother this wasn’t part of the arrangement. [ 154 ] I am not clear why Daineil was with the father on Christmas day as the Order of Kerrigan-Brownridge J. dated October 25, 2012 provides that the father was to have the second half of the holiday. In any case, the father then telephoned Daineil on December 30, 2017 to tell him that he would be picking him up by 7 pm.

I note that the father was entitled to have Daineil in his care for the second half of the school break. [ 155 ] When the father telephoned Daineil, Daineil proceeded to put the father on the speaker phone, with the mother listening in the background, and told his father that he couldn’t come. According to the mother, the father then told Daineil that if he wasn’t ready to go “all hell will break loose”.

The mother then revealed to the father that she was listening to the call by saying “don’t you dare send any threats”. [ 156 ] This interaction between the parents over the telephone in Daineil’s presence quickly escalated and became unnecessarily dramatic. [ 157 ] Then the mother telephoned the police. [ 158 ] The police came to the mother’s home as a result of the mother’s report and spoke to Daineil. A referral was then made to the Children’s Aid Society. [ 159 ] Since then, the mother has arranged for counselling for Daineil. She took Daineil to three counselling sessions and then stopped.

She says that she intends to take him back after the trial is over. As a general comment, I did not hear any evidence at the trial that the mother sought the father’s consent before taking Daineil to counselling. [ 160 ] The mother admitted in cross-examination that when the police came to her home, she was asked to clarify whether the father was in fact supposed to have Daineil in his care that weekend. The mother proceeded to show the police only the order of Pawagi J. dated April 5, 2017. That Order only dealt with the regular

schedule on an interim basis pending trial. It did not modify the holiday

schedule in the 2012 Final Order of Kerrigan-Brownridge J., which still applied respecting Christmas. Daineil was indeed supposed to be in his father’s care. [ 161 ] When confronted with this in cross-examination, the mother justified her decision not to show the right order, saying that the father hadn’t abided by this Order since 2013 anyway. I find that she deliberately showed the police the wrong order.

I also note that even though she claims the father hadn’t abided by the 2012 order, at this trial, she says those holiday terms in the 2012 Order should continue. [ 162 ] The mother has complained that the father refused to take Daineil to sports games or practices. The mother told the Court of a time that she had to switch the regular access weekends to ensure that Daineil would get there. This was imposed, not agreed to.

Meanwhile, the father testified about a time that he tried to take one of the children to a game or practice, but according to him the mother had given him a false address. [ 163 ] I am not fully clear whether these incidents relate in some way to the interim order that Pawagi J. made on September 27, 2017 or not, but on that September date, Pawagi J. ordered the father to take Daineil to his sports, provided that he had been given the address in writing.

In my view, this is another example of the case management judge clearly trying to regulate these parents prior to the trial. [ 164 ] It was clear that Daineil was well aware of this conflict between the parents, and getting to sports games and practices became an area of concern for him that he did raise in the counselling sessions. [ 165 ] As I said earlier, the mother took Daineil to a few counselling sessions. She and Daineil attended counselling sessions at “Tangerine Walk-In-Counselling” on January 4, 2018, January 11, 2018 and February 8, 2018.

Neither parent called either of the counsellors to testify, but the mother filed the notes from those sessions at this trial and they were entered into evidence on consent.

[ 166 ] Daineil was seen at Tangerine on January 4 and 11, 2018 by a counsellor named Rosemary Di Simine. The mother was also present for at least part of these two sessions. On February 8, 2018, Daineil did not want to meet with the counsellor, Meena Radhakrishnan, alone, and so he only participated part of the time.

The mother met with this counsellor alone for part of the session. [ 167 ] The notes revealed that on January 4, 2018, Daineil reported that he did not want to go to an upcoming access visit because he was worried that his father would not take him to a basketball tournament, and because of the recent conflict on this subject between the parents. The mother testified that the father could not be relied upon to do the sports transportation. [ 168 ] However, by January 11, 2018, Daineil reported that his dad was “funny”, a “good cook” and he said he was looking forward to seeing his dad.

He said that his father sent him a text message that made him feel comfortable with an upcoming visit. [ 169 ] At the conclusion of the January 11, 2018 note, the counsellor recommended that Daineil’s mother should provide opportunities for Daineil to share positive experiences about his relationship with his father. She stated that if those recommendations are not followed through with, Daineil may not develop a healthy relationship with his father. [ 170 ] I heard no evidence about how this recommendation was implemented, if at all. [ 171 ] Again, Daineil was not expressive at the February 8, 2018 session.

Daineil did identify that his older sister Dainqiue is the family member with whom he feels closest. Ms. Radhakrishnan was of the view that Daineil was caught in a loyalty bind between his parents though. [ 172 ] Although he is not the subject of the current custody dispute, I also find the way the parents handled DJ’s health and education to shed considerable light on their inability to act appropriately together when it comes to their children. [ 173 ] As I have explained earlier in these reasons, the mother did not discuss DJ’s high school and post-secondary education with the father.

She did not involve him in the decision of DJ moving to the US or selecting the school. She did not call the father when DJ came home from Niagara. She did not involve the father when DJ was first taken to the hospital. She then had her friend telephone the father. Then, the father did not communicate with the mother before taking DJ off his medication. The mother then responded unilaterally and took steps to become DJ’s “substitute decision maker”. [ 174 ] If the past is predictive of the future, then this is worrying for Daineil, particularly should serious health issues arise for him.

It is also concerning for DJ frankly, whose health needs are an ongoing issue. D. Daineil’s Best Interests Respecting Custody [ 175 ] Based on the evidence that I have summarized above, it is not in Daineil’s best interests that his two parents continue to have joint custody of him. [ 176 ] In short, the parents cannot communicate and make decisions effectively. [ 177 ] I find that the Court must decide between the competing custody claims. I will therefore apply the criteria in section 24(2) to the evidence before the Court. [ 178 ] With regards to section 24(2) (

a) of the CLRA , I find this to be an equal factor. There is no question that both parents love Daineil and that he loves both of his parents. In any case, the Court will be making an access order and it is the Court’s expectation that the parents follow it. [ 179 ] Regarding sections 24(2)(

b) and 64(1), I heard very little evidence about Daineil’s views and preferences. The Office of the Children’s Lawyer was not involved in this case. I was not asked to interview the child. There was no evidence as to Daineil’s views and preferences about custody or about the schedule. The only objective evidence that I heard was through the counselling notes. What the notes reveal is that the conflict between the parents over Christmas 2017 impacted Daineil.

He was also worried about getting to basketball, which is a topic that the parents have argued about. [ 180 ] Nevertheless, very soon after the first counselling session, Daineil once again spoke positively about his father. By early January 2018, he was looking forward to seeing him. If their relationship was disrupted as a result of the Christmas incident, it did not last l

[…]