Beckford v. McGregor, 2020 ONCJ 111

ONTARIO COURT OF JUSTICE CITATION: Beckford v. McGregor , 2020 ONCJ 111 DATE: 2020 02 25 COURT FILE No.: Brampton 449/15 BETWEEN: ALVIN GEORGE BECKFORD SR . Applicant — AND — MARSHA MCGREGOR Respondent Before Justice Philip J. Clay Heard on January 27, 28 and 29, 2020 Reasons for Judgment released on February 25, 2020 Alvin G. Beckford Sr. ................................................................................. on his own behalf Mr. T.

Jenney............................................................................. counsel for the Respondent CLAY J.: OVERVIEW [ 1 ] The Applicant father (“the father") and the Respondent mother ("the mother") were in an off/on relationship from approximately 2005. Their son Alvin George Beckford Jr. ("Michael") was born on […], 2007. The parties evidence differs as to when they actually started living together on an indefinite basis, but it was some time in 2008 or 2009. Their second child Evan Alec Beckford was born […], 2009.

They lived together in the same home continuously from 2009 to May 2013. [ 2 ] On May 2013 the mother and the two boys moved out of their home on Oakmeadow in Brampton to a home she has purchased on Orangeblossom in Brampton. The father's position at trial was that he moved with the mother to her new residence and the parties did not really separate until December 2014. There was no arrangement in place for time sharing with the children. The mother says the father rarely saw them during this time. She says that when he did come to her home it was in an effort to reconcile with her.

Any attempts at reconciliation ended in December 2014. [ 3 ] Both parties agree that in January 2015 the father told the mother that they should implement an alternate week access schedule. He claims that she agreed to this. The mother said she did not agree, but the father did start picking the boys up directly from school every alternate week. On the other week either she or her adult daughter Kishoya would pick them up. This situation continued until March 2016. [ 4 ] The father stated that in early May 2015 the mother stopped sending the boys to school to frustrate his ability to pick them up.

The mother denied this and pointed to evidence that showed that the boys missed school due to illness in early May 2015. The father brought an Application on May 7, 2015 seeking an order for joint custody and alternate week access to the children. The mother filed her Answer on May 29, 2015 seeking custody, alternate weekend access and child support. [ 5 ] The alternate week arrangement continued until the end of school in 2015. The father then said that the mother denied him

access to the boys for the summer. The mother said that the father did not ask to see his sons. The parties both agree that when school returned in the fall the father resumed picking the boys up every alternate week. There was still no agreement on a schedule. [ 6 ] There was a court attendance on April 1, 2016. The father did not attend, but he was represented by counsel. The parties signed Minutes of Settlement that became the order of Justice A.W. Sullivan.

That order provided that that the mother would have primary custody and that the boys would be with the father on Tuesdays and Thursdays from 3:00 p.m. to 7:00 p.m. alternate weekends from Friday at 3:00 p.m. to Sunday at 3:00 p.m. and on the Wednesday following the weekend access from 3:00 p.m. overnight to Thursday at 8:30 a.m. [ 7 ] The father said he never agreed to this schedule, but it was clear that he had counsel who signed on his behalf after speaking with him. The father said that the

schedule was clearly not in the boys’ best interests. He said they cried uncontrollably when he had to return them after just four hours time on the Tuesdays and Thursdays. It appears that the parties’ counsel exchanged correspondence and after about four to six weeks of the April 1

schedule the parties began a new

schedule proposed by the father. By that

schedule the father had the children from Thursday after school until Sunday evening every alternate weekend. This

schedule was never made into a formal agreement or court order, but it continued to the time of trial. [ 8 ] Also, on April 1, 2016 an order was made requesting the involvement of the Office of the Children's Lawyer ("OCL”). The file was assigned to Ms. Tracy Majewski MSW who prepared a s. 112 report that was delivered to the parties on November 8, 2016. That report recommended that the mother have custody, and the father should see the children pursuant to a two-week rotating schedule.

On week one he would have the children Wednesday after school until Sunday at 7:00 p.m. and on week 2 he would have Wednesday after school until the drop off to school on Thursday morning. The father filed a Dispute to the report's recommendations. The mother did not. The OCL recommendations were never implemented. [ 9 ] By the order of Justice Sullivan dated December 11, 2017 the father was ordered to pay to the mother the sum of $899 per month for the support of the two children beginning April 1, 2016. He was also ordered to pay costs of the child support motion in the amount of $2,500.

I was advised at trial that the child support was in arrears and the costs were unpaid. [ 10 ] On March 12, 2018 the OCL was requested to update their report. Ms. Majewski was re-assigned. Costs of $500 were ordered against the father for not making financial disclosure prior to the Settlement Conference. They remain unpaid. [ 11 ] Ms. Majewski filed her updated report on October 3, 2018. In this report she again recommended sole custody to the mother (with the father to decide on recreational activities). She then recommended an alternate week time sharing schedule.

She also made counselling recommendations for the parties and the child Michael. The mother filed a Dispute to this report. ISSUES [ 12 ] The father had claimed joint custody throughout this proceeding. At the opening of trial, he advised that he consented to the mother having sole custody as he said that he knew that she would make the right decisions for the children. He said that his only issue was the time sharing.

He said that due to the boys stated wishes for equal time with him he sought an alternate week schedule. [ 13 ] The mother wanted a sole custody order in her favour and a continuation of the existing time-sharing schedule. The issues for resolution are then:

(1) What should the access

schedule be? i. Alternate weeks with a Friday at 5:00 p.m. turn around as sought by the father? ii. The existing alternate weekend Thursday to Sunday access? iii. Some other

schedule that provides the children with more time with the father?

(2) The calculation of child support pursuant to either s.3 or s.9 of the Child Support Guidelines (" CSG ") based upon the time- sharing arrangement from the time of separation to the time of trial and ongoing? [ 14 ] It is necessary to consider the access issue first as my decision on that issue impacts upon the decision to be made on the child support issue. THE LAW WITH RESPECT TO THE ACCESS ISSUE [ 15 ] Custody and access decisions are governed by the provisions of The Children's Law Reform Act . The relevant

section is s. 24 which reads as follows; Merits of application for custody or access 24

(1) The merits of an application under this

Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1) . Best interests of child

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

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

i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

(ii) other members of the child's family who reside with the child, and (iii) persons involved in the child's care and upbringing; (

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. 2006, c. 1, s. 3 (1) ; 2009, c. 11, s. 10 ; 2016, c. 23, s. 7 (1, 2); 2016, c. 28, s. 2 . Past conduct

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

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

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

(4) In assessing a person's ability to act as a parent, the court shall consider whether the person has at any time committed violence 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. 2006, c. 1, s. 3 (1) ; 2016, c. 23, s. 7 (2, 3). EVIDENCE [ 16 ] The parties filed their respective trial affidavits which was their direct evidence in this trial. Both parties were cross-examined. Each party was entitled to call one family witness with no affidavit required. The father called his 20-year-old son Aleem who resides with him. The mother called the father's 22-year-old estranged daughter Aaliyah as a witness. Ms.

Majewski the clinical investigator from the OCL was considered to be the court's witness and was cross-examined by both parties. [ 17 ] There was a lot of conflicting evidence. I will address the evidence chronologically, set out the positions of all witnesses and make factual findings. MAY 2013 TO DECEMBER 2014 [ 18 ] The father said that the parties did not really separate on May 2013. He said the mother and the children moved into the Orangeblossom home that was purchased in her name, but that he also lived there.

He had said earlier in this proceeding that the mother purchased the home with monies she had set aside during their co-habitation so in effect his money had gone into the home. By the time of trial, he had abandoned that position as disclosure had made it clear that the maternal grandfather ("MGF") had loaned the mother money for the purchase. [ 19 ] The father said that the parties did not end their relationship until December 2014.

He said that the reason that he did not physically move to the new home with the mother and the boys was because his then teenaged children Aaliyah and Aleem were treated poorly by their step-mother Ms. McGregor. He said that he kept living at Oakmeadow because he needed to care for the older children. He maintained that he divided his time between the two homes and saw Michael and Evan ("'the boys") frequently so there was no need to create any schedule.

He said that he did spend August to November 2014 taking care of his ill father ("the PGF") at his home in Toronto, but he informed the mother of that. [ 20 ] The mother's evidence was that she and the children moved to a home purchased by the MGF. The father did not move with them. He continued to live at Oakmeadow. I note that after Michael's birth and not long before Evan's the father had a child with another woman. Jahmar was born on August 30, 2008. The evidence of the father and of his eldest son Aleem was that the father had regular access to Jahmar in the Oakmeadow home after the mother moved out.

This means that for periods of time the father had Aaliyah, Aleem and Jahmar staying at his Oakmeadow home. I do not accept the father's evidence that he was living with the mother at the home she bought and moved into with Michael and Evan while at the same time his three other children either lived with him or visited regularly at the residence he co-owned with his sister on Oakmeadow.

[ 21 ] The father did not change his address on any identifying information. He sent the mother a letter in October 2014 from his Oakmeadow address to her Orangeblossom one. That same month he sent a letter to the CRA at the request of the mother that stated that the boys "have been cared for by their mother Marsha McGregor since birth." He set out in his own Application that the parties separated in June 2013. The mother did admit that the father wanted to reconcile and they spent some time together in 2014 doing things with the boys.

The mother said that the boys did not see their father much between May 2013 and December 2014. She said she urged the father not to ignore his sons. [ 22 ] Aleem said that he did not feel comfortable visiting at Oakmeadow before Ms. McGregor moved. He stopped visiting his father when he was there. He said that he felt ignored by Ms. McGregor. Aleem had lived with his mother Ms. Powell, but over time had spent more time with his father. After Ms.

McGregor moved out Aleem started staying with his father at Oakmeadow and he ultimately moved in with his father. [ 23 ] Aleem admitted that when he was very young his mother Ms. Powell and his father had many verbal altercations. He denied ever seeing his father hit his mother or Ms. McGregor. Aleem said that his father had been a good parent as he grew up and that he had really supported his education. Aleem is currently with the Army reserves. He works a job as a security guard on a part-time basis with a plan to become a police officer.

Aleem was clearly close to his father. [ 24 ] Aaliyah said that she had always been treated well by Ms. McGregor. She noted that she and Aleem had a difficult time when their parents separated. She said the OCL was involved and the matter went to trial. She said that when her father did not obtain custody of her brother and herself that he disappeared from their lives for a long period of time. When she started having conflict with her mother, Ms. Powell, she spent time at her father's. She was adamant that her father did not live in the Orangeblossom home with Ms.

McGregor. [ 25 ] In her interviews with the boys Ms. Majewski noted that Michael told her that after their parents’ separated, they did not see their father for a long time. He then came back into their lives and they spent every second week with him. [ 26 ] I find as a fact that the parties did separate in late May 2013. The father did not move into the Orangeblossom residence. I accept the evidence of the mother, Aaliyah and the statements made to Ms. Majewski by the boys that the father was not involved in their lives on a consistent basis in this time frame.

I find that the parties never continued or resumed cohabitation after May 2013. JANUARY 2015 TO APRIL 2016 No time-sharing agreement [ 27 ] The father said that the parties agreed in January 2015 to share time with the boys on an alternate week basis. As the father's evidence was that the parties did not separate until December 2014, he said that this alternate week arrangement was made so that the parties separation would have as little impact as possible on the boys.

He also said the two children liked the week about and were very upset when it ended with the court order of April 1, 2016. [ 28 ] The mother said that there was never any agreement for an alternate week time sharing arrangement. She said that when she began dating someone else the father began picking the boys up after school in January 2015 and unilaterally forced a week about arrangement. The mother included in her document brief the text exchange between the parties that preceded the alternate week arrangement. The father wrote texts to the mother on December 22 to say that his work

schedule had changed and that he will now be scheduled to work from 6:00 p.m. to 1:00 a.m. and that this would allow him to take the boys to school (at that time the mother's daughter Kishoya had been dropping them off daily as the mother had to leave early for work). The father said that "I am thinking that I would take them for a full week or full two weeks. I would be getting them to and from school. Let me know if a full week or two full weeks would work for you." He followed up twice that day imploring the mother to let him know the specific week in January when the alternate weeks would begin.

He wrote: Still waiting for a response. While I am waiting let me apologize for the harsh exchanges that occurred recently. I guess we have both been hurting for quite sometime. I can only apologize and ask for your forgiveness. I now need to move my life in a different direction and focus on my children. I guess God has already started working on it given the news about our 2015 schedule. This can only be a positive sign. Need it before I leave work today. Thanks. [ 29 ] The mother responded with; Al, I don't know what will work best. Take whatever

schedule works for u. [ 30 ] On December 30 the father stated: … I will be picking up the boys from school on Friday January 16. They will be with me until the last Friday in January, the 30th. Kish can pick them up after school on that Friday. … [ 31 ] The mother wrote back and said she was not in agreement with this change and she did not want to disrupt the boy's routine. She sent another text to clarify that on December 22 she simply told the father to take whatever

schedule worked best for him. She went on; I never said I was in agreement with u disrupting their regular routine. [ 32 ] The father started picking Michael and Evan up at school and taking them to school every second week. On the alternate week Kishoya, who lived with the mother, picked them up and returned them. I find that it is clear from the text message exchange that;

(3) The father acknowledged he had been difficult with the mother;

(4) That he wanted to change and focus on his sons;

(5) That the father had a deadline to change his

schedule and the mother in effect said do what you need to do; and

(6) That the mother not only never agreed to the alternate week

schedule she made it quite clear that she did not agree to it. [ 33 ] As the father could pick up and drop off at school and the mother had to send her daughter there was nothing the mother could do about this unilateral imposition of a week about

schedule short of beginning legal proceedings which she did not do. [ 34 ] The mother said that although the

schedule looked like each party had a full week with the child the reality was that the father had to leave to get to work at 6:00 p.m. His time with his sons on his week was after school until about 5:30 p.m., the mornings before school and the weekend. The father had the boys looked after in the evenings and overnight either by his eldest daughter Aaliyah or by the PGF. [ 35 ] The father's narrative was that the parties had shared time with Michael and Evan until the court order.

He also said that the mother intentionally withdrew the children from school in late April and early May 2015 to frustrate his ability to pick them up and continue this schedule. The father issued the Application on May 7, 2015 as a result. The mother was able to show by the school attendance record that the children were ill and that is why they were not in school on the father's week. The mother should have immediately told the father by e-mail that the children were ill and would miss school in the days he would normally pick them up. She relied on the school to call him as it was his week.

Police involvement [ 36 ] The mother said that in early May 2015 she received a voice mail message from Michael that said that he had a gun. The boys were in the care of their father that week. The mother went to the police station to report it. The police went to the father's home on Oakmeadow, but nobody was at home. The mother assumed that the father was at work and Michael and Evan were being looked after by the PGF. [ 37 ] The boys came back into the care of the mother. She received calls from the police saying that the father had not responded to them.

Finally, on May 18, 2015 she sent an e-mail to the father to tell him the police wanted to talk to him. The father's e-mail to the police of May 29 stated that he had tried to contact them after May 19, but he was not able to speak to an officer. When they did connect in early June the father said the officer told him that they were doing a wellness check. He said the officer never said anything about a gun. The father was convinced that in early May the mother withdrew the children from school and then called the police to make a false report about a threat of violence in his home.

He said she did this to show him in a very negative light and to advance her claim for custody. [ 38 ] The mother denied that she called the police in an effort to gain evidence for the litigation. In her affidavit the mother said that she later learned that the gun in question was a B.B. gun and that Aleem had shot Michael causing some bruising. [ 39 ] I find that the mother acted appropriately in getting the police to check on her son when she received such a disturbing call.

I also find that she should have tried to contact the father immediately to talk about Michael and discuss what could have prompted him to make such a call. I can understand how at the outset of custody litigation the father might assume that the mother's motivations in involving the police were strategic. The mother should have immediately told the father by e-mail that she had made a report to the police.

It appears that the report was made in or around May 4-7 and she did not inform the father about it until May 18. [ 40 ] The father should have contacted the mother as soon as she told him that the police were looking for him to find out what it was about. Both parties refused to communicate with the other. This led to both parties coming to an incorrect conclusion as to what was happening. Summer of 2015 [ 41 ] The two boys continued to be picked up by the father on alternate weeks until the end of the school year. The boys then did not see their father in the summer of 2015.

The mother said he never asked to see them, but he was able to talk to them on a weekly basis at church when the MGF brought them. The father denied seeing them at church and claimed the mother deprived him of access. It is very unfortunate that the two boys were not able to spend time with their father in the summer of 2015. I find as a fact that from January to June 2013 the boys had a period of alternate week access with their father followed by a gap in access of two months.

The parent's inability to communicate effectively meant that their sons became worried about losing their relationship with their father. [ 42 ] When school resumed the father picked the boys up directly from school once again on alternate weeks. This arrangement continued until the April 1, 2016 court order. As noted above, the parties agree that the

schedule in the court order quickly moved to the current

schedule of alternate Thursday after school until Sunday evening. [ 43 ] The history of time sharing during this period shows that the parties did not in fact share time equally with their two boys. The father had the boys on alternate weeks from January to June 2015 (6 months) and from September to March 2016 (7 months) for a total of 13 months. Aaliyah's evidence of violence by the father [ 44 ] Aliyah gave evidence about this time period. She is now 22 years old and studying at the University of Toronto. She has been estranged from her father after an incident that occurred in 2016. [ 45 ] Aliyah spoke to Ms.

Majewski when she was working on the first report. She recalled seeing her mother Ms. Powell and the father engaged in many arguments. She said that that her father did hit her mother. She said that her parents fought over custody and she and her brother Aleem were interviewed by the OCL when they were in early elementary school. She felt a lot of pressure from both of her parents.

[ 46 ] Aaliyah said that after her father was unsuccessful in obtaining custody he disappeared from her life for awhile. She lived with her mother. As a teenager she had arguments with her mother that led to her calling her father and staying with him. She said that she may have left her mother's home on five separate occasions to go to her father's home. She said that her father and Ms. McGregor fought both verbally and physically. [ 47 ] Aaliyah spoke about her father's positive attributes.

She said that when she had conflict with her own mother her father always encouraged her to reconcile her relationship with her. When Aaliyah spent time at her father's home, he helped her with her homework, and he was very focused upon her obtaining a good education. [ 48 ] Aaliyah said that in the 2014/15 academic year she was in Grade 12 and living with her father because of conflict with her mother Ms. Powell. Aaliyah said that as her father worked in the evenings she had to help with care of the boys. Sometimes she would pick them up from school and other times her father would.

If they had Tae Kwon Do, she would take them, or she would go with her father to the lessons so she could take the boys home afterwards when he left to go work in the eventing. Aaliyah and her father were on good terms at this point. [ 49 ] Aaliyah then related the incident that led to the total breakdown in her relationship with her father. She had a bedroom in the basement of the father's home.

She said that when the boys were with the father for his alternate weeks after January 2015, the father and the boys shared her downstairs bedroom and she was required to sleep upstairs on a couch. [ 50 ] The father came home from work late one night and took her couch. This night he refused to go downstairs to the bed next to the boys. He was listening loudly to a sermon (the father is a religious man). They argued about the noise and sleeping arrangements and Aaliyah said that her father got up and slapped her in the face. She tried to run, and he pinned her against the wall of the landing.

She ran up to the front door and he pinned her again and her shirt ripped. The female tenant from upstairs came down and her father let Aaliyah get up. She then called her mother and an uber. The next day at university she reported the assault to the campus police. They contacted the Peel police and a video interview was done. The police took photos of her injuries. The police later advised her that they interviewed the father but could not find the tenant witness. No criminal charges resulted.

Aaliyah said she then went to emergency housing and has not talked to her father since. [ 51 ] Under cross-examination by her the father Aaliyah quickly conceded that after the assault she told her father that she would make sure he did not obtain custody of Michael and Evan. The father's theory was that Aaliyah lied about him assaulting her and she was using this lie to support her goal of denying him contact with the boys. [ 52 ] Aaliyah said she volunteered to be involved in the first OCL process, but she had no plan to exact revenge on her father. I note that when Ms.

Majewski gave evidence, she said that Aaliyah's statements formed a small part of the consideration that led to her recommendations. [ 53 ] I found Aaliyah to be a very credible witness. She was clear and forthright in her evidence. She dealt with an emotionally charged situation, being cross-examined by her estranged father, in a mature manner and she was not shaken on any of her evidence. [ 54 ] I find as a fact that the father was physically abusive with his first spouse, with the mother and with Aaliyah.

I recognize that the father has denied all allegations of physical abuse and has never been charged with a criminal offence. The only evidence of any physical interaction with the boys was related to discipline such as spanking when they were quite young and grabbing them to get their full attention. APRIL 1, 2016 TO NOVEMBER 2016 [ 55 ] The mother noted that the father had agreed to two weeknights and three overnights in court on April 1. Approximately a month later he wanted a

schedule that gave him essentially a long weekend every alternate week with ten full days when he did not see his sons. [ 56 ] The father's evidence was that four hours of access on a Tuesday and Thursday night was not in the boy's best interests. At the time they were only 11 and 9. Both parents said that Michael was quite emotional for his age. It is quite common for children to want to stay overnight with a parent and it may well be that they cried when they were taken back to the mother's home on weekday evenings.

The father decided very quickly that it was better not to see his young sons at all rather than have to return them after a four-hour visit. The resulting 10-day gap in every two-week period, with not even telephone contact, must have been difficult for the boys. [ 57 ] In this period Ms. Majewski did her first investigation. Her recommendations were made in a report released in November 2016. She found that while both were competent parents, albeit with different parenting styles, the mother was the more organized parent and the parent who had historically taken care of more of the boy's instrumental needs.

Her recommendations addressed the fact that the parties did not communicate. She was firmly of the view that joint custody was not an option. She recommended that the mother should have custody. [ 58 ] Ms. Majewski stated that it was very clear that the two boys wanted to spend more time with their father. She recommended that the father have Wednesday overnight to Thursday on one week and Wednesday overnight to Sunday night on the other week.

This recommendation, if accepted, would have resulted with the father having two more overnights for a total of 5 overnights in a 14-day period. [ 59 ] The father disputed the report. In his affidavit of December 14, 2016 at paragraph 9 he said; … the children stated to the clinical Investigator that they wished to spend more time with me and to go back to the previous

schedule of one week with me and one week with the mother. However, despite their wishes the Clinical Investigator is recommending that the children have less time with me. [ 60 ] Ms. Majewski found in her first report that the father did discuss with the children their feelings about spending more time with him. The children did speak to Ms. Majewski about having an alternate week

schedule which is the

schedule that the father has been

seeking since January 2015. She felt that they were under some emotional pressure from the father. Overall though she did not think the children were coached and she concluded that it was in their best interests to have more time with their father. [ 61 ] The father's single-minded focus on having the children half of the time is revealed in paragraph 9 above. Prior to the report the children spent 3 overnights in a 14-day period with their father with a 10-day gap in time. The report recommends 5 overnights out of 14 with a 6-day gap.

The father viewed this as a reduction in access as it was not the 7 days in 14 that he unilaterally implemented during the school year in the period January 2015 to March 31/16. [ 62 ] The father effectively created the extended weekend

schedule in late May 2016. I can only conclude that he did this because he did not want to set a precedent by which he had time with the boys in every week. He was totally focused on having his sons every alternate week. NOVEMBER 2016 TO DATE Father's evidence [ 63 ] As noted above, the parties have continued the same

schedule that was put in place in late May 2016. The father said that this led to the boys feeling that their views were not heard. He also said that it resulted in Michael being emotionally distraught and suicidal. [ 64 ] The father said that in or around March 2017 Michael made his first suicidal ideation comment and the father took him to Rapport Youth counselling services. In June 2017 the father dropped Michael off after an access visit. A few hours later he received a call from Michael in which he said that he could not continue like this and he wanted to kill himself.

The father then spoke to Michael's school who recommended Tangerine counselling a walk-in counselling service for acute cases operated by the Peel Children's Centre. Michael was seen and given the number for the Kids Help Line. The father included with his affidavit a screenshot from Michael's phone to prove he had called the Help Line in August 2017. The father did not tell the mother about Michael going to a counselling service just as he did not tell her of subsequent steps he took to have Michael seen by professionals. He did not provide any documents. He simply relied on Ms.

Majewski to "do her due diligence" to get the information before the court. [ 65 ] The father stated that he called the Peel Children’s Aid Society (“PCAS”). Ms. Majewski's report notes that that was on June 6/17 and it related to the phone call referred to above. The PCAS worker told the clinical investigator that they opened a file and spoke with the parents and children. Both boys said that they wanted to spend more time with the father. A referral was made for post- separation counselling. The father attended three sessions, but the mother did not.

The PCAS worker had to see the boys at school as the mother did not return her calls. There was no evidence of self-harm or thoughts of self-harm from Michael during the time of PCAS involvement. The file was closed. [ 66 ] In her second report Ms. Majewski was concerned that the mother did not follow up with the recommended counselling. She acknowledged that the mother told her that she did not observe any concerning behaviour from Michael.

The mother also told her that in her view all of the interventions were done by the father to manipulate evidence for the custody trial. [ 67 ] The second OCL report contained in the collateral contact

section confirmation that Michael was seen at an intake level only by PCC (Tangerine), in March 2017 and that the father had a phone intake in October 2017 with the PCC wherein he expressed concern regarding Michael's state of mind. After receiving information from Aleem, the father took Michael to the emergency department of the Georgetown hospital. Ms. Majewski obtained the Georgetown E/R note of October 2017 which did not document any emotional upset. Mother's evidence [ 68 ] The mother said that the two boys are "thriving" under the existing schedule. She would like it to continue.

She said that the father did not ask for additional time, but on the few occasions that either of them needed to switch a day they were able to work it out. [ 69 ] The mother said she never discussed this litigation with the boys and never asked them where they wanted to live. She said that her sons never asked her for more time with their father. The mother said she did not see any emotional issues arising with either of the boys. [ 70 ] The mother then recalled an occasion when Michael was very upset after being dropped off on a Sunday night after a visit with his father.

He was crying inconsolably and went directly to his room. He phoned his father from his room. She went up to the bedroom to try to calm him down and eventually he fell asleep. [ 71 ] The mother said that it was not until well after the fact that she was informed that Michael had been taken to a counsellor and to a hospital.

SUMMARY OF FACTUAL FINDINGS [ 72 ] There was not one occasion upon which I found that the mother misrepresented the facts. By way of contrast I find that the father twisted the facts to fit his theory. His theory is that he is a loving, devoted father who has been denied time with his young boys due to the vindictiveness of a mother who wants to limit his role in their life. The actual facts were; (

a) Both parties are able to care for the boys; (

b) Both parties have been involved in meeting the boys medical, speech therapy, and dental needs; (

c) Both parties are connected with the boys’ school and can ensure that their educational needs are met; (

d) Due to work commitments both parties had relied heavily upon older siblings or parents to care for the boys on their time; (

e) The father was both physically and emotionally abusive to Ms. Powell, Ms. McGregor and to his daughter Aaliyah Beckford

though he has never been charged with any criminal offence; (

f) Neither party communicates well with the other; (

g) The mother moved out of the shared residence with the boys in late May 2013; (

h) The father saw the boys sporadically from then until December 2014; (

i) The father unilaterally implemented an alternate week time sharing in January 2015 by telling the mother that he would pick the boys up from school; (

j) The father did not see the boys much in the summer of 2015; (

k) The alternate week access continued to March 2015; (

l) Despite the April 1 court order the father insisted upon an extended weekend time share arrangement (3 overnights out of 14) rather than seeing his sons on both weeks; (

m) Despite a recommendation to move to 5 overnights out of 14 the father disputed the OCL: report and continued to have an extended weekend arrangement for another two years; and (

n) The father did not share information with the mother about his concerns with Michael's mental health. OCL REPORTS [ 73 ] I have commented on Ms. Majewski's work in the narrative above, but I will now address her reports and her evidence directly. First report [ 74 ] The OCL was asked to conduct an investigation by the order of April 1, 2016. Ms.

Majewski began her work on July 12, 2016 and delivered her report on November 2016. [ 75 ] It was clear from her discussions with the parties and the observation visits that each parent was quite capable of looking after their sons and that the boys had a warm and positive relationship with both parents. [ 76 ] Michael told Ms. Majewski that when his parents were together "it was kind of crazy where there were shouting and things." After the separation they lived with their mother and they did not see their father for a long time. When the

schedule changed to alternate weeks his father had to work so Aaliyah mostly took care of him. He also did not like it when he had to go to his paternal grandparents for a long time. Michael spoke positively about things he and Evan did with their Dad. Michael said that he wanted to spend equal time with his mother and his father. Michael also said that both of his parents speak to him about what it is going on in court. [ 77 ] Evan also had positive things to say about each of his parents.

He spoke about wanting to spend more time with his father and he said he wanted to spend one week at his mother's house and one week at his father's house. He said that his mother would not let him do this. He recalled that he used to go to his father's home for a week and now he did not. [ 78 ] Ms. Majewski addressed the fact that the party's stories were quite different, and it was difficult for her to ascertain what exactly occurred. A clinical investigator does not have the benefit of the testing of evidence as occurs in a court.

She felt that if it appeared to her, as mature and skilled social worker, that the situation was chaotic and confusing the young children must be more confused and overwhelmed. She said at p. 13 of her first report; … This situation needs to be resolved for the children. Although they both seem well-balanced and to be coping overall at this time, we cannot assume that Michael and Evan will continue to show emotional strength, if this dispute between the parties continues. This was a prophetic statement. [ 79 ] In her concluding statements Ms.

Majewski said that; After considering the information provided in this investigation it appears evident that Ms. McGregor, although not a perfect parent, has been forced to step up and take the major responsibility for the children, financially, emotionally, and practically over the past 2 to 3 years. Conversely Mr. Beckford appears to have been less reliable in his parenting and to some extent has created chaos around Ms. McGregor and the children through painful separations with his children, his style of communication and in his making arbitrary changes to the access

schedule without considering its impact on the children of Ms. McGregor. What is particularly concerning that Mr. Beckford's older two children Aliyah and Aleem appear to have had similar experiences as Michael and Evan. [ 80 ] Ms. Majewski said in her oral evidence that at the time of the first report she knew that the boys needed increased access to their father, but she did not struggle with whether there should be a 50/50-time share. She said she gave it some thought but decided that that was not the right path. [ 81 ] Ms.

Majewski recommended that the mother have custody of the children and that the father should see the children pursuant to a two-week rotating schedule. On week one he would have Wednesday after school until Sunday at 7:00 p.m. and on week 2 he would have Wednesday after school until the drop off to school on Thursday morning. The father filed a Dispute to the report's recommendations. The mother did not. The OCL recommendations were never implemented. [ 82 ] I find that Ms. Majewski's recommendations were well supported by the evidence she had gathered.

I also find that the testing of the evidence at this trial showed that the version of events that the mother relayed to Ms. Majewski was a much more accurate account

than the version set out by the father. [ 83 ] I recognize that I do not know what, if any, discussions counsel or the parties might have had after the release of the report. I just know that the father disputed the report and the mother did not. In the end result, by disputing the November 2016 report and refusing to implement it, the father effectively made a decision to deny his sons more time with him. As it turns out that had some emotional consequences for the boys. Second report [ 84 ] As noted above, the complete failure of the parents to change anything about the time-sharing

schedule led to a request for an update or second investigation. [ 85 ] Ms. Majewski began that investigation on May 16, 2018 and it was concluded with her report of October 3, 2018. I have set out above my findings on the important evidence in this time frame.

The single biggest change from the time of the first report to that of the second are the reports that Michael was emotionally distraught and possibly suicidal due to his feelings not being respected and his inability to be able to spend more time with his father. [ 86 ] I have noted that with the exception of the voicemail message about a gun and Michael's inconsolable crying upon being returned to his mother's one Sunday the mother said she was otherwise unaware that Michael had any particular emotional/mental health needs. Ms.

Majewski recognized that the father unilaterally sought help for Michael with Rappaport, Tangerine and at the Georgetown hospital. She acknowledged that the mother told her that the father was manipulating Michael and that the pressure placed upon him by his father, and not the actual time-sharing arrangement, was what was causing Michael some emotional distress. [ 87 ] Ms. Majewksi found that Michael was not doing well emotionally. Michael told her that he had thoughts of self-harm and that he was embarrassed about it. She said he told her that he did not find it easy to talk about his feelings.

He cried often in his interviews with Ms. Majewski when he stated that he was tired of his parent's conflict and not being heard about wanting to spend alternate weeks with his father. The investigator noted that the boys had started to blame Ms. McGregor for the fact that they are not spending more time with their father. She was worried that if changes are not made the boys might start to reject their mother. [ 88 ] Ms. Majewski found that that the mother was "loving and attentive," the boys liked spending time with her and that she was the more proactive parent.

She also found that she was so convinced that the father was not truly interested in or capable of looking after the boys (being only motivated by not wanting to pay child support) that she has not believed that Michael has thoughts of self harm and she has not attended to his mental health adequately. She noted that the mother did not follow up on the recommendations for counselling from the PCAS. [ 89 ] Ms. Majewski said it continues to be evident that some changes need to be made for the children. They have been exposed to years of parental conflict and are exhausted by it.

The boys have said for a long time that they want equal time with their parents. In her report Ms. Majewski said she considered if her recommendations from the first report should remain. She decided that she no longer feels that those recommendations would satisfy the needs and wishes of the children. She was concerned that if the boys are not moved to an alternating week

schedule that they could experience increased distress mental health difficulties and possibly reject Ms. McGregor. She continued to believe that the mother should be the custodial parent. [ 90 ] Mr. M. White handled the cross-examination of Ms. Majewski. She said that she "wrestled" with the recommendations in the second report. She felt that while the boys felt pressure from both parents in the first report by the time of the second report Michael was clearly emotionally distressed. As Evan was also very upset by the ongoing conflict, he was very vulnerable to emotional issues as well. Ms.

Majewski conceded that the father did not inform the mother of the interventions he had taken for Michael, but she was of the view that Michael's distress should have been recognized and addressed by the mother. She conceded that there could have been a miscommunication with the PCAS recommendation for counselling, but the need for counselling by the parents was obvious. [ 91 ] Ms. Majewski conceded that neither child had been diagnosed with a mental health issues, yet she said she was not solely relying upon the reports by the father. In her interviews with Michael she was concerned that he was sad.

She said the amount of time he spent crying was unusual and on one occasion he was inconsolable. She said he did not like to talk about this, and he only admitted to thinking of self-harm on one occasion. [ 92 ] Ms. Majewski stated that there was evidence that the father had put pressure on the boys, but she was unable to determine how emotionally damaging that pressure was relative to the fact that they had wanted to spend equal time with each parent, and it had not happened. [ 93 ] Ms. Majewski said that she went through a lengthy thought process before finally making the recommendation for equal time sharing.

She said it was very disappointing for the boys that they had no more time with their father after the first report. She said an updating report usually builds on the first report. [ 94 ] The clinical investigator said that her interviews with the boys for the second report showed that there was increased anxiety. She felt that they boys’ statements to her were "very sincere," and very consistent in wanting a 50/50-time share. She did not think that another recommendation for 5 overnights in a 14-day period would calm the tensions. [ 95 ] Ms.

Majewski said that she felt that the father continued to put pressure on the boys, but it was difficult to gauge the amount of pressure. She said that to this point any pressure was not impacting upon their relationship with their mother. [ 96 ] Ultimately, Ms. Majewski said she recommended an alternate week 50/50 time share because the boys wanted that arrangement and she did not think their statements were rehearsed. She felt that Michael in particular was sad and frustrated, and the intensity of his frustration had increased.

The investigator said the consistency of the boys’ views two years apart was striking. ANALYSIS OF THE ACCESS ISSUE

[ 97 ] At the opening of the trial the father stated that he was prepared to agree that the mother should have custody of Michael and Evan. He said that he thought that she would make the right decisions. He said that this case was only about access to the boys and that he was only pursuing a 50/50 arrangement because this is what his sons wanted. [ 98 ] This concession by the father may have been a recognition on his part that two OCL reports had stated that the mother should have custody and joint custody was not possible in this high conflict case.

Nevertheless, there was still a lot of evidence not just in the OCL report, but also in the affidavits and cross-examinations of each party that went to the issue of parental judgment and the ability to understand the children's needs. It appeared from the father's opening statement that if the court granted him an alternate week access arrangement all of the other concerns would disappear. [ 99 ] In his closing submissions though the father stated that the boys wanted to live with him on a full-time basis now.

This statement by the father, unsupported by any evidence, suggests that an order for 50/50-time sharing will not end the conflict. I have concluded from Ms. Majewski's recommendations that they were made for two reasons. One was that they were the consistent views and preferences stated by the boys over a two-year period. The second appeared to be her belief that a 50/50 order would finally bring an end to the litigation and to the pressure that the boys are feeling.

Based upon the father's statement in closing submission and for other reasons I am not persuaded that the pressure on the boys will end with a 50/50 time sharing order. [ 100 ] The mother's position is that the father has only ever been interested in not paying child support which he mistakenly believes will be the case if there is a 50/50-time share. She says he has twisted the facts and manipulated the children to ultimately obtain an OCL recommendation for just such a result. [ 101 ] I must review the evidence and make a decision based upon the best interest test set out in s. 24 (2) of the CLRA.

The legislation sets out some criteria under which to consider the children's needs and circumstances. I will consider the evidence with regard to the criteria in a different order than set out in the legislation so that I can address the most relevant issues in this matter. The love, affection and emotional ties between the children and each parent [ 102 ] Neither party disputed that the children loved the other parent. The parties have been separated since May 2013 and the children have retained strong emotional ties to each parent.

The length of time the children have lived in a stable home environment [ 103 ] Michael and Evan have primarily lived with their mother in the same home since May 2013. It must be noted that as a result of the father's unilateral action there was an alternate week arrangement from January 2015 to June 2015 and again from September 2015 to March 2016. For nearly four years the boys have only seen their father on what amounts to an extended weekend every alternate week. They have not even had 50/50 time during summer holidays.

Violence against a spouse or child [ 104 ] I find that there is compelling evidence that there was verbal and some physical abuse in the father's relationship with both Ms. Powell and Ms. McGregor. I also find that the father physically assaulted Aaliyah. I accept the evidence of Ms. McGregor and Aaliyah in this regard. I do not accept the evidence of the father. I note that Michael told Ms.

Majewski that there was a lot of yelling in the home before the separation. [ 105 ] I note that there is no evidence that the father has been physically abusive to Michael or Evan with the exception of historical evidence of spankings and some minor physical contact as a form of discipline. There is evidence that the father is rigid and stubborn. [ 106 ] While the incident that led to the father's complete estrangement from his adult daughter is very concerning it must be weighed against the father's proven ability to care for his sons on an extended overnight basis over many years.

The children's views and preferences, if they can reasonably be ascertained [ 107 ] It is probably fair to conclude that the children's first preference is for the conflict between their parents to be over. When Michael made his threat of self-harm it was not made to change the time-sharing arrangement it was a cry for peace. He wanted the battle to end. [ 108 ] There is no doubt though that the boys have consistently said that they want more time with their father. They stated to Ms.

Majewski both in 2016 and in 2018 that they wanted to spend alternate weeks with their father. [ 109 ] In 2016 the boys were 9 and 7 years old. There was evidence of emotional pressure upon them from the father. Ms. Majewski did not think that the pressure rose to the level of telling the boys what to say. She believed that they were sincere in saying that they wanted 50% of their time with their father, but she also felt that given their ages their views and preferences were just one factor to consider.

She felt it was clear that they wanted more time with their father, but that it was not imperative that it be a 50/50 time split. [ 110 ] Ms. Majewski did take views and preferences into account in her November 2016 recommendations. The recommendations included increasing the father’s access from 3 overnights to 5 overnights in a 14-day period. The father filed a dispute to the recommendation and accused Ms. Majewski of bias. The father felt that the recommendation reduced his time because he said the parties would have continued an alternate week arrangement, but for the mother's frustration of that.

The mother did not file a dispute. As noted above, I cannot know if either party offered to change the

schedule even on a temporary basis. All I know is that the father's dispute heavily criticized a report that gave the mother sole custody and did not provide for a 50/50-time share. [ 111 ] The father knew that the boys wanted to see him more, yet he was so insistent on getting half time that he ended up not getting any more time at all. This was not in the boy’s best interest. If the father had accepted 5 overnights out of 14 the boys expressed desire to see him more would have been met.

OCL recommendations in first report supported by evidence [ 112 ] The father was unable to show at trial that Ms. Majewski had made any factual errors or come to any unsupported conclusions in her first report. The court relies upon the skilled and experienced investigators of the OCL. It is understood that the OCL has no way to test evidence and there will be occasions when the evidence at trial shows that one fact or another should not have been given the weight it was given in forming the foundation for an opinion. That is not the case here. Ms.

Majewski was careful to state what facts were in dispute and what evidence she relied upon. [ 113 ] I find that if the father was really interested in what was in the boy's best interest that he would have accepted the recommendations of the November 2016 report significantly increased his time with his sons and ended the conflict. He did not do that. In the 3 years since the first report he has repeatedly alleged that his son's lack of contact with him has led to emotional distress and thoughts of self-harm.

Evidence of emotional harm to the boys [ 114 ] The mother's position was that, with a couple of notable exceptions described above, she did not see the boys as being under any particular emotional distress. Ms. Majewski was concerned about the mother's lack of follow-up in this area. She felt that the mother should have attended for post-separation counselling as recommended by the PCAS. The mother's response to the PCAS involvement did suggest that she did not think that she had any role in the problem. [ 115 ] The mother said that Michael expressed sadness and frustration at his father's home not at her home.

She was busy working at least two jobs. She said that the PCAS worker might have mentioned something about attending at counselling, but she did not provide her with any details and did not seem concerned when she did not follow up. The mother said she did not know that Michael had been taken to two counsellors and to a hospital until she found out about it in court. She was convinced that the father was putting such pressure on her sons when they were at his home that he was creating any emotional problems that developed. [ 116 ] I accept Ms.

Majewski's opinion that the emotional stress felt by Michael was not just because of pressure put upon him by his father. It is very difficult to gauge exactly why a person feels or acts as they do. It could not have helped that neither parent communicated with the other. I find that there is evidence that the mother did not act in the boys’ best interests when she failed to tell the father that they were ill and would miss school or when she failed to tell the father for nearly two weeks that the police wanted to speak to him. The mother acted in a passive aggressive manner.

She denied information to the father so he could later be shown to be out of touch or irresponsible. [ 117 ] The mother contributed to the uncertainty and tension over the 6.5 years from the separation to the trial, but steps taken, or not taken, by the father were much more significant in creating any problems that resulted. Support related to time share? [ 118 ] There is some evidence that may support the mother's theory that the father was only interested in not paying child support.

He did fail to provide child support in an adequate amount and on a regular basis in the May 2013 to December 2014 period (the fact that he paid any at all belies his weak argument at trial that they were not even separated). The father did unilaterally enforce an alternate week arrangement and did tell Aaliyah that as a result he would not be paying child support and the mother would actually be paying support to him. When a court order was finally made the father quickly defaulted and he has not paid voluntarily though FRO is now enforcing. The father has not paid either costs order.

Risk of father disappearing [ 119 ] There is also some evidence that the father insists on a 50% time share and if it does not happen, he disappears from his children's lives. Aaliyah said when her father was not successful at trial with her mother, he did not see her for some time. Michael remembers his father being away for a long time after the May 2013 separation. The father did reconnect with both Aleem and Aaliyah, but he is now estranged from his adult daughter. The time-sharing arrangement to be ordered [ 120 ] Ms.

Majewski changed her recommendation between 2016 and 2018 due to emotional stress to the boys which needed to be alleviated. It also appeared that she felt that nothing short of a 50/50 arrangement would bring this conflict to an end. She was also concerned that a failure to heed the boy's expressed wishes at this juncture could cause damage to their relationship with their mother. She added though that while the boys have expressed upset at their mother not agreeing to 50/50 there is no actual evidence of significant damage at this time. [ 121 ] I find that Ms. Majewski's was an excellent witness.

She did not waver from her recommendation of an alternate week time share during a skillful cross-examination. She conceded that it was a difficult decision to make and one that she wrestled with.

I will make an order that was not recommended in her 2018 report, but only because I had the benefit of seeing the evidence tested in court; and, as a result, I have come to a different conclusion as to whether a 50/50 time share will end the conflict for this family. [ 122 ] The boys have been told by their father that they used to have alternate weeks with him, and their mother did not want alternate weeks to continue. Their father has said over and over again that everything was fine when they had alternate weeks. The father is an intelligent and articulate man.

He would not be so clumsy as to make negative statements to them about their mother. The evidence is that the boys have been immersed in his narrative of an amicable separation and positive, fair, equal time sharing between Mom and Dad that Mom ended. They have been told that any frustrations that they have with not seeing their father enough will end if they could just return to the arrangement that worked so well. [ 123 ] I have no doubt that Michael and Evan want to spend more time with their father, and I will make an order that ensures that occurs.

The only question is whether that needs to be a 50/50 times share.

[ 124 ] I am not convinced that making an alternate week time sharing

schedule will solve the emotional issues that are troubling Michael and prevent similar problems from happening with Evan. Even if such a

schedule is imposed these boys will still have parents that do not talk to each other. [ 125 ] I am very concerned that a decision for an alternate week

schedule will send the message to the father that he did the right thing in refusing to implement any

schedule short of a half time schedule. I found that he did not act in his children's best interests when he refused to implement the November 2016 recommendations. I conclude that the last three years of emotional upset to the boys would not have happened if the father had accepted the sound recommendations Ms. Majewski made in her first report.

I do not think the father, or any other like-minded parent, should be encouraged in any way to reject out of hand recommendations from neutral third-party professionals that do not fit their pre-determined outcome. [ 126 ] In my view, the only reason to order an alternate week time share in the circumstances of this case is to give effect to the views and preferences of these two boys expressed when they were eleven and nine years old. [ 127 ] Apart from the boy's expressed views this is not a case where equal time sharing would be considered. The parties do not trust each other. They do not communicate well.

The father abandoned his sons at the time of the separation and did not provide for them emotionally or financially. The father has a history of disappearing from his older children's lives. The mother has been found to be the more organized and proactive parent and even the father has said she can have custody as she makes good decisions on behalf of the boys. [ 128 ] There is no reason for the boys not to be able to have a healthy and positive relationship with the father even if an alternate week

schedule is not implemented. The father has shown an ability to be an active and involved parent. He registered the boys for soccer and Evan has been playing since 2017 (Michael was not as interested and no longer plays). The mother has no problem with the father picking Evan up from her home and taking him to soccer. The father criticized the mother for only attending two games. I would note that there are many parents in high conflict separations who choose not to attend extra-curricular activities when the other parent is present.

Often the child feels stress and anxiety when both parents are in the same place. Hopefully Evan will become comfortable with the mother being present and she will want to attend, but there is also nothing wrong with Evan and his father bonding over an activity that they both enjoy. [ 129 ] I am concerned that the boys might have felt that they only way they could be sure that their father will be an important presence in their lives is if they asked for the

schedule of time that he really wanted. They know that when they had an alternate week schedule, they saw their father regularly and in the time prior to that they rarely saw him. They know that Aaliyah does not see her father. It could be that they think a "return" to the alternate week

schedule is the only thing that can work. Certainly, the existing

schedule with it's 10- day gap between visits is not adequate access. In their lives they have experienced sporadic access, alternate week access and limited access. They love their father and want to see him more. They know what he wants. [ 130 ] I find that the most important part of the views and preferences expressed by the boys to be more time with their father and not the exact

schedule to be imposed. Even if the regular

schedule is not alternate weeks the boys should have more time with their father on holidays. The boys should spend the March Break with their father every alternate year beginning in 2020. They should spend alternate weeks with each parent every summer (which can change to alternating two-week blocks in the summer of 2021) They can spend half of their Christmas holiday with their father. This type of change will be a dramatic difference from the existing limited time arrangement. [ 131 ] With respect to the regular

schedule I will adopt the well-founded recommendations that Ms. Majewski made in her first report. In week One they should have Wednesday after school until Sunday night and in week two they should have from Wednesday after school to Thursday before school. [ 132 ] I am effectively making the court order that should have been made after the November 2016 report. It is to be hoped that the end of this litigation will reduce the stress and anxiety that the boys might be feeling.

In any case, I will include in my order a requirement for information sharing so that neither party resorts to the pre-trial strategies of freezing the other parent out of important information about their children. THE LAW WITH RESPECT TO THE CHILD SUPPORT ISSUES [ 133 ] Child support in Ontario is ordered based upon the principles set out in the CSG . The relevant sections in this matter are s. 3 and s. 9 and they read as follows; Presumptive rule 3.

(1) Unless otherwise provided under these guidelines, the amount of an order for the support of a child for children under the age of majority is, (

a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the parent or spouse against whom the order is sought; and (

b) the amount, if any, determined under

section 7. O. Reg. 391/97, s. 3 (1) . Shared custody 9. Where a parent or spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the order for the support of a child must be determined by taking into account, (

a) the amounts set out in the applicable tables for each of the parents or spouses; (

b) the increased costs of shared custody arrangements; and

(

c) the condition, means, needs and other circumstances of each parent or spouse and of any child for whom support is sought. O. Reg. 391/97, s. 9 . [ 134 ] The mother is seeking an order that the father pay child support pursuant to s. 3 which is the table amount based upon the father's income in every year since May 2013. [ 135 ] The father asks the court to find that the children were in the shared custody of both of their parents until April 1, 2016 when the order set out that they were to be in the primary residence of the mother with access to the father.

He sought an order pursuant to s. 9 with respect to this time period. If he is successful in obtaining a final order for an alternate week schedule, he seeks the application of s. 9 from the time that the new shared parenting regime begins. CHILD SUPPORT EVIDENCE AND SUBMISSIONS [ 136 ] There was no formal arrangement for child support after the separation in May 2013. The father took two contradictory positions. [ 137 ] The father's first position was that he should not be paying child support to a person with whom he was residing, and the second was that the mother did receive child support.

I have found that the parties did not live together which means that the father should have been paying child support. [ 138 ] Although he did not set this out in his pleadings the father said at trial that the mother would come to his Oakmeadow home every two weeks and pick up $200 in cash that he left in an envelope under the mat (so she could receive it even if he was not home). He had no other proof of this, and the mother denied it. The mother said that the father occasionally gave her money and she estimated that the total amount was $800 over the time period May 2013 to March 31, 2016.

The mother produced a copy of a cheque the father had written for child support in December 2013 in the amount of $200. [ 139 ] The mother admitted that the father did pay for swimming lessons for the boys in the winter and spring of 2014 and that she attended at the pool with him. She said that she did not know how to swim so she asked the father to participate in this activity. The father had given evidence that these lessons occurred during a period of co-habitation, but I accept the mother's evidence that the parties had remained separated continuously since May 2013.

The amount paid for swimming was relatively modest and the father had an obligation to contribute to s. 7 expenses anyway. [ 140 ] As noted above, the father's unilateral action of picking up the boys from school every day on alternate weeks did result in Michael and Evan spending half of their time in his home in the period January to June 2015 (though this arrangement broke down in May 2015 causing the father to issue this court application.) The boys spent the entire summer of 2015 with the mother and then did an alternate week arrangement until March 31/16.

Mother's position [ 141 ] There was a temporary child support order made on December 11, 2017 by which the father was to pay to the mother the sum of $899 per month beginning April 1/16. This order continued to the time of trial. [ 142 ] The mother seeks retroactive child support from June 1/13 to March 31/16. She also seeks an increase in child support to the monthly table amount for the father's income in each year. [ 143 ] The father did not address child support in his evidence or his submissions.

He simply asked the court to order that the time sharing be equal, and he appeared to presume that no child support would then be payable. Father's income [ 144 ] The mother filed in her document brief the father's income for the relevant years.

The amounts the mother seeks to use as the father’s income up to 2017 are based upon his Notices of Assessment and are as follows; • 2013 $35,018 $ 508 • 2014 $70,262 $1,041 • 2015 $52,604 $ 782 • 2016 $60,466 $ 899 • 2017 $67,912 $1,009 [ 145 ] The mother wants to use the 2017 Notice of Assessment as the imputed income for 2018 and 2019. [ 146 ] I understand the mother’s position as the father did not serve and file his 2018 Notice of Assessment as he was legally required to do.

I find that despite his default I have better evidence of his income for those years. [ 147 ] The father did file a Financial Statement in the trial record dated June 20, 2019. He attached his 2018 T-4 statement and Income Tax Return and his YTD pay statement for the pay period ending June 4, 2019. I note that the father had T-4 income from his job with the City of Toronto in each of the applicable years. Mr. Jenney correctly deducted union dues before arriving at the income for child support purposes. I will use the 2018 T-4 employment income less union dues of $44,229 for that year.

The income to the end of May 2019 was $22,675 and I haver pro-rated that to an annual income for 2019 of $54,410. The income for the last two years is then as follows;

• 2018 $44,229 $ 660 • 2019 $54,410 $ 829 [ 148 ] As can be seen there was significant fluctuation in the father's income. There was evidence from the father that when he did not have his sons with him, he was able to work more shifts. There was evidence from the mother that the father reduced his income once he realized that there was a pending child support claim. [ 149 ] This case was focused on time sharing so there was not much exploration as to why the income fluctuated.

I do note that in 2014 when the parties were living separate and apart, and the mother said there was sporadic access, the father earned his highest income. In 2015 when for most of the year the parties had an alternate week

schedule the father's income dropped. In the last two years after a child support order was made the father's income was also much lower. There is some evidence that supports both parent's theories. On balance I find that the fairest thing to do is to use the actual income earned each year. Mother's income [ 150 ] The mother only filed one financial statement in this proceeding. This was her statement of May 29, 2015. She was then working two jobs and she estimated that her total 2015 income would be $81,396.

While there was no evidence led as to the mother's employment in this trial her document brief did include her 2016 income in order to address the father's possible s. 10 claim (subsequently struck). The 2016 income was $47,572. ANALYSIS OF CHILD SUPPORT [ 151 ] I will address child support in each of the relevant periods of time. June 2013 to December 31, 2014 [ 152 ] There is no doubt that the father had an obligation to pay child support after the separation when the mother moved to a new home with the two children. There was evidence that the father paid some money to the mother.

I do not accept that it was $200 every two weeks, but there is one cheque for $200 and the mother admitted receiving some cash. I find that the father should have paid child support on a regular basis during this period. [ 153 ] The mother's position is that the amount should be $1,041 per month based upon his 2014 income of $70,262. I find the father should be credited with any monies paid during this period.

As I have found the mother to be a very credible witness and as I have accepted her evidence at every point where the parties disagree, I find that it is likely that the total amount paid over this time frame was only about $800. [ 154 ] I will determine the amount to be paid by the father by reference to the table amounts set out above. • June 1, 2013 to December 31, 2013 - 7 months x $508 which is $3,556 • January 1, 2014 to December 31, 2014 - 12 months x $1,041 which is $12,492 [ 155 ] The total owed for this time frame is $16,048.

The sum of $800 will be deducted from this amount leaving a net total of $15,248. January 1, 2015 to March 31, 2016 [ 156 ] The parties did have alternate weeks with the boys for a total of 13 months between January 1/15 and March 31/16. Mr. Jenney sought an order that the father pay s. 3 table child support for this entire period notwithstanding the equal time share. He argued, in effect, that the father should not derive a benefit from unilaterally changing the time-sharing arrangement. I understand this argument and have held that the parties did not agree to the change.

I also understand that the father did not agree to have no contact with his sons in July and August of 2015. [ 157 ] I will make a child support order that is based on the actual living arrangements in this time period irrespective of what either party wanted the arrangements to be. [ 158 ] For 13 months Michael and Evan did live with the father for 7 days out of every 14-day period (with some exceptions for illness). I find that I should apply s.9 of the CSG to those months. By January 2015 both parties had been well established in their respective residences.

I will just use the CSG table offset provided for in s. 9 (

a) of the CSG as (

b) and (

c) are not applicable on the facts. [ 159 ] In July and August 2015, the boys lived exclusively with their mother and the father must pay table child support pursuant to s. 3 of the CSG . [ 160 ] Once again by referring to the table child support set out above the calculation is as follows; • January to June 2015- Father pays table amount of $782. Mother pays table amount of $1,232.

Mother pays father $450 per month for 6 months which equals $2,700 • July and August 2015 Father pays mother $782 x 2 = $1,564 • September to December 2015 Mother pays father $450 x 4= $1,800 • January to March 31/16-Father pays table amount of $899. Mother pays father $684. Father pays mother $215 for three months which is $645

[ 161 ] The mother owes the father for this period the sum of $4,300. The father owes the mother the sum of $2,229. The net amount owed by the mother to the father for this time period is the sum of $2,071. [ 162 ] The amount that the mother owes the father for this period of mostly shared time shall be deducted from the amount the father owed the mother during the prior period when the boys primarily resided with their mother. The net amount owing by the father to the mother up to March 31, 2016 is $13,177 ($15,248 - $2,071).

April 1, 2016 and ongoing [ 163 ] The court order of December 11, 2017 was for the sum of $899 per month based upon the father's 2016 income of $60,466. This amount has never been adjusted notwithstanding the increases in the father's income. The amount should be adjusted to the amount actually earned by the father in the relevant years. [ 164 ] The increases are as follows; • January 1, to December 31, 2017. The support was $899 and should have been $1,009; therefore, the 12-month shortfall is $1,320 ($110 x 12). • January 1 to December 31, 2018.

The support was $899 and should have been $660 so the sum of $2,868 ($239x12) should be deducted from the arrears. [ 165 ] January 1 to December 31, 2019. The support was $899. The father's income has been pro-rated to $54,810, but that was based upon a June 2019 pay statement. The father had an obligation to provide his end of year pay statement for 2019 and his 2020 year to date statement. I will not reduce his child support arrears when he has failed to do so.

In the circumstances, the fairest approach is to leave child support at $899 per month on an ongoing basis. [ 166 ] When the payments that should have been made based on actual year end income are netted the sum of $1,548 ($2,868- $1,320) shall be deducted from the father's arrears. [ 167 ] The net amount of arrears to be added shall be $11,629 ($13,177 - $1,548). I heard evidence that the father is currently in arrears of the December 11, 2017 temporary order. The arrears of $11,629 are new arrears and are to be added to any arrears that are already on the FRO statement of account.

Section 7 expenses [ 168 ] Neither party claimed s.7 expenses. There was evidence that the father had initially paid for both boy’s soccer expenses and was now paying for Evan’s exclusively. The father should provide the mother will all of the details of the expenditures and request that she pay him her

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