Scheurmann v. Grolway, 2021 ONCJ 503

ONTARIO COURT OF JUSTICE CITATION: Scheurmann v. Grolway , 2021 ONCJ 503 DATE: 2021 09 23 COURT FILE No.: Kenora FO-16-35-02 BETWEEN: Jasmine Scheurmann Applicant Respondent to Motion to Change — AND — Nicholas Grolway Respondent Applicant to Motion to Change Before Justice E.J. Baxter Heard on July 16 and August 26, 2021 Reasons for Judgment released on September 23, 2021 Kirsi Ralko.................................................................................. counsel for the applicant(

s) Beth White.............................................................................. counsel for the respondent(

s) Baxter J.: [ 1 ] This is a Motion to Change, pursuant to rule 15 of the Family Law Rules the final order of Justice David Gibson dated December 13, 2017 (the final order) wherein he granted joint custody to the parties of their son, Grayson Robert Grant Grolway, born, […], 2016. [ 2 ] Mr. Grolway commenced this Motion to Change on April 24, 2019. He is seeking to change the final order to permit him a two week on/off parenting time

schedule in keeping with his new work

schedule and his parenting time with his younger son, Kayden. He seeks other changes to the final order, and they will be addressed further below. [ 3 ] Mr. Grolway asserted in his Change Information Form that a material change in circumstances affecting Grayson has occurred, namely, that Mr. Grolway has changed his employment, has moved back to Kenora, has a new child from another relationship, and the inability for the parties to get along and follow the final order. [ 4 ] The trial in this case was rescheduled a few times in part due to a scheduling error and then because of COVID-19.

Attempts to settle the matter failed, and the two day “in person” trial of this case commenced on July 16, 2021 and concluded on August 26, 2021 in Kenora. [ 5 ] Primary care and control of Grayson was granted to the Respondent mother, Ms. Scheurmann, and final decisions regarding Grayson’s health, education etc. would be made by Ms. Scheurmann after [my emphasis] consulting with the Applicant father, Mr. Grolway. [ 6 ] A detailed access

schedule was also set out in the final order, including provisions restricting who may pick up and drop off

Grayson and who may or may not be around Grayson, directed mainly at Mr. Grolway given he had a girl friend who Ms. Scheurmann did not want around Grayson. [ 7 ] The access

schedule set out was for Mr. Grolway to have Grayson overnights on Tuesdays and every second weekend, Fridays to Sundays, with extensions to Mondays if a Monday is a holiday from school. There was also provision for 2 non-consecutive weeks every summer, and all other times as agreed by the parties (paragraph 3(e)). [ 8 ] A detailed holiday

schedule was also in the final order that addressed all the major Canadian holidays and the parenting time assigned for each. [ 9 ] Among other clauses, Mr. Grolway was to pay child support for Grayson in the amount of $685.87 per month starting December 1, 2017. The issue of extraordinary expenses, child support and arrears were not in contention in this case. Both parties agree there will need to be adjustments to the payments going forward given the income changes each party has had. [ 10 ] At the time of the trial in this matter, Mr.

Grolway was in arrears for child support, but he agreed to bring his account up to date with the Family Responsibility Office. This will be addressed in more detail below. [ 11 ] It is worth commenting that effective March 1, 2021 the language in the Children’s Law Reform Act was changed such that the terms “custody” and “access” are no longer used. Instead such terms as “parenting time”, “primary decision-making responsibility” are used in the new version of the legislation. Agreed Facts/Background [ 12 ] The parties were never married.

They were in a relationship that resulted in the birth of Grayson on March 30, 2016. Grayson has no special medical needs. [ 13 ] The parties separated on April 23, 2017. The parties do not agree about the dates or whether they ever cohabited. It is clear they were at least on and off for a period of time after Grayson was born and did not cohabit prior to Grayson’s birth. [ 14 ] The final order of December 13, 2017 was made on consent after Minutes of Settlement were agreed. Both parties were represented by counsel. [ 15 ] Mr. Grolway, age 29, works as a crane operator. Prior to working at the New Gold Mine, Mr.

Grolway was employed in Kenora at Jarnel Contracting as a crane operator. His salary as set out in his Financial Statement of July 15, 2021 is $79,040.04 per year. He was employed with Jarnel at the time the final order was made. During his time at the mine, Mr. Grolway earned $70,110.28 in 2018 and $94,300.08 per year in 2019. [ 16 ] Mr. Grolway left Jarnel to take a higher paying job at the New Gold Mine in Rainy River. He commenced work at the mine in October, 2018. He was working a consistent two week on/off schedule. Mr.

Grolway stayed in Kenora during his two weeks off. [ 17 ] Between November 2018 and December 2020, Mr. Grolway asserts Ms. Scheurmann restricted his parenting time to sporadic weekends and a few days during the month, which was less than the final order stipulated. [ 18 ] Once Mr. Grolway was working at the mine, the parties could not agree on a parenting

schedule that accommodated Mr. Grolway’s two week on/off work

schedule at the New Gold Mine in Rainy River. [ 19 ] In addition to the final order, the parties, on consent, and with legal representation, agreed to the temporary order (‘temporary order”) on December 15, 2020 of Justice Pieter Joubert that varied the final order and adjusted the parenting time for Mr. Grolway. The parenting time is less than what the final order gave, but more than the parenting time Mr. Grolway had since the parties’ inability to cooperate and follow the final order. [ 20 ] The temporary order gave Mr.

Grolway parenting time with Grayson for 2 consecutive weekends out of every four week period. [ 21 ] Mr. Grolway has a second child from another relationship. The child, Kayden Marcel Nicholas Grolway, was born on June 21, 2019. He has parenting time with Kayden on a two week on/off

schedule that matched his work

schedule at the time. [ 22 ] In the spring of 2021, Mr. Grolway returned to his former job at Jarnel in Kenora and has a reduced salary as noted above. [ 23 ] Ms. Scheurmann, age 28, is employed at the Nee-Chee Friendship Centre in Kenora, and her salary, according to her 2020 T4 slip, is $58,131.08 per year. [ 24 ] Grayson will be in kindergarten in the fall of 2021, as he is now 5 years of age. Position of Mr. Grolway [ 25 ] Mr.

Grolway, the applicant to this Motion to Change, seeks to vary the final order on the ground there has been a material change in circumstances. [ 26 ] He asserts he has returned to live and work in Kenora. [ 27 ] Grayson now has a little brother he needs to know. [ 28 ] Ms. Scheurmann has not been following the final order and is acting unilaterally and contrary to the final order. [ 29 ] Mr. Grolway is no longer involved with the woman Ms. Scheurmann objected to being around Grayson.

[ 30 ] Ms. Scheurmann has also changed employment and earns more than she did at the time of the final order. Child support, arrears and extraordinary expenses need to be adjusted to reflect the parties’ current incomes. Position of Ms. Scheurmann [ 31 ] Ms. Scheurmann seeks to have the Motion to Change dismissed. [ 32 ] In the alternative, she asks the court to allow Mr. Grolway parenting time of one weekend and one Tuesday overnight during the two-week period Mr. Grolway is in Kenora, as set out in her Response to Motion to Change, dated May 16, 2019. [ 33 ] Ms.

Scheurmann also expressed concerns with the way Mr. Grolway exercised his parenting time claiming it was not consistent with the final order or to her satisfaction. [ 34 ] Ms. Scheurmann asks this court to vary the final order to omit the need for consent to obtain a passport for Grayson. [ 35 ] She asks the court to compel Mr. Grolway to provide her his work

schedule at the beginning of each calendar year. [ 36 ] Ms. Scheurmann is also seeking sole decision making authority, and to have the joint custody arrangement terminated. [ 37 ] Ms. Scheurmann is seeking payment from Mr. Grolway for his share of daycare costs. The Trial [ 38 ] Both parties testified at the trial. There were no other witnesses. [ 39 ] Mr. Grolway testified he is 29 years old and has lived in Kenora all his life. He is a Status Indian. He and Ms. Scheurmann were in a dating relationship that resulted in Grayson being born. [ 40 ] When Mr.

Grolway changed his employment to the New Gold Mine, he attempted to adjust the parenting time to match his days off. Ms. Scheurmann refused and told him to get a lawyer. As a result, he was only able to see Grayson when his days off matched with the

schedule in the final order, which amounted to about 3 or 4 days per month. [ 41 ] Various text exchanges between the parties were tendered as exhibits to the trial to show Ms. Scheurmann was restricting access, canceling events, and rarely allowed parenting time outside the

schedule in the final order, contrary to paragraph 3(

e) of the final order. [ 42 ] Mr. Grolway also said he did not refuse to allow Ms. Scheurmann to apply for a passport for Grayson, but that when Service Canada called him to confirm the information on the application, he mistakenly thought it was a scam phone call and did not take the call. As a result, the application process did not proceed. [ 43 ] The final order has a “right of first refusal clause” that Ms. Scheurmann rarely, if ever, followed for Mr. Grolway to have Grayson when she needed childcare. [ 44 ] Mr. Grolway also testified about conflict over the babysitter Ms.

Scheurmann hired, without his input. He noted the sitter refused to give receipts and seemed to be operating a daycare or service “under the table”. He questioned the use of the sitter in lieu of his right of first refusal, and expressed concern he was being asked to pay his share of costs without receipts and at times when he could have taken Grayson rather than paying someone to look after him. [ 45 ] In 2019 Kayden was born, but the relationship with his mother ended in 2020. Mr. Grolway said he and Kayden’s mother are on good terms. He has Kayden for two weeks-about.

He wants his sons to know each other and grow up together. [ 46 ] Mr. Grolway testified there was an incident on Canada Day weekend, 2021 wherein Ms. Scheurmann was frantic and distraught because Grayson “drowned” while he was in her care at a local beach. Grayson went into the water and had to be resuscitated at the Kenora hospital. He was flown to Winnipeg for observation and treatment and was released the next day. Because of the COVID-19 restrictions only one parent could be with Grayson in Winnipeg. Ms. Scheurmann was the parent to go. [ 47 ] Mr. Grolway stated that was the last time he saw Grayson as Ms.

Scheurmann refused to allow him to see Grayson after the near drowning incident. [ 48 ] Under cross examination Mr. Grolway clarified his criminal charges and record. He has one entry for impaired driving on his record. There are no other convictions. [ 49 ] He stated he took the job in Rainy River to further his career, and he hoped the parenting time could be worked out with Ms. Scheurmann. Because of the issues in having time with Grayson and the birth of his second son, Mr. Grolway returned to Jarnel and living in Kenora, working Mondays to Fridays.

He has to go out of town on occasion, but he makes arrangements at work to accommodate his parenting time with Kayden and would like the same arrangement with Grayson. [ 50 ] No evidence was adduced through Mr. Grolway about his relationship with Grayson and what sorts of things they do together. [ 51 ] Ms. Scheurmann testified. She described the relationship with Mr. Grolway as “toxic” and that they argued a lot. She kept things at his house and at her mother’s house, depending on how she and Mr. Grolway were getting along. [ 52 ] She described Grayson as a happy, funny, inquisitive, talkative little boy.

She noted COVID has been hard on him as he misses his friends and going to school. Before COVID Grayson was in soccer and swimming lessons two days per week. No further evidence was provided about the nature of the mother’s relationship with Grayson and what they do together.

[53] Ms. Scheurmann said Mr. Grolway never attended at Grayson’s soccer games or swimming lessons, because he did not supportthese extra curricular activities and that she paid for them herself. For the upcoming school year, it was hoped Grayson would haveswimming as part of the regular school activities at no cost. [54] Ms. Scheurmann testified she did not know Mr. Grolway had changed his job to work at the mine. She said Mr. Grolway wasmissing his parenting time with Grayson, leaving Grayson upset and disappointed. Later she said she learned Mr.

Grolway’s workschedule was two weeks on/off. [55] With respect to the temporary order, Ms. Scheurmann said Grayson, then age 4, was unhappy with the parenting time and wanted2 days, not 4 days with his father. Ms. Scheurmann said Grayson was grumpy and acting out in daycare. [56] Ms. Scheurmann denies she ever withheld scheduled parenting time. She also noted Mr. Grayson had not exercised Christmasparenting time since Grayson was one. [57] Ms. Scheurmann testified she and Mr. Grolway had agreed on the first babysitter between 2017 and 2019. However, Ms.Scheurmann changed babysitters unilaterally since 2020. Mr.

Grolway has not paid his share of those costs, according to Ms.Scheurmann. [58] As to the exchanges of Grayson, Ms. Scheurmann said Grayson likes the exchanges at Dollarama, but is open to the temporaryorder stipulating exchanges at school. She is reluctant to have exchanges take place at her home or at Mr. Grolway’s because of theirinability to communicate civilly. [59] Ms. Scheurmann also commented on some problems with communication between her and Mr. Grolway. In addition, she alsooutlined some issues with the sharing of health benefits information with Mr.

Grolway, but added her employer has a good benefitspackage and she is not out of pocket for Grayson’s health care any longer. [60] Regarding the July 1, 2021 “drowning” incident, Ms. Scheurmann described what happened and the stress and shock of thesituation. Not all the adult family members behaved calmly, and emotions got the best of Mr. Grolway and other relatives present at thehospital that day. [61] Under cross examination, Ms. Scheurmann admitted she knew Mr. Grolway was contemplating a new job and a move, butclaimed he never told her he had actually applied when they discussed the matter.

She also said she did not know it was a job outsideKenora. [62] Once Mr. Grolway was working away and missing parenting time, Ms. Scheurmann testified she found out about the new job andhis work

schedule from the sitter. [63] Ms. Scheurmann also commented on the nature of the relationship between Mr. Grolway, his father, stepmother and mother. Shesaid she wants Grayson to have a good relationship with his grandparents as they give “great gifts” and she feels it is in Grayson’s bestinterests to have them in his life. Father’s Submissions [64] The Applicant, Mr. Grolway, submits there has been a material change in circumstances considering the change in Mr.Grolway’s work and schedule. I was referred to the case of Hayden v. Stockwood, 2006 NLUFC 38, to support this proposition.

Whilethis case is from another province, the facts are similar to the instant case. [65] If this court is not satisfied the change in employment is not a material change, then this court should consider the other factorsraised, namely, the birth of Grayson’s brother (MacDonald v. MacDonald, 2014 ABCA 91), the denial of parenting time by Ms.Scheurmann (Nestie v. Krause, OCJ July 19, 2021 Hoshizaki J.), and the restrictions to who can pick Grayson up on exchanges that areno longer current (Dube v. Horzempa, ONSC). [66] Mr. Grolway is requesting joint custody and decision making in light of the way Ms.

Scheurmann interpreted and applied thefinal order. She never allowed Mr. Grolway his right of first refusal as set out in paragraph 7 of the final order. Rather, Ms. Scheurmannunilaterally hired sitters or used her mother in place of Mr. Grolway. [67] Ms. Scheurmann wants to continue to restrict parenting time and to follow the temporary order which gave Mr. Grolway lessparenting time than the final order. [68] Counsel submitted Ms. Scheurmann is unilaterally restricting Mr. Grolway’s parenting time simply because she does not like Mr.Grolway and is failing to consider Grayson’s best interests.

There are no safety concerns. Both parents are capable of raising and caringfor Grayson. Further Ms. Scheurmann is restricting access to Mr. Grolway’s extended family except Mr. Grolway’s estranged father andstepmother. [69] With respect to the issue of child support, the amount of child support arrears is calculated for the period of January 1, 2018 andJune 30, 2021 is $10,697.46. [70] The daycare costs calculated pursuant to paragraph 7of the final order, ought to be set off against the child support arrears. Thebabysitting costs overpayment by Mr.

Grolway was calculated to be $2000.25 in 2018 and $1333.50 in 2019 for a total of $3333.75. This set off calculated against the arrears totals $7363.71. [71] If Mr. Grolway is successful in his request to have Grayson for two weeks-about, then his child support obligation going forwardwould be $199.00 per month based on his current income of $79,040.00 per year and taking into consideration Ms. Scheurmann’s incomeof $58,131.08 per year.

[72] Counsel argued Mr. Grolway will not give up on having a meaningful relationship with Grayson, which is in Grayson’s bestinterests. The status quo in this case is untenable because Ms. Scheurmann’s aversion to shared parenting is not in Grayson’s bestinterests, and the proposed

schedule will provide more certainty and consistency for Grayson. Mother’s Submissions [73] Counsel for Ms. Scheurmann argued the Motion to Change ought to be dismissed for the following reasons: • Both parties entered into the final order on consent and with legal representation. • The final order was to be in effect for several years to avoid relitigating. • The parenting time to Mr. Grolway is specific enough. • Mr. Grolway has put himself in the current position by changing jobs twice which impacted his parenting time.

Therefore, therehas been no material change in circumstances. [74] In the alternative, counsel argued if I am inclined to amend the final order that I must consider whether there has been a materialchange in circumstances. [75] Counsel further argued that at the time of the trial, Mr. Grolway was back at the same workplace and the

schedule is the same. He occasionally works out of town. There is no impediment to continue the 2017 final order. [76] Mr. Grolway has not come to court with clean hands. Because Mr. Grolway is in arrears, Grayson is not seeing the financialbenefit of the job change. Mr. Grolway also admitted he filed the incorrect Form 35, which goes to his credibility. [77] The decision of this court may set a precedent, if it were Ms. Scheurmann requesting the changes Mr.

Grolway is seeking. [78] He took a job voluntarily that caused any material changes of circumstance. [79] If reviewing the final order, I ought to refer to Kaplanis v. Kaplanis, (ONCA) at paragraphs 10 and 12. [80] The decision in Cassidy v. Cassidy, 2011 ONSC 7466, at Appendix A, sets out the guidelines for material change. Here, counselargued the material change has been undone now that Mr.

Grolway is back at the original job he had in 2017. [81] The court was referred to the analysis of custody and access issues starting at page 23 in the Cassidy decision noted above. [82] The court should not be concerned with the history and breakdown of the relationship prior to the 2017 order. No weight shouldbe given to evidence of matters that occurred prior to 2017. [83] Mr. Grolway is not asking to shift access – he wants an overhaul of the status quo.

He wants to have his child for 2 weeks at atime even though he has not had the child for more than 4 nights in the recent past. [84] The temporary order allows 2 4-day weekends per month. [85] Any increase in parenting time should be graduated – not jump into 2 weeks at a time is not in Grayson’s best interests. [86] Week-about is better and may be graduated to shared parenting over time. [87] Mr. Grolway wants the court to find his new job as a material change that would have increased child support. Now he is in a jobthat pays less money. Should impute a higher income. Ms. Scheurmann’s counsel argued Mr.

Grolway should not have taken the betterjob without consulting Ms. Scheurmann, and all of this may have been avoided. However, counsel does not quibble with Mr. Grolway’scalculations of arrears and overpayment of daycare costs. [88] Kayden is not a factor. No one says the boys should not know each other. The temporary order can be amended to line up withKayden’s parenting time. [89] Exchanges should be at school to minimize conflict and elsewhere when there is no school. [90] In reply Mr.

Grolway’s counsel agreed that if the court awards the 2 weeks about, that it could be gradual to acclimate Graysonto the new routine. Analysis [91] After reviewing the material filed, the evidence, the law, and hearing the testimony of the parties to the Motion to Change, Igrant the Applicant father’s motion in part. Has there been a material change in circumstances? [92] In this case I am satisfied a material change in circumstances affecting Grayson has occurred since the final order. Grayson isnow 5 years of age. The final order was made when he was less than 2 years old.

Grayson is now a big brother to Kayden. [93] Mr. Grolway has changed his employment to return to the previous employer and similar work

schedule he had so that he couldbe closer to his sons.

[ 94 ] Mr. Grolway was forced to bring this Motion to Change given the unilateral reduction in his parenting time by Ms. Scheurmann. [ 95 ] Had any or any combination of the above noted material changes been known at the time of the final order, I am satisfied the final order would look much different. ( Cassidy , supra.) [ 96 ] The main issue the courts must keep in mind in determining the factors to be weighed in motions to change a final order is the best interests of the child.

Section 24 of the Children’s Law Reform Act states: Section 24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section. 2020, c. 25 , Sched. 1, s. 6. Primary consideration

(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. 2020, c. 25 , Sched. 1, s. 6. Factors

(3) Factors related to the circumstances of a child include, (

a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability; (

b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life; (

c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent; (

d) the history of care of the child; (

e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained; (

f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; (

g) any plans for the child’s care; (

h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; (

i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child; (

j) any family violence and its impact on, among other things, (

i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and (

k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. 2020, c. 25 , Sched. 1, s. 6. [ 97 ] Based on my observations of the parties at the trial, and in hearing their evidence, I find Ms. Scheurmann to have presented as a young woman who wants to control aspects of Grayson’s life that is not in keeping with his best interests or his rights. I find she unilaterally withheld parenting time with Mr. Grolway and interpreted the final order to suit her needs rather than Grayson’s.

In fact, her behaviour overall since the final order has been unreasonable in several respects. [ 98 ] Ms. Scheurmann failed to follow paragraphs 3(e), described above and 7 (right of first refusal clause) of the final order. If she had, this motion to change may not have been necessary. The final order allowed for flexibility to accommodate the parties’ schedules or unforeseen events, but Ms. Scheurmann decided to be the enforcer of the final order based on her

interpretation and application of the order to Mr. Grolway’s detriment and not in keeping with Grayson’s best interests. [ 99 ] I find given the inability for Grayson’s parents to communicate in a mature, productive manner in Grayson’s best interests, that the parenting time set out in the final order needs to be varied to reduce the amount of communication required between them. [ 100 ]

Section 20 of the Children’s Law Reform Act provides that each parent is equally entitled to decision-making responsibility, but that right must be exercised in the child’s best interests. [ 101 ] Further at subsection 20(5), the act stipulates, “The entitlement to parenting time with respect to a child includes the right to visit with and be visited by the child, and includes the same right as a parent to make inquiries and to be given information about the child’s well-being, including in relation to the child’s health and education”. [ 102 ] While Ms. Scheurmann’s position is that Mr.

Grolway is essentially the author of his own misfortune in terms of his decision to take a job 3 hours from Kenora, I am not satisfied he did so in bad faith. He explained he took the job to earn more money to help support Grayson, but he did not realize Ms. Scheurmann would use that against him and as a reason to deny him any consideration or accommodation in his work and parenting time schedules.

[ 103 ] I also note that Mr. Grolway was not in any way obligated to seek Ms. Scheurmann’s permission, input or approval for what jobs he applies for or takes. Had Ms. Scheurmann acted reasonably and pursuant to paragraph 3(

e) of the final order, they could have accommodated Mr. Grolway’s work

schedule to allow Grayson his right to have access or parenting time with his father. Parents need to understand that access or parenting time, is the right of the child, so long as such access or parenting time is in the child’s best interests. [ 104 ] It is understandable that Mr. Grolway, in a way, threw up his hands and did not assert his obligations fully under the final order. He was stymied at every turn. Since he was not the parent with primary residence of Grayson, Mr. Grolway is at a disadvantage to obtain any quarter from Ms. Scheurmann. [ 105 ] In response to the time Mr.

Grolway missed with Grayson, he left his higher paying job in Rainy River to return to his former employment at reduced salary. Ms. Scheurmann seems to be trying to have Mr. Grolway penalized for taking Grayson’s needs into consideration in his decision to return to his job in Kenora, by reducing his parenting time. Mr. Grolway is caught in a difficult position. On the one hand he is trying to advance his career and earn more money, and on the other, he was trying to have a relationship with his son, Grayson. Ms. Scheurmann did nothing to facilitate this, and in fact, forced Mr.

Grolway to make the choice he did to return to Kenora and to bring this motion to change. Ms. Scheurmann cannot have her cake and eat it too. [ 106 ] To quote Justice Hoshizaki in her decision of Nestie v. Krause of July 19, 2021 from the Ontario Court of Justice, “The mother is playing a dangerous game as it could lead to the loss of primary parent status.

It is always in a child’s best interest to have significant unsupervised parenting time with each parent unless clearly proven that there is a safety concern.” [ 107 ] In fact, evidence at trial revealed a significant safety issue that arose with Grayson nearly drowning while in Ms. Scheurmann’s care. While this was a most unfortunate set of circumstances, Ms. Scheurmann is not to blame, as accidents happen. Thankfully Grayson was none the worse for wear for his ordeal, but I raise this to point out no parent is perfect or better than the other.

Children will get hurt, accidents will happen, and it is up to the parents to be level-headed and as calm as possible to avoid blaming and finger pointing. [ 108 ] At the outset of the trial I observed Ms. Scheurmann ask Mr. Grolway to sign Grayson’s application for Indian Status. Mr. Grolway signed the form without hesitation. The fact of Mr.

Grolway being a status Indian came as a surprise to counsel and to the court, as this had never been raised before then. [ 109 ] If Grayson is registered under the Indian Act , he may be entitled to additional health care benefits and post-secondary education funding – a future expense for which Ms. Scheurmann ought to be thankful, as financial assistance for post-secondary education will prove to be a significant relief of the financial burden for both parties if Grayson is entitled to be registered. [ 110 ] Ms. Scheurmann agreed in her testimony that Grayson and Kayden should know each other.

However, she did not offer any suggestions on how she might assist in ensuring Grayson spends meaningful time with his little brother. I found her dismissiveness about Grayson’s need to be with his brother concerning. She has done nothing to facilitate the children to bond and know one another. Further she feels it more beneficial to have Mr. Grolway’s estranged father and stepmother to be involved in Grayson’s life than his own father, given her testimony at trial regarding the fact they give “great gifts” to Grayson. [ 111 ] As for Mr.

Grolway’s request to have parenting time with Grayson on a two week- about schedule, I am not satisfied this is appropriate for Grayson at this time. I do find that a week-about

schedule is in Grayson’s best interests going forward. A week-about

schedule has benefits for Grayson in that he will have a consistent schedule, it will reduce the amount of contact between the parties, it will give Grayson time with his little brother, it will maximize his contact with Mr. Grolway and is in keeping with Grayson’s right to have time with both his parents. Further, counsel for Ms. Scheurmann argued in the alternative that a week-about may be agreeable. [ 112 ] In terms of who may or may not be present with Grayson for exchanges, I find it unreasonable and unfounded for Ms. Scheurmann to attempt to dictate this aspect of Mr. Grolway’s personal life.

I have no evidence before me to indicate there are any safety concerns in this regard. In our busy society, parents can use all the help they can to assist in the logistics of parenting young children. [ 113 ] Since Mr. Grolway is successful in his motion to change, for the most part, I encourage the parties to find a way to cooperate and work together for Grayson. He deserves to grow up being loved by as many people as possible. He needs his parents to put their differences aside and to raise him in a way that is best for him.

I am confident this is possible as the parents grow and mature to settle into their role as co-parents for the rest of Grayson’s childhood. [ 114 ] Therefore, the order I am making to replace the final order of Justice Gibson dated December 13, 2017 and to terminate the temporary order of Justice Joubert, dated December 15, 2020 is as follows: The temporary order of Justice Joubert, dated December 15, 2020 is terminated. The order of Justice D. Gibson, dated December 13, 2017, shall be vacated and replaced as follows: 1.

Nicolas Grolway and Jasmine Scheurmann shall have joint decision-making responsibility with regard to the child, Grayson Robert Grant Grolway, born […], 2016. The parties shall consult with each other with respect to all important decisions regarding Grayson’s education, health care, extracurricular activities, and religious/cultural activities, pursuant to s. 20 of the Children’s Law Reform Act .

a. The parties shall consult in writing, via email, on all major decisions affecting the child’s health, education, spirituality, general welfare and wellbeing at least 30 days in advance of any decision required to be made. b. The party who receives a request via email shall respond to same within 72 hours, also via email. c. The other parent’s input shall be considered for a least 48 hours before the final decision is made. d. In the event the parents do not agree on a major decision, they shall attend mediation to address the issue. e.

In the event that the parties do not agree on a major decision after mediation, the Applicant mother, shall be entitled to make the final decision; however, the Respondent father has the right to bring the matter to court for consideration within 60 days of the final decision being made. 2. Each party shall provide the other parent with Grayson’s

schedule of extracurricular activities, parent/teacher conferences, special school events, medical/dental appointments, cultural/religious activities to allow the other parent to attend said events or appointments, if he or she chooses. 3. Regular Parenting

Schedule : a. Nicolas Grolway and Jasmine Scheurmann shall share the parenting of Grayson on a one week-about parenting schedule, with exchanges on Fridays after school, at Grayson’s school. The week-about

schedule shall commence October 1, 2021. b. The parent with whom Grayson resides at the relevant parenting time shall make the daily decisions affecting his welfare at that time. c. Exchanges shall occur at Grayson’s school for the weekly exchanges and at the Dollarama in Kenora for any other exchanges where exchanges at the school are not possible due to school closures. d. Transportation for exchanges shall be the responsibility of the parent to whom Grayson will be going for his week of parenting time. e. Each parent shall record details regarding Grayson’s wellbeing in a Communication Book that shall accompany Grayson at each exchange. f. If either party’s work

schedule changes, that shall be considered a material change in circumstances requiring the parties to adjust the parenting time with Grayson to ensure the parenting time remains equal between them. 4. Holiday Parenting time: The holiday parenting time

schedule overrides the regular parenting

schedule in the event of a conflict: a. Mother’s Day and mother’s birthday – Jasmine Scheurmann shall have Grayson in her care on those days from 10:00 am until 7:00 pm. b. Father’s Day and father’s birthday – Nicolas Grolway shall have Grayson in his care on those days from 10:00 am to 7:00 pm. c. Christmas – In even-numbered years, Grayson shall be in the care of Jasmine Scheurmann from December 24 at 1:00 pm until December 25 at 1:00 pm. Grayson shall be in the care of Nicolas Grolway December 25 at 1:00 pm until December 26 at 7:00 pm. d.

In odd-numbered years Grayson shall be in the care of Nicolas Grolway from December 24 at 1:00 pm until December 25 at 1:00 pm and in the care of Jasmine Scheurmann from December 25 at 1:00 pm until December 26 at 7:00 pm. e. The remainder of the Christmas break shall be shared equally between the parties or as otherwise agreed upon. f.

In the event one parent wishes to travel with Grayson for a Christmas break holiday, the other parent shall be notified not less than 90 days prior to the proposed holiday, provided with an itinerary, and the trip with Grayson shall be limited to 50% or 1 week of the Christmas Break. If the holiday is during an even-numbered year, which results in one parent not having Christmas with Grayson, that portion of the break shall be reciprocated on odd-numbered years. g. March Break – shall be switched every other year, regardless of the week about schedule. Commencing in March, 2022, Ms.

Scheurmann shall have Grayson on even-numbered years for March breaks and Mr. Grolway shall have Grayson on odd-numbered years March breaks. h. Summer Break – Grayson shall have parenting time with each parent equally and shall include a period of 2 consecutive weeks each summer for each parent. Jasmine Scheurmann shall provide to Mr. Grolway, by no later than June 1 of each year, which two consecutive weeks in the summer she wishes to have Grayson with her. Mr. Grolway shall choose his two consecutive weeks with Grayson once he receives notice of Ms. Scheurmann’s intended two-week period.

The remainder of the summer break shall be shared equally an accordance with the regular week-about

schedule set out above. i. Any other holidays or special events shall be agreed upon by the parties, ensuring any lost time with Grayson is reimbursed at another time.

5. Neither parent shall change Grayson’s residence from the City of Kenora or the province of Ontario, without the express written consent of the other or with further order of the court. 6. Jasmine Scheurmann is permitted to apply for a passport for Grayson. When traveling with Grayson, the parent with whom the passport is kept shall ensure the passport is given to the travelling parent not less than 3 days prior to the trip occurring. 7.

If either party wishes to travel with Grayson outside Canada, upon being provided with an itinerary not less than 30 days before the travel date, the non-travelling parent shall sign any travel authorization consent required. The travelling parent shall be responsible for the preparation and cost of same. 8. Neither parent shall speak of the other parent in disparaging terms to anyone in Grayson’s presence or ear shot. 9. Nicolas Grolway’s child support arrears shall be set at $7,363.71, calculated as follows: a.

The shortfall in Nicolas Grolway’s child support payments in accordance with the Child Support Guidelines for the period January 1, 2018 to June 30, 2021 is $10,697.46; b. The overpayment of Nicolas Grolway’s daycare expenses in 2018 was $2,000.25 and in 2019 it was $1,333.50, for a total of $3,333.75. c. $10,697.46 minus $3,333.75 totals $7,363.71. 10. Nicolas Grolway shall pay the child support arrears of $7,363.71 to Jasmine Scheurmann in the amount of $300.00 per month, commencing October 15, 2021 and on the 15 th day of each month until the entire amount is paid in full. 11.

Nicolas Grolway shall pay ongoing child support to Jasmine Scheurmann to the support of the child, Grayson Grolway, born […], 2016, commencing on September 1, 2021 and on the first day of each month thereafter in the amount of $199.00 per month. This amount is based Mr. Grolway’s current annual income of $79,040.00 and takes into consideration Ms. Scheurmann’s income of $58,131.00, pursuant to the obligations set out in the Child Support Guidelines . 12.

Pursuant to the Child Support Guidelines , the parties shall each pay proportionately, based on their respective incomes, Grayson’s special and extraordinary expenses, and extracurricular expenses, reasonably incurred, and following consultation with each other. Payment of the expenses shall be made within 14 days of one parent delivering proof of the expense to the other parent. 13. Child support shall continue until Grayson is no longer a “child” as defined by the Child Support Guidelines . 14.

Nicolas Grolway and Jasmine Scheurmann shall each maintain coverage for Grayson under any extended health plan available to him or her through his or her employment, for so long as Grayson is eligible. 15. Effective September 1, 2021 Mr. Grolway shall pay child support to Ms. Scheurmann in the amount of $199.00 per month, 16. For so long as child support or

Section 7 expense are to be paid Nicholas Grolway and Jasmine Scheurmann shall provide updated income disclosure, including, but not limited to, copies of his/her Income Tax Notice of Assessment/Reassessment and T4 slips, to the other by June 1 of each year, in accordance with Section 25(1) of the Child Support Guidelines . The parties shall take the necessary steps to adjust child support pursuant to an offset in accordance with the Child Support Guidelines , effective June 1 of each year, if applicable. 17. A Support Deduction Order shall issue. 18.

Unless the support order is withdrawn from the Director’s Office of the Family Responsibility Office, it shall be enforced by the Director, and amounts owing under the support order shall be paid to the Director who shall pay them to the person to whom they are

owed. Payments may be made to: Family Responsibility Office, Box 2204, Station P, Toronto, Ontario M5S 3E9. 19. The issue of costs shall be addressed under separate costs motion as stipulated in the decision of Justice Baxter, dated September 23, 2021. 20. All other claims shall be dismissed. This order bears post-judgment interest at a rate of 2% per annum effective from the date of this order.

Where there is a default in payment, the payment shall bear interest only from the date of default. [ 115 ] The Applicant father may make written costs submissions within 14 days of the release of this decision, and the Respondent mother may make her cost submissions within 14 days of the Applicant. The parties shall restrict their submissions to 5 pages each, not including attachments or exhibits. Extensions to these timelines will require leave of the court. Released: September 23, 2021 Signed: Justice E.J. Baxter