Hoffman v. Hoffman, 2013 ONSC 395

CITATION: Hoffman v. Hoffman, 2013 ONSC 395 COURT FILE NO.: 34608/12 DATE: 2010-01-23 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) CINDY ANNE HOFFMAN ) ) ) Susan Berry , for the Applicant ) Applicant ) ) ) - and - ) ) ) TREVOR JAMES HOFFMAN ) ) ) Catherine A. Haber , for the Respondent ) Respondent ) ) ) )) HEARD: December 17, 2012, at Milton, Ontario Price J. Reasons For Order NATURE OF MOTION [ 1 ] Cindy and Trevor Hoffman separated on June 30, 2011, when their children, Ryan and Joshua, were three and one years old, respectively.

After they separated, they continued to reside in the matrimonial home in Acton for over a year, until September 15, 2012. [ 2 ] The Hoffmans attended mediation together and, later, an early Case Conference in this proceeding, but they have been unable to agree on a

schedule for when their children will reside with each of them. On June 22, 2012, Ms. Hoffman brought the present motion for custody of the children and an order that they reside primarily with her. [ 3 ] Ms. Hoffman scheduled her motion to be heard as a regular motion, on a date when Mr. Hoffman’s lawyer was not available. When the motion came before Fitzpatrick J. on July 11, 2012, he found that Ms.

Hoffman’s desire for exclusive possession of the matrimonial home, or permission to move the children to Milton where she could enroll Ryan in school, were not sufficiently urgent circumstances to justify the motion being heard immediately. Therefore, he adjourned the motion to December 17, 2012, to be heard as a long motion and ordered that, in the interim, Ryan would continue attending school in Acton. Further, he ordered that neither party would move for exclusive possession or sale of the matrimonial home. [ 4 ] On September 15, 2012, Ms.

Hoffman bought a home in Milton, approximately a half an hour drive from the matrimonial home, and moved there. Since then, the children have resided there with her for half the week and in the former matrimonial home with their father for the remainder of the week. [ 5 ] Ryan is now four years old, and Joshua is two. Ryan attends a school in Acton from Monday to Friday. Joshua is in daycare

when he is not in the care of one of his parents or grandparents. [ 6 ] Ms. Hoffman seeks permission to enroll Ryan at a school in Milton, arguing that Mr. Hoffman “seeks to upset the children’s status quo in order to accomplish his financial ends, that being to pay less child support.” By status quo , she refers to the fact that, on her evidence, the children have been cared for primarily by her, not to the fact that Ryan would remain in the same school. She seeks to change the status quo with regard to Ryan’s school and the children’s primary residence. [ 7 ] Ms.

Hoffman wants the children to reside with her during the week and to attend school in Milton, spending time with their father on alternate weekends and specified evenings during the week. Mr. Hoffman wants the children to spend equal time with each parent on a

schedule that would vary each month according to his work schedule, which he receives on the 25 th day of each month. [ 8 ] Each of the parties seeks a financial benefit from the parenting

schedule they propose. Ms. Hoffman claims full table child support based on the children residing primarily with her. Mr. Hoffman seeks to pay child support on a lower, set-off basis, being the difference between the support that each would pay to the other if the children were residing with them alone. [ 9 ] The Court must determine what arrangement for custody of Ryan and Joshua, and for their parenting and residence, will be in their best interests. Their parents’ rights and preferences do not play a role in the analysis, except to the extent necessary to ensure Ryan’s and Joshua’s best interests.

BACKGROUND FACTS [ 10 ] Ms. Hoffman earns $52,500.00 from her employment as an Executive Assistant at the Toronto Congress Centre near Pearson Airport. Mr. Hoffman earns $150,000.00 from his employment as a cargo pilot, flying out of Mississauga and Hamilton. [ 11 ] The parties were married on April 7, 2007. They have two children, Ryan, who is now four years old (born September 3, 2008), and Joshua, who is now two (born August 6, 2010). Ms. Hoffman took maternity leave after the birth of each child.

She then returned to full-time employment. [ 12 ] Ms Hoffman suffered from post-partum depression after the birth of Joshua and was prescribed medication. She improved over the following three months. Her doctor, Douglas Mah, MD, CCFP, states that her diagnosis is “postpartum depression, currently in remission”. He further states that Ms. Hoffman has returned to the functional level that she had before Joshua’s birth, and that her prognosis is excellent. She was, and continues to be, compliant with her therapy, and there is no conflict between her medication and modest alcohol consumption. Dr.

Mah anticipates that he will gradually taper her medication once her legal issues are settled. [ 13 ] Mr. and Ms. Hoffman separated after a little over four years of marriage, on June 30, 2011. Ms. Hoffman attributes their separation to Mr. Hoffman’s demeaning and disrespectful treatment of her. She cites his failure to support her emotionally through her post-partum depression, and states that he was extremely controlling of their finances, requiring her to submit receipts for all household expenses and hiding their financial records.

She says that he also used offensive language during arguments and once destroyed the home telephone. [ 14 ] Mr. Hoffman disputes Ms. Hoffman’s explanation for why they separated. It is unclear on his evidence why she left, although he cites her alleged “uncontrollable spending” as a contributing cause of their arguments. [ 15 ] Mr. Hoffman denies that he was unsupportive during his wife’s post-partum depression. He points out that he paid for extra childcare and housekeeping services, so that she could attend group therapy, and that he attended such sessions when she asked him to do so. [ 16 ] Mr.

Hoffman says that he has no idea what Ms. Hoffman means when she says that he engaged in “passive-aggressive rage”. He claims that it was she, not he, who engaged in rages and used offensive language, and that she has often sworn at him and used demeaning language toward him in the presence of the children. He denies that he destroyed the telephone and asserts that, in order to protect the children from conflict between their parents, he walked away from arguments with his wife. He says that Ms.

Hoffman’s accusations against him are belied by the fact that she called on him recently when she was involved in a car accident. He was attentive to her needs at the scene of the accident and later at the hospital. [ 17 ] When the parties separated on June 30, 2011, they continued to live in the matrimonial home. After Ms. Hoffman returned to work in September 2011, they hired a full-time nanny for the children at a cost of $300.00 per week, or $18,000.00 per year.

The nanny provided at least three days of care for the children each week. [ 18 ] The Hoffmans consulted a mediator and, at one point, appeared close to agreement on the issues of equalization of net family property, disposition of the matrimonial home, custody of the children, and a parenting schedule. However, according to Ms. Hoffman, negotiations between them broke down over the issues of child and spousal support. ISSUES [ 19 ] The Court must determine what arrangement for custody of Ryan and Joshua, and for their parenting and residence, will be in their best interests. POSITIONS OF THE PARTIES

a) Ms. Hoffman’s position [ 20 ] At the beginning of the proceeding, Ms. Hoffman asserted that if Mr. Hoffman would agree to the children residing primarily with her and attending school in Milton, she would be content with joint custody of the children. When they were unable to agree on these issues, and Ms. Hoffman moved to Milton, she sought sole custody of the children and full table child support, saying that she foresaw disagreements ahead over a parenting

schedule for the children. [ 21 ] Ms. Hoffman argues that the children should reside with her four to five days per week and with their father one overnight each week and on alternate weekends; additionally, they should be in the care of a nanny or in daycare for two or three days each week. She argues that she should have sole custody of the children for the following reasons: (

i) She has consistent hours of employment at the Congress Centre, from Monday to Friday, leaving for work at 7 a.m. and returning home at 6:15 p.m. (ii) Mr. Hoffman’s work

schedule changes monthly. According to Ms. Hoffman, he works on a variable but inflexible

schedule between 14 and 21 days per month, including office and training days. He is usually away on flights or training seven to 12 days per month. (iii) Mr. Hoffman works out of Hamilton and Mississauga and passes through Milton, where Ms. Hoffman resides, on his way to and from work. (iv) Mr. Hoffman is not given his work

schedule until the 25 th day of each month. According to Ms. Hoffman, his

schedule can change on very short notice. There are training requirements that require him to be away for eight to 10 days at a time, three to four times per year, and he is on call 20 days per month; thus, he can be called away to work on a last-minute basis. (

v) When Mr. Hoffman returns home from a red-eye flight, he sleeps during the day and often must sleep before departing for a scheduled flight. Yet, according to Ms. Hoffman, he always schedules the children to be with him if he is at home, even if he has just arrived from, or must depart on, a night flight. (vi) Ms. Hoffman asserts that her husband’s proposal that his 74 year old mother, Beverley Ann Hoffman, who lives 90 minutes away in London, care for the children when he is not available, is not realistic. Yet, she asserts that since September, when Ms. Hoffman moved out of the matrimonial home, Mr.

Hoffman has never cared for the children alone without his mother being present. Ms. Hoffman states that Beverley Hoffman does not like to drive in inclement weather or at night, and she is simply not available to care for the children when Mr. Hoffman is called to work at the last minute. She adds that it is also unreasonable to expect Mrs. Hoffman to care for the children for up to five days when Mr. Hoffman is working out of town. (vii) Ms. Hoffman states that she is also unable to secure a commercial daycare provider for the children on short notice, when Mr.

Hoffman is called away, unless she hires one to be available full-time. [ 22 ] Ms. Hoffman proposes the following parenting schedule, which would give Mr. Hoffman care of Ryan and Joshua on the following days and times:

a) From Tuesdays at 7:30 a.m. in Milton, to return to school or childcare on Wednesdays;

b) Thursdays from 7:30 a.m. to 6:15 p.m., with drop-off and pick-up by Mr. Hoffman in Milton;

c) On alternate weekends, from Friday at 7:30 a.m., with pick-up by Mr. Hoffman in Milton, to Sunday at 7 p.m., with pick-up by Ms. Hoffman in Acton;

d) If Mr. Hoffman is away, his mother may care for the children on Tuesdays and Thursdays during the day; and

e) The children would spend the balance of their time in their mother’s direct care or at daycare or school in Milton. [ 23 ] Ms. Hoffman argues that her proposed

schedule offers a stable weekly routine. The children would have two or three days in school or daycare each week and two or three days per week with their father. They would have a fixed number of transitions each week and frequent, regular, meaningful time with each parent. They would have more time to sleep and arrive at her home in the evenings in time for supper. There would be a cost of $680.00 each per month for daycare during the school year. [ 24 ] As noted above, each of the parties seeks a financial benefit from the parenting schedule. Ms.

Hoffman claims full table child support, on the basis that the children would be residing primarily with her. Mr. Hoffman seeks to pay child support on a set-off basis, being the difference between the amounts of support that each party would pay to the other if the children were residing with each of them alone.

b) Mr. Hoffman’s position [ 25 ] Mr. Hoffman initially sought an order for joint custody, with the children residing equally with each parent, and with him paying child support calculated on a set-off basis. When the parties were unable to agree on a parenting schedule, he sought an order for sole custody, with the children residing primarily with him. He would like a detailed parenting

schedule to be specified at the beginning of each month, based on his work schedule, so as to maximize the time that the children spend with each parent.

[ 26 ] Mr. Hoffman argues that his work

schedule is more flexible than Ms. Hoffman’s. He says that his management position as Assistant Chief Pilot allows him to choose which flights he will work and when he will work them. Normally, this entails his flying a “one-half block” (i.e. 5-9 days per month). Additionally, he usually has one week per month of “office days”. He can choose his “office days” and the hours when he will work them. He is able to complete his office hours at home, and his employer is flexible, as long as he completes his work. [ 27 ] Mr. Hoffman denies Ms. Hoffman’s claim that his work

schedule requires him to spend 14 to 16 days per month away from home. He states that, in fact, he is away only 5 to 9 days per month, or an average of 7 days per month. [ 28 ] Mr. Hoffman says that his employment gives him great flexibility to arrange a work

schedule around the needs of the children. When Ryan was in daycare, he was able to leave work and pick him up at 3:00 p.m. and care for him until Ms. Hoffman returned home between 6:30 p.m. and 8:30 p.m. He says that his work

schedule now allows him to drop Ryan at kindergarten by 8:50 a.m.; whereas, Ms. Hoffman, who must leave for work by 7:00 a.m., must leave the children with a baby-sitter in the interval. He is also able to pick Ryan up directly from school; whereas, Ms. Hoffman, who does not return home until 6:15 or 6:30 p.m., cannot. He submits that he can have the children at Ms. Hoffman’s home by 7:00 p.m., if he is driving from Acton. [ 29 ] Mr. Hoffman says, in response to Ms. Hoffman’s assertion that his work

schedule can change “on very short notice” and that he can suddenly be scheduled to be away for a week at a time, that this is not the norm and has rarely occurred. In fact, in the course of his yearly schedule, it has occurred only once for a particular upgrading training opportunity which entailed a promotional pay increase. He notes that flights can also be cancelled on short notice, due to weather and other conditions, with the result that he has additional time at home to care for the children. [ 30 ] Mr.

Hoffman additionally asserts that he has three weeks of vacation each year and can choose when to take them. [ 31 ] Mr. Hoffman denies having relied on his mother for help when caring for the children while the parties were together. He acknowledges that his mother was available to look after the children, and that he suggested to Ms. Hoffman that it would be more economical for his mother look after them, when necessary, rather than a paid nanny. But his mother never stayed at their home when he was away. Conversely, his wife had gone to stay with his parents at such times. [ 32 ] Mr.

Hoffman proposes that the children reside with the parties on the following schedule: (

a) On week one, they would reside: (

i) with their mother until Tuesday at 7:30 a.m., and from Thursday at 3:30 p.m. to Saturday at 7:30 a.m. (ii) with their father from Tuesday at 3:30 p.m. to Thursday at 7:30 a.m., and from Saturday at 7:30 a.m. to the following Tuesday at 7:30 a.m. (

b) On week two, they would reside: (

i) with their father from Monday at 3:30 p.m. to Tuesday at 7:30 a.m., and from Thursday at 3:30 p.m. to Saturday at 7:30 a.m. (iii) with their mother from Tuesday at 3:30 p.m. to Thursday at 7:30 a.m., and from Saturday at 7:30 a.m. to the following Tuesday at 7:30 a.m. [ 33 ] Mr. Hoffman proposes that if, due to his work schedule, he is unavailable to care for the children on his designated day, he should advise Ms. Hoffman by the 27 th day of the month. She would then adjust the children’s

schedule accordingly, so that they spend the time with her. He further proposes that if a change occurs during the course of the month, and either parent is unable to care for the children during his or her designated days, the other parent and, in Mr. Hoffman’s case, his mother, should be offered the first opportunity to care for them before a third party caregiver is asked to do so. [ 34 ] Mr. Hoffman argues that Ms.

Hoffman’s proposal, which would have the children with her every weekday except Wednesday, even though she is unable to care for them herself, leaves the children in the care of a babysitter when he could be caring for them himself. He interprets this as an effort by Ms. Hoffman to minimize the time he spends with the children, rather than maximizing it. He notes that in the past, the nanny the Hoffmans hired provided care on an “as needed basis”, and her average pay reflected part-time, not full-time, hours.

She earned only half of what she would have earned if she had worked full-time, he says, because he was often available to care for the children and did so. ANALYSIS AND EVIDENCE 1. Custody and Access A. Legislative Framework [ 35 ] Ms. Hoffman began this proceeding under the Divorce Act . [1] The Court’s determination of the custody and access issues is therefore governed by

section 16 of the Divorce Act . Section 16(1) provides that a court may make an order respecting custody of or access to a child of the marriage on application by a spouse or any other person. Section 16(4) provides that in making an order under

section 16 , the court may grant custody and/or access to more than one person. Section 16(6) gives the court a broad discretion to include any terms, conditions, or restrictions in a custody and access order that it considers fit and just. [ 36 ] Section 16(8) provides that the sole criterion for determining custody and access issues is “the best interests of the child of the marriage, as determined by reference to the conditions, means, needs and other circumstances of the child.”

[ 37 ]

Section 16 of the Divorce Act provides, in part:

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such access. [Emphasis added] [ 38 ] The goal of maximum contact with each parent is not absolute, but the legislation is clear that maximum contact can only be restricted to the extent that contact conflicts with the best interests of the child. [2] [ 39 ] The children’s best interests must be paramount to any other consideration when access is ordered.

The convenience of the parents is not ignored, but is secondary to the welfare of the children. [3] [ 40 ] The Divorce Act does not set out a detailed list of other factors to be considered when determining the best interests of a child. However, i n an effort to apply the best interests test with greater precision and consistency, courts, when applying the “best interests” test in the Act, have considered the criteria set out in provincial and territorial legislation. The relevant provisions in Ontario are sections 20 and 24 of the Children’s Law Reform Act (“CLRA”). [4] [ 41 ] Under

section 20 of the CLRA , both parents are equally entitled to custody of a child. Where the parents live separate and apart, and the child resides with one parent with the consent of the other, the entitlement to access continues, along with the right to visit with and be visited by the child, to make inquiries, and be given information as to the child’s health, education, and welfare (see sections 20(1) , (4) , and (5) of the CLRA ). [ 42 ] Section 24(1) of the CLRA provides 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). 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 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) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1) ; 2009, c. 11, s. 10 . Past conduct

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

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

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

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

a) his or her spouse; (

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

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

(

d) any child. [ 43 ] I will review the evidence in relation to each of these factors, insofar as it pertains to the Hoffmans and their children.

c) Love, affection and emotional ties [ 44 ] Mr. and Ms. Hoffman both love their children, and Ryan and Joshua have strong emotional ties with each of them. As much as possible, both parents should be actively involved in the children’s lives.

d) The children’s views and preferences [ 45 ] The children are too young, at four and two years of age, to permit a meaningful determination of their views and preferences.

e) Length of time the children have lived in a stable home environment [ 46 ] The children lived in the matrimonial home from the date of separation until September 15, 2012, when Ms. Hoffman moved to her new home in Milton. The practical effect of her move was that the children have, since then, resided with each parent for half the time, as a result of Mr. Hoffman’s work schedule.

f) Ability and willingness of each applicant to provide the children with guidance and education, the necessaries of life and any special needs of the children (

i) Guidance [ 47 ] I find that Mr. and Ms. Hoffman are equally capable of providing guidance to their children. (ii) Education [ 48 ] Neither party has tendered evidence as to the quality of the schools that are available to Ryan in Acton or Milton, or as to Ryan’s performance at the school he has been attending in Acton. (iii) Necessaries of life and special needs [ 49 ] I find that Mr. and Ms. Hoffman are equally capable of giving the children the necessaries of life. The children apparently have no special needs.

g) Plans proposed for the children’s care and upbringing [ 50 ] Mr. Hoffman proposes that Ryan continue attending school in Acton, and that the children’s

schedule be modified on the 27 th day of each month, in accordance with his work schedule. [ 51 ] Ms. Hoffman proposes that Ryan attend school in Milton, and that the children reside with her during the week, subject to specified access by their father, and with Mr. Hoffman on alternate weekends.

h) Permanence and stability of the family unit in which the children are to live [ 52 ] At this early stage of the parties’ separation, I find that the parties’ respective family units have equal permanence and stability.

i) The ability of each person applying to act as a parent [ 53 ] Ms. Hoffman argues that prior to the parties’ separation, she was the children’s “primary parent” and established their regular routine. Mr. Hoffman disputes this assertion. [ 54 ] Beverley Hoffman has described the care that she has observed her son give to the children, performing “all of the usual

caregiving tasks of a parent to young children” such as bathing, feeding, and clothing them, putting them to bed and getting them up, cooking their meals, and taking them out for walks and activities. Cindy Hoffman’s mother, Alice Marlatt, disputes Beverley Hoffman’s assertion that Mr. Hoffman frequently cared for the children since birth. [ 55 ] While not discounting Ms. Marlatt’s statements entirely, until the witnesses are cross-examined on their affidavits, I accept the evidence of Beverley Hoffman where it conflicts with that of Ms. Marlatt.

Although neither of these witnesses can be regarded as a neutral witness, Mrs. Hoffman gives her evidence in a more balanced manner, acknowledging that the children love both their parents and are equally comfortable being looked after by each of them. [ 56 ] Ms. Marlatt adopts a more adversarial stance, making absolute statements about facts she has limited personal knowledge of (“I cannot remember Mrs. Hoffman ever babysitting the children prior to separation”) and editorializing on the reasonableness or unreasonableness of the parties’ positions (“I never felt that Mrs.

Hoffman was supportive of Cindy.”, “I am very concerned that Trevor expects his mother, at age 74, to be his primary childcare provider”, “The tension in that home was unbearable. We really believed that Trevor would come through with the money he had agreed to pay.”, “Since Cindy has moved out, Trevor has become very insistent that his proposed

schedule for the children prevail over any requests Cindy makes to have a more reasonable access schedule”). [ 57 ] I find, on a balance of probabilities, that the parents performed parenting duties on roughly an equal basis over the period of the children’s lives, comprising both the periods before and after the parties separation, and I find that each is equally capable of acting as a parent. B. Jurisprudence

a) The principle of maximum contact [ 58 ] The Supreme Court of Canada in Young (1993) [5] and Gordon v. Goertz (1996) [6] held that a child’s best interests must be ascertained from the perspective of the child rather than of the parents. Parental preferences and rights do not play a role in the analysis, except to the extent that they are necessary to ensure the best interests of the child. [ 59 ] No one factor in the statutory definition of a child’s “best interests” is given statutory pre-eminence in the court’s determination of custody and access. But the court pays particular attention to: (

i) t he level of hostility between the parties, the extent to which that hostility could undermine the stability of the child, and what measures, if employed, would likely strip the hostility from the environment; [7] (ii) the extent to which the person seeking access has laid down a track record of using contact to the child for a purpose entirely collateral to the child’s best interests; for example, to try to control or denigrate the parent or the parent’s partner; [8] (iii) the extent to which the person displaying objectionable conduct has the ability and the motivation to alter the behaviour; and (iv) whether the parent is acting responsibly, reasonably, and in a child-focused fashion in an assessment of what is in the child’s best interests. [9] [ 60 ] Young children with attachments to both parents need sufficient contact with both parents, without prolonged separations, to maintain meaningful and close relationships with them. [10] [ 61 ] In resolving custody disputes, emphasis must be placed on the critical importance of bonding, attachment, and stability in the lives of young children. [11] Where there is friction between equally competent spouses, custody should be awarded to the parent who is more likely to ensure that the children reap the benefit of both households. [12] [ 62 ] In Young , McLachlin J. (as she then was) discussed the “maximum contact principle” in the context of an application under the Divorce Act .

Speaking for the majority of the Court, she stated: ... s. 16(10) provides that in making an order, the court shall give effect "to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child." This is significant. It stands as the only specific factor which Parliament has seen fit to single out as being something which the judge must consider. By mentioning this factor, Parliament has expressed its opinion that contact with each parent is valuable, and that the judge should ensure that this contact is maximized.

The modifying phrase "as is consistent with the best interests of the child" means that the goal of maximum contact of each parent with the child is not absolute. To the extent that contact conflicts with the best interests of the child, it may be restricted. But only to that extent .

Parliament's decision to maintain maximum contact between the child and both parents is amply supported by the literature, which suggests that children benefit from continued access: Michael Rutter, Maternal Deprivation Reassessed (1981), Robin Benians, " Preserving Parental Contact: a Factor in Promoting Healthy Growth and Development in Children ", in Jo Tunnard, ed., Fostering Parental Contact: Arguments in Favour of Preserving Contact Between Children in Care and Their Families (1982). (pp. 117-118) [Emphasis added] [ 63 ] The principle of maximum contact is an important consideration under either legislative regimen when determining the best interests of children.

Contact with both parents is the children’s, not the parents’, right. Where, as in this case, a parent argues for unequal contact between the children and each of their parents, the onus is on that parent to rebut the presumption.

b) Custody, and the alternative forms of custody order [ 64 ] “Custody” refers to parental decision-making and authority respecting a child. As Heureux-Dube J. noted in Young, “the

custodial parent is responsible for the care and upbringing of the child, including decisions concerning the education, religion, health and well-being of the child.” [13] Custody, then, involves the making of longer-term decisions affecting the child, such as what school the child will attend, what place of worship the child will attend, and what medical treatment the child will be given for an ongoing disease or illness. [ 65 ] Traditionally, courts have awarded either sole custody or joint custody. In recent years, the courts have developed a third option, referred to as “parallel parenting”.

It is appropriate that the Court consider which of these three custodial options is in Ryan’s and Joshua’s best interests. I will begin by reviewing the legal principles respecting each. (

i) Sole custody [ 66 ] An award of sole custody to one parent grants decision-making rights to that parent, generally to the exclusion of the other parent to interfere in carrying out these rights and responsibilities. [14] An award of sole custody to one parent is often accompanied by an order of access to the other.

Access often entails short-term decision-making by the parent exercising access with respect to the health or well- being of the child while the child is in the parent’s care, in addition to “the right to make inquiries, and to be given information, as to the health, education and welfare of the child” . [15] [ 67 ] In the present case, an order giving Ms. Hoffman sole custody of the children would create a real risk that Mr. Hoffman’s involvement with them would be minimized.

Courts have recognized that in such situations, parallel parenting may be the appropriate regime, in spite of the conflict between the parents. As the Court of Appeal for Ontario pointed out in Ursic v. Ursic [16] (2006), a parent cannot be the instigator of high conflict and then argue in favour of sole custody, based on the conflict . [ 68 ] Ms. Hoffman gives the following troubling account of Mr. Hoffman’s enrollment of Ryan in his school in Acton pursuant to Justice Fitzpatrick’s Order. She states: The Respondent is unilaterally assuming joint parenting responsibilities.

When it was time to enroll Ryan in school, the Respondent picked up the orientation package, completed the enrollment information, and he and his mother met with Ryan’s teacher without consulting me once. Ryan told me about his visit to the school….When I e-mailed the Respondent about having Ryan’s eyes checked, he e-mailed back “all done” because he had, without any discussion, already taken Ryan to an eye doctor and never bothered to tell me about it. Then the Respondent proposed to change the children’s doctor.

The Respondent refuses to give me the children’s health cards and other important documents even when he is away for days at a time…. Without my consent, the Respondent enrolled Ryan in a Tuesday evening hockey program in Acton from 5 p.m. to 6 p.m. He did not consult me. This results in a lot of unnecessary driving if the children are in my care that day. I have always consulted the Respondent about the children’s activity schedules. [ 69 ] Mr. Hoffman points out that Fitzpatrick J. had ordered that Ryan remain at his school in Acton.

He asserts that he attended alone to re-enroll Ryan in school there because Ms. Hoffman had no interest in being involved if Ryan were remaining at his school in Acton. There is no evidence supporting this statement. I find that Mr. Hoffman did not give his wife the opportunity to participate because he concluded, after Justice Fitzpatrick’s Order, that he was not required to do so. At best, he neglected to keep her informed and give her the opportunity to participate.

At worst, he deliberately excluded her. [ 70 ] I am concerned as to whether an arrangement whereby Ryan and Joshua spend equal time with each parent, and Mr. Hoffman has ultimate decision-making authority, will result in Ms. Hoffman being excluded from the decision-making in relation to them. It would clearly be contrary to Ryan’s and Joshua’s best interests for either parent’s relationship with them to be compromised at this early age.

It would increase the likelihood that the children will not have the full support of both parents, financially and emotionally, when the children are ready to attend college or university, and that the parties will then be back in court litigating the issue of their education costs. This could result in the interruption of the children’s studies or become a distraction to them when their colleagues are able to focus on their studies. (ii) Joint custody [ 71 ] Section 16(4) of the Divorce Act authorizes the court to make an order for custody in favour of more than one person.

When the court orders “joint custody”, it gives both parents full decision-making authority and responsibility in all areas respecting the child. [ 72 ] The Act does not set out any specific criteria for determining whether a joint custody order is in a child’s best interests. In both Kruger v. Kruger and Baker v. Baker , [17] the Court of Appeal for Ontario held that joint custody should generally be ordered only in exceptional circumstances, where the parties consent and demonstrate co-operation and an ability to communicate.

The Court of Appeal has since dispensed with the requirement for consent, but has continued to require evidence that the parties are able to communicate effectively , [18] since joint custody entails them making long-term decisions together regarding the child. While this requires some measure of communication and cooperation, the court does not apply a standard of perfection. As Quinn, J. remarked in Brook v.

Brook, “The cooperation needed is workable, not blissful; adequate, not perfect.” [19] [ 73 ] A mere statement by one party that there is an inability to communicate will not preclude an order for joint custody.

The court must carefully consider the parties’ past and present parenting relationship as a whole, and not place undue emphasis on their allegations of conflict, or on the conflict existing at the time of trial. [20] If the parties have been able to communicate when necessary, putting the children’s interests ahead of their own, an order for joint custody may still be appropriate in spite of conflict. [21] The issue is “whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis.” [22] [ 74 ] Where an objective review of the historical and more recent evidence clearly indicates that there has never been an ability to cooperate or communicate effectively, or that one or both of the parties is/are unable to put the needs of the child before their own, joint custody is not an appropriate order. [23] A mere hope that communication between the parties will improve once litigation is over is also not a sufficient basis for an order of joint custody. [24]

[75] There has been an increasing willingness in recent years to order joint custody rather than sole custody, where appropriate, inorder to preserve the balance of power between the parties; in particular, where both parties are caring and competent parents but oneparty has been primarily responsible for the conflict between the parties.[25] [76] In the present case, I find that, as yet, Mr. and Ms. Hoffman display too high a level of conflict, and that their communication andcollaborative decision-making skills are insufficient to support an order for joint custody.

Their level of understanding of, and respectfor, each other’s values and priorities in relation to the children are too low to permit them to exercise joint custody effectively. [77] An example of the level of conflict between Hoffmans can be found in Ms. Hoffman’s description of an encounter between themon July 12, 2012, the day after her motion for sole custody was adjourned and two months before she left the matrimonial home: The very next day, the Respondent and I had a huge argument in the home.

When I asked him to stop using the children’s dental floss,he took the alarm clock from my bedroom, telling me that it was his, even though I had used it for the past 5 years. We both becamevery upset, I insisting that I needed the clock to get to work on time, and the Respondent telling me to “get the fuck out of my space”. The Respondent then took off his pants and invited me to “kiss his ass”. I called my sister in fear and she could hear what washappening. My brother-in-law was calling Trevor to try and calm him down. Then Trevor called the police.

The police advised me thatthe next time someone was called to the home, there would be an arrest. [78] I find, based on the essentially undisputed allegations, that giving sole custody to Mr. Hoffman, or even giving the parties jointcustody, may result in marginalizing Ms. Hoffman’s role in the children’s lives. In these circumstances, an order for parallel parenting isappropriate. Ryan’s and Joshua’s ties to both parents are strong, and each parent’s general level of involvement in their parenting and lifehas been high.

Both parents have consistently played a significant role in the children’s lives on all levels. Each of them is capable ofmaking decisions that are in the children’s best interests. (iii) Shared custody, or parallel parenting [79] In recent years, courts have made orders for “shared custody” or “parallel parenting.” This can take the form of “divided parallelparenting”, described in Hensel v. Hensel,[26] where each party is given separate, defined areas of parental decision-making, independentof the other; or alternatively, “full parallel parenting”, described in Mol v. Mol[27] and Ursic v.

Ursic,[28] in which both parents aregiven the right to make major decisions respecting the child in all major areas of parental authority while the child is with them, withoutthe consent of the other parent. [80] The Court of Appeal for Ontario has repeatedly held that joint custody requires a mutual commitment by parents to cooperate onmatters pertaining to the raising of their child, and an ability of the parents to put their own interests behind those of the child.[29] [81] In V.K. v. T.

S. (2011), Chappel J., after reviewing the jurisprudence, concluded that trial courts are not precluded from makingorders for “divided parallel parenting” in high conflict cases that would not meet the criteria for a joint custody order.[30] She notedthat: (

a) In Cox v. Down (2003), the Court of Appeal upheld Templeton, J.’s parallel parenting order, with terms giving decision-makingresponsibility respecting education to the mother, and decision-making respecting the child’s physical health to the father, despite thelongstanding history of conflict between the parties. Justice Templeton had held that parallel parenting did not require a cooperativeworking relationship or even good communication. The objective of parallel parenting was to give the parents equal status, each withdistinct rights and responsibilities in relation to specific topics.[31] (

b) In Ursic v. Ursic (2006), the Court of Appeal had upheld a joint custody order, and Laskin, J. had made the following statement,suggesting that the Court might support parallel parenting orders in appropriate circumstances, despite a high level of parental conflict: Also, importantly, the trial judge did not merely order joint custody. He included with it a parallel parenting order.

Many trial courtshave recognized that joint custody under a parallel parenting regime may be suitable where both parents love the child and should playan active role in the child’s life, yet have difficulty communicating or reaching consensus on the child’s upbringing. See M.(T.J.) v. M. (P.G.), (2002), (ON SC), 25 R.F.L. (5th) 78 (Ont. S.C.J.) and Mol v. Mol,[ 1997] O.J. No. 4060 (Ont. Gen. Div.). (

c) In Roy v. Roy[32] (2006), the Court of Appeal, in setting aside what was essentially a joint custody order, in a case involving a longhistory of high conflict between the parties, made a general comment suggesting that both joint custody and parallel parenting ordersrequired, as an essential foundation, co-operation and effective communication between the parties. (

d) In Andrade v. Kennelly[33] (2006), however, the Court of Appeal later upheld a parallel parenting regime ordered at trial, whichgave the mother final decision-making on education matters and the father final decision-making on medical care and treatment,notwithstanding the trial judge’s finding that “It is an understatement that this matter has been characterized by high levels of acrimony.” [82] Chappel J. held that the existence of conflict between parties, while relevant, is only one of many considerations that the courtmust weigh when determining custody and access issues.

Parental conflict is relevant where parallel parenting is requested, butpotentially less so than in joint custody situations, given that the purpose of parallel parenting is to disengage the parents by allowingthem to operate in independent spheres of decision-making.

She noted that the Court of Appeal’s views on parallel parenting appear to beevolving, consistent with the Supreme Court of Canada’s message in Young respecting the importance of flexibility, rather than rigidity,in custody and access cases. [83] Justice Chappel set out the following factors that are particularly relevant in determining whether a parallel parenting regime,rather than sole custody, is appropriate: (

a) The strength of the parties’ ties to the child, and the general level of involvement of each parent in the child’s parenting and life.[34]In almost all cases where parallel parenting has been ordered, both parents have consistently played a significant role in the child’s life onall levels.

(

b) The relative parenting abilities of each parent and their capacity to make decisions that are in the child’s best interests. Where one parent is clearly more competent, responsible, and attentive than the other, this may support a sole custody arrangement. [35] On the other hand, where there is extensive conflict between the parties, but both are equally competent and loving parents and are able at times to focus jointly on the best interests of the child, a parallel parenting regime may be ordered. [36] (

c) Evidence of alienation by one parent. If the alienating parent is, otherwise, loving, attentive, involved, competent, and very important to the child, a parallel parenting arrangement may be considered as an appropriate means of safeguarding the other parent’s role in the child’s life. [37] On the other hand, if the level of alienation is so significant that a parallel parenting order will not be effective in achieving a balance of parental involvement and will be contrary to the child’s best interests, a sole custody order may be more appropriate. (

d) Where both parties have engaged in alienating behaviour, but the evidence indicates that one of them is more likely to foster an ongoing relationship between the child and the other parent, this finding may tip the scale in favour of a sole custody order. [38] (

e) The extent to which each parent is able to place the needs of the child above their own needs and interests. If one of the parties is unable to focus on the child’s needs above their own, this may result in a sole custody order, even if that parent is very involved with the child and otherwise able to meet the child’s day-to-day needs. [39] (

f) The existence of any form of abuse, including emotional abuse or undermining behaviour, which could impede the objective of achieving a balance of roles and influence through parallel parenting. [ 84 ] Applying the above considerations, I find that Mr. and Ms. Hoffman have both consistently played a significant role in Ryan’s and Joshua’s lives on all levels. Neither is clearly more competent, responsible, or attentive than the other, so as to justify a sole custody arrangement. While there is extensive conflict between them, both are equally competent and loving parents.

They are able, at times, to focus jointly on Ryan’s and Joshua’s best interests, but have too much difficulty keeping each other “in the loop” of their interactions with school, recreational, and medical professionals to engage effectively in joint decision-making. [ 85 ] Neither parent has demonstrated conduct calculated to alienate the children from the other. However, the demeaning attitude that Mr.

Hoffman assumed toward his wife during the marriage, and the level of blame that he directs toward her in his affidavits, raise concerns on the part of the Court as to whether he will engage in alienating conduct as the children grow older. Mr. Hoffman is otherwise loving, attentive, involved, competent, and important to the children; therefore, a parallel parenting arrangement is appropriate as a means of safeguarding Ms. Hoffman’s role in the children’s lives.

If alienation exists at all, its level is not so significant that a parallel parenting order will not be effective in achieving a balance of parental involvement, or will be contrary to the children’s best interests, so as to make an order granting Ms.

Hoffman sole custody more appropriate. [ 86 ] This is not a case like Graham v Bruto [40] (2007), where the trial judge found that a joint custody and parallel parenting regime made little sense because it would put the “children in the middle of conflict every few days,” and “the parents' inability to cooperate in such cases may result in frequent visits to court which would present a greater opportunity for conflict.” In that case, both parties sought sole custody of their two young children and were unable to agree on many important decisions such as school, health and dental care, religious training, method of communication, summer scheduling, and use of a parenting coordinator.

They required frequent court intervention. [ 87 ] This case is also unlike Perron v. Perron (2010), where Whitten J. declined to consider parallel parenting because the parents were unable to agree on the language of their children’s education. In the present case, while each parent would like the children to attend a school near them, there are not major differences as to whether the children should attend a public or private school, whether they should receive instruction in French or English, or whether an individualized education program is appropriate.

There are no major differences as to educational philosophy or religious faith or observance. [ 88 ] In Izyuk v. Bilousov [41] (2011), Pazaratz J. reviewed the more recent law on parallel parenting: (

a) In Moyer v. Douglas (2006), Perell J. ordered parallel parenting despite finding that joint custody was not an option since the parents could not work together in their children’s best interests. Both parents were perceived as being motivated to parent in the best interests of the children, but they had difficulty cooperating with one another. Justice Perell found that parallel parenting (with a detailed parenting schedule) was a viable solution as it did not require the same level of co-operation that joint custody demanded. Each parent was given an exclusive domain of responsibility, and in the case of a conflict, one parent had the final say. (

b) In Garrow v Woycheshen (2008), McKay J. held that the best interests of the child required a parallel parenting regime to ensure the father remained involved in the child’s life. In rejecting an award of sole custody, the court noted that while both parties were motivated and capable parents, there was a real risk the mother would minimize or eliminate the father’s involvement with the child. (

c) In Madott v Macorig [42] (2010), Blishen J. held that in situations where parents have been distrustful, hostile, and uncooperative, joint custody can still be an appropriate disposition if crafted as "parallel parenting" instead of "cooperative parenting." In that case, the parents’ relationship lacked trust, and the mother had tried to marginalize the father and prevent access to the child. Despite this conduct, both the father and the mother had an ability to communicate with each other through text messaging and would place the child’s needs and interests first. (

d) In Hajkova v Romany (2011), Hambly J. awarded parallel parenting where the parents were incompatible with each other but there was no evidence of conflict over important decisions. (

e) In Scervino v Scervino (2011), Walters J. ordered parallel parenting where the two parents were capable and did not disagree with respect to important decisions about their children’s lives. The Court found some evidence of alienating behaviour by the father, and warned that if this behaviour continued, the mother’s relationship with the children would continue to deteriorate. However, since the parents agreed on schooling, religious practice, extra-curricular activities, and medical care, parallel parenting was seen as viable.

[ 89 ] Ryan’s and Joshua’s best interests require measures that will ensure that both parents are actively involved in their lives. A shared, or parallel, custodial arrangement will best accomplish this, while also maximizing the time that Ryan and Joshua spend with each parent. [ 90 ] Mr. and Ms. Hoffman are intelligent and capable parents whose ability to learn better communication and conflict management skills should not be underestimated in favour of a parenting arrangement that will relieve them of the need to do so.

It is in Ryan’s and Joshua’s interests that their parents re-formulate their formerly intimate relationship as a working partnership whose enterprise is the effective continued upbringing of their children. The steps that will enable them to do so should form an integral element of the custody and access arrangement. [ 91 ] It remains to be seen whether Mr. Hoffman’s disrespect for his wife will reach the level of emotional abuse or undermining behaviour, which could impede the objective of achieving a balance of the parents’ respective roles and influence through parallel parenting.

The Court will establish a conflict resolution process in relation to major, or “milestone”, decisions in the spheres of influence it assigns to each parent.

If future appeals to the court become necessary, it may re-assess the extent to which each parent has facilitated the other’s involvement in their decision-making and the children’s maximum contact with both parents. [ 92 ] Parallel parenting has been ordered where both parents have been involved with the child and wish to retain decision-making rights, but where the conflict between them is such that a joint custody order is not feasible or in the child’s best interests. [43] An order for parallel parenting will have the benefit of maintaining each parent as a meaningful figure in the children’s lives, over and above time- sharing with the children.

Delineating clear areas of decision-making between the parties also has the potential to disengage the parents and reduce their conflict.

c) Parenting

schedule [ 93 ] The parties and the Court face a challenging task of fashioning a parenting arrangement that achieves the best balance of factors that directly or indirectly affect Ryan’s and Joshua’s best interests. All things being equal, it is desirable for the parenting

schedule to accomplish the following: (

a) maximize Ryan’s and Joshua’s contact with each of their parents; (

b) maintain the status quo in order to give Ryan and Joshua a sense of stability and consistency; (

c) give Ms. Hoffman a predictable

schedule and thereby minimize unnecessary stress and maximize her ability to spend relaxing “quality time” with the children when her work

schedule allows; (

d) minimize the number of Ryan’s and Joshua’s transitions from one parent to the other; (

e) minimize travel time for the Hoffmans and their children in order to maximize the undivided attention the Hoffmans can give their children; (

f) maximize the simplicity and comprehensibility of the

schedule for the Hoffmans and for Ryan and Joshua; (

g) avoid unnecessary occasions for interaction between the Hoffmans and the likelihood of conflict between them, especially until the issues in dispute are resolved; (

h) allow the employment of babysitters for sufficient time and with sufficient consistency to enable the parties to preserve their availability, quality, and consistency; (

i) maximize Ryan’s and Joshua’s opportunities to engage in constructive socializing interaction with other children, as well as challenging and instructive extra-curricular activities; (

j) minimize the cost of excessive use of commercial daycare providers for Ryan and Joshua, especially ad hoc use of freelance providers who are not well known or proven to be trustworthy to the Hoffmans or their children; (

k) avoid imposing demands on Ryan’s and Joshua’s grandparents that, even if accepted or welcomed by them, are disproportionate to the grandparents’ energy, endurance, and patience, and the risk that this entails to the children’s safety; and (

l) minimize the risk of missed appointments for the pick-up or return of Ryan and Joshua with the associated disappointment or anxiety to them or to the parties. [ 94 ] Ms. Hoffman argues that her husband is scheduling the children’s time in accordance with his work schedule, while deposing that he can

schedule his work to meet the children’s needs. In December 2012, she stated that over the past six months, he had “proven himself incapable of creating a reasonable access

schedule for the children or managing his work

schedule in accordance with the children’s needs.” [ 95 ] Ms. Hoffman states that Mr. Hoffman’s insistence on their sharing the parenting of their children on a 50/50 basis has resulted in schedules that are confusing to her and the children, and in the children spending four to five days per week without any contact with her. She cites December 5 th , when he had scheduled himself to pick up the children at 7:00 p.m., the precise time when his flight was to land, and to have them until the next day at 10:15 a.m., when his scheduled flight was to depart at 9:15 a.m. [ 96 ] Ms. Hoffman argues that Mr.

Hoffman’s proposal that the children be cared for by his mother, if he is not available, to enable them to attend school and hockey in Acton, and that they attend daycare only if neither Mr. Hoffman nor his mother are available, even where the children are scheduled to be in Ms. Hoffman’s care, is disruptive to the children and likely to have a negative impact on them

in the long-term. [97] Ms. Hoffman states that Mr. Hoffman has proven himself incapable of “true communication and cooperation”, and that hisunilateral decision-making and rigid parenting style, especially during the summer, results in her being excluded when she disagrees withhis proposals, and intensifies the parties’ conflict. [98] Mr. Hoffman rightfully emphasizes the importance of maximizing the contact of the children with each parent. However, thisdoes not dictate, in every case, that the children spend equal time with each parent.

The Divorce Act, in s. 16(10), directs that “thecourt shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with thebest interests of the child”.

McLachlin J. noted in Young: “The modifying phrase "as is consistent with the best interests of the child"means that the goal of maximum contact of each parent with the child is not absolute.” [99] L'Heureux-Dubé J., with whom four of the seven justices of the Court in Young agreed that orders for access must be determinedin accordance with the best interests of the child, stated: In assessing all the relevant considerations, courts must be careful that the ideals of parental sharing and equality do not overcome thelived reality of custody and access arrangements and that the child's needs and concerns are accommodated and not obscured byabstract claims of parental rights. … As Abella J.A. held in M. (B.P.) v.

M. (B.L.D.E.), (1992), (ON CA), 97 D.L.R.(4th) 437, for the majority, at p. 459: [The best interests of the child] by no means excludes the parental perspective. The needs of children and their parents are obviouslyinextricable, particularly between children and the parent on whom they depend for their day-to-day care, where only one parent has thisprimary responsibility. The structure of an environment that fits the child's interests would undoubtedly be reinforced if the economicand emotional needs, especially of custodial parents, were factored in, given the symbiosis of their sense of well-being….

In the final analysis, when considering the best interests of the child, it may be a virtue rather than a sin for the judge to be pragmaticand take into consideration both the strengths and shortcomings of the parties and the limits of human nature. To do so is only torecognize that, in some circumstances, the perfect may be the enemy of the good.

Courts must always be mindful that not only thebenefit but also the real cost and burden of all custody and access arrangements ultimately falls on the children themselves.[44] [Emphasis added] [100] In the present case, Ryan’s and Joshua’s best interests require that the objective of maximizing their contact with each of theirparents be balanced with the other priorities referred to above. A regular and predictable parenting schedule, rather than one that variesmonthly, will have the following benefits:

a) It will be simpler and more comprehensible to Ryan and Joshua, and give them a greater sense of stability and predictability.

b) It will give Ms. Hoffman greater predictability in her own

schedule and minimize both the occasions for hostile interactionbetween the parties and the risk of missed appointments for pick-ups and returns of the children with the associated disappointment ofthe children. This will lessen the stress in both households and maximize the parties’ ability to spend relaxing time with the childrenwhen their work schedules allow.

c) By allowing the employment of babysitters for sufficient time and consistency, it will facilitate their availability, quality, andconsistency, maximize Ryan’s and Joshua’s opportunity to socialize with other children and engage in constructive activities with them,and avoid both the excessive use of ad hoc commercial babysitters and excessive demands on grandparents, with the risks to thechildren’s safety that these entail.

d) It will minimize Ryan’s and Joshua’s transitions from one parent to another, and both the parents’ and children’s travel time,and thereby maximize the Hoffmans’ opportunities to give their children their undivided attention.

d) Importance of the status quo [101] A motion for temporary custody and access must be based on the children’s best interests. The children’s best interests will oftendictate that the status quo be maintained, particularly if an order or arrangement between the parties has been in place for a significantperiod of time.

The court should generally not disturb the status quo, unless there is urgency that this be done in the children’s bestinterests,[45] especially if there will soon be an opportunity to consider the matter more fully at trial.[46] [102] In rare cases, an assessment may reveal or confirm an urgent problem requiring immediate attention or correction.

Even in thosecases, however, courts should act with caution, implementing only such changes as may be required to rectify the situation that cannot beallowed to continue until trial.[47] [103] With regard to the desirability of maintaining the status quo for Ryan and Joshua, Ms. Hoffman asserts that in mediation, theparties agreed that they should live close to each other in order to ensure that their children had frequent, regular contact with both theirparents. She submits that she moved from Acton to Milton in the spirit of compromise and to facilitate the children’s regular contactwith both parents.

I find this explanation unconvincing. [104] I find that Ms. Hoffman moved to Milton because she had a legitimate desire to leave an environment of high conflict. She felttoo isolated in Acton, the parties had not agreed on terms for her purchase of Mr. Hoffman’s interest in the matrimonial home, and shefound an affordable house in Milton, the county town, offering greater amenities and a more central location, knowing that it would alsomake the children’s regular contact with both parents more difficult than if she remained in Acton.

While her decision wasunderstandable, the status quo created by her unilateral action should not be given as much weight as one that arose unavoidably, or byagreement between the parties, or by court order made after ample consideration of the evidence and hearing of the parties’ submissions.

[ 105 ] Ms. Hoffman argues that Ryan’s attendance at school in Acton results in constant disruptions and additional driving for the children. However, Ryan was already attending school in Acton when Ms. Hoffman decided to move to Milton. Her move caused the disruptions and additional driving for the children. [ 106 ] Ms. Hoffman complains that since the parties’ mediation ended, there has been no weekly routine for the children. It is in the children’s interest that a weekly routine be restored. [ 107 ] Ms. Hoffman argues that Mr.

Hoffman’s insistence on their sharing the parenting of their children on a 50/50 basis has resulted in the children spending four to five days per week without any contact with her. The

schedule I establish will equalize, to the extent consistent with the children’s best interests, the time they spend with each parent. [ 108 ] Ms. Hoffman complains that the schedules Mr. Hoffman has created involve “constant transitions of care” and “impractical pick- up and drop-off times”. While it is desirable that the number of transitions be minimized, and that the

schedule of pick-ups and drop- offs be practical, it must be kept in mind that there is an unavoidable trade-off between the duration of the children’s separation from each parent and the number of transitions they must make between the parents. [ 109 ] Ms. Hoffman further argues that the children are showing the signs of stress, given what she describes as “the chaos of the 50/50 access plan” that Mr. Hoffman has proposed. The material does not support a finding that the parenting

schedule is causing excess stress to the children. Nor has either party tendered expert evidence in this regard. [ 110 ] Ms. Hoffman argues that the children need a stable routine for their security, and that this will not be achieved by a parenting

schedule set on the 27 th day of each month, as proposed by Mr. Hoffman. I agree. Predictability is an important priority to be observed at a time when the children’s lives are in flux owing to the profound change in the structure of their family. [ 111 ] Ms. Hoffman argues that Mr. Hoffman should be denied the right to assume care of the children at times when he is available to provide it. She states, “The fact that the Applicant mother is working does not automatically disentitle her from making reasonable arrangements for the care of the children.

This is her responsibility as a parent.” While the arrangements for the children are not automatic and dictated entirely by the availability of one of the parents, a separated parent also does not have an absolute and unfettered right to make arrangements for the care of the children. The arrangements must be both reasonable and in the children’s best interests. Additionally, it is obviously desirable that they be made by consultation between the parents. [ 112 ] Ms. Hoffman argues that a “reasonable compromise” is that Mr.

Hoffman and his mother care for Ryan and Joshua on Tuesdays, Thursdays, and alternating Fridays, when Ryan is not in kindergarten, even if Mr. Hoffman is out of town or working. [ 113 ] The evidence discloses that Mr. and Ms. Hoffman disagreed principally on arrangements for the children when both of them were working and not available to care for the children. Mr. Hoffman insisted that the children be cared for at such times by his mother, and Ms. Hoffman insisted that they be cared for by a live-in nanny or childcare providers hired by her. Ms. Hoffman asserts that Mr.

Hoffman added to the conflict over the children’s care: (

a) by inviting his mother, without Ms. Hoffman’s consent, to reside in the matrimonial home, even when he was away working; (

b) by taking the children out of the matrimonial home, for days at a time, without Ms. Hoffman’s agreement; and (

c) by not allowing Ms. Hoffman to enjoy a short family vacation when she requested it. [ 114 ] Ms. Hoffman does not object to Mr. Hoffman’s mother providing up to two days of childcare per week in accordance with a regular schedule. She states that if Ryan were to attend school in Milton, he and Joshua could attend a licensed home daycare a few minutes from Ms. Hoffman’s home at 7:50 a.m. Ryan would attend school on Mondays, Wednesdays, and alternating Fridays from 8:55 a.m. to 3:25 p.m. Ms.

Hoffman would be able to pick up the children at daycare between 5:30 p.m. and 6:15 p.m. and take them to her home for dinner. [ 115 ] Ms. Hoffman has said that if Ryan were to attend kindergarten in Milton at the Tiger Jeet Singh Public School, the school start time is 8:55 a.m. and end time at 3:25 p.m. The school also has alternating days for kindergarten, so Ryan could attend on Mondays and Wednesdays and alternating Fridays. Ms. Hoffman has found reliable care for Joshua and Ryan in Milton. Amanda Avraam is a registered early childhood educator with a home daycare.

The children began spending time in her care at the beginning of December 2012, and Ms. Hoffman reported that they were very happy there. Ms. Avraam is also able to care for Joshua and Ryan several days per week or full-time, as required. [ 116 ] Ms. Hoffman can arrange for Ryan to attend kindergarten on Mondays, Wednesdays, and alternating Fridays in Milton. Ryan and Joshua would be able to attend the daycare at 7:45 a.m., and she can pick them up there at 6:00 p.m. [ 117 ] A flexible parenting

schedule can be a useful tool for maximizing the children’s contact with both parents and accommodating the parents’ work schedules. I have considered Mr. Hoffman’s proposal in this light because it is in Ryan’s and Joshua’s interests that they see their father often and that he also be able to perform his obligations at work. I have concluded that the two week

schedule he has proposed, while flexible, comes at too high a cost to Ryan and Joshua, by reason of its variability and unpredictability. [ 118 ] Ms. Hoffman’s proposal, which I have modified, will be less flexible than the one Mr. Hoffman proposed. It will cause some inconvenience to him and there will be times when the children are in the care of a third party daycare provider when Mr. Hoffman or his mother would be available to care for them. However, it will better provide more consistency and stability to the children and to the parties.

This is particularly important here, having regard to the intensity of the parties’ conflict, until they are able to re-formulate their relationship and develop the skills necessary to make parenting decisions in a cooperative way. [48] 2. Child Support

a) Objectives [ 119 ] The Federal Child Support Guidelines (“Guidelines”) state in s. 1 that their purpose is: (

i) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation; (ii) to reduce conflict and tension between spouses by making the calculation of child support orders more objective; (iii) to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement; and (iv) to ensure consistent treatment of spouses and children who are in similar circumstances.

b) Calculation of child support [ 120 ] The Guidelines require me to award an amount for child support 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 spouse against whom the order is sought.

The applicable table where the spouse lives in Canada is the table for the Province in which the spouse ordinarily lives, in this case, Ontario (s. 3(3)(a)), and the amount, if any, under s. 7 of the Guidelines , dealing with extraordinary expenses (s. 3). [ 121 ] A spouse’s income under s. 2 means his or her annual income by applying ss. 15 to 20. Those sections provide that, unless the parties agree in writing on the amount, I should determine the amount using the sources of income set out under “Total income” in the spouse’s Income Tax Return, as adjusted in accordance with

Schedule III. I must use the most current information. ( Guidelines , ss. (2(3), 16,). If that would not be the fairest way of determining the income, I can determine a fair and reasonable amount having regard to the average of income over the last three years (s. 17). [ 122 ] As each of the parents now has a stable income, I find that the method provided for in

Section 16 of the Guidelines is the fairest way of determining the Hoffmans’ respective incomes. Mr. Hoffman is currently employed as a cargo pilot and earns $150,000.00 per year. Ms. Hoffman is employed by the Toronto Congress Centre and earns $52,500.00 per year. [ 123 ] The table amount for child support for two children in the case of a parent earning $150,000.00 per year, according to the Guidelines as amended December 31, 2011, is $2,012.00 per month. 3.

Resources and needs of parents and children [ 124 ] The goal in addressing child support issues is to ensure that children benefit from the support they are owed when they are owed it, and any incentives for payor parents to be deficient in meeting their child support obligations should be eliminated. It is in the children’s interests that Mr. Hoffman be required to pay table child support to Ms. Hoffman in the amount of $2,012.00. 4. Contribution to Special and Extraordinary Expenses [ 125 ] Mr. Hoffman and his mother have offered to provide daycare for the children whenever Ms. Hoffman is not available. Ms.

Hoffman is not obliged to place the children in their care when she is working. She is expected to make her decisions regarding the care of the children while there are in her care in a manner that is consistent with their best interests. While she will be accountable for her decisions in this regard, including consideration of whether she is doing her utmost to maximize the children’s contact with both parents, consistent with their best interests, Mr. Hoffman should contribute his proportionate share to the payment of daycare expenses that she incurs. [ 126 ] Ms.

Hoffman states that she would incur the special expenses of $1,200.00 per month ($300.00 per week) on behalf of the children for which she claims a contribution from Mr. Hoffman. Mr. Hoffman shall be required to contribute 75% to this expense, in proportion to his share of the parties’ collective income. Ms. Hoffman shall be required to provide receipts for her daycare expenses to Mr. Hoffman on a monthly basis. If her expenses for any month are below $1,200.00, Mr. Hoffman’s required contribution payable on the first day of the next month shall be reduced accordingly.

CONCLUSION AND ORDER [ 127 ] Based on the foregoing, it is ordered, on an interim basis, that: 1. Mr. and Ms. Hoffman shall have shared (parallel) custody of the Children of the Marriage, namely, Ryan Hoffman, born September 3, 2008, and Joshua Hoffman, born August 6, 2010 (“the children”). Subject to the following specific provisions, each shall be responsible for day to day decisions and expenses arising at times when the children are residing with them. 2.

The parties shall confer with each other on all plans and arrangements relating to custody of and access to the children and, generally, on all important matters relating to the children’s health, residence, welfare, education, recreational activities, religious training and upbringing, including but not limited to the following non-emergency health care for the children and choice of the place of religious observance. 3. All ultimate decisions regarding the children’s education (not including extra-curricular activities) and health care shall be made by Ms.

Hoffman, subject to the fact that at least sixty days before any milestone change of education level, involving a change from part- time to full time schooling (that is, the commencement of schooling five days per week), the transition from elementary to high school, and the transition from high school to college or university, shall be subject to the conflict resolution process set out below. Ms.

Hoffman shall decide whether it is in Ryan’s best interests to allow Ryan to complete his current semester at the school in Acton where he is currently enrolled or whether to remove him mid-semester and enroll him at the school she would like him to attend in Milton. If a change is made, it shall be undertaken only after consultation with the principal of each school to determine whether a change can be made without undue disruption of Ryan’s progress and after consultation with Mr. Hoffman. 4. All ultimate decisions regarding the children’s extra-curricular activities shall be made by Mr.

Hoffman, subject to the fact that at least sixty days before registration in any advanced athletic or musical activity, involving travel outside both cities or towns where the parents reside, shall be subject to the conflict resolution process set out below. 5. Milestone changes in education and registration in advanced athletic or musical activity shall, at least sixty days before registration or enrollment, be mediated by a mediator selected by the parties or, if they are unable to agree, appointed by the court upon application by either party.

The cost of mediation shall be deemed to be a special and extraordinary expense within the meaning of s. 7 of the Guidelines, and shall be borne by the parties in the same proportion that each is contributing to other special and extraordinary expenses. Before proceeding to mediation, the parties shall exchange any relevant information about their proposals for schools or athletic or musical activity in writing for the other party to consider.

The mediation shall be paid for in proportion to the parties Line 150 income from the Notice of Assessment last issued by the Canada Revenue Agency in relation to their income. If the mediation does not result in agreement, the mediator shall act as an arbitrator and release a written decision, which the parties may appeal to this Court, by motion on notice to the other party and supported by written material, which shall include the arbitrator’s decision. 6.

Formal membership of the children or either of them in any religious institution shall be subject to the conflict resolution process described in paragraph 3. 7. Neither Mr. nor Ms. Hoffman shall purchase or rent a new residence for the children that is further than 5 kilometres from that parent’s current address without giving the other parent at least 60 days prior written notice of his/her intention to do so and details of the proposed move and address. He/she shall also provide the other parent with the new telephone number within 24 hours of the move.

The above-noted restriction on moving the children’s permanent residence is not intended to limit the parents’ ability to take the children out of the jurisdiction for the purpose of travel for two weeks or less with the children. Any proposed change of residence shall be subject to the conflict resolution process set out in paragraph 3. 8. The Court urges the Hoffmans to read the following books with a view to enhancing their skills in communicating with each other and in addressing the issues they face in creating two households for their children: a.

Difficult Conversations by Douglas Stone, Bruce Patton and Sheila Heen of the Harvard Negotiation Project, Penguin Books (2000), ISBN 978-0-14-028852-0 b. Parenting After Divorce, 2 nd Edition, Philip M. Stahl, Ph.D., Impact Publishers

(2007) Atascadero, CA, IS

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