2013 ONSC 4273, 2013 ONSC 4273

CITATION : Vollmershausen v. Vollmershausen, 2013 ONSC 4273 COURT FILE NO.: 9422/11 DATE: 2013/07/02 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) LORI CHRISTINE VOLLMERSHAUSEN ) ) ) Gary McQuaid, for the Applicant ) Applicant ) ) - and - ) ) ) MARTIN K.

VOLLMERSHAUSEN ) ) ) Mark Simpson, for the Respondent ) Respondent ) ) ) ) HEARD: November 27, 28 and 29, 2012, and December 3 and 4, 2012 LEACH J. [ 1 ] Although the parties to this matrimonial litigation were able to resolve a number of matters, (such as property arrangements), issues remain concerning formal custody of their two young daughters and various disputed aspects of appropriate child support arrangements. [ 2 ] Incidental disputes also exist, including whether and how existing access arrangements should be modified.

EVIDENCE AND FACTS [ 3 ] Over the course of the five day trial, through testimony of the parties, some testimony from a former neighbor, (Norma Stacey), and references to documentation including earlier court orders, written communications, schedules and paperwork relating to finances, I was presented with extensive evidence about the parties and their two children over the course of some 23 years, (both before and after their separation).

[ 4 ] Despite the particular points highlighted herein, (both in this overview of the parties’ interaction, and in relation to the particular substantive points addressed later in these reasons), I have regard to all of that evidence. [ 5 ] However, by way of extended background, preliminary to addressing the outstanding substantive issues in more detail, I find the following: • The parties began co-habiting in or around 1999, and were married on December 21, 2001. • The Applicant and the Respondent are both teachers, employed by the Thames Valley District School Board. • The parties made their matrimonial home in Ingersoll, (at an address on Culloden Road), and had two natural children: a daughter named Shelby (born in September of 2004, currently 8 years old and completing grade 2), and another daughter named Hailey (born in August of 2006, currently 6 years old and completing senior kindergarten).

After the arrival of each child, the Applicant alone took parental leave, (for a year in each instance), while the Respondent kept working full time. • Throughout the parties’ marriage, the Respondent was very actively involved in numerous sporting activities. He played hockey himself, He coached school sports, (including floor hockey, basketball, volleyball and stacking teams), as well as a travelling women’s ice hockey team, and was responsible for other organizing and “convener” activities.

He also providing services to various organizations as a referee and umpire, often in exchange for additional remuneration, (the specifics of which are considered in more detail below). The Respondent’s considerable skills in that regard include his qualification as a “level III” ice hockey referee. During the school year, the Respondent’s coaching activities, (e.g., for basketball, volleyball and floor hockey teams), usually would require his frequent absence from the home. During summers, the Respondent frequently would be absent from the home, acting as a ball hockey referee or baseball umpire.

During the ice hockey season, (from September to April), the Respondent’s additional work as a referee also necessitated his absence from the home many nights a week. Generally, these various coaching and other sporting commitments would require the Respondent to leave home early before school, and he then rarely would be home before 5pm. He then frequently would have to leave again for the evening, after a quick dinner. On many nights, (e.g., when he acted as a referee for the Friday Night League in Ingersoll), the Respondent would not be home from early evening until well after midnight.

During all of these Respondent absences from home, the Applicant was left with sole responsibility for caring for the children. According to the Respondent’s testimony, this was an arrangement arrived at by discussion and agreement between the parties. • Following a period of marriage counseling, and as a result of acknowledged infidelities of the Respondent, the parties separated on or about December 19, 2010. However, the Respondent remained in what was then the matrimonial home, in Ingersoll, until approximately January 1, 2011.

At that time, the Respondent left the matrimonial home, leaving the children in the Applicant’s primary care, and moved into an apartment in Ingersoll. • At the time of separation, there was some discussion about custody and access arrangements. In particular, contemporaneous correspondence confirms that, sometime before January 14, 2011, the Applicant had retained counsel, who in turn had sent the Respondent a letter containing proposals, including one that the Applicant be granted custody of the children.

On January 14, 2011, the Respondent answered with a letter of his own indicating that he wanted “ to have JOINT custody with respect to decision making regarding the children ”. [Original bold print, capitalization, underlining and italics.] The Respondent’s letter went on to then specify his desired access arrangements, which included three hours on Wednesday evenings, every other week-end, three consecutive weeks each summer, Father’s day, and one week at Christmas time (alternating each year). • In the wake of separation, and for the balance of the school year during the winter and spring of 2011, from January to June of 2011, the parties settled into an arrangement whereby the girls remained in the primary care of the Applicant, (with corresponding residence), while the Respondent generally would exercise access to the girls each Wednesday evening and on alternate week-ends. (At his request, the Respondent also enjoyed access to the girls on Father’s day, and during the 2011 March break vacation.) The Applicant says this general arrangement is what the Respondent wanted at the time, and I find that to be so.

Certainly, such a finding accords with the Respondent’s own letter of January 14, 2011, and his Respondent’s failure to bring any court application to secure more time with the girls, (prior to the Applicant’s commencement of litigation in June of 2011), strongly suggests that he initially was content with the arrangement. • Post-separation, however, the payment of adequate child support by the Respondent became an increasingly contentious issue.

In that regard: o At the time, the total income of the Respondent, according to the Respondent’s 2010 income tax return, was $75,722.00, (before inclusion of any additional income from his sporting activities).

Pursuant to the federal guidelines, that income alone, less his 2010 union dues of $1,173.40, (or income for child support calculation purposes of $74.549.17), warranted child support payments for the Respondent’s two children of $1,092 per month; a figure that necessarily would have increased to some extent once the Respondent’s additional undeclared income, and his obligation to contribute to any proper “section 7” expenses, were factored into consideration.

In particular, using the Applicant’s estimate that the Respondent was earning at least $7,000 annually in income from his sporting activities prior to separation, (a matter discussed in greater detail below), this would bring his total income for 2010 to at least $82,722.00, in which case, subtracting the same union dues, the federal Guidelines required the Respondent’s payment of child support in the amount of $1,192 per month; i.e., a figure slightly less than $1,200.

Alternatively, an obligation of $1,092 based on his teaching income alone, less union dues, but supplemented by a $115 proportionate contribution to “section 7” daycare expense, would bring the Respondent’s required monthly contribution to $1,207; i.e., a figure slightly over $1,200. o Between January and June of 2011, the Respondent had relocated to an apartment in Ingersoll while his two children remained in the matrimonial home with the Applicant.

However, until the Applicant commenced legal proceedings in June of 2011, the Respondent made payments of child support falling well below the amounts required by the federal Guidelines, in the circumstances. According to the Respondent’s own Amended Answer, at paragraph 14: ▪ For the months of January, February and March of 2011, the Respondent provided the Applicant with monthly child support cheques in the amount of $800, (the first of which actually was not cashed but destroyed by the Applicant, in circumstances described below)

▪ For the month of April 2011, the Respondent provided the Respondent with a child support cheque for only $340, (which was not cashed). ▪ For the month of May 2011, the Respondent provided the Applicant with no child support cheque at all. ▪ For the month of June 2011, the Respondent provided the Applicant with a child support cheque for only $475. o Between January and June of 2011, the Respondent also failed to make any continued contributions whatsoever towards payment of the utilities, property taxes or mortgage owed in relation to the matrimonial home still housing his children.

The mortgage alone required payments of $1,050 per month, which the Applicant necessarily was obliged to cover on her own, (to keep the mortgage in both parties’ names from falling into arrears), without any assistance from the Respondent. o Until September of 2011, the Respondent also failed to make any contributions towards payment of daycare and babysitting services for the children, (although he was aware of such arrangements, the need for them, and that the services were not being provided on a gratuitous basis). o In relation to these apparent child support failings by the Respondent: ▪ The Applicant says the parties discussed child support even before the Respondent’s departure from the matrimonial home.

However, the Respondent simply was unwilling to pay proper child support because of his stated view that he had debts to pay, and that the Applicant earned enough money on her own to make such child support payments unnecessary.

According to the Applicant, she retained legal counsel within two weeks of the parties’ separation, (which is confirmed by the contemporaneous correspondence), and promptly advised the Respondent of his responsibility to pay child support in accordance with the federal Guidelines having regard to the number of children involved, the Respondent’s total income, and an appropriate contribution to the children’s daycare expense. Specifically, based on the legal advice received, she told the Respondent he should be paying approximately $1,200 per month.

However, according to the Applicant, the Respondent unilaterally decided that he would pay only the sum of $800 per month, (with deductions made from that amount as necessary for payment of his bills), and his reaction to the Applicant’s request that he pay child support on his total income, at a figure indicated by the federal Guidelines, met with marked hostility. ▪ The Respondent disputes such allegations.

In essence, he says he was always willing to fulfill his child support obligations, but was simply unaware of what they were, (at least between January and June of 2011), even after his retention of legal counsel. He also claims that, prior to June of 2011, the Applicant never directed his attention to the federal Child Support Guidelines, or indicated to him that he was required to pay child support.

As far as contributions towards daycare and babysitting charges are concerned, he indicated that he verbally offered to make contributions in that regard, but that his offer was rejected by the Applicant during a telephone conversation.

However, Respondent counsel also suggested, during the course of submissions, that the Respondent was entitled to wait on the provision of written receipts or statements in that regard that were not forthcoming from the Applicant. ▪ To the extent necessary, I prefer and accept the evidence of the Applicant over that of the Respondent concerning his attitude and approach to the making of child support payments.

A review of the extended text messages exchanged between the parties in the weeks and months following the parties’ separation provides contemporaneous confirmation that, in response to questions from the Respondent asking how much was being requested by way of support, the Applicant informed the Respondent that she had consulted with a lawyer and that the proper amount of child support to be paid by the Respondent was approximately $1,200 per month. [1] The messages also confirm that the Respondent reacted in a hostile and negative way to the suggestion; e.g., complaining that the Applicant was trying to take “his” money, that he could not afford to pay child support at the level being requested by the Applicant, that he was inclined to pay for child support only after addressing his self-determined needs, and that he unilaterally decided to pay only $800 per month when he felt able to do so. [2] Moreover, the cheques actually supplied by the Respondent to the Applicant between January and June of 2011, (described above), confirm that the Respondent then proceeded to make deductions from that figure of $800.00. • In text messages sent to the Applicant on April 5, 2011, the Respondent suggested, for the first time, that the parties should each have the girls on a “50-50” or “equal time” basis.

As an alternative, he suggested, also for the first time, that he “take them full time”. The Applicant’s immediate response was in the negative, coupled with a question as to why the Respondent now wanted to spend so much time with them.

However, the Respondent then did nothing to follow up on his suggestions or requests, until he was faced with formal proceedings initiated by the Applicant. • The Applicant commenced formal litigation on June 1, 2011, primarily to compel the Respondent’s payment of proper child support, but also seeking additional relief that included an order formally awarding her sole custody of the children. • When school let out later that month, (in June of 2011), the parties voluntarily altered arrangements so that the girls would be in the residential care of each parent on a “week about” basis, with exchanges taking place at 8pm each Sunday.

As noted by Justice Heeney, (in his later endorsement of August 26, 2011), this was an entirely sensible arrangement, given that the parties are both teachers and have the entire summer off. • On July 5, 2011, shortly after the summer “week about” arrangement was put in place voluntarily by the Applicant, the Respondent delivered his initial Answer, including a request for “joint custody and shared residence”. • In or about August of 2011, the Respondent began cohabiting with his new partner, Paula Weiss, (another teacher whom the Applicant previously had mentored, and who had covered one of the Applicant’s maternity leaves), at a new home in Ingersoll. • On August 12, 2011, the Respondent sent the Applicant a very perfunctory text message declaring that the summer “week about” arrangement would remain in place on a permanent basis throughout the year, as that was the new “status quo”. [3] Because of her belief that a “week about” arrangement throughout the year would have a detrimental impact on the girls, the Applicant indicated her disagreement with the Respondent’s declared position and sought confirmation that the prior access and residence arrangements, put in place by agreement of the parties after separation, would be reinstated when school resumed at the end of the summer.

The parties’ inability to reach agreement resulted in a formal court application and an interim interim order made by Justice Heeney on August 26,

2011, essentially restoring the pre-summer arrangements on a without prejudice basis. • Through counsel, negotiation between the parties continued and, on September 23, 2011, the parties agreed to the making of a temporary order, on consent, formally granting the parties joint custody of the children. The Applicant says that she agreed to formal joint custody at the time because she thought it would foster resolution and an increased sense of Respondent responsibility and respect for the Applicant, but that there was no intention of changing the children’s fundamental residential arrangements.

I accept that evidence, particularly since the order obviously resulted in the children remaining in the primary care of their mother, with the Respondent exercising interim access on alternate week-ends from Friday at 4pm to Sunday at 8pm, (extended to Monday on holiday week-ends), non-overnight access on Mondays and Wednesday from after school until 8pm, “reasonable telephone access”, one half of Christmas school holidays, and further access as agreed. (For example, the parties subsequently agreed to the children being with the Respondent on Father’s Day.) The consent order also required Respondent payment of child support in accordance with the “table amount” then indicated by the federal Child Support Guidelines, (in the amount of $1,159 per month, based on a Respondent annual income of $80,000), commencing January 1, 2011, (the date the Respondent left the matrimonial home), as well as payment of a monthly contribution to “section 7” daycare expenses, (in the amount of a further $115 per month), commencing September 1, 2011 “and payable on the first day of each month thereafter”. (Prior to that date, the Respondent made no contribution towards the cost of the children’s ongoing daycare/babysitting expenses, which cost approximately $240 per month apart from times when vacations reduce the need for such care.) The parties further agreed that each would maintain the children as dependent beneficiaries on their respective benefit coverage plans, and that the Respondent would designate the Applicant as irrevocable beneficiary of his life insurance policy, in trust for the children, for so long as he was obliged to pay child support. • In April of 2012, the Respondent sent the Applicant further messages renewing his request for more time with the girls.

In particular, he asked for an overnight visit during the week, and a return to “week about” arrangements during the summer months of 2012. The latter request was coupled with a request for confirmation “that because [the parties would] share 50/50 access with the girls for the summer, [he] would not be required to pay support to you for July and August, but would resume in September with regular payments”.

However, the Applicant did not agree, and is of the view that child support should continue on a regular basis throughout the year. • On April 20, 2012, the Respondent brought a motion, apparently requesting a court order for involvement of the Ontario Children’s lawyer. The Applicant opposed the request, on the basis that such involvement was unnecessary and would further involve the children in their parents’ disputes.

Justice Donohue denied the Respondent’s request. • From April to June of 2012, the Applicant took time away from work, in accordance with the advice of her family doctor, to address concerns that included a very severe bladder infection.

In accordance with recommendations for her well-being, she also initiated steps to pursue counseling and make a break from the surroundings associated with her failed marriage to the Respondent and the reasons for that failure. • In or about late May of 2012, the Applicant decided to relocate with the girls from the former matrimonial home in Ingersoll to a new residence in Tillsonburg, (where she would work at a new school through a lateral transfer arranged through the school board), with a corresponding change in school for the girls.

Although the Respondent knew some kind of move was imminent, (as he had co- operated with formal sale of the matrimonial home after a frustrated attempt to buy it himself), and was advised that the Applicant was assuming a new teaching position in Tillsonburg, he insists that he was informed of the intended relocation of the Applicant’s home to Tillsonburg only in late June, (i.e., on June 25 or 26, 2011).

The Respondent then sought to block that contemplated relocation; i.e., by way of a motion seeking, inter alia , an order granting the Respondent sole custody of the children and otherwise preventing the children from moving with the Applicant to Tillsonburg. The Respondent also renewed his request for an order inviting involvement of the Ontario Children’s Lawyer.

On June 28, 2012, (at a hearing necessarily scheduled just days before the closing date on sale of the matrimonial home and the Applicant’s contemplated relocation), Justice Henderson found that the proposed move was not contrary to the children’s best interests having regard to various considerations, including the fact that the children had been in the Applicant’s primary care since at least the court order of September 2011.

The Respondent’s request for involvement of the Ontario Children’s Lawyer, (once again opposed by the Applicant), was again denied. • On or about July 1, 2012, the Applicant and the girls relocated to their new residence in Tillsonburg; a bungalow purchased by the Applicant and her new partner Pete Penner.

Mr Penner and his 17-year-old son from a previous relationship also reside in the home, and the uncontradicted evidence before me is that they have a very positive relationship with the Applicant and the girls. (Mr Penner works as a truck driver, but is home on a daily basis.) • When the Applicant went back to work in September of 2012, and the girls began studies at their new school in Tillsonburg, (a short distance from their new home with the Applicant), arrangements for the care of the children before and after school once again were made by the Applicant, who located an appropriate caregiver in Tillsonburg.

The Respondent continued to exercise access by picking the girls up in Tillsonburg. • The parties formally were divorced by way of an order made by Justice Grace on July 12, 2012, (after an earlier consent order, made by Justice Henderson on May 22, 2012, severing the divorce from corollary relief). • Property issues between the parties generally were resolved by way of a consent order granted by Justice Goodman on September 7, 2012. • Although the parties agree that Shelby would benefit from some counseling, (a matter discussed in more detail below), and the Applicant feels Hailey might benefit from some counseling as well, the evidence I received at trial, (including interim school report cards for both girls), persuades me that the girls generally are both doing well in their current environment.

In particular, from September of 2012 up until the date of trial: o Shelby had missed no days of school, had never been late, and was “progressing well in all areas of the grade three curriculum”. Shelby’s own comments, (as recorded in the report card by her teacher), indicated that she was proud of “getting EXCELLENTS in [her]

learning skills and work habits, and that [she was] progressing WELL in all [her] subjects”. There are no concerns regarding Shelby, academically, socially or cognitively, and she is relating well to both her teacher and her new classmates. She has a new core group of 5- 6 friends in Tillsonburg, who invite her to events such as birthday parties. o Hailey had missed only one day of school, (for illness), had never been late, and was “beginning to show more progress with the grade one curriculum”, with “more success” coming as she displayed a “positive attitude”, (despite occasional lack of confidence).

There similarly are no concerns regarding Hailey, in terms of her academic, social or cognitive skills, or in terms of her relationships with her teacher and new classmates. Hailey herself indicated, (in comments recorded by her teacher), that she is proud of “[her] GOOD learning skills and work habits, and for doing WELL in [her] subjects”. She too has a core group of 5-6 new friends in Tillsonburg, who have invited her to birthday parties. CUSTODY [ 6 ] Formal custody and residential arrangements for the children were matters very much in dispute at trial.

Party positions [ 7 ] The Applicant now seeks a final order granting her sole formal custody of the children, with residential arrangements placing the children primarily in the Applicant’s care. She says this essentially would continue the reality that has existed from the children’s perspective, both before and after the parties’ separation, and that this would be in their best interest. [ 8 ] Although the Respondent’s Amended Answer formally seeks sole custody of the children, with a request for joint custody in the alternative, it is the latter request which was the focus of submissions at trial.

In particular, the Respondent asks for an order whereby he and the Applicant would have joint custody of the children, with ancillary orders effectively dividing the children’s time, residence and care between the parties. (The arrangements requested by the Respondent are detailed in paragraph 2 of his Amended Answer, but generally suggest that, in addition to arrangements for holidays and other special occasions, the Respondent have the girls every week on Tuesday and Thursday overnights as well as alternating week-ends, or “shared residence of week-about” and exchanges on Sunday evenings.) The Respondent denies that the Applicant has been primarily responsible for care of the children.

He contends that he is a capable parent, who was actively involved in the raising and care of the children prior to separation, and that it would be in the best interest of the girls to maximize the amount of time they spend with each parent. [ 9 ] The Applicant says that, having regard to the hostility that clearly exists between the parties, and their demonstrated and ongoing inability to communicate and co-operate, such a joint custody and equally shared residence regime would be unworkable, doomed to failure, and otherwise not in the girls’ best interest.

General Principles [ 10 ] The legislative authority governing orders for custody is set forth in overlapping provisions of the applicable federal and provincial statutes. [ 11 ] In that regard,

section 16 of the federal Divorce Act , R.S.C. 1985, c.3 (2 nd Supp.), reads in part as follows: 16.

(1) A court of competent jurisdiction may, on application by either or both spouses …, make an order respecting the custody of or access to any or all children of the marriage. …

(4) The court may make an order under this

section granting custody of, or access to, any or all children of the marriage to any one or more persons. …

(6) The court may make an order under this

section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therefore as it thinks fit and just. …

(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child .

(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.

(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 contact. [Emphasis added.] [ 12 ]

Section 24 of the provincial Children’s Law Reform Act , R.S.O. 1990, c.C.12, reads in part as follows: 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).

(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) the 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, thenecessaries (sic) 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 … between the child and each person who is a party to the application.

(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.

(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violenceor 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. [Emphasis added.] [13] In appropriate circumstances, awards of joint custody such as that proposed by the Respondent are certainly possible andpermissible under these legislative provisions. [14] However, concessions or evidence that each party is a “fit” and capable parent do not, without more, mean that a joint custodyorder would be in the best interests of a child. See Kaplanis v. Kaplanis, (ON CA), [2005] O.J.

No. 275 (C.A.), atparagraph 10. [15] To the contrary, the law and common sense dictate that joint custody ought only to be awarded where parents historically havedemonstrated an ability to communicate and co-operate effectively. Where evidence suggests a lack of co-operation, continuing conflictaround parenting issues, and/or more general hostility and conflict (whatever their source) creating stress and impediments to effectivejoint parenting, joint custody is inappropriate and should not be awarded. See Wreggitt v. Belanger, (ON CA),[2001] O.J. No. 4777 (C.A.), at paragraphs 19-20, Johnson v.

Cleroux, (ON CA), [2002] O.J. No. 1801 (C.A.), atparagraph 4; Kaplanis v. Kaplanis, supra, at paragraph 2; and Vamos v. Vamos, [2012] O.J. No. 1778 (C.A.), at paragraphs 9-10. [16] The fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a jointcustody order cannot be considered. On the other hand, hope that communication between parties will improve once litigation is overdoes not provide a sufficient basis for the making of an order of joint custody.

There must be evidence that, despite their differences,parents are able to communicate effectively with one another. This is necessary because, no matter how detailed a custody order mightbe, gaps inevitably will occur, unexpected situations will arise, and the changing developmental needs of a child must be addressed on anongoing basis. Such communication is even more important when the children in question are younger. See Kaplanis v.

Kaplanis,supra, at paragraph 11. [17] Moreover, in considering the possibility of a joint custody arrangement, it must be remembered that the test to be applied focuseson what is in the best interest of children, and not on what may be in the best interest of either parent. See Armstrong v. Armstrong, (ON SC), [1997] O.J. no. 4137 (Gen.Div.), at paragraph 21. [18] A parent proposing joint custody also should put forward evidence of a practical plan of how the contemplated arrangement willwork, outlining the suggested benefits of the arrangement.

The court should not be asked to engage in speculation, in relation to suchimportant matters. See Kaplanis v. Kaplanis, supra, at paragraph 10, and Armstrong v. Armstrong, supra, at paragraph 21. Analysis [19] With the above guidance in mind, I turn in more detail to the particular circumstances of this case, insofar as they relate todetermination of an appropriate order concerning formal custody and residence arrangements.

[ 20 ] In that regard, I say at that outset that, in my view, there is nothing in the evidence that persuades me that either party is unfit or incapable, in terms of being a parent in whose favour an award of custody might properly be made. [ 21 ] In that regard:

a) An abortive effort was made at trial, by Respondent counsel, to lead evidence critical of the Applicant’s approach to parenting. In particular, questions were posed to the parties’ former neighbor, Ms Stacey, concerning her observations of the Applicant’s parenting and certain particular incidents in that regard in which the Applicant was supposed to have acted towards her daughters in an inappropriate or less than admirable way. As I indicated at the time, the leading of such evidence was improper in the circumstances, having regard to the rule in Browne v.

Dunn , (1893), 1893 CanLII 65 (FOREP) , 6 R. 67 (H.L.). Not one question about such matters, or raising any criticism whatsoever of the Applicant’s parenting practices, was posed to the Applicant during the course of her cross-examination. The subsequent introduction of evidence in that regard, without the Applicant having any opportunity to address and answer the various pejorative allegations, accordingly was unfair and inappropriate, and I have no regard to it in making my decisions herein. In my view, the situation is covered not only by the Rule in Browne v.

Dunn , supra , but also by additional policy concerns applicable in matrimonial litigation. In particular, the objective adjudication of children’s interests rarely will be enhanced by one of their parents being taken by surprise at trial, without provision of a fair opportunity to respond. See Shearer v. Hood , [2008] M.J. No. 427 (Q.B.), at paragraph 20 .

b) Reference also was made at trial to events leading to the parties’ separation, and to particular revelations and communications, (including certain text messages sent by the Respondent to the Applicant), relating to the Respondent’s acts of infidelity. In that regard, I am very mindful of the legislative directives in s.16(9) of the Divorce Act , supra , and s.24(3) of the Children’s Law Reform Act , supra , that a parent’s past conduct generally is not a proper matter for consideration in relation to custody determinations, unless it is relevant to their ability to act as a parent.

This legislated policy has been upheld many times by the courts, emphasizing that it is an error in principle to place undue emphasis on parental conduct and insufficient emphasis on the best interests of children when determining custody issues.

In particular, it is irrelevant who may have been to blame for an extra-marital affair, and a parent who disrupts the marital union does not thereby entail judicial retribution through the loss of custody. [4] However, as the legislation itself notes, parental conduct and interaction may still have proper relevance insofar as they demonstrate capacity or incapacity to behave or communicate in a certain manner, and therefore may be relevant as predictive of future behavior as a parent. [5] As the Supreme Court of Canada has emphasized, conduct relating to marriage breakdown may not be relevant per se , but the parties’ resulting attitudes and views of each other nevertheless are important as they might impact the emotional well-being of a child and, as such, they must be considered [6] .

To the extent I have regard at all to past conduct of the parties, I therefore do so only through the prism of that more focused and restricted purpose. [ 22 ] So again - I start with the underlying factual finding that either parent, considered individually and in isolation, would be a fit and proper person in whose favour an award of custody might be made. [ 23 ] I also accept that each of the parties loves their children, and that it generally would be beneficial from the children’s perspective to have each parent remain in the children’s lives, with the maximum amount of contact that is reasonably possible, having regard to the necessary realities attendant on the parties’ separation. [ 24 ] In my view, however, there are other fundamental realities in play here. [ 25 ] First, despite occasional agreement since separation, there was ample evidence of ongoing conflict and hostility between the parties, and a demonstrated history of inability to communicate and co-operate, that convinces me that an award of joint custody would be completely inappropriate and unworkable in the particular circumstances of this case.

In that regard, I note and rely upon various considerations, which include the following: • Numerous extended text messages between the parties, over a period of approximately 16 months following separation, were filed in evidence. I have reviewed them in their entirety. I also take into account that many of these messages were generated at a time when the parties were adjusting to the new realities created by their separation.

However, the text exchanges provide ample evidence of ongoing conflict and inability to communicate, (displayed by both parties), as discourse that initially was somewhat civil and conciliatory regularly degenerated into hostility, disagreement, misunderstandings and, (in relation to certain messages addressing infidelities), content that seemed destined to inflame an already difficult situation. Unfortunately, I saw little evidence that the parties’ ability to communicate and co-operate has improved much since separation.

Well into 2012, the messages exchanged between the parties contain, on both sides, accusations of inadequate communication, inappropriate conduct and unreasonable behavior.

It is common ground that the parties now have no telephone contact whatsoever. (Apart from one emergency contact in October of 2012, after a pumpkin carving accident noted below, there was no clear recollection as to the last time the parties spoke by telephone.) • An abortive attempt was made to have necessary messages travel with the girls through use of a “communication book”, but this was discontinued because of perceptions that the book was being used to make pejorative comments. • Because of the parties’ inability to communicate, the girls unfortunately have been involved directly and inappropriately, from time to time, in the parties’ inability to communicate.

This has included the girls being asked by the Respondent to convey support cheques to the Applicant, with indications that envelopes contained money for their mother, and by the Applicant asking the girls to return pieces of a destroyed cheque to the Respondent. On other occasions, each party effectively has left it to the girls to inform the other parent of matters such as extra-curricular activities.

Alternatively, the girls occasionally have been asked not to share such information. (I frankly can think of no other probable explanation as to why these otherwise apparently social and outgoing girls would fail to mention certain activities and developments, which they apparently enjoy, until many months after the fact.) • There also have been unfortunate incidents of direct conflict in the presence of the girls. These have included loud verbal

arguments, and one incident in particular, in January of 2011, when the Respondent was yelling and forcing his foot into the doorway of the Applicant’s home, (after the Applicant ripped up a proffered cheque). On another occasion, the Respondent loudly accused the Applicant of theft. In the result, the police have been called to supervise interaction between the parties at least two or three times. While the Applicant picks the girls up from the Respondent’s home, she still feels it necessary to have someone accompany her on each occasion.

The Respondent submits that the Applicant’s concerns are baseless, that the police involvement was unnecessary, and that the Applicant is either over-reacting or simply attempting to portray him in a negative light.

However, whether responsibility for the current situation lies with one or both parties, there clearly has been a fundamental breakdown in the parties’ ability to interact with each other. • According to the Applicant, following a number of emails and telephone calls by the Respondent to the Applicant’s workplace, (when the Applicant’s would be paged to her school office and then often feel too upset after the calls to return to her classroom, requiring other teachers to “cover” her classes), introduction of a formal “safety plan” was considered necessary to deal with any further attempts by the Respondent to telephone or attend at the Applicant’s school.

The Applicant says there were a number of such calls, that they were disruptive, that they dealt with non-emergency matters, (such as attempts by the Respondent to address the Applicant’s response to his infidelities and/or to deal with property issues such as matters relating to a “time share” facility the parties had in Florida), and that there was no appropriate reason to contact her at work.

The Respondent disputes these allegations, suggesting that there was only one such call, lasting approximately 5 minutes, focusing on a request for a letter of permission so the girls could travel with him to Florida; a call that had to be made to the Applicant at work because her conduct and non-responsive attitude had left him with few options except to call the Applicant at her place of employment.

Whichever party is telling the truth, the dispute provides another example of the parties’ inability to agree on methods and timing of communication. • Distrust, lack of sensitivity and inability to communicate repeatedly has resulted in disagreements and misunderstandings that have had a direct impact on the Shelby and Hailey.

This includes such things as: o conflicting instructions and limitations regarding telephone contact with each parent while the girls were in the care of the other; o disappointment relating to contemplated time with each parent not materializing as planned; o confusion as to which parent or parents should sign school tests and reports; o disputes about the ordering and retrieval of school photographs; o the inability of both parents to attend functions and events important to the girls, (such as carnivals, rehearsals and swim meets); and o frustrated or complicated holiday arrangements and opportunities. • The parties’ inability to agree on counseling arrangements for Shelby, (to deal with issues stemming from friction between her parents), is a particular concern.

A review of the messages exchanged by the parties indicates that each parent professes to know what Shelby wants, but the parties have very different perceptions in that regard. (The Applicant says Shelby wants such counseling but not if the Respondent insists on attending, and that the Respondent’s insistence on withholding his consent, unless he was permitted to attend, has frustrated further counseling efforts. The Respondent says Shelby wants counseling, but that it was the Applicant who initially refused to consent.

The Respondent also says that Shelby wants him to attend such counseling on an alternating session basis, and that he will not provide required consent to such counseling unless he is informed of its timing and given an opportunity to attend as Shelby desires.) It may be that Shelby herself is providing different indications to each parent – perhaps in a seemingly impossible effort to make each one happy.

In any case, the parties effectively both acknowledge that their daughter wants counseling, (itself a strong indication that she needs it), but she apparently goes without such assistance because of her parents’ inability to agree, through direct dialogue. • The parties also have been unable to communicate, co-operate and agree on something as basic and necessary as medical and dental care for the children. In that regard, information about appointments and attendances apparently is not shared until after the fact, and appointments occasionally have been cancelled or missed because of inadequate communication.

There was also an unfortunate incident where a skin condition experienced by Hailey was subjected to conflicting diagnosis and treatment, (by the physician Hailey saw with the Applicant, and by “a nurse and lab technician” consulted by the Respondent). • In the course of this litigation, the parties repeatedly demonstrated their inability, before trial, to resolve numerous interim disputes relating to the girls without formal court intervention.

As noted above, this includes: o the parties’ inability to determine residence and access arrangements when the summer of 2011 was coming to an end; o the parties’ inability to agree on whether involvement of the Ontario Children’s Lawyer was advisable; and o the parties’ inability to agree, in June of 2012, on where the girls should live or go to school. • The parties have been unable to discuss or agree on extra-curricular activities for the girls, and there accordingly has been no co- ordination in that regard to ensure that the girls are not being overtaxed from a global perspective. (For example, without consulting the Respondent, the Applicant registered the girls in swimming and dance classes.

Without seeking or obtaining the Applicant’s consent, the Respondent enrolled the girls in figure skating and horseback riding lessons.) Moreover, neither parent seems inclined to make any meaningful effort to share details with the other about what the girls do or accomplish in relation to the extra-curricular activities each has organized. • The parties continue to question and criticize each other’s parenting styles and choices while the girls are in the other’s care.

The Applicant, for example, has raised concerns about the times at which the Respondent puts the girls to sleep, (although the Respondent claims to follow the routine used in the Applicant’s home, as described to him by the girls), and about the Respondent permitting the girls to sleep in the same bed with the Respondent and his new partner. For his part, as noted above, the Respondent sought to lead evidence at trial raising concerns about the Applicant’s parenting. His formal pleading alleges, inter alia , that the Applicant is a “very

controlling person” who “yells consistently at the children for small incidents” and makes them afraid of her. • Since March of 2012, the Respondent has implemented and insisted on a program of having the girls make school lunches whenthey are at his home, even though they will be returning to the Applicant’s home before going to school the following day. TheRespondent insists that it is an enjoyable exercise for the girls and helps to foster a sense of responsibility, (which is consistent with hiscreation of a “chore chart” while the girls are in his home).

However, the Applicant says the entire lunch preparation exercise makes nosense, as many of the foods prepared for the lunches are not appropriate, long-lasting or edible the following day, such that they usuallyare simply thrown away. The Applicant also suggests that the lunch preparation program, commenced for the first time some 15 monthsafter the parties’ separation but just 6 weeks before the originally scheduled trial date for this matter, has far more to do with attempts bythe Respondent to demonstrate his parenting ability than with any conceivable benefit for the girls.

In any event, the Respondentcontinues with the program, despite indications from the Applicant that it is both unnecessary and unhelpful.

For present purposes,suffice it to say this clearly is another source of considerable irritation and friction between the parties that they are unable to address andresolve by way of communication and co-operation. • I was struck by the marked disparity between the Respondent’s implicit if not explicit suggestion that the parties somehow would beable to communicate and co-operate, (in a manner sufficient to make a joint custodial regime viable), and the various allegations in theRespondent’s own formal pleading suggesting quite the opposite.

In that regard, while attributing fault to the Applicant, (whom hedescribes in numerous pejorative terms such as “hostile”, “very controlling”, “irrational”, “irrational”, “angry” and “inappropriate”), theRespondent himself outlines how communications between the parties have broken down almost completely, and/or regularlydegenerate into threats and other arguments. • Perhaps it goes without saying, but the very proceeding before me, including various unresolved disputes concerning custody, childsupport, access and ancillary terms of access, and various other lingering issues obviously is further evidence of the parties’ fundamentalinability to co-operate and reach ability on matters concerning their daughters. • The inability to contain and overcome hostility in this case unfortunately extended to the courtroom.

In that regard, matrimoniallitigation is often stressful and unpleasant for all concerned, but in this case required warnings from the bench that counsel direct allcomments to and through the court, that the Respondent not make disparaging noises during submissions by the Applicant’s counsel,and that the Respondent’s new cohabiting partner (Ms Weiss) refrain from making disparaging faces at the Applicant during herevidence. • Inability to contain and overcome hostility sadly also extended to the hallways just outside the courtroom.

In particular, during arecess in the proceedings, the Applicant was confronted by Ms Weiss, (not only the Respondent’s new cohabiting partner but also theApplicant’s former friend), who insisted on telling the Applicant that the legal proceedings she had initiated were “a joke”. (Theseunfortunate events were confirmed by the Applicant when she resumed her evidence, and were not challenged by cross-examination orotherwise.) This quite inappropriate behavior, from an adult who inevitably will play a significant

part in the girls’ lives if herrelationship with the Respondent continues, (and an even greater

part in any joint custody regime), has relevance. As the Supreme Courtof Canada noted at paragraphs 25-26 of Van de Perre v. Edwards, 2001 SCC 60 , [2001] 2 S.C.R. 1014, a trial judge cannotconsider a parent completely in isolation from his or her support network. In particular, a parent’s new partner plays an important role ina child’s life, and the negative and positive traits and influences of such new partners therefore must be considered. In some cases thismay assist a parent, but in other cases it may hinder good parenting.

In this particular case, the inability of Ms Weiss to restrain herhostility for the Applicant, even in the somber and serious setting of a court proceeding, certainly does not bode well for the parties’ability to communicate and co-operate in the future. [26] Second, to the extent necessary, I agree with the Applicant’s submission that, from the time of the children’s birth, she really hasbeen their primary caregiver, and that the Respondent has been content to entrust her with such responsibilities until the present dispute.

In that regard, I note and rely upon various considerations, which include the following: • The Applicant alone took parental leave when each girl was born. I do not suggest in any way that the Respondent should befaulted for this, as it reflected a mutually agreed decision as to the roles each parent would assume to further the collective interests of thefamily.

But it does indicate that, from the outset, the parties were inclined to arrangements whereby the Applicant would provide day-to-day necessities for the girls while the Respondent continued to focus on the provision of income. • When her parental leaves were coming to an end and it came time to make arrangements for daycare and babysitting of the girls, itwas the Applicant who secured the services of Kim Prizen, and the Applicant who thereafter attended to all associated scheduling andpayment arrangements. • During her parental leaves, the Applicant also made doctor and dentist arrangements for the girls, (although the Respondent mayhave assisted in making initial contacts), and regularly took the girls to their appointments in that regard.

Although it was disputed by theRespondent, I find that the Applicant then continued to exercise the lion’s share of such responsibilities throughout the girls’ lives. Theprobability of her doing so rather than the Respondent makes far more sense in terms of continuity, but also having regard to theRespondent’s many other commitments outside the home. I think it also telling that the Respondent was unable to indicate the name ofthe physician whom Shelby admittedly saw, over the course of numerous appointments, in relation to her allergy diagnosis.

Moreover,the Respondent acknowledged at trial that, despite the current formal joint custody designation, he could not recall having contactedeither the girls’ family doctor or their dentist since September of 2011. • More generally, I find that the Applicant looked after the girls while the Respondent actively engaged in his many sports,coaching and referee activities. These arrangements inherently support the Applicant’s contention that she was the children’s primarycaregiver while the parties remained together.

The simple reality is that, because of the Respondent’s various commitments outside thehome, he necessarily spent significantly less time with the girls than the Applicant. • On a related point, I find that, during the time each parent spent with the girls while the parties were together, the Applicantdevoted more time to tasks associated with providing for the girls’ basic day-to-day needs, such as: toilet training; buying clothing and

groceries; housekeeping, (albeit with some assistance from a hired cleaner for a time); preparing school lunches; waking, breakfasting and preparing the girls for school; transporting the girls to their school; picking the girls up after school from the home of their babysitter; preparing dinner for the girls; assisting the girls with their homework; bathing; and bedtime preparation. This is not to say that the Respondent did not assist with some of these tasks from time to time, or spend any time with the girls, prior to separation.

However, based on the parties’ respective activities and schedules, (which often required the Respondent to sleep later each morning, and arrive home at work in the early or late evening), the only sensible conclusion is that it was the Applicant who assumed primary responsibility for attending to the fundamental tasks required to keep the home in order, provide for the immediate needs of the girls, and keep the girls “on schedule”.

Even in relation to the girls’ extra-curricular activities, while I believe the Respondent did attend and assume a share of responsibility for these from time to time, (and Shelby’s ice-hockey in particular), I think it more probable, given the Respondent’s other commitments, that it was the Applicant who regularly took the girls to and from their figure skating, swimming and gymnastics appointments. [ 27 ] The conclusion that the Applicant has been primarily responsible for the girls since their birth, with correspondingly greater exercise of parenting responsibility, certainly does and should not prevent the Respondent from assuming a more active role in their lives after the parties’ separation.

The Respondent has made admirable efforts to pursue an active role in the girls’ lives since separation, to the extent possible, and receiving more attention from their father generally has been and will be in the children’s best interest. [ 28 ] However, it does suggest certain other conclusions, which in my view include the following:

a) In comparative terms, the Respondent is less experienced than the Applicant when it comes to all the varied demands of active parenting and determination of appropriate priorities.

This is demonstrated generally to some extent, I think, by evidence from both parties at trial of the Respondent’s emphasis on purchases and expenditures that no doubt make the girls’ time with the Respondent more enjoyable, (such as acquisition of various toys, bicycles and a puppy, providing the girls with a spending allowance, paying for numerous social outings and trips, including his contribution to season passes for Ontario Place, and enrolling the girls in figure skating and horseback riding lessons post-separation), but which are hard to reconcile with the Respondent’s contemporaneous neglect in terms of addressing arrears in his formal child support obligations; payments inherently designed to address the girls’ ongoing necessities.

Other examples of the Respondent’s apparent inexperience with active parenting include his stubborn persistence with such activities as his lunch preparation program, despite indications of spoliation and the tensions which this particular activity may be creating.

b) During the course of their lives to date, receipt of primary care and comfort from their mother also is what the girls have known, come to expect, and rely upon. (The Halloween pumpkin carving accident provides a dramatic but telling demonstration of that dominant reliance, in that Shelby insisted on speaking by telephone with her mother for reassurance, despite the accident having taken place while the girls were at the Respondents’ residence.) In my view, substantial alteration of that fundamental reality at this point in their development, (e.g., by a dramatic and long term reduction in the time they spend residing with their mother), would represent a material disruption of continuity from their perspective, and accordingly is not something that would be in their best interest without some very compelling reason as to why such a material change would be advisable.

c) To the extent the girls generally seem to be happy, healthy and well-adjusted children, (albeit with possible need for counseling, as addressed above), this is predominantly due to the parenting efforts and decisions made to date by the Applicant.

In my view, the Applicant’s views and concerns, regarding such matters as the possible detrimental impact on the girls of excessive relocation and transfers, therefore should be given considerable weight. [ 29 ] Third, while the court should always be reluctant to question the motives of a parent who desires to spend much more time with their children, (as more time with a parent usually is something a child desires, and in their best interest), the evidence in this case unfortunately suggests strongly to me that the Respondent’s desire for not only formal joint custody but also equally shared and alternating residence is not motivated primarily by concern for the girls’ welfare, but by a desire to minimize his child support obligations.

In that regard, my considerations include the following: • I generally have difficulty reconciling the Respondent’s stated goal of making the girls’ interest his priority when, at the time of trial, (at least as of November 29, 2012), he still was $2,609.60 in arrears in terms of satisfying his agreed interim child support obligations. The Respondent apparently is content to let such arrears persist, while engaging in expenditures for the girls that are either non-essential, or expenditures for his own personal benefit, (such as vacations and the purchase of a new home).

Moreover, he does so notwithstanding his cohabitation with Ms Weiss, whose additional salary no doubt helps to fund the couple’s ongoing expenditures. • Prior to separation, the Respondent certainly was content to pursue activities that left him with far less time at home, with his children. At separation, the Respondent initially indicated and agreed that the children should remain and reside primarily with the Applicant, with his simply exercising reasonable access on a regular basis.

After separation, and prior to the Respondent having to pay substantial child support, leaving the girls in the primary care and residence of their mother was an arrangement that continued to suit the Respondent’s preferred life arrangements, and he clearly was content with the situation as one that was in the best interests of the girls. • Although the Respondent has claimed and continues to claim that his guiding consideration is concern is for the girls, and their desire to spend more time with him, the reality is that he took no steps in that regard prior to separation, at separation, or for several months thereafter.

To the contrary, the Respondent only began to push for an alteration in the contemplated custody and residence arrangements, and to press for an equal division of residential time with the girls, in response to pressure from the Applicant that he pay proper child support.

In that regard, it is clear to me that the existence and quantum of his child support obligations came as something of a shock to the Respondent who, when he left the matrimonial home on January 1, 2011, initially was under the serious misapprehension that resolution of marital property disputes and mere agreement on a “joint custody” label, (regardless of the children’s residence and care arrangements), would largely ensure his freedom from any further financial obligations as far as the girls were

concerned. [7] The Respondent’s desire to have the girls spend more time with him, (by way of his receiving sole custody or joint custody with a specification for a shared residence arrangement), came only after it was brought home to the Respondent that he had and would continue to have substantial child support payment obligations so long as the girls remained primarily in the Applicant’s care, residing primarily with the Respondent. Since then, he has remained keenly aware of the reality that he must pay child support unless and until he has the girls in his residential care on a more extended basis.

This focus was and is unfortunate. An alteration in the formal custody and residential arrangements certainly may impact on child support obligations, but custody (based on the best interests of children) obviously should determine child support and not vice versa .

I believe the Respondent’s approach to the matter sadly has not been guided by that maxim. • My conclusions in that regard are buttressed by the Respondent’s failure to offer any detailed evidence as to how a joint custody arrangement and equally shared residential time would be carried into effect, as a practical matter - apart from his specifying the times he wanted the girls in his care and the time of suggested transfers. (This leaves many questions unanswered.

For example, if the girls would continue to attend their current school in Tillsonburg, as the Respondent suggests, how would the requisite timely transportation from and to Ingersoll be provided each school day the girls are residing with the Respondent, given his job responsibilities in Ingersoll? Would the girls continue the extra-curricular activities organized by each parent even while in the other parent’s care?

If so, what would be the additional transportation and other logistics necessitated by the proposed change in residence?) Nor was I provided with any evidence as to whether and how introduction of such a change and corresponding arrangements would be conducive to the best interests of the girls – bearing in mind that the Respondent has never, since separation, had the girls in his care overnight immediately before school. (How are the girls likely to react to the change?

Would the more significant transfers, extended commuting to and from school, and effectively limited ability of the girls to visit and play with school friends during their weeks in Ingersoll, likely affect the children in an adverse way?) My overall sense at trial was that the Respondent certainly knows that he would like a joint custody and shared residence regime, but has not given much thought as to how it might work in practice from the girls’ perspective.

This in turn reinforced my impression that he primarily desires the joint custody and shared residence result for the wrong reasons; i.e., that he is looking at the matter primarily from his perspective, (financial or otherwise), rather than from that of the girls.

Without compelling evidence to the contrary, I am not prepared to simply assume that it would be in the best interests of these young girls, at this stage of their development, and despite the obvious animosity and lack of communication and co-operation between their parents, to be dislocated and relocated repeatedly on a weekly basis, and shuttled considerable distances to and from school.

As Lord Denning, M.R., observed in Re Weston’s Settlements , [1968] 3 All E.R. 338 (C.A.), at p.342 : “Children are like trees: they grow stronger with firm roots”. [ 30 ] Having regard to the above considerations, and the authorities canvassed earlier, I therefore reject the Respondent’s suggestion of a joint custody and divided residential arrangement for the girls. The persistent conflict and hostility between the parties, and its corresponding negative impact on their ability to communicate and co-operate, would make a joint custody arrangement completely unworkable and inappropriate.

Nor am I convinced, on the evidence before me, that shared residence and associated relocations would be in the girls’ best interest. [ 31 ] Custody accordingly must be awarded to one parent, with whom the girls should have their primary residence. [ 32 ] In my view, sole custody of the children should be awarded to the Applicant, and their primary residence should remain with the Applicant. The Applicant has been and should remain the children’s primary caregiver, with corresponding implications for their residence.

That is the arrangement they have known and come to depend on throughout their lives, and it should continue for the foreseeable future. [ 33 ] While arguably already an incident of sole custody, for greater certainty, I also specifically find that the Applicant alone should have sole responsibility and authority for making medical, educational and other health decisions, including decisions relating to the provision of counseling for the children.

ACCESS [ 34 ] As noted above, the court has jurisdiction to make an order for access to the children of the marriage and any appropriate ancillary terms, pursuant to s.16 of the Divorce Act , supra , and

section 24 of the Children’s Law Reform Act , supra . [ 35 ] In this case, however, formal requests concerning appropriate access arrangements, in the event the Respondent’s request for joint custody was denied, were not together satisfactory.

Party Positions [ 36 ] The Amended Application filed by the Applicant outlines past disagreements and interim arrangements concerning access, but includes no formal request for an order specifying access in the future. [ 37 ] The Amended Answer filed by the Respondent indicates that he is making a claim of his own, and then formally includes a claim for “access to children”, pursuant to the Divorce Act , Family Law Act or Children’s Law Reform Act . The Respondent’s pleading then goes on to detail, in paragraphs 8.5 through 8.7, his request for various specific orders relating to access.

However, the specific access arrangements suggested by the Respondent in paragraph 8.5 of his pleading mirror those suggested in paragraph 8.2, in relation to the Respondent’s request for joint custody and shared residence, which now has been denied, with no specified “fall back” position. [ 38 ] In the result, the question of access has been formally “put in play” by the Respondent’s pleading, without either party formally addressing, (in their pleadings at least), what final order should be made concerning access by the Respondent in the event the Applicant was awarded sole custody of the children. [ 39 ] In the course of his evidence, the Respondent nevertheless did expand on his request in certain ways; for example, by indicating his view that all week-ends extended by a statutory holiday, (such as Thanksgiving and Easter), always be divided equally between the parties to some extent, even if the girls see each one of the parents only for a day. [ 40 ] Moreover, through his pleading and counsel submissions, the Respondent also made requests that included the following:

a) specification that any “week about” summer access arrangements commence immediately on the first Sunday in July, following the cessation of school;

b) equal sharing of all special occasions and holidays, including March break vacations, with arrangements for the equal sharing of Christmas holidays to be discussed and confirmed by the parties each year before December 1 st ;

c) specification that both parties may attend, (together or separately), parent/teacher interview meetings and other various events and activities in which the children may be involved;

d) a term that each party execute any and all releases that may be required by third parties concerning the release of documentation relating to welfare of the children, (such as those relating to the children’s health, education, dental care or counseling);

e) a term that each party be obliged to provide a minimum 60 days’ notice of any contemplated relocation of residence, along with additional specified information concerning new contact details, schools and other professionals associated with care for the children;

f) a term restraining both parties from making negative comments about the other; and

g) a term restraining any change in the given names or surnames of the children. [ 41 ] In the course of her evidence, the Applicant outlined the access arrangement she now considers to be in the best interests of the girls, namely that:

a) The girls should have access to the Respondent on Wednesday evenings, from after school, (with the girls being picked up by the Respondent from their babysitter at 4pm), until picked up from the Respondent’s home by the Applicant at 7pm.

b) The girls should have access to the Respondent on alternating week-ends, (with the girls being picked up by the Respondent from their babysitter at 4pm), until picked up from the Respondent’s home by the Applicant at 7pm on Sunday, with such access extended to Monday at 7pm on week-ends where the Respondent has access and the normal week-end is immediately followed by a statutory holiday. (For consistency, the avoidance of disruptions, and to minimize further unnecessary disputes about “make up” days, the Applicant does not favour dividing long holiday week-ends between the parties whenever they arise.

Rather, she proposes that such week-ends be enjoyed by the parent who is scheduled to have the children that week-end.)

c) The girls nevertheless should always be with the Respondent on Father’s Day, (from 10am to 7pm), and the Applicant on Mother’s Day, (with the girls being returned to the Applicant by 10am);

d) The girls should spend March break vacations with the Applicant in even years, and with the Respondent in odd years, (with transfers taking place at 4pm on Friday at the commencement of the vacation, and at 7pm on Sunday at the end of the vacation); and

e) Since both parties are teachers, the girls should spend every other week with each parent, (starting the second Sunday of summer vacation), from Sunday at 8pm to the following Sunday at 8pm. [ 42 ] The Applicant acknowledges that this represents a reduction in the mid-week and alternating week-end access that the Respondent currently enjoys, (insofar as it reduces the number of mid-week evening visits from two to one, and requires all access visits to the Respondent during the school year to end an hour earlier). However, the Applicant notes that the current access

schedule is excessively disruptive, disorienting and tiring for the girls, and that the existing “two evening” arrangement was put in place prior to the more extended travel required after the Applicant’s relocation to Tillsonburg. (I note that none of the Applicant’s evidence in that regard was challenged or contradicted in any way at trial, either through cross-examination or otherwise.) The Applicant therefore feels it is essential, for the time being, that the girls have fewer school evenings away from home, and that they are home earlier for an earlier and consistent bedtime on school nights.

As partial compensation for the modification, the Applicant nevertheless is prepared to do “half the driving”. In other words, recognizing that the Respondent picks the children up from Tillsonburg at the commencement of access, she is prepared to pick them up from Ingersoll at the completion of access.

[43] The Applicant says the “telephone access” provisions of the existing agreed order need not be continued, simply because theyare no longer required. In particular, she says the children never ask to call the Respondent when they are in the Applicant’s home, andthat the Respondent never calls them when they are with the Applicant.

However, she indicated through counsel submissions that shegenerally is content to continue provisions for “reasonable telephone access”, supplemented by allowance for further telephone access atsuch times as the parties may agree. [44] The Applicant’s evidence did not expressly address the Christmas holidays, but she requested through counsel submissions thatthe Respondent have the children in even years from 4pm on the last day of school prior to commencement of the Christmas break untilthe second following Sunday at 7pm, and in odd years from the first Sunday of the Christmas break to the following Sunday at 7pm. (Inote that the existing agreed arrangement and order contemplates, in relation to Christmas holidays, equal division of the school break, with dates to be confirmed no later than December 1st of each year.) [45] As for ancillary terms:

a) The Applicant indicated through counsel submissions that she was content with a provision, (reflecting a request by theRespondent in paragraph 8.8 of his Amended Answer), requiring that each party be obliged to provide a minimum 60 days’ notice of anycontemplated relocation of residence.

b) In relation to extracurricular activities, the Applicant requested through counsel submissions that any order made by the courtinclude a term specifying that either parent be permitted to enroll each child in one extracurricular activity, provided the activity takesplace within the time the child is in that parent’s care, and also provided that the parent provide the other with advance notice of theactivity and its associated schedule. (The Applicant indicated in her evidence that she generally was content to have the Respondentregister the children for activities during periods of access, subject to any concerns she might have about safety.)

c) The Applicant indicated through counsel submission that she was content with a provision, (reflecting a request by theRespondent in paragraph 8.4 of his Amended Answer), that the parties each be required to execute any and all releases that may berequired by third parties concerning the release of documentation relating to welfare of the children, (such as those relating to thechildren’s health, education, dental care or counseling). [46] Respondent counsel made a formal objection to the Applicant’s ability to suggest any effective reduction of the Respondent’saccess, having regard to the Applicant’s failure to advance any formal request in that regard in her pleadings.

I am not insensitive tosuch objections – particularly since I share the sentiments of Justice Henderson, expressed in the endorsement made in this case on May22, 2012, emphasizing the importance of parties making respective positions and desired relief clear in pleadings, especially where theinterests of children are concerned. [47] However, as noted above, it was the Respondent who put the question of appropriate access arrangements formally “in play” byhis pleading, and it seems to me that the Applicant accordingly was entitled to express her desired views and preferences in response,during the course of her evidence.

Moreover, I cannot see how the Respondent was taken by surprise or somehow prejudiced in hisability to respond fully and effectively to the Applicant’s suggestions, by way of cross-examination and responding evidence. [48] In any event, as access formally was made an open question by the pleadings, it falls to the court to decide such mattersaccording to the girls’ best interests, having regard to all the evidence presented at trial.

Analysis and disposition [49] Throughout the access disposition that follows, (as in relation to the custody determination set out above), I have due regard tothe “maximum contact principle” contained in s.16(10) of the Divorce Act, the mportance of which is emphasized by such decisions asGordon v. Goertz, (SCC), [1996] 2 S.C.R. 27, and Vamos v. Vamos, [2012] O.J. No. 1778 (C.A.), at paragraph 15. [50] However, that principle obviously needs to be applied and if necessary tempered, according to the facts of each case, havingregard to the best interests of the children. [51] In this case:

a) For the reasons and concerns articulated by the Applicant, mid-week and week-end access during the school year shouldterminate at 7pm rather than 8pm, until the girls are older and require less sleep. This will be offset to some extent by the Applicanthenceforth being required to pick the girls from the Respondent’s residence in Ingersoll at the end of each access visit, (such that thegirls will be able to spend more quality time with the Respondent instead of spending time with him in transit on their way back to theApplicant’s residence).

The Respondent nevertheless shall continue to retrieve the girls from Tillsonburg, (currently from the girls’babysitter), at the commencement of each access visit.

b) During the school year, mid-week evening access of the girls with the Respondent should be modified to one evening perweek, (Wednesdays from 4pm to 7pm), in order to minimize the disruptions to their routine during the school week.

c) The Respondent shall continue to enjoy access on alternating week-ends, during the school year, from 4pm on Friday until 7pm on Sunday, extended to 7pm on Monday if a statutory holiday falls on a Monday after a week-end in which the Respondent is scheduled to have access. For greater certainty and clarity: I do not accept the Respondent’s suggestion that every holiday week-end be shared evenly between the parties. Such a proposal would undermine the predictability and regularity of alternating access week-ends. I also do not thi

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