r v. Golding, 2017 ONSC 785

CITATION : Hatcher v. Golding, 2017 ONSC 785 COURT FILE NO.: 4459/15 DATE: 2017-02-15 ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: ) ) Benjamin Paul Hatcher ) ) ) Alisa P. Williams, for the Applicant ) Applicant ) ) - and - ) ) ) Jennifer Anne Golding ) ) ) Theodore M. Charuk, for the Respondent ) Respondent ) ) ) ) HEARD: December 5, 6, 7, 14, 15, 16, 19, 20, 2016 THE HONOURABLE MADAM JUSTICE L. MADSEN 1 INTRODUCTION [ 1 ] So often we see mobility cases where the issue is how children will spend time with parents residing in different provinces or countries, often separated by thousands of miles.

This, by contrast, is a mobility case where the parents live cities apart, not provinces or countries apart. [ 2 ] Here, the father lives in Hamilton, Ontario and the mother lives about 50 km away in Brampton, Ontario. The Court is asked to decide what parenting arrangement is in the best interests of the children in the context of this distance. Fortunately for the children, it is feasible for them to spend meaningful, regular time with both parents throughout the year, notwithstanding that it is a ‘mobility’ case. [ 3 ] The Applicant, Benjamin Hatcher [“Mr.

Hatcher”] seeks joint custody of the parties’ children Alyssa Emily Hatcher born

January 8, 2005 [“Alyssa”] and Addisyn Faye Hatcher, born September 3, 2009 [“Addisyn”]. He also seeks an Order that the children continue to reside on a shared parenting basis with their parents under the

schedule in place at the time of the trial. This

schedule would permit the children to continue to attend school in Hamilton, Ontario, where Mr. Hatcher resides, while spending three out of four weekends, from Thursday after school to Monday morning, in Brampton, Ontario, where the Respondent resides. In the alternative, Mr. Hatcher seeks an Order that the children reside primarily with him through the school week, with week-end access to the Respondent. [ 4 ] The Respondent, Jennifer Golding [“Ms. Golding”] seeks sole custody of the children.

She also seeks an Order that the children reside primarily with her in Brampton, Ontario, and that they have access to Mr. Hatcher three weekends out of four from Friday after school until Monday morning, as well as one evening per week in Brampton. [ 5 ] Both parties seek other relief related to the holiday schedule, communication, child support including special and extraordinary expenses, life insurance and benefits.

None of these issues were particularly contentious during the trial. [ 6 ] For the reasons which follow, I have concluded that the residential arrangement which is in the children’s best interests is to reside with Ms. Golding primarily, and have regular parenting time with their father, three week-ends out of four, as well as time during the week, as set out below. I have also concluded that Ms. Golding shall have sole custody of the children and shall make major decisions about their care, on terms also set out below. 2 POSITIONS OF THE PARTIES Position of the Applicant [ 7 ] Mr.

Hatcher’s position on the children’s residency is that the children should continue to reside with their parents under the

schedule developed in September 2015, whereby they would spend most of the school week in Hamilton and three out of four weekends in Brampton. In the alternative, they should reside primarily with him. Mr. Hatcher made several arguments in support of his position: [ 8 ] First, he argued that the children’s status quo should not be disrupted. He stressed that the children have only ever attended school in Hamilton, and that for well over a year, they have been in a shared parenting arrangement with their parents. Mr. Hatcher argued that the children have been doing well under the

schedule in place from September 2015 to December 2016, that they love their schools, and have a good support network in Hamilton. While he has a different parenting style than Ms. Golding, he indicated that he is a loving and involved father and that he has met and would continue to meet the children’s needs under that schedule. [ 9 ] Second, Mr. Hatcher argued that Ms. Golding had made insufficient efforts to find employment in the Hamilton area. He argued that Ms.

Golding selected Brampton as her residence to meet her new husband’s employment needs and requirements with his own children, rather than in the best interests of Addisyn and Alyssa. He argued that while Ms. Golding could choose to live somewhere else, the children should not have to pay for that choice through less time with him. Fundamentally, he argued, Ms. Golding does not respect the children’s relationship with him, and has prioritized her new family over the children’s relationship with their father. [ 10 ] Third, Mr. Hatcher argued that he and Ms. Golding were and are equal parents to their children.

While they may have played different roles, they have each parented their children fully, and it is inaccurate for Ms. Golding now to characterize herself as the primary parent. Further, he argued, even if she had greater parenting responsibilities during the relationship, parenting roles often change at separation, and this in and of itself would not be a reason for the children to reside primarily with her. [ 11 ] Fourth, Mr.

Hatcher argued that if the children have indicated that they would prefer to live primarily with their mother, which he stressed was hearsay which should in any event be disregarded, children generally want to please both parents and would have said that to please their mother. He argued that any views expressed by the children were not independent as their mother had involved them in the court proceeding and put pressure on them to say they would prefer to live in Brampton. [ 12 ] In terms of custodial decision making, Mr.

Hatcher asserts that the parties are able to communicate about major issues affecting the children. He expressed concern that if Ms. Golding were awarded custody, she would disregard his views and marginalize him as a parent. Position of the Respondent [ 13 ] Ms. Golding’s position on the children’s residency is that the children should reside primarily with her in Brampton, and attend school there, while having access with Mr. Hatcher three weekends out of four, and one evening per week.

She made several arguments in support of this position. [ 14 ] First, she argued that she has always been the children’s primary caregiver, both during and after their relationship. She asserted that she has always been the parent to ensure that the children’s medical and dental needs were met, that their educational needs were met, and that their day to day needs were met. Mr. Hatcher, she argues, has not been nearly as involved as he asserts and in fact has left most of the main parenting responsibilities to her. Since the parties started the shared parenting arrangement, she asserts, Mr.

Hatcher has relied extensively on third parties to meet the children’s needs and is in fact not capable of meeting them on his own. While he loves the children, she argued that she is the more capable parent. [ 15 ] Second, Ms. Golding argued that the children want to reside primarily in Brampton and attend school in Brampton. She asserted that the children have been clear and consistent with respect to their wishes in this regard. While acknowledging that this evidence is hearsay, she urged the Court to take what she said are the children’s views into consideration. [ 16 ] Third, Ms.

Golding argued that she did look for employment in Hamilton, but in the end was able to find employment in the Halton Board rather than in Hamilton. Further, she argued that she is unable to move closer to Hamilton at this time given the requirements of her husband’s employment. She noted that the parties moved to Hamilton on a temporary basis specifically for her to undertake her academic studies which are now complete.

[ 17 ] Finally, Ms. Golding argued that she offers the children greater stability than Mr. Hatcher. As a teacher, she has a predictable

schedule that does not involve shift work, and she is more consistently available to the children. By contrast, Mr. Hatcher, when employed, works shifts, and needs to involve numerous third parties in the care of the children. Further, it is unclear what Mr. Hatcher’s employment plans are, being presently laid off from seasonal employment and on leave from his parking attendant position. She also argues that as a teacher, she can better support the children’s educational needs. [ 18 ] In terms of custodial decision making, Ms.

Golding argues that while it may appear that the parties are able to communicate about major issues affecting the children, in fact, she is the parent who does the communicating, while Mr. Hatcher often fails to respond. She sends detailed, explanatory emails, with follow up, while Mr. Hatcher sends sparse, often delayed responses with little content. She argues that he rarely initiates contact for the benefit of the children, but rather leaves the heavy lifting to her and simply responds, briefly, when it suits him.

This, she asserts, is not the level of communication required for effective joint custody. 3 WITNESSES Mr. Hatcher’s Witnesses [ 19 ] The following witnesses were called by Mr. Hatcher: himself; Susan Giansante, a law clerk at the office of his counsel; and Stephanie Adams, his sister. Mr. Hatcher [ 20 ] In general I found that Mr. Hatcher testified in a soft-spoken, direct manner, and overall, I found him to be a credible witness. He told his story as best he could, and was able to acknowledge candidly where he could have done things differently.

While I have made findings of fact below which do not confirm his perspective on some issues, I find that he was forthcoming and straightforward about the facts as he remembered them. Susan Giansante [ 21 ] Ms. Giansante is Mr. Hatcher’s counsel’s law clerk. She testified she reviewed the file in this matter and the computer back up of faxes, and it did not contain a request from the OCL Clinical Investigator for Mr. Hatcher’s pleadings. I had no difficulty with her testimony and found her to be a credible witness. Stephanie Adams [ 22 ] Mr.

Hatcher’s sister, Stephanie Adams, testified about her observations of Mr. Hatcher’s role and relationship with the children, her own role and relationship with the children, and her concerns with respect to Ms. Golding and her plan for the children. Ms. Hatcher is trained as a Child and Youth Worker but is presently not able to work due to health issues. She has two children, aged 7 and 2. Ms. Adams has been involved with the children since the parties moved to Hamilton in 2007. [ 23 ] I found Ms. Adams to be a credible witness.

Like her brother she testified in a direct manner and was able to acknowledge facts that might not support her brother’s case. Ms. Golding’s Witnesses [ 24 ] The following witnesses were called by Ms. Golding: herself; Brenda Golding, her mother; and Matthew Humphrey, her husband. Ms. Golding [ 25 ] In general I found Ms. Golding to be a credible witness. In her testimony about the relationship with Mr. Hatcher and parenting roles, I found her to be direct and clear. She was candid about the conflict in the parties’ relationship and her role in that conflict.

Ultimately she was also candid about not wishing to stay in Hamilton even if she were not in a new relationship. While her testimony and that of her husband, Mr. Humphrey was not quite consistent regarding what she did or did not know about his criminal charges, little turns on it for the purpose of this decision. Similarly, although she had not shared certain details regarding prior mental health issues with her mother, I do not find this significantly diminishes her credibility. She also acknowledged that there were some discussions in her home with the children about where they would live.

Matthew Humphrey [ 26 ] Ms. Golding’s husband, Matthew Humphrey, testified as to family life in his home when the children are with he and Ms. Golding, to his observations of Ms. Golding’s parenting and his observations of the girls. Mr. Humphrey is a fleet manager for a landscaping company based in Markham, Ontario. He has two children, Amber and Sarah, from a prior relationship. [ 27 ] I found Mr. Humphry’s evidence with respect to his observations of Alyssa and Addisyn while in their mother’s care to be credible, and largely consistent with Mr.

Golding’s testimony about life in her home, although it was my sense that he tended to overstate things a bit. [ 28 ] I had difficulty with his statements that he and Ms. Golding had not discussed this court proceeding, which did not ring true. I also had some difficulty with his evidence regarding his and Ms. Golding’s priorities when looking for a home in Brampton, on the one hand stating that proximity to Mr. Hatcher was an “equal” priority with other considerations, and on the other hand stating that cost was the primary consideration. [ 29 ] I find that Mr.

Humphrey was quite candid when he stated that there had been some discussion in the home about where the

children would live even though it was clear from counsel’s questions that this was not the “right” answer. Brenda Golding [ 30 ] Brenda Golding, Jennifer Golding’s mother, testified as to her observations of the children and both parties’ parenting. She is a retired nurse and college instructor and has been assisting Ms. Golding in making the transportation required under the current Order work. I found her to be a credible witness. She answered questions in a direct manner, did not embellish her answers and was straightforward even when her answers were less than helpful to her daughter’s case.

The fact that she was unaware of her daughter’s prior mental health issues or the details of the assault which will be discussed below does not in my view impact her credibility or ability to testify about her parenting observations. 4 THE REPORT AND TESTIMONY OF THE OFFICE OF THE CHILDREN’S LAWYER [ 31 ] On August 5, 2015, Madam Justice Lafrenière requested the involvement of the Office of the Children’s Lawyer. On October 19, 2015, the OCL assigned Ian DeGeer to provide services under

section 112 of the Courts of Justice Act . Mr. DeGeer conducted an investigation, and on February 26, 2016, nine months before the start of the trial, his report was served on the parties. Neither party filed a Dispute to the Report. [ 32 ] The Investigator interviewed the parties and the children, and conducted an observational visit in each household. He also interviewed the mother’s new husband (then-fiancé), and the children and mother’s physician, Dr. Fenti. He reviewed police records, school records, and Children’s Aid Society records.

He also reviewed the mother’s pleadings but not the father’s pleadings. [ 33 ] The Investigator expressed concern about Mr. Hatcher’s anxiety and its impact on his parenting, concern about his inability to manage stress, and about his ability to provide stability and structure. He further expressed concern about violence that took place during the relationship (about which more will be said below). He found that it appeared that Ms. Golding had been the children’s caregiver throughout the parties’ relationship, and found that she appeared to have made decisions in the best interests of the children.

He suggested that the current arrangements would be difficult to continue, but also noted that any parenting plan should consider the children’s pre-established relationships with both parents. [ 34 ] In the result, the Investigator recommended sole custody to Ms. Golding. He also recommended that the children reside primarily with her in Brampton and that they have access with Mr. Hatcher three weekends out of four.

He also recommended that the children receive counselling to address having witnessed domestic abuse between their parents. [ 35 ] There are several difficulties with the OCL report and the oral testimony of the Investigator which affect the Court’s consideration of his evidence. [ 36 ] First, I am concerned that the Investigator reviewed the pleadings of one party and not the other. While he testified that he had requested Mr. Hatcher’s pleadings, he was unable to provide a fax confirmation sheet, and in fact Ms. Williams’ law clerk, Ms. Giansante, testified that her office had never received a request for Mr.

Hatcher’s pleadings. While the Investigator suggested that it would have been counsel’s job to ensure that the pleadings were provided, at the end of the day, he should not have delivered a report having reviewed only one side’s court materials. This affects, at the very least, the perception of his impartiality. [ 37 ] Second, I have concerns with the choice of collaterals selected by the Investigator. He chose to interview Ms. Golding’s husband, Mr. Humphrey, which is reasonable, as he resides with the mother. However, he failed to interview either Ms. Adams, Mr.

Hatcher’s sister, who provides significant assistance to Mr. Hatcher, or either of Mr. Hatcher’s parents, who also assist him in managing the parenting schedule. [ 38 ] Third, the investigator interviewed Ms. Golding’s physician, Dr. Fenti, gaining information both about the children as well as about Ms. Golding, in particular about the lack of severity of her bi-polar diagnosis. The investigator did not interview Mr. Hatcher’s physician, Dr. Peddler, but nonetheless based part of his recommendation on the father’s “social anxiety disorder.” In oral evidence the Investigator explained that he relied on Mr.

Hatcher’s description of how anxiety impacts him. It would have been preferable, however, that if his recommendations were going to be based partly on the father’s mental health, that he interview the father’s physician just as he had interviewed the mother’s physician. [ 39 ] Finally, Ms. Golding’s husband, Mr. Humphrey, has a criminal record, yet the investigator did not review those records.

I appreciate that this is a discretionary call by each Investigator, but in combination with the other procedural issues I have set out, the failure to request and review these records gives me concern. [ 40 ] On the basis of the forgoing, while I accept the Investigator’s report and testimony insofar as it relates what he was told by each party during his investigation, I am unable to place significant weight on his recommendations due to the procedural flaws in his process. 5 FACTS Background [ 41 ] The parties lived together as a couple from January 2005 until they separated in December 2010.

For a period of time during the relationship they lived at Ms. Golding’s parents’ home, and for a period of time they lived at Mr. Hatcher’s parents’ home. There was also approximately one year from October 2006 to September 2007 that the parties were separated but working on their relationship. During that time, Ms. Golding and the children resided with her parents and Mr.

Hatcher visited her and Addisyn, following which the parties eventually reconciled. [ 42 ] After separation in December 2010, the parties lived under the same roof in the Westdale area of Hamilton for almost four and a half years until May 2015.

[ 43 ] As noted above, Alyssa was born January 8, 2005. Addisyn was born September 3, 2009. Alyssa was thus five years old when her parents separated, ten years old when they ceased cohabitation and almost twelve years old at the date of the trial.

Addisyn was a little over a year old when her parents separated, five years old when they ceased cohabitation, and seven years old at the date of trial. [ 44 ] The parties have used childcare to assist with the care of the children, both full time care, as well as before and after school care. [ 45 ] The children have always attended school in Westdale, in Hamilton, and continued to do so at the time of the trial. Alyssa currently attends Dalewood Middleschool and Addisyn currently attends Cootes Paradise Elementary School. Temporary Orders [ 46 ] There are five Temporary Orders in this matter: a.

On August 5, 2015, on consent, Justice Lafrenière made an Order regarding Mr. Hatcher’s time with the children during August and September 2015. b. On September 4, 2015, Justice Brown ordered that the children continue in their schools in Hamilton. This was temporary without prejudice Order; c. On September 25, 2015, Justice Chappel ordered a shared parenting

schedule on a without prejudice basis; d. On October 6, 2015, on consent, Justice Brown continued the parenting

schedule provided for in Justice Chappel’s September 25, 2015 Order, provided for telephone time, and set out the sharing of time over Christmas; and, e. On June 28, 2016, Justice Brown ordered costs against Ms. Golding in the amount of $3,500.00. Education and Employment History [ 47 ] During the early years of the relationship, Mr. Hatcher worked for Annan and Bird Lithographers, a print shop in Mississauga, commuting from Hamilton. This was shift work, whereby he either worked from 7:00 a.m. to 3:30 p.m., 3:30 p.m. to midnight, or midnight to 7:00 a.m. Shifts would rotate every two weeks.

In addition to his regular full time shifts, he also worked alternate weekends. This meant that some weeks he worked seven days a week. Mr. Hatcher held the job for ten years, and was let go in January of 2011. [ 48 ] In the spring of 2011, Mr. Hatcher pursued studies in Police Foundations at a college in Hamilton, but did not complete the co-op portion of the program. He was in school for about nine months. He testified that he did not feel police work was a good fit for him. [ 49 ] In the three years leading up to the trial, Mr. Hatcher was a parking lot attendant for two employers.

From February 2013 to October of 2016, he worked for Precise ParkLink [“ParkLink”], usually from Thursday to Monday, either from 6:30 a.m. to 3:00 p.m. or 3:30 p.m. to midnight (alternating weekly). From mid-September 2015 until October 2016, he also worked part-time at McMaster University in their parking department, often on Tuesdays and Wednesdays, from 8:00 a.m. to 4:00 p.m. Shifts at Precise Parklink could vary depending on the employer’s needs, as could shifts at McMaster. Mr. Hatcher was paid $13.00 per hour at ParkLink, a job which also offered extended health benefits, and $12.30 per hour at McMaster.

Mr. Hatcher left both jobs in October of 2016. Mr. Hatcher provided a doctor’s note to ParkLink regarding stress and anxiety and was placed on sick leave. He left the McMaster job permanently. [ 50 ] From 2012 to 2015, Mr. Hatcher also delivered flyers, earning about $250.00 to $300.00 per month, working 6 to 7 hours per week. He stated that the girls were sometimes with him when he picked up the flyers, and that the whole family would often participate in delivering the flyers. [ 51 ] Shortly before the trial, Mr.

Hatcher had been working for Home Services Teams, a seasonal window cleaning/ Christmas light installation company. He was laid off before the trial due to lack of work but expected to be called back to work. He indicated that his rate of pay with the new employer was $20.00 per hour and that he was getting about 35 to 40 hours per week in the weeks that he had this job. The new job did not provide benefits. [ 52 ] At the time of trial, Mr. Hatcher indicated that he had applied for Employment Insurance in mid-November and expected to receive his first cheque in the week of December 20, 2016.

His testimony on this was a bit confusing and it was unclear how he could have applied for E.I. while he was still employed with Home Services Teams. [ 53 ] In terms of his employment future, Mr. Hatcher indicated that he hoped to continue at Home Services Teams. He expected to be off work for about six weeks and to be called back when Christmas lights needed to be taken down. He was unsure whether this job would be a long term job.

He did not intend to return to Precise Parklink due to the stress related issues at that job, although he indicated that for a period of time it would be open to him to do so. [ 54 ] The parties moved to Hamilton, Ontario in September 2007 when Ms. Golding started a two-year Master’s Program in Astrophysics at McMaster University. During that time she was also employed as a Teaching Assistant, earning approximately $17,000 to $18,000 per year, after tuition was paid. Upon completion of that program she started the PhD program, but had difficulty with the comprehensive exam.

She left the program in February of 2012 but continued as a Researcher until June 2012. [ 55 ] Ms. Golding started an Early Childhood Education Program in May 2012, but discontinued this when she was accepted to Teachers' College. She attended Teacher’s College through Brock University at their Hamilton campus, completing her studies in May of 2014. [ 56 ] At various times throughout her education, Ms. Golding has earned an income as a tutor and as a baseball umpire. [ 57 ] Ms. Golding has been certified to teach in Ontario since July of 2014. She is qualified to teach math and science at the high school level.

Although her teaching license provides that she is qualified to also teach grade 7 and 8, in her view she is less likely to

obtain positions for those two grades as she has lesser qualifications than many other applicants for those positions. She also holds a certification related to special education. [ 58 ] Ms. Golding’s first teaching job following her completion of her Teacher’s Certificate was for Newton Grove Public School, located in Toronto. This was a maternity leave contract, teaching math. She held the position from September 2014 until June 2015, during which time she commuted from Hamilton to Toronto for work. Ms.

Golding does not wish to pursue private sector teaching jobs as she states that salaries are lower and benefits inferior to the public system. [ 59 ] At the time of the trial, Ms. Golding was working on a long term occasional contract as a teacher in the Halton Board. She indicated that she has full time hours, and her contract extends until February 2017. Ms. Golding stated that at the conclusion of this contract she anticipates further full time work within the same school board. She indicated that she was guaranteed one day per week, but had been offered to be put on the supply list.

She has not looked for work within the Catholic School Board, as she is not Catholic, and has not looked regularly at private school teaching options since July 2015. Mental Health Issues [ 60 ] Mr. Hatcher reported to Mr. DeGeer that he has a social anxiety disorder. He testified that he feels anxiety in social situations but that he pushes through it for the sake of the girls. For example, he stated that going to the school open house would cause him to feel anxious but that he would still go. Mr. Hatcher stated that he has not “officially” been diagnosed. His testimony regarding medication was inconsistent.

At one point he stated that he has previously taken medication but that the side effects were worse than the anxiety. Later in his evidence he stated that he is presently on medication that is helping to alleviate stress in relation to issues at his former job at ParkLink. [ 61 ] Ms. Golding advised Mr. DeGeer that as a 17 year-old, she was diagnosed with Psychlothymia, a mild form of bi-polar disorder, and told him that the mood swings are less severe than with “traditional” bi-polar disorder.

She testified that she has not been on medication in relation to mental health issues since 13 years ago and that she is not currently taking medication. Conflict, Domestic Violence, and Self-Harm [ 62 ] Mr. Hatcher and Ms. Golding both testified that there was a great deal of conflict during the relationship, in particular verbal conflict, some of it in front of the children. [ 63 ] There were several physical incidents as well. [ 64 ] There was evidence that Mr. Hatcher could be violent with objects. The parties for example both testified that on one occasion in 2008, Mr.

Hatcher had become so angry that he stabbed a refrigerator door with a knife, and then inadvertently hit himself in the mouth causing bleeding when he pulled the knife out of the door. Mr. Hatcher acknowledged having outbursts and testified that he feels he has matured. He regretted the episodes and exposing the children and Ms. Golding to what they saw. He indicated that he has not recently had any violent outbursts. Asked about whether he had taken an anger management course or personal counselling, he indicated that cost has been prohibitive.

He had not looked into services through Family Services, but acknowledged that this would be a good idea. [ 65 ] The parties testified about three incidents involving Ms. Golding. Two incidents took place in 2009 when the parties were still together. [ 66 ] In early 2009, when the parties were going through difficulties, Ms. Golding engaged in self-harm. She drank alcohol, cut herself on the thigh with an exacto knife, and then texted or called Mr. Hatcher. Alyssa was in her care at the time and she was pregnant. Ms. Golding stated that she is not sure why this incident happened, but that she was upset that Mr.

Hatcher was starting a relationship with someone else, while she was pregnant with their child. She said she may have been trying to get Mr. Hatcher’s attention. Ms. Golding made four or five cuts which were not deep and that she did not need medical attention. Following the incident, Ms. Golding consulted with her physician and discussed using meditation to stay calm when things are difficult. Ms. Golding testified that there has never been an incident like this since then. [ 67 ] In the summer or 2009, the parties were separated again, and Alyssa was with Mr. Hatcher at his parents’ home. Ms.

Golding indicated that Mr. Hatcher was not responding to her text messages and she became frustrated and angry. On this particular evening he was not home. Ms. Golding drove to Mr. Hatcher’s parents’ home in the middle of the night, threw his belongings on the lawn, and went into the home to retrieve Alyssa from Mr. Hatcher’s parents. She ripped photos of the two of them in half before throwing them on the lawn. No one was physically hurt in this incident. [ 68 ] Finally in February 2011, Ms. Golding became violent in response to Mr.

Hatcher having taken her phone while she was in the shower and was looking at her emails to see who she had been talking to. At that time the parties were still living together but were separated, and she had been seeing other people. Ms. Golding testified that she “lost it”, yelling at Mr. Hatcher and physically assaulting him. Mr. Hatcher called the police. Ms. Golding was removed from the home and charged with assault. The matter was resolved by Peace Bond, and the charges were withdrawn. Ms.

Golding attended what she called anger management style therapy, and found the experience with the counsellor to be beneficial. Ms. Golding testified that she regretted the incident and there had been no other incidents since then. [ 69 ] With respect to these physical incidents, I note that neither party expressed concern that the other posed physical danger to the children or to one another at this time. I also note that the incidents took place a number of years ago.

There is no evidence to suggest that physical violence took place – to people or objects – since the parties physically separated in May of 2015, and no evidence of other incidents of self-harm by Ms. Golding. While the incidents set out above do not reflect well on the parties, I do not find that either of them is presently a risk to the children nor was that alleged in the trial. [ 70 ] Apart from the physical incidents, Ms. Golding testified and Mr. Hatcher did not deny that he would monitor Ms. Golding’s behavior after separation in 2010.

She testified that in and around the time of the assault incident in 2011, Mr. Hatcher had installed an

application on her phone that would forward her correspondence to his account and that he had been looking at her cellphone and emails to determine what she was doing in her free time. There was no evidence of this continuing to the present time. Parenting Arrangements Since September 2015 [ 71 ] Mr. Hatcher and Ms. Golding have both been blessed with kind and helpful family who have assisted in various ways in the care of the children since they were born.

After the parties separated, that assistance continued and was an important part the implementation of the parenting schedule. [ 72 ] At the time of the trial, the children were spending approximately equal time in the care of each parent. They were residing with Mr. Hatcher from each Monday at the commencement of school until Thursday at the end of school, and every fourth weekend from Friday at the commencement of school until Monday at the commencement of school, a total of 15 overnights in each 28 day period. The children would reside with Ms.

Golding three week-ends out of four from Thursday after school until Monday morning at the commencement of school, followed by a Thursday overnight until Friday at the commencement of school (to allow Mr. Hatcher to have weekend time with the children), a total of 13 overnights in each 28 day period. Ms. Golding also had time with the children on Tuesday nights in the week prior to Mr. Hatcher’s weekend, in Hamilton. This

schedule has been in effect since September 2015, a period of approximately fourteen to fifteen months at the time of the trial. [ 73 ] Ms. Golding’s mother, Brenda Golding, would assist with the transportation of the children from school on Thursday nights, to and from school on Fridays, and to school three Monday mornings out of four. Jennifer Golding would transport the children part-way to school, meeting her mother at the Go-Station at Trafalgar Road. Jennifer Golding’s mother would then transport the children from the Go-Station to school. At the end of the day.

Jennifer Golding’s mother would pick up the children at school in Hamilton and then transport them to Jennifer Golding’s school in Oakville. Jennifer Golding would then take them back to her home in Brampton from there. [ 74 ] Also to facilitate this schedule, Mr. Hatcher’s parents, sister, or a neighbour would often assist in getting the children to school in the morning. So, for example, if Mr. Hatcher was on the 6:30 a.m. shift on a Monday morning or Thursday morning with ParkLink, his parents would often stay overnight from the day before, and would get the children to school in the morning.

Alternately, his sister would assist, arriving early in the morning. Sometimes one of the children’s best friend’s mothers would walk the children to school. Mr. Hatcher’s sister would then assist from time to time by picking the children up from school at 3:20 p.m., with Mr. Hatcher arriving home around 3:30 or 4:00 p.m. if he was on day shift with ParkLink. If he was on the evening shift at ParkLink on a Monday night, Mr. Hatcher’s sister or parents would also assist by making dinner for the children. Mr.

Hatcher indicated that on Tuesdays and Wednesdays when he was usually working at McMaster, he did not require assistance with dinner for the girls as his hours were 8:00 a.m. to 4:00 p.m. Primary Care of the Children [ 75 ] The parties do not agree on how parenting responsibilities were shared during and after their relationship and on whether there was a primary parent.

Specifically, they disagree on who the primary parent was over the course of three time periods: during the relationship and until December 2010 when they separated; from December 2010 until May 2015 when they were separated but cohabiting; and from May 2015 when they ceased cohabiting, until the trial. Mr. Hatcher’s view is that they were both relatively equally involved in a range of parenting tasks, while it is Ms.

Golding’s view that she has been the primary parent since Alyssa was born in 2005. [ 76 ] In reaching conclusions about parenting roles for the purpose of this decision, I stress that this is not a contest about who loves Alyssa and Addisyn more. There is no question that both Mr. Hatcher and Ms. Golding love the children deeply and both want what they feel is best for the children.

However, given that the parties are not in the same residence any longer, that they reside in separate cities, and that they seek a Court determination as to ongoing parenting time, an analysis is required as to the parenting roles each party played during the relationship and up until the trial. This prior parenting, including during a long period of separation, is relevant to my determination of the future parenting arrangements that are in the children’s best interests. [ 77 ] Based on the evidence I find, on a balance of probabilities, that Ms.

Golding has been significantly more involved with the care of the children through all three time periods, including when the parties ostensibly had shared care of the children after they physically separated. 2005 to December 2010 [ 78 ] Alyssa was born January 8, 2005 and the parties separated in December 2010, about five years later. This was when Mr. Hatcher was working at the print shop in Mississauga doing full time shift work, and working many weekends in addition to that. He acknowledged that some weeks he was working outside the home seven days per week.

From 2007, when the parties moved to Hamilton for Ms. Golding’s studies, until 2010, Mr. Hatcher commuted from Hamilton to Mississauga, extending the hours away from home. Both parties testified that it was difficult when Mr. Hatcher came off a night shift. Mr. Hatcher acknowledged that Ms. Golding provided most of the care during this period, although Alyssa was also in daycare. Mr.

Hatcher described this time as stressful, and while he stated that the parties both took care of Alyssa (and then both children after Addisyn was born), he also indicated that his work was not flexible, and that he “helped” with parenting tasks, including bathing, feeding, getting the children ready, and putting them to bed. As he candidly stated, he did what he could when he was there. Ms.

Golding testified that during this time, even when the parties were both home, she provided most of the care (exclusive of day care time), and that when she could not be there, particularly when in school, her mother would assist. She indicated that she would ask Mr. Hatcher to spend time with Alyssa but he would want to be on the computer. I believe the evidence of Ms. Golding that she did the majority of the parenting during this period of time and note that this is consistent with Mr. Hatcher’s recollection. [ 79 ] The parties both acknowledge that for one year of these five years, Ms.

Golding and Alyssa were residing with Ms. Golding’s mother, with Mr. Hatcher visiting. Mr. Hatcher acknowledged that Ms. Golding would have had primary parenting responsibility during this and that he was involved in caregiving to a limited extent only during this period.

December 2010 to May 2015 [ 80 ] The parties separated in December 2010 and as noted above continued to cohabit, for financial reasons, until May of 2015. During this time, Mr. Hatcher’s job in Mississauga came to an end, he pursued his Police Foundations studies from March 2011, and then started working at ParkLink in February 2013. Ms. Golding was a student until June 2012, then pursuing the Early Childhood Education program, followed by Teacher’s College. For the final year of cohabitation she was teaching in Toronto and commuting. The parties had many transitions over the course of these years. Meanwhile Ms.

Golding was dating, ultimately entering a serious relationship with Mr. Humphrey, her current husband. [ 81 ] The parties’ time with the children during this period was somewhat non-traditional and it is clear that as with other periods of their lives, their respective parents were involved in assisting them to a significant degree. Mr. Hatcher testified that for a period during this time, when Ms. Golding was dating Mr. Humphrey, she would spend some weekends with Mr. Humphrey while either the maternal or paternal grandparents would take care of the children. This would be arranged by Ms. Golding.

On some of these occasions, Mr. Hatcher was working for the weekend, but even if he was not, the children would not stay with him. He stated that he wasn’t going to provide childcare for Ms. Golding to be able to go out. Asked whether he had ever cared for the children for a weekend during this period, he could initially not recall. He stated that even when he had weekends off he did not “watch” the girls. On weekends then, often neither parent was caring for the children, but Mr. Hatcher would care for them only if Ms.

Golding was also there. [ 82 ] The parties’ evidence as to who did which parenting tasks during the school weeks during this period of time diverged. Mr. Hatcher testified that for the nine months that he was pursuing his Police Foundations course, both parents would attend to pick-ups and drop offs from childcare and whichever parent was available would do bath time and meals. However, he acknowledged that he was not familiar with the children’s teachers, or the children’s school routines. He acknowledged that Ms. Golding was responsible for dentist appointments and parent teacher meetings and that Ms.

Golding had been the facilitator and organizer. She was the parent who would follow up on school notices. Mr. Hatcher said he was kept out of the loop. One example of this was Mr. Hatcher’s complaint regarding not being told about a book report which was due for one of the children. He was concerned that Mr. Humphrey was helping with this rather than him being told about it. When asked whether he had equal access to the child’s backpack and could have proactively tried to be a part of the school routine, he acknowledged that he didn’t go as far as he could have. It was clear from his testimony that Ms.

Golding took the lead on parenting during this period. [ 83 ] Ms. Golding acknowledges that Mr. Hatcher was involved in some parenting tasks from 2010 to 2015, but testified that she would be primarily responsible, about “70-80%” of the time. For example, according to her, she would arrange for activities for the children and he would take them 20-30% of the time but only if she was not available. On Mr. Hatcher’s own testimony, this rings true. May 2015 to November 2016 [ 84 ] From May 2015 until the trial, the parties shared physical care of the children.

Initially, in May and June 2015, it appears the children were primarily with Ms. Golding, with time being arranged for Mr. Hatcher around his employment schedule. Mr. Hatcher testified that from his perspective access was being denied during this time and that his time with the children should not depend on the schedule. In July and August 2015 it appears that time was shared between the parents, and Ms. Golding acknowledged that Mr. Hatcher’s

summary of time spent with the children by each of them during this time was accurate. Commencing in September 2015, the parties began the parenting arrangement set out above, whereby the children are primarily with Mr. Hatcher during the school week, in addition to one weekend each four weeks, and the children are with Ms. Golding three weekends out of four, and every Thursday overnight to Friday. Under this schedule, as noted above, the children have had almost equal time with each parent. [ 85 ] Both parents have clearly done their best to make this

schedule work, notwithstanding its complications. As noted above, Ms. Golding’s mother has been integral to making the transportation work, and Mr. Hatcher’s sister and parents have assisted with child care in the mornings, evenings, and overnights as has been required. A neighbour has also assisted in getting the children to school from time to time when the children are in Mr. Hatcher’s care. Notwithstanding the relatively short distance between the parties’ homes (about 50 k.m.), it is clear that without the support and assistance of third parties, this

schedule would be very difficult, if not impossible, to manage over the long term. [ 86 ] What is striking during this period is that notwithstanding that the children have been in Mr. Hatcher’s care during most of the school week, seeing their mother on most weekends, it remains Ms. Golding who has undertaken the lead on many parenting issues. That is not to say that Mr. Hatcher is not doing his best to make the

schedule work and to care for the children. However, I find that Ms. Golding has continued being the primary parent notwithstanding this parenting schedule. [ 87 ] First, I note that while Ms. Golding’s mother assists with transportation to and from Brampton, and assists with care from time to time, there is no suggestion that when the children are with their mother, anyone other than she has been undertaking the main parenting responsibilities. They are with her most weekends, and she arranges for their care, assists with homework as necessary, makes meals for them, and attends to their daily needs.

She is assisted by her husband but it is clear on both her testimony and Mr. Humphrey’s testimony that she takes the lead. For example, she, not her husband, is the one who manages bed time routines each night that they are in her care. [ 88 ] By contrast, when the children are in Mr. Hatcher’s care, there has been significant direct assistance in caring for the children in order to make the

schedule work. As noted above, his work has been such that his sister, or parents are often with the children on school mornings to get them up, ready, and off to school. He testified that every other Thursday, his sister or parents would get the children off to school in the morning. Similarly, assistance is often required on some Monday evenings for meals and evening care when Mr. Hatcher has been working. Mr. Hatcher testified that in the winter of 2016, he was sometimes not home until 9:00 or 9:30 p.m., so his sister or parents would take care of the children from after school through the evening.

To be clear, this is not a criticism of Mr. Hatcher who has had to make many arrangements to make this parenting

schedule work. Rather it is clear that while he was working not one but two jobs until October 2016, often seven days a week, he needed regular assistance by several people with the physical care of the children. Without that assistance the

schedule simply would not have been manageable. [ 89 ] There are several parenting issues which have arisen from May 2015 to the time of the trial on which Mr. Hatcher has not

actively taken a role, and where by contrast, Ms. Golding has taken the lead. For example, in oral evidence it became clear that both parties agree that the children would benefit from counselling. As noted above, this was also recommended by the OCL. To move this forward, Ms. Golding has obtained a referral to the Peel Children’s Centre from the children’s physician, Dr. Fenti, and has followed up on that referral. This organization declined to get involved when they learned there was ongoing litigation. She has also contacted the HEAL network in Brampton.

They will work with the children but cannot do so until Mr. Hatcher consents. Ms. Golding has repeatedly requested Mr. Hatcher’s consent to get the counselling started, but despite repeated requests by email, that consent was not forthcoming. She also invited his input on counsellors in Hamilton but none was provided. When he was asked about counselling for the children, Mr. Hatcher indicated he was looking into art and play therapists for the children. Pressed, it turned out he had asked his sister who had made enquiries for him but he had never spoken to that person. He did not speak with Ms.

Golding about this potential therapist. He indicated he had also gone on the website of an organization called COAST but did not contact them. Notwithstanding that the initial suggestion for counselling was in April 2016, the children still did not have counselling as at the date of the trial. Mr. Hatcher agreed with Ms. Golding’s counsel that the children would benefit from counselling yet clearly very little had been done by Mr. Hatcher to move this forward. This concerns me. [ 90 ] A second issue which was raised at trial was the parent-teacher meetings in the fall of 2016.

Alyssa had transitioned from Cootes Paradise Elementary School to Dalewood Middle School in September 2016. Mr. Hatcher indicated that he attended the open house at Alyssa’s school at the beginning of the year and that the option of parent-teacher meetings was available in November. Notwithstanding that this was Alyssa’s first year at the new school, and that he was the parent primarily having care of the children during the school week, Mr. Hatcher did not think it important to meet with the teacher in the fall for a parent-teacher meeting but instead relied on a phone interview. Oddly, Mr.

Hatcher had criticized Ms. Golding by email the previous December for organizing parent teacher-meetings to keep herself apprised of how the children were doing. In an email dated December 1, 2015 he stated “Again you have decided to go ahead and do something pertaining to the girls without informing or discussing it with me. Nor have you emailed me to let me know how those interviews went.” Yet, when the opportunity arose during the following school year he did not organize parent-teacher meetings for himself.

I find that as the parent with care of the children during the school week, he should have been availing himself of opportunities to meet the teachers to ensure the children were both doing well. [ 91 ] In emails starting in June 2016, Ms. Golding identified a health concern of the children, namely that both children were constipated. She sent several emails advising Mr. Hatcher about this and about the steps she was taking to have the issue resolved. She booked an appointment with the children’s doctor to discuss the issue. There was no response to the emails about this issue by Mr.

Hatcher until August 20, 2016 at which time he simply thanked Ms. Golding for the update. Again it was Ms. Golding who identified the issue, and Ms. Golding who took the required steps to have the issue treated. Mr. Hatcher does not appear to have taken any steps to help address the concern. [ 92 ] Over the course of the trial, much time was devoted to a tug of war over a dental treatment when Addisyn cracked a tooth. More will be said about this below. While Mr. Hatcher certainly attempted to address the issue, as did Ms. Golding, I was struck by the fact that Mr.

Hatcher testified that he was not aware that the children had a regular dentist and regular pediatric dentist. Advised by counsel that Addisyn had seen the dentist no less than eleven times with her first appointment being in 2008, with regular visits thereafter until August 2016, Mr. Hatcher stated that he did not recall any of these appointments. He acknowledged that it would have been his responsibility to stay informed. I find that the fact that he did not know and did not take steps to be informed or involved is a further factor illustrating that Ms.

Golding had primary care responsibilities, including during this period of time. [ 93 ] A further indication that Mr. Hatcher does not assume a primary parenting role is the manner in which he responded to being advised in Alyssa’s report card that she had frequently been late for class. When he asked Alyssa why this was so, it turned out that she had been walking her sister to her classroom door rather than going straight to her own classroom. Asked whether he had taken steps with Alyssa to explore why she was doing this, he stated that he did not.

He acknowledged that he would likely have been aware of this issue if he had made an appointment with the teachers to see how the children were doing. Again, not for lack of love, Mr. Hatcher did not take steps to explore this issue fully although the children had been residing with him during the school week. [ 94 ] Finally, I note that the email record tendered into evidence, which I was advised contains every email between the parties between November 5, 2015 until December 8, 2016, documents the active parenting role Ms.

Golding has continued to have in virtually all areas of parenting, and the lack of active engagement on Mr. Hatcher’s part on a range of issues. I appreciate that parties communicate differently and that some people are “email people” and others prefer other methods of communication. Still, the email record does not reflect Mr. Hatcher as an active parent to the extent that Ms. Golding is, even during this period of time when the parties were residing apart and litigation was ongoing. [ 95 ] The volume is 176 pages long and contains very few emails from Mr. Hatcher to Ms. Golding engaging her on parenting issues.

While on several occasions he quite appropriately advises Ms. Golding of information she should be aware of (for example on January 27, 2016 he sent a short email advising that the children were home from school with a fever, and on May 20, 2016 he advises that Addy had an altercation on the playground), the volume is to a large extent a record of Ms. Golding advising Mr. Hatcher about issues related to the children, or seeking his input. (There is also significant back and forth about a dental issue which is discussed below). For the most part the tone is informative and appropriate (although not always).

On many occasions Mr. Hatcher does not respond or acknowledge the communication. On other occasions he responds but only after repeated emails. [ 96 ] The email record shows Ms. Golding to be an active, engaged, involved parent, who is keeping track of issues related to health and education for the children, and seeking to involve Mr. Hatcher in discussion. It does not show the same with respect to Mr. Hatcher. [ 97 ] In combination these factors lead me to conclude that Ms.

Golding was the primary parent when the parties were together, when they had separated and were still residing under the same roof, and since May 2015. [ 98 ] I note that this is consistent with what the OCL Investigator reported that Mr. Hatcher himself had told him: namely, that Ms. Golding took most of the responsibility for the care of the children, and that this was the division of labour. Enrollment of the Children in School for the 2015-2016 School Year

[ 99 ] As noted above, it was not until September 2015 that any Orders were in place with respect to the parenting

schedule for the children. During May and June, Mr. Hatcher felt he was being denied time with the children. The arrangements for the children were unsettled. [ 100 ] Ms. Golding enrolled the children in school in Brampton without consulting Mr. Hatcher. She noted that since she was residing in Brampton it was the only place she could enroll them. She testified that as far as she was aware the children would be unable to continue in their prior schools given that Mr. Hatcher was residing outside the catchment area at his sister’s house, although she did not ask the school that question directly. In fact, Mr.

Hatcher was able to enroll the children at their current schools as he was moving back into the catchment area. This lead to a motion in early September 2015, with Justice Brown ordering on a temporary temporary without prejudice basis that the children continue to attend their current Hamilton school. [ 101 ] I find that while Ms. Golding should not have enrolled the children without a discussion with Mr. Hatcher, this took place at a time when communication was difficult at best, and everything, including the

schedule for the children, was unsettled. Neither discussed the issue of schooling for the 2015-16 year with the other. Ms. Golding’s Efforts to Find Employment in Hamilton [ 102 ] Ms. Golding’s current job is in Oakville and she is employed on a contract basis by the Halton School Board.

Prior to her current position she worked at a private school near Pearson Airport filling a maternity leave position. [ 103 ] There was considerable questioning devoted to whether she had made adequate efforts to find work in or near Hamilton, exploring for example, whether she had applied to the Catholic Board, whether she had applied to private schools in or near Hamilton, or whether she had taken steps to be in the pool of candidates available for public school board positions in Hamilton.

There were also questions about whether she could apply more broadly to grade 7 and 8 positions, or for positions related to children with special needs. The suggestion was that if she prioritized Mr. Hatcher’s time with the children she would have sought employment closer to or in Hamilton. [ 104 ] It appeared from her testimony that Ms. Golding had not in fact tried very hard to find work in or near Hamilton. She had not made arrangements to have her resume added to the database to which the Hamilton public school board turns when positions become available.

Thus she is not in the pool of potential hires for upcoming teaching positions within that Board. [ 105 ] This is consistent with Ms. Golding’s statements in an affidavit earlier in the proceeding wherein she stated that she had “no reason” to remain in Hamilton given her engagement to Mr. Humphrey and what was then her job in North York. Mr. Hatcher’s counsel was very critical of this statement arguing that it showed that Ms. Golding does not view Mr. Hatcher as an important part of the children’s lives. [ 106 ] Ms. Golding testified that although she regards Mr.

Hatcher’s time with the children as important, she has to balance that against other factors, including her husband’s commute to his work in Markham and his distance from his own children. Mr. Humphrey testified that he cannot really live further away from Markham than he does now, due to the employer’s requirement that employees not live more than an hour away from work. Further, she and Mr. Humphrey both testified that it was important that Mr. Humphrey not be too far away from his own daughters, Sarah and Amber. Mr.

Humphrey also stated that cost was a factor and that they could not, for example, afford to rent in Milton. The Brampton rental “checked all the boxes”, being the right cost, the right distance from Mr. Humphrey’s children and his employment, and not too far away from Mr. Hatcher’s residence. [ 107 ] Ultimately however, towards the end of her testimony, Ms. Golding quite candidly stated to Mr. Hatcher’ counsel that she did not try to stay in Hamilton and that in fact she had tried to “get away from Ben”.

Thus, while in her testimony she suggested that she had not applied in Hamilton because schools are closing in Hamilton and she felt she had “no real chance for a job” in Hamilton given the large database, I find based on her own testimony that in addition to the constraints arising from the circumstances in her new family, she also did not want to be in Hamilton or near the children’s father given their history of conflict. Transportation under the Current Arrangement [ 108 ] The current transportation arrangements may have a negative impact on both of the children. In her testimony, Ms.

Golding indicated that the driving and back and forth can be difficult and stressful for the children, and may cause them some anxiety. They have been travelling between Hamilton and Brampton on Thursdays after school, Friday mornings, three out of four Friday afternoons and three out of four Monday mornings. [ 109 ] Mr. Hatcher indicates that by and large the schedule, including the transportation, seems to agree with the children, except that they are sometimes tired on Monday mornings.

He commented that the children do not complain every Monday but when they do it is more about being tired than about the drive. However, in his affidavit sworn September 21, 2015, at a time when it appears that the children were spending weekends with Ms. Golding and being transported back and forth, he stated that “the children are exhausted. They should not have to battle Toronto traffic (or any traffic at all) to travel from Brampton to Hamilton to go to or from school when I live down the street from the school.” [ 110 ] On the evidence I find that the travel required to implement the current

schedule is difficult for the children. The parents in this case live just far enough apart that it is challenging to manage a

schedule for the children that has them in two communities during the school week. Flexibility regarding the

Schedule [ 111 ] Both parties testified about the extent to which each of them had or had not been flexible with respect to making adjustments to the

schedule to accommodate what I would call “real life”, that is, life which doesn’t neatly align with the parenting schedule. Mr. Hatcher’s

summary was that he had requested changes to the

schedule approximately seven times, two of which had been agreed to and five of which had not. By contrast, he said, Ms. Golding had requested flexibility six times, four of which he had agreed to and two of

which he had not agreed to. [ 112 ] Mr. Hatcher’s

summary of refusals included an occasion where he requested a change to be able to see the girls on his birthday, Ms. Golding said yes, and then he requested a further change when his work

schedule was altered. I do not find it was unreasonable for Ms. Golding to decline to make the second change, and am not sure that should count as a “decline” at all. Another occasion involved Mr. Hatcher requesting that Alyssa be able to attend a craft show with him and his sister on Ms. Golding’s time, and Ms. Golding declined. Again, I do not find it unreasonable that parents make plans on their scheduled weekends, which can sometimes be adjusted and are sometimes not, depending on how significant the event and how fixed the scheduled parent’s plans are. Mr.

Hatcher for example declined to make a switch on an Easter weekend when plans had been made for the children to spend time with his family. That was not unreasonable. [ 113 ] One of the requests to make adjustments was Ms. Golding’s request in May of 2016 to make a switch in the

schedule to accommodate her wedding, her chosen venue not being available on a weekend the children were scheduled to be with her. Despite several requests to change the

schedule for this significant event, it took Mr. Hatcher until August 20, 2016 to provide a response. He did agree to the switch but only after causing anxiety about whether the children would be able to attend the wedding, an important event not only in Ms. Golding’s life but for the children. [ 114 ] Another request was Mr. Hatcher’s request to have the girls for an extended family weekend in the summer of 2015 at South River, near North Bay. He requested a four-day period. Ms.

Golding indicated that she was trying to get the kids into a camp for those days, but ultimately they did not attend camp and the children stayed with Ms. Golding. This took place during the early months that the parties were no longer residing under the same roof and before a

schedule had been formalized in September 2015. [ 115 ] In general, my observation is that since they stopped cohabiting, both of these parents have made occasional adjustments to scheduled times to accommodate “real life”. They are sometimes able to accommodate and sometimes not. I am not prepared to find that either party has unreasonably denied a switch in parenting time. Telephone Time [ 116 ] Since the parties have been residing separately, they have been having telephone time with their parents in accordance with the Order of Justice Brown dated October 6, 2015, which was made on consent.

Under that Order, each party may speak with the children each night that the children are not in their care for ten minutes per child between 7:00 and 7:30 p.m. On the evidence it appears that the parties have managed this reasonably well, and that they arrange for call-backs if a call is missed. [ 117 ] Mr. Hatcher did express a concern that from his perspective Ms. Golding will from time to time press the children for information regarding who they are with, where daddy is, and similar questions, he says, up to once or twice per week.

He also feels that sometimes the calls are too long and Addisyn would rather get off the phone. Mr. Hatcher testified that when the children call him, things sound busy in the background, whereas when the children call from his home, he ensures that the TV is off, and they have quiet time to speak with their mother. He would like to see the calls continue but perhaps be reduced to every other day. [ 118 ] Ms. Golding indicated that sometimes her calls with the children when they are with their father are up to twenty minutes long.

This causes her concern as she feels that the children would not want such long calls if everything was fine at their dad’s house. She clarified that not every long call is because there are issues with their father, but that it is also because the children miss her and want to have interaction with her. Ms. Golding indicated that perhaps phone time could become “more free now,” with less time constraints. The Dental Debacle [ 119 ] I prefer not to count the trial time that was devoted to the issue of the children’s dentist which arose in late 2015 and early 2016.

In essence this became a tug of war about who should be making decisions about dental care for the children and whether the children’s dentist should be changed. This took place in a context where the children had historically been seeing Dr. Demarchi as their regular dentist and Mr. Layug as their pediatric dentist, and where there was some confusion about whether there was dental insurance coverage available. Mr.

Hatcher, who, as became clear during the trial, had not appreciated that the children had regular dental care providers, insisted on taking them to a Westdale Dental and City Smiles near his residence when Addisyn cracked her tooth. [ 120 ] In the result, the children were seen at the dentist selected by Mr. Hatcher, and x-rays were taken. He finally consented to Addisyn having her tooth removed by her regular pediatric dentist in March 2016, who then needed to take another set of x-rays as Mr. Hatcher had not consented to the release of the set taken at the dentist selected by him.

At that point the parties had sent countless emails about the dental issue, the child had duplicate x-rays taken, and the children ended up back in the care of the dentists who had historically provided dental care. [ 121 ] This dental issue was clearly about more than which dentist the children should see, and in my view, it should never have arisen. The children had dental care providers in place during and subsequent to the parties’ relationship who had been providing care for a number of years. Mr.

Hatcher testified, as set out above, that he was not aware that the children had regular dental care providers, but this should have become clear to him over the course of the extensive emails back and forth with Ms. Golding. Once he became aware of this, it was not reasonable for him to continue to insist that the children’s dentists be changed, and certainly not in the face of Ms. Golding’s clear statement regarding not consenting to this change. [ 122 ] By contrast, Ms.

Golding was not seeking to change the dental care arrangements, only to continue the arrangements that had been in place for a number of years including when the parties were together. This was reasonable in the circumstances. I find that this situation became a microcosm in which Mr. Hatcher attempted to assert some control over the children’s care, ignoring the arrangements which had been in place during the relationship and subsequent to it.

While he may have wanted to have greater involvement in this aspect of their care, his insistence on a new dental care provider was neither child-focused nor reasonable in the circumstances. Life in Hamilton

[ 123 ] It was clear on the evidence that if the current

schedule were to continue as sought by Mr. Hatcher, or if the children were to reside with him (which he asserted would be preferable to a move to Brampton), a number of aspects of the children’s lives would not be disrupted. They would continue in their current schools, in the Westdale area. The evidence was that they are happy in those schools and indeed enjoy school more generally. They would be able to maintain their school friendships, as well as friendships with children in their current building. They would be in a community which they have been part of for many years.

Indeed, Addisyn has lived in Hamilton her whole life and Alyssa since she was two years old. The children would also continue to have frequent time with their aunt and uncle, Ms. Adams and her husband, who also live in Hamilton. Alyssa is involved with making crafts and from time to time selling items at craft shows with Ms. Adams. [ 124 ] During their time in Hamilton the children reside with Mr. Hatcher in a two bedroom apartment in which they share a room.

The apartment allows easy access to their friends and neighbours, and on the evidence, is an appropriate home for the children when they are with their father. The apartment has a pool, which the children enjoy. [ 125 ] It was also clear, however, that there are unknowns associated with Mr. Hatcher’s future in Hamilton. As noted above, he is currently not employed, being on leave from ParkLink and not intending to return to that position, and temporarily laid off from Home Services Teams, hoping to be called back but having no guarantees of same. He has looked for other work as well.

He is hoping to have one job rather than two (as he had from 2013 – 2016) so as to be more available to the children, but it is unclear what his employment future holds. Thus it is uncertain what his work

schedule will be when he is next employed, and therefore to what extent his family members will need to continue to be involved on a frequent basis in morning and/or evening care of the children. It is possible that if Mr. Hatcher were to find a Monday to Friday, 9:00 a.m. to 5:00 p.m. job, he would be very available to the children and have a minimal need for family assistance; it is also possible that he would continue to require significant assistance to manage the schedule, as he has required since the parties physically separated. It is simply unknown. Retaining the current

schedule should thus not be equated with there being no disruptions to the children. There may or may not be disruptions, we simply don’t know. [ 126 ] Related to Mr. Hatcher’s employment situation is also a lack of certainty about his upcoming financial situation. While he testified that he believes it will have been a good decision financially to move to Home Services Teams, the fact was that he was laid off at the time of trial having worked a mere six weeks for that company, and that he has no guarantees of being re-hired.

There was evidence that his sister would assist him financially if necessary but little evidence of her capacity to do so. Mr. Hatcher’s overall financial situation and his ability to provide stable housing and for the children’s needs overall is uncertain at this time. Life in Brampton [ 127 ] There would clearly be some disruption to the children if they were to live with Ms. Golding during the school week. They would both move to new schools, which would necessitate the children adapting to new school environments, and meeting new friends. Ms.

Golding testified that the children do not really have friends in her neighbourhood currently and that it has been difficult to make connections for the girls since they are enrolled in school elsewhere. It appears that before-care may be needed for Addisyn, but not for Alyssa. [ 128 ] As with Mr. Hatcher’s situation, there are some unknowns about Ms. Golding’s employment context which could cause disruption, although it is unclear to what extent. As noted, she is a teacher on the supply list but her current contract ends at the end of February 2017. Although Ms.

Golding expressed confidence that she would be working full time within the same Board after February 2017 based on the networking she has done, she also indicated that she has only been guaranteed one day per week, and she indicated in her evidence that she has only one year of seniority within the Board. This means that there is some uncertainty about where she will be working come March 2017. Having said that, she also testified that she is committed to the field of teaching and this is the direction of her career presently.

It is thus likely that irrespective of who her employer will be come March 2017, she is more likely than not to be working Monday to Friday, during the hours traditionally associated with teaching. Given the geographic areas where her job search has been focused it is unlikely that a new position would require a change of residence by her. Still, there could be some disruption to the children associated with a job transition for Ms. Golding. [ 129 ] In other aspects a move to Brampton would not be particularly disruptive. The children have been spending almost equal time with their mother and Mr.

Humphrey at the Brampton home. It is a known and comfortable environment for the children. They are also familiar with the neighbourhood in which their mother lives, having spent time there since May 2015, although clearly not as intimately as they are with their neighbourhood in Westdale. The children have also spent considerable time with Mr. Humphrey, whom they refer to as Matt, and on the evidence enjoy spending time with their step-sisters, Amber and Sarah. These are known aspects of life in Brampton which would require little adaptation on the part of the children even if the

schedule were adjusted. [ 130 ] On the evidence, Ms. Golding also resides in an appropriate home. The children each have a room in that home, which sounds pleasant and appropriate. There is a yard, which the children also enjoy. Children’s Views and Preferences [ 131 ] In this case, there is little if any reliable evidence about the children’s views and preferences. [ 132 ] The OCL investigator testified that he does not ask children about where they wish to reside as he regards it as clinically problematic.

The children did not volunteer information to him about where they wish to live and his report therefore does not offer insight into whether they have views on this and if so what those views might be. What he did report is that during his home visit with Ms. Golding the interaction between her and the children was positive and the children seemed comfortable. He testified that this was also the case in Mr. Hatcher’s home. He stressed that any plan must consider the children’s pre-established relationships with both parents. [ 133 ] Counsel for Mr.

Hatcher questioned the OCL investigator at length about the decision not to enquire as to their views and preferences regarding a possible change in the residential arrangement, indicating that she was ‘dismayed’ that the question had not been asked.

[134] Partway through the trial, this Court invited submissions on whether, in the circumstances, a judicial interview with the childrenshould be conducted. Oddly, given the position Mr. Hatcher’s counsel took regarding the OCL not having asked about views andpreferences, Mr. Hatcher opposed a judicial interview.

After careful consideration of both counsel’s submissions, and a consideration ofthe other evidence available to determine the parenting arrangements in the children’s best interests, I declined to interview the children. [135] There was extensive hearsay evidence throughout the trial about what the children have said to the parties and other witnesses.There were very few objections in this regard, and it was clear from submissions that each party seeks to rely on some aspects of whatthe children may have said at various points in time. For example, Ms. Golding and Mr.

Humphrey both testified that the children hadtold them that they wish to reside in Brampton and go to school there. Mr. Hatcher testified that Addisyn had told him that she had tokeep the move to Brampton a secret. [136] In this decision, I have given the hearsay evidence I have heard about statements the children may or may not have made littleweight. I regard the parties’ evidence of what the children may or may not have told them as inherently unreliable and the potential forself-serving statements significant.

In this case there is adequate evidence to make a determination as to the parenting arrangement that isin the best interests of the children without relying on these hearsay statements. [137] Mr. Hatcher testified about a text he received from Alyssa during a Legal Aid Settlement Conference on August 18, 2015, whileshe was in the care of her maternal grandmother. The text read: “I want to go to school in Brampton I love you (kisses and heart emoji’s)very much I want to live with mommy and visit you. He cited this as evidence that Ms.

Golding was influencing the children and puttingthem in the middle of the conflict. Ms. Golding testified that she did not tell Alyssa to send that text. Ms. Golding’s mother also testifiedthat she did not have Alyssa send that text. I have disregarded the text as I do not have enough information about the circumstances inwhich it was sent for it to have any probative value. [138] There was some evidence about the children’s respective dispositions and states of mind in the midst of their parents’separation.

The evidence was consistent that Addisyn is quite adaptable and would no doubt adjust to a move to Brampton. There wasalso consistent evidence Alyssa is a bit more withdrawn, and that it might take her a little longer to make new friends as she is not asoutgoing as her sister. Ms. Adams testified that it seemed to her that Alyssa may be depressed. Ms. Golding and Mr. Humphrey testifiedthat the children seem needier on Sunday nights before their return to Hamilton on Mondays, with Addisyn being tearful and Alyssaasking for more cuddling time. This is consistent with Ms.

Golding’s mother’s observation that the children don’t seem to enjoy headingback to Hamilton on Monday mornings. Decision-Making and Communication [139] On the evidence, it appears that Ms. Golding has been the primary decision-maker for the children, on major issues related tohealth and education, at least since Addisyn’s birth. Mr. Hatcher would have liked to be more involved, he said, but Ms. Golding’s viewswould prevail. He gave the example of French Immersion, which he felt would benefit the children. Ms. Golding did not agree, and so thechildren were not enrolled in French Immersion.

This is no doubt related to the parties’ differences in communication styles. On a go-forward basis, Mr. Hatcher wants to be involved in decision making on major issues for the children. [140] As noted above, the parties have experienced significant conflict which has at times lead to violence, in one instance, violenceagainst Mr. Hatcher by Ms. Golding and in other instances, violence by Mr. Hatcher against objects. Ms. Golding was volatile for a timein 2009 with an incident of self-harm and attending at the paternal grandparents’ home in the middle of

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