ONTARIO COURT OF JUSTICE
BETWEEN:
J.J.C.
Applicant
— AND —
J.E.D.
Respondent
Before Justice A. T. McKay
Heard on August 3, 2011, January 30, 2012
Reasons for Judgment released on February 16, 2012
J.J.C. .......................................................................................................................on his own behalf
Robert Stead for J.E.D.
MCKAY J.:
BACKGROUND
Background
1Mr. C. and Ms. D. have one child, J.J.D. born[…], 2010. Mr. C. characterized their relationship as on and off for six years. Since birth, J.J.D. has lived with Ms. D. The parties have not cohabited since J.J.D. was born. Mr. C. has had limited access through the supervised access program, and one overnight visit in the summer of 2011which the parties agreed to. In addition, there was an overnight visit in November 2011, but Ms. D. was present for that visit.
2Mr. C. is self represented. He brought this application, claiming access, but also requesting DNA testing to determine parentage. He wants to maximize his parenting time, and wants to have J.J.D. with him every weekend. At the outset of trial, he indicated that he wanted joint custody. Mr. C. does not want to communicate at all with Ms. D. He indicated that they have a toxic relationship.
3Ms. D. filed an Answer claiming sole custody, child support and costs. Her position that it is impossible for the parties to communicate effectively, and she wants no communication with Mr. C. She suggested that Mr. C. have supervised access every third Saturday. She wanted Mr. C.’s home inspected before any further overnight visits.
4The court heard one day of evidence on August 3, 2011. Both parties were self represented. Both parties closed their cases. Mobility was never an issue. The court adjourned the matter to August 31, 2011 for decision. On August 12, 2011, without notice to Mr. C. or the court, Ms. D. moved to Edmonton, Alberta with the child. As a result, the court required additional evidence. Ms. D. retained counsel, and the court heard evidence on January 30, 2012 related to the move and current living situation.
LIVING SITUATION
Living Situation
5Mr. C. is a foreman at a local car dealership. He indicated that his job involves supervising 22 employees. He works from 6:45 a.m. until 5:30 to 5:45 p.m. Monday through Friday. He has traditionally worked Saturdays as well. However, he indicates that he is now management, and can take weekends off. He lives in a rented two bedroom home in Fort Frances next to a school. He indicated that the home is fully furnished. He uses the second bedroom as a weight room at this point, but indicated that he has bedroom furniture for J.J.D.
6At the outset of trial, Ms. D. owned a two bedroom home in Emo, which is approximately a 30 minute drive from Fort Frances. She lived there with J.J.D. and a small dog. The home had a fenced backyard and is nearby a park. Ms. D. is a registered practical nurse and worked full time in the special care unit of a home for seniors in Fort Frances. That involved shift work. She had a six week long rotating schedule. Her work involved day shift, which is 6:30 a.m. to 2:30 p.m., or evening shift, which is 2:30 p.m. to 10:30 p.m. She worked two consecutive weekends, and then had a weekend off.
7I will initially summarize the evidence called on August 3^rd^, prior to the move to Alberta.
EVIDENCE CALLED BY MR. C.
Evidence Called by Mr. C.
8Mr. C. called his sister, Ms. S., as a witness. She lives in Fort Frances. She has three children ranging in age from five years to 14 years. She indicated that Mr. C. sees her children daily. When they were infants he assisted in feeding them, and at times took them for overnight visits. She said that her children adore Mr. C. and spend a large amount of time with him. Ms. S. works on an on-call basis, and also babysits from 7:00 a.m. to 4:00 p.m. each day. She indicated that she has seen J.J.D. approximately 10 times since his birth and that she would see him daily if she could. She indicated that she has been afraid to call Ms. D. to ask to see J.J.D. There was no clear evidence as to why. She stated that she would care for J.J.D. any time.
9In cross-examination, she agreed that the earliest that Mr. C. ever took any of her children for an overnight visit was when they were three years of age. She agreed that Ms. D. has called her asking for assistance with respect to J.J.D. That request was denied because Mr. C. did not want his family members assisting with J.J.D.’s care unless it was during his court ordered access time.
10Mr. C. also called his mother to the stand. She lives alone in Fort Frances. She is currently retired. She has not seen J.J.D. very often since he was born. She would like to see him as often as possible, and would provide daycare for J.J.D. any time. She lives approximately two houses down from her daughter and sees her three grandchildren almost every night. Her son also lives in Fort Frances. He has two children, and she sees them frequently. The last time that she saw J.J.D. was at Mr. C.’s on the one overnight visit that he had. She also testified that Mr. C. spends a lot of time with his nieces and nephews and that even when they were infants, he played with them and fed them.
11Ms. C. also testified that Ms. D. has telephoned her and asked her to provide childcare for J.J.D.. Her response to Ms. D. was that she had to speak to Mr. C. first and that she didn’t think that J.J.D. should be a pawn between the two parties. Her evidence is that on one occasion Ms. D. called her in the morning because she had a childcare problem and had to work that afternoon. She testified that because Mr. C. was also working, so she declined to provide childcare. In cross-examination she agreed that Ms. D. had phoned her a few times for help and guidance with respect to J.J.D. Her evidence in cross-examination was that she didn’t provide childcare for J.J.D. because in her view Ms. D. was denying Mr. C. access on weekends. She said that Mr. C. did not call Ms. D. while she was present on the night that he had overnight access. She was there until approximately 12:30 a.m.
12Mr. C. also called his father, J.C., as a witness. J. C. lives in Brampton, Ontario. He had never met J.J.D. He attended Fort Frances to support his son in the trial. His view was that J.J.D. needs to know his father and extended family. He gave evidence that Mr. C.’s home was appropriate for J.J.D.
13The Applicant Mr. C. also testified. He gave evidence regarding his employment and his home. He currently has supervised access as a result of a consent order entered into some time ago. His evidence is that the access has been okay, but that he does not feel a need for supervised access. His evidence is that he has only missed two access visits. For one he notified Ms. D. he was unavailable because of a work commitment. The second time, his evidence was that Ms. D. had not brought J.J.D. to three consecutive access visits, so he simply cancelled the next visit. His evidence was that Ms. D. has not brought J.J.D. to a number of the scheduled access visits at the Supervised Access Centre.
14During access visits, Mr. C. indicated that he plays with J.J.D., feeds and changes him, and occasionally lets him nap as needed. It is his evidence that Ms. D. tries to use J.J.D. as a “gateway” to personal contact with him. For instance, he gave evidence that Ms. D. offers him additional access, but insists that he attend at her house to pick up J.J.D. He indicated that he does not want to do so. On the few occasions where he agreed to do so, his evidence is that Ms. D. becomes angry with him.
15Mr. C.’s evidence is that he is a capable parent who does not require supervision. In addition to the contact with his nieces and nephews, he indicated that he dated a woman for a period of five years who had an infant child. He would like to have J.J.D. every weekend, and would like to have J.J.D. some evenings during the week after he is finished work. In addition, he indicated that his mother or sister could also provide childcare during the workday.
16With respect to the one overnight visit that he had, his evidence was as follows. He indicated that Ms. D. called him at the last minute and offered overnight access. As the night went on, J.J.D. got “very fussy”. He attempted to contact Ms. D., but couldn’t reach her all evening. J.J.D. would not sleep and was up until 5:30 a.m. He agreed that J.J.D. requires a special formula of soy milk because of lactose intolerance and an acid reflux condition.
17Mr. C. indicated that he would like to work with Ms. D. regarding child issues, but it is impossible to do so. His evidence is that Ms. D. insists that everything be done her way. For that reason, he indicated that he needs a set access schedule with exchanges supervised by a third party. As indicated, Ms. D. worked shift work including weekends, and lived in a community outside of Fort Frances. Mr C. seemed to be unwilling to consider the burden placed upon Ms. D. by his insisting that all access exchanges take place at the supervised access centre in Fort Frances. Mr. C. did not dispute the fact that he does not want his extended family to assist with J.J.D.’s care unless it is during his court ordered access time.
18In cross-examination, he was asked about the overnight visit. He confirmed that it happened on June 11, 2011. He telephoned Ms. D. and cancelled his access visit at the Supervised Access Centre because he had to work on Saturday. When he did so, Ms. D. offered an overnight access visit as an alternative. He agreed. He got off work at 7:30, and Ms. D. dropped J.J.D. off at approximately 8:30. They agreed that she would pick up J.J.D. at noon on Sunday. Mr. C. agreed that Ms. D. provided all of the items needed for the access visit, but took the position that she did not provide enough milk for J.J.D. His recollection is that none of the bottles that Ms. D. provided were labelled. Mr. C. agreed in cross-examination that he contacted Ms. D. at approximately 1:38 a.m. and advised her that he needed to work Sunday. His evidence was that it had simply slipped his mind on Saturday when he made the arrangements for the overnight visit that he had to work on Sunday. His evidence was that after Ms. D. picked up J.J.D. Sunday morning, he was two hours late for work and immediately left for work. His evidence is that when Ms. D. arrived he was walking around outside with J.J.D. because it was a sunny day.
EVIDENCE OF MS. D.
Evidence of Ms. D.
19Ms. D. gave evidence regarding her work schedule and her living arrangements. She owned her house in Emo, and worked in Fort Frances. The commute was very inconvenient and she was attempting to sell her house in Emo in order to move to Fort Frances. The commute to Fort Frances is also inconvenient for access visits, particularly because Mr. C. refused to pick up J.J.D. at her home. Most often she worked weekends, and attempting to combine that with Saturday access was problematic for her.
20Her evidence was that J.J.D. is thriving. He is lactose intolerant, and does have an acid reflux condition which requires both a special formula and carefully controlled portions for meals. In the absence of those controls is that J.J.D. will simply eat until he begins to vomit. In addition, J.J.D. has very sensitive skin which has to be monitored. She sees her family doctor with J.J.D. regularly and indicated that her doctor thinks that the routine that she has for J.J.D. is effective. Her evidence was that she has discussed the issue of J.J.D.’s feeding routine with Mr. C. many times and has tried to ensure that he knows what the issues are.
21Because her employment required shift work, Ms. D. needed to make childcare arrangements. For the summer of 2011, her mother and her sister provided childcare for free when they were available. For the summer of 2011, they lived in Stratton, which is west of Emo. That further complicated Ms. D.’s commute to work to Fort Frances, in the east. On days when they are not available, and on days when she worked day shift, she had childcare arrangements which cost $35.00 per day. Her mother returned to work in Alberta in the fall, and her sister returned to school. Accordingly they were no longer available to provide childcare.
22Her evidence was that communication with Mr. C. is extremely difficult. At one point they tried a communication book, but she said that Mr. C. simply ignored the communication book. Her concern is that Mr. C. is not ready for overnight visits. J.J.D. has seen Mr. C. so infrequently that he really does not know who his father is.
23With respect to the one overnight visit, her evidence was as follows. Mr. C. sent her a text message on July 11^th^, cancelling his access visit the following day. Mr. C. called her the following day, and she offered a visit after he got off work. He indicated that he was working until 7:30, so Ms. D. offered him an overnight visit. She took J.J.D. to Mr. C.’s at 8:30 p.m., and provided everything that Mr. C. needed. Included in the items provided were bottles of soy milk, all measured and labelled as to portions and feeding times. She indicated that she also explained all of that to Mr. C. on the street outside of his residence. She indicated that she would pick J.J.D. up at noon on Sunday. Her evidence is that Mr. C. was upset and wanted J.J.D. for longer on Sunday. He made no mention whatsoever of needing to work on Sunday. At 1:38 a.m. Sunday, she received a text which said, “Where are you? Come and get this kid”. Between 1:30 a.m. and 4:30 a.m., she received 25 phone calls from Mr. C. She attended Sunday morning to pick up J.J.D.. It appeared to her that Mr. C. was outside on the sidewalk with J.J.D. pacing up and down. Her evidence was that J.J.D. was filthy, with a heat rash from “neck to butt” and had vomited. From this experience, it is her position that Mr. C. is not ready to have J.J.D. for overnight visits.
24In cross-examination, Ms. D. was asked about past health issues such as depression and indicated that she feels fine now. She confirmed that she does take medication for anxiety and uses it occasionally before going to sleep. She confirmed in cross-examination her understanding that Mr. C.’s family refuses to provide childcare for J.J.D. when J.J.D. is in her care, but would provide childcare when he is in Mr. C.’s care.
EVIDENCE RELATED TO MS. D’S MOVE TO EDMONTON
Evidence Related to Ms. D's Move to Edmonton
25Ms. D. gave evidence related to her move to Alberta. She indicated that when the evidence was heard on August 3, she was not thinking about moving from Fort Frances. At that time, she still hoped that at the conclusion of trial, the relationship between her and Mr. C. would improve and they would be able to move forward parenting J.J.D. in an effective way. Her evidence is that after the trial, Mr. C. became even angrier, and more focussed on hurting her rather than being focussed on J.J.D. At the same time, she thought that she would be unable to continue working in her current job because her childcare options were so limited and problematic given the shift work. In addition, it was apparent to her that Mr. C. would not assist with childcare. She indicated that she was suffering from extreme stress, and knew that she needed change in order to properly care for J.J.D. The only way forward that she saw was to change to a job which involved working only day shifts. Her evidence was that the only chance that she would have to do so in the Fort Frances area was to quit her permanent job and take a job as an on call casual RPN with the same employer. In that situation she would have to limit herself to only taking calls for day shifts. Even then, she would be contacted at approximately 5:30 a.m. in order to be called in, and that would leave her with very difficult child care issues.
26Her evidence was that in early August, her Aunt from Alberta was visiting. Her Aunt offered to help her relocate to Alberta and to provide her and J.J.D. with a place to stay temporarily. Her Aunt also offered to temporarily assist with child care. As her Aunt had travelled to Fort Frances in an R.V., she indicated that she could take any important belongings of Ms. D. and J.J.D. to Alberta for her. Ms. D. indicated that she thought that she had no help in Fort Frances and that life would be better in Alberta for herself and J.J.D. Her brother, a number of aunts and uncles, her mother and her step-father and a number of friends all lived in Alberta. Career options were greater in Alberta. In order to take advantage of her aunt’s offer of assistance, she made the decision to move to Alberta and left on August 12, 2011. Upon arriving in Alberta she stayed with her aunt for the first few weeks. She arranged to have her RPN license recognized in Alberta and found a job as an RPN within days. She began casual employment on September 21, 2011. On October 11, 2011, she was given a full time supervisory role with the same company. She continues in that position and is now eligible for health benefits through her employer.
27Ms. D. now lives in a two bedroom apartment on the tenth floor of an apartment building in Edmonton. The building accepts pets and accordingly she was able to keep her dog. The apartment is nearby several parks and a play centre. J.J.D.’s daycare centre is in the same building. The daycare is divided into age groups. In J.J.D.’s age group there are eight children, with two staff assigned to that group. J.J.D. has a doctor and a dentist in Alberta now. J.J.D.’s acid reflux condition seems to be resolving as he gets older. She also testified that J.J.D. is very happy since the move. She now only works during the day. Because the daycare facility is in the same building, J.J.D. has a very settled routine. He wakes up at approximately 7:30 a.m. After eating, she takes him downstairs to the daycare where he is from approximately 8:00 a.m. to 5:15 p.m. She indicated that J.J.D. is flourishing with this routine. He sleeps better and goes to daycare without an issue. The two of them have more time together and she is home with him every night. The daycare cost is $827.00 per month. She indicated that Mr. C. continues to refuse to contribute to daycare, saying that his monthly support payment should cover that. Similarly, he refuses to contribute to any additional expenses caused by J.J.D.’s milk intolerance and the additional cost of specialized food. Again, he takes the position that his monthly support payments should cover that.
28Ms. D. also addressed the issue of access since the August 3 court date. On August 4, she took J.J.D. to Mr. C.’s mother’s house in order to allow a visit with family members, including J.J.D.’s paternal grandfather. After that, she spoke to Mr. C. several times regarding access. She indicated that she has offered Mr. C. access whenever he wants to come to Alberta, provided that he gives her advance notice. She indicated that she has also offered Mr. C. access whenever she has returned to Fort Frances with J.J.D. For example, she telephoned Mr. C. before the August 31 court date and asked if he wanted to see J.J.D. His response was that he would only see J.J.D. if Ms. D. would drop J.J.D. off at the police station. His response to offers to access in Alberta has simply been to say that he will never go to Alberta.
29She indicated that after the November 8 court appearance, she understood Mr. C. to be indicating that he no longer liked residing in Fort Frances and that he would move to Alberta. She returned to Alberta and they spoke two weeks later, and she indicated that he had apparently totally changed his mind. Also, after the November 8 court appearance, she took J.J.D. to Mr. C.’s Mother’s for an overnight visit. The visit took place partially at Mr. C.’s Mother’s. Later in the evening, she accompanied J.J.D. to Mr. C.’s residence, where she remained overnight in order to facilitate an overnight visit.
30She also gave evidence that Mr. C. calls her very frequently to ask how J.J.D. is, but has never asked to speak to J.J.D. Her evidence is that Mr. C. says that it would hurt him too much to speak to J.J.D. because he can’t see J.J.D. She also indicated that the calls often end in anger and arguments when one or the other hangs up in order to end the call. Her evidence is that Mr. C. calls her names on the phone such as, “stupid, retard” and simply tells her to shut up.
31Ms. D. indicated that if she is allowed to remain in Alberta with J.J.D., she has access suggestions. She indicated that Mr. C. can attend in Edmonton any time he wants on advance notice in order to exercise access. In addition, she offers to visit Fort Frances three times a year with J.J.D. in order to allow Mr. C. access. Her suggestion is that she would attend in Fort Frances some time near the end of April, as J.J.D.’s birthday is early in […]. In addition, she would attend once near the end of the summer, and once during the Christmas vacation. She also offered to reduce child support payments to offset Mr. C.’s costs of exercising access in Alberta. She indicated that because Mr. C. has had so little contact with J.J.D., he is essentially a stranger to J.J.D. She suggests that short frequent visits would be the best way to begin initially while a relationship builds. Eventually overnight access would be appropriate.
DECISION
Custody
Decision
32When the parties were both living in Fort Frances, given the differences in their work schedules, if they had been able to cooperate at all, it would have been relatively easy to maximize the amount of time that J.J.D. spent with each parent, and to minimize the amount of time that he spent in alternative daycare. Unfortunately, the parties appear to be completely unable to communicate in any effective way. Their positions are diametrically opposed, as is their evidence on virtually every point. As a simple example, Ms. D. gave evidence that the last time that the two of them had face to face contact before the August 3 court date was on July 3, 2011. Her evidence was that Mr. C. attended at her house at midnight and stated that he “wanted to see who his child was calling Dad”. Her evidence was that she indicated that no one was there and Mr. C. grabbed her by the throat. It is not in dispute that Mr. C. has previously been convicted of assaulting Ms. D. When Mr. C. gave evidence regarding that incident, he testified that he attended at her house around midnight that evening, was invited in, and the two of them had consensual sex. This is simply one example of how their evidence is not reconcilable.
33Mr. C. has indicated to the court that he is completely committed to his relationship with J.J.D. He indicated that his family is “there 110% for J.J.D.”. He indicated that J.J.D. was a result of a planned pregnancy and that he has always simply wanted to be a father. It is difficult to reconcile that with the fact that in his claim, he raised the issue of paternity and requested a DNA test. The unfortunate fact is that Mr. C. has been insistent upon controlling how and when access takes place. Ms. D. has consistently offered him additional access, which he has declined because it is not part of a court order. He indicated that he would not exercise additional access or pick up J.J.D. at Ms. D.’s home because he does not trust her. He essentially told his family not to be involved with J.J.D. or assist with J.J.D.’s care because the requests came outside of his access time, and because Ms. D. had not brought J.J.D. to some of his supervised access visits. Ms. D. explained that given her shift work, particularly on weekends, and given the fact that she lived outside of Fort Frances, it was not always possible for her to bring J.J.D. to the supervised access program on weekends. She explained that that is why she offered alternative access.
34Unfortunately, Mr. C.’s insistence upon no access other than court ordered access, along with his position that his family should not help with J.J.D.’s care outside of his access time, has minimized his own parenting time and opportunities with J.J.D. and minimized his extended family’s relationship with J.J.D. That has led to marginalizing himself as a parent. The simple fact of the matter is that he has had very little parenting time with J.J.D., and is virtually a stranger to J.J.D.
35Ms. D. has been J.J.D.’s primary care giver since birth. J.J.D. is presently 20 months old. By all evidence before the court, Ms. D. has been a capable and effective parent for her son, and they are closely bonded. She has made all of the decisions regarding J.J.D.’s care. Mr. C. has had very limited infrequent contact with J.J.D. At this age, J.J.D. needs the care, supervision and emotional support provided by Ms. D. since birth. Realistically, there can be no appropriate order for custody other than an order awarding Ms. D. custody of J.J.D. Given the parents complete inability to communicate effectively or cooperate, joint custody is not appropriate. Accordingly, there will be an order awarding sole custody of J.J.D. to Ms. D.
Mobility
Mobility
36The leading case regarding mobility is Gordon v. Goertz 2 S.C.R. 27(SCC). That case sets out a number of factors to be considered in determining what is in the child’s best interests. No one factor is determinative. In this case, there was no order in place at the time Ms. Dorie moved to Alberta. The Ontario Court of Appeal decision in Bjornson v. Creighton 62 O.R. (2d). 236, dealt with a mobility issue and has similarities to the facts in this case. In that case, the Court reaffirmed the fact that the views of a custodial parent, or in this case the primary care giver, are entitled to great respect and the most serious consideration. The Court also confirmed that the best interests of the child include being with a well functioning parent. The Court commented on the multifaceted reasons of the mother for the move to Alberta with the child, and the improvement to the interests of the child if the parent in that case was permitted to make the move. Various cases have recognized that the move by the custodial parent will impact the child’s relationship with the other parent. However, the court must examine the total benefit to the child and make a decision based on the child’s best interest. Normally, a primary care giver with an honest reason for moving is allowed to do so as long as the proposed move does not pose any direct risk to a child and as long as the proposed move is not used for an opportunity to destroy the child’s relationship of the parent remaining behind.
37Ms. D. had legitimate reasons for wanting to move to Alberta. Her situation in Fort Frances regarding employment and child care arrangements was very difficult and stressful. Mr Chabot’s position regarding access and the limits which he placed on involvement by his extended family made the situation worse. A move to Alberta offered additional employment options, family support, easy access to daycare arrangements, and a decrease in the stresses faced by Ms. D. in caring for J.J.D.. As the parent who had been J.J.D.’s caregiver since birth, she made the decision that J.J.D.’s well being would be best served by a move to Alberta with her. The move has created stable, positive routine for J.J.D. and he is doing well. The distance from Fort Frances will impact J.J.D.’s relationship with his father and extended family in the Fort Frances area. Unfortunately, the move will require a significant commitment on Mr. C.’s part to be actively involved in J.J.D.’s life. The travel involved in exercising access is significant. However, the move to Alberta is in J.J.D.’s best interests and accordingly is allowed.
Access
Access
Given Mr. C.’s limited contact with J.J.D. up to this point, and the issues that arose on the overnight visit in the summer of 2011, overnight access is not appropriate immediately and must be phased in. For the next calendar year, Mr. C. shall have access to J.J.D. in Edmonton as follows. Every second month, Mr. C. may have access to J.J.D. for 4 consecutive days. Each day shall involve a visit of 4 hours in duration. The visits shall be unsupervised. Mr. C. shall provide Ms. D. with notice of his intention to exercise the access visit at least two weeks prior to the visit occurring. The 4 hour access visit shall be at a time agreed to by the parties, acting reasonable. Mr. C. shall pay the costs of travelling to Alberta to exercise access. When exercising access, Mr. C shall provide, in writing, his contact information and an outline of where the access is to be exercised. In addition, Mr. C. shall have access to J.J.D. whenever Ms. D. travels to Fort Frances with J.J.D. Such access visits shall be 4 hours in duration, and shall occur on not less than 3 days for each week that Ms. D. is in Fort Frances. Access is subject to further review by the court after a pattern of exercising access has been established.
Child Support
Child Support
38A temporary order for child support was made on consent on December 15, 2010. On April 27, 2011, the parties consented to that Order becoming a final child support order. That order did not deal with Section 7 special or extraordinary expenses. Ms. D. has advanced a claim for Section 7 expenses, including childcare expenses. The order for child support shall be varied to provide that Mr. C. shall pay his proportionate share of special or extraordinary expenses, as reported by Ms. D. to the Family Responsibility Office, retroactive to September 1, 2011. Ms. D. shall provide receipts for any section 7 expenses claimed. The parties will both file updated financial statements within 21 days in order for the court to calculate the pro-rata share of childcare expenses that each party shall bear. For as long as Ms. D. claims section 7 expenses, she shall provide Mr. C. with a copy of her Notice of Assessment for the preceding taxation year by May 31^st^ of each year.
Released: February 16, 2012
Signed: “Justice A. T. McKay”