Court File and Parties

File No: 154/12

Date: 2014-03-03

ONTARIO COURT OF JUSTICE

(West Region, at St. Thomas, Ontario)

Between:

ASHLEY CROCKER Applicant

- and -

IAN LATFORD Respondent

Endorsement of Justice M.P. O'Dea

Trial Conducted: February 18, 19 & 20, 2014

Decision Delivered: March 3, 2014

Counsel:

• Karen M. King, for the Applicant
• Rebecca L. Carey, for the Respondent

Background

The Applicant (mother) and the Respondent (father) began dating in 2008 and moved in together in the spring of 2009. They cohabited until June 23, 2012. During cohabitation, they had two children: Sequoya on September 19, 2009 and Aiyannah on August 1, 2011. Prior to their separation, they agreed the children would reside with each of them on a week-on, week-off basis and that they would split time on each holiday.

On August 7, 2012, the mother issued an application seeking a sole custodial order. The reasons identified in her application were that she was "not happy with this arrangement", the father refused to agree to designate her as the babysitter while he worked and he did not treat her as an equal under the post-separation arrangement.

In her evidence and submissions, the mother expands on her initial position alleging the father does not trust or respect her as a parenting partner, he is slow to or will not cooperate, he refuses to compromise and he will not communicate with her. As I advised the parents after submissions, the evidence appears to support these claims.

The father's evidence supports maintaining the status quo. He points out, and I agree, that there is no evidence as would be expected under s. 24(2) of the Children's Law Reform Act that the father's conduct has affected the needs and interests of the children in regard to placement and, indeed, the best interest assessment supports maintaining the status quo for placement on every criterion.

For the reasons that follow, I agree it is not in the interests of the children to disrupt their parents' agreement respecting placement; however, I am of the view it is in their best interests to alter their agreement respecting parenting.

Inferences Respecting the Parent's Agreement

When they put their agreement into place, the parents are deemed to have agreed to share both time and parenting responsibilities. On the evidence I heard, the parents broadly defined how they would share time but did not discuss how they would share parenting responsibilities.

It would be inferred that in agreeing to share parenting responsibilities, each tacitly acknowledged that while the children were in the care of one of them, he/she was capable of making appropriate child-focused decisions respecting the provision of necessaries of life which includes housing, food, cleanliness, clothing, schooling, homework, regular medical and dental attention and providing medication and in-home remedial attention as prescribed by a doctor or dentist. Most critically, given shared placement, each tacitly acknowledged that he/she would make appropriate child-focused decisions respecting the care of the children during his/her absences from the home.

In making their agreement, the parents are deemed to acknowledge that notwithstanding the respective personality quirks of the other and the differences between them that led to the decision to separate, each will nevertheless be an appropriate caregiver. They are deemed to acknowledge that the educational or employment obligations of the other will not impede parenting capacity.

By their agreement to equally share placement and having regard to a child's need for consistency, the parents are deemed to have agreed to coordinate routines respecting bedtime, behaviours, discipline, school work and special needs. These are issues that always generate discussion and compromise while the parents cohabit and it should be no different in a shared arrangement after separation. Synchronizing bedtime, behaviours, school work, discipline and special needs often demands some level of compromise to accommodate for differing parenting styles and it is deemed the parents would strive to accommodate both styles.

Finally, in agreeing to share parenting responsibilities, each is deemed to have agreed that the major incidents of custody – residence, education and medical/dental care in particular – would be subject to mutual discussion, compromise and cooperation.

The weight I will give evidence of alleged failures by either parent to live up to the spirit and intent inferred in their agreement is defined largely by the aforementioned comments.

The Mother's Complaints

The mother's complaints fall in broad categories focusing communication, cooperation, compromise, trust and respect. It is quite difficult to determine which specific category a complaint fits (it may fit several) so I intend to address them individually and identify the weight I give each complaint individually and, at the end of this topic, as a whole.

Residence and Financial Control

The parents decided their relationship was at an end in November of 2011 but agreed to continue to occupy the same home. By June of 2012, their arguing became problematic and the mother decided to leave. She complains that the father interfered significantly with her choice of where she would reside. I am satisfied on the evidence that he did so and whatever his issues were (he did not define them well in evidence), they were not child focused but personal.

The mother was not employed in June of 2012 and had no independent source of income. For six or so weeks following the separation, I find the father refused to exhibit the trust in the mother inferred in the agreement in his efforts to control what possessions she took from the home, money and what she could independently purchase for the children. This conduct was personal, not child-focused.

In context of the shared placement, I give this evidence little weight since the defaults were short lived and there is no evidence the children were adversely affected. However, this evidence did begin to define the father's selfish behaviour in context of sharing parenting. This will be discussed in greater detail below.

Babysitting Arrangement

Shortly following the physical separation, the mother demanded that she was entitled to "babysit" the children while the father worked. He did not agree and demanded that he be allowed to decide his own child-care arrangements. His refusal to accede to her wishes appears to be the major reason (at least as identified in the pleadings) why the mother issued the custody application.

As indicated above, the mother deemed the father capable of making appropriate child-care decisions when she agreed to share parenting time. While she was entitled to ask, the father was equally entitled to say "no" and the mother should have respected his decision.

Apart from inferences under the agreement, the evidence does not support that her demand was made in the interests of the children. The father worked out of town. He worked shifts. The mother did not drive. To accommodate her demand, the father would be required to get the children out of bed either in the very early morning or late evening hours, get them ready and drive them to the mother's home all the while leaving him enough time to arrive at work on time.

In context of the demands on the children, I find the mother's request was quite selfish and her decision to make the father's refusal the main issue in litigation furthered my sense of her skewered sense of personal entitlement and her level of selfishness. The mother's evidence supports that she did not consider how her plan would affect the children's schedules and how hard accommodating her demand could be on them given their ages.

Communication and Discipline

The next complaint involves an allegation about the father's unwillingness to communicate or cooperate in establishing a consistent method of discipline to counter what the mother broadly described as "tantrums" by both children. The mother texted the father on July 17, 2013 and set out the issues she wanted to discuss. The evidence that followed from both parents is quite confusing and inconclusive.

For whatever reason, the father claimed he was at a location without cell reception when the first text was sent and that he did not respond quickly to the request to talk for that reason. He then generally complained he becomes frustrated because the mother wants immediate responses. Notwithstanding his excuse respecting reception, exhibit 4 clearly shows he responded quickly with the result that his excuse becomes both confusing and indicative of an effort to muddy the facts. There is also no suggestion in exhibit 4 that the mother demanded an immediate response.

From the mother's perspective, the father did agree to meet and talk but subsequent texts clearly show she did not believe him or accept his bona fides. She commented about his history of not responding but this history was poorly laid out in evidence. She eventually acknowledged the date he agreed to meet. She testified that they did speak about one of the issues she raised but only for a very short duration – definitely not long enough from her perspective. She acknowledged he did explain his method of discipline in the face of a tantrum and her method appeared similar.

What was utterly confusing is on what grounds I might find a refusal to communicate in this incident. On the evidence I heard, no finding could be made to support how much time ought to have been needed or that more time was needed was logically apparent to the father. The mother's evidence on the discipline discussions was so general and lacking in context that it was impossible to even infer how much time might have met the general objectives of their agreement.

While it is clear to me that the father tried to mislead me in much of his evidence on this issue, which I reject it in total, this does not resolve the complaint. The mother needed to satisfy me that his brief chat with her was a breach of his inferred obligation to communicate and cooperate. She has not done so.

Notwithstanding this finding, the evidence does generally satisfy me that the father will only communicate with the mother on his terms – particularly when he feels like doing so. His evidence regarding the second communications complaint of August 30, 2013 related to Sequoya's first day of school satisfies this finding.

The school issue was focused and did not demand much in the way of time or effort to resolve but again, the father blamed poor reception on his failure to respond then later told me he told his father to contact her to accommodate her wish. He cannot have it both ways. On all the evidence respecting communications, I find the father is a "minimalist" and an "avoider" and that is out of context with the agreement he reached. In context of communications, he is significantly prone to coloring the truth to avoid his responsibilities.

October and November Communications

The next communication complaint is evidenced by text exchanges on October 10 and 11, 2013. The opening text from the mother stated "You and I need to have a serious conversation". I know what she wanted to discuss because I have heard all of the evidence. However, it is not clear to me the father understood at that specific point what the conversation would be about or how important it might be. The balance of the texts boils down to the inability of the parents to agree on the when, where and timing of a discussion.

I am unable to determine what weight to give this incident in context of the obligation to communicate. In the end, it appears to be a squabble over convenience rather than willingness. The same conclusion appears appropriate for the October 29, 2013 exchanges.

Generally, the mother complains about other failures on the father's part to communicate personal information. While the subject-matter of most of these failures would eventually have some direct or indirect impact on the children, I am not satisfied at what level the information she believed she was entitled to know might affect the inferred rights and obligations under the parenting side of the agreement or the deeper needs and interests of the children that might support a breach of the residency side of the agreement.

On all of the evidence, it is not clear to me that the agreement has failed or been breached due a failure to communicate. However, it is clear to me that the father will forever be a problematic communicant. This finding becomes more evident as the next issue is considered.

Children's Aid Society Complaints

This relates to formal complaints about the mother and/or her parenting made to the local Children's Aid Society. Of all the evidence I heard, I find these complaints to be most troubling respecting the agreement to share parenting. There were three base complaints: March, October and November of 2013 and other complaints were made while the base complaints were being investigated.

The father was adamant that he had no direct role in initiating any of these complaints. He stated he did not know others would make them and all he did was to ask questions or seek direction. He repeated this evidence and expanded on it both in chief and cross. His evidence in this area is rejected for the utter fiction it was.

March 2013 Complaint

The father personally made the March, 2013 complaint by telephone (exhibit 10). On the evidence as a whole, there was no rationale for doing so. There was no risk to his children based on his allegation (which I do not accept) that he saw marihuana in the mother's kitchen. Many of the father's complaints were based on generalizations taken from the mother's past and he has offered no evidence that his generalizations remain live issues. Further, he also embellished this specific complaint with other allegations. All of his allegations were duly investigated and were not confirmed.

In the course of this first investigation, the father made additional complaints to the CAS. Each had to be investigated and none were confirmed. A major complaint involved a bed bug infestation of the mother's residential unit from an abutting unit. To the CAS, the father complained the mother did not react quickly enough or at all. The evidence is clear that she did but even today, he still repeated his belief she did not. Four months later, he complained to the CAS that the children were still being bitten and this complaint was not verified.

October 2013 Sexual Assault Allegation

The father indirectly but intentionally caused the second complaint to be made in October of 2013. It involved an allegation that Sequoya had been sexually assaulted. This allegation demands some background.

Since she was two, Sequoya has experienced a number of urinary tract infections. The area around her vagina would become red and appear chaffed and this redness extended to her upper inner thighs wherein large red spots would appear until the infection had cleared. The father was acutely aware of the infections and the spots on her inner thighs. He was more than familiar with treatment recommendations.

On or about October 2, 2013, he picked Sequoya up for his week. She complained it hurt when she peed and he had his partner look at her. His partner noted her vagina was red and chaffed and she also noted the red spots on her inner thighs. There is no indication the father told his partner about the child's prior difficulties with infections. There is no indication why he took her to the hospital given his knowledge of the prior infections and treatment regime. There is no indication why he did not call the mother who knew she was suffering from an infection at that time. There is no indication why he did not merely begin traditional treatment for the infection.

He claims Sequoya was seen by an emergency room physician who instructed him to take her to the sexual assault clinic in London the next day. He implies that the doctor suspected sexual assault solely based on the child's sore vagina and the red marks on her thighs. He wanted to tell the court what the doctor told him but I would not allow him to do so – even though the mother's counsel did not seem to object. By this point in his evidence, I suspected he could not give an accurate accounting of the conversation and I suspected he would not tell the court what information he or someone else had or had not given to the doctor on admission.

Nevertheless, a doctor called the CAS. On the evidence I heard, the emergency room physician had no reason to suspect a sexual assault unless the father or someone else suggested it or unless the father did not advise the doctor of the child's history of urinary tract infections. I find it absolutely implausible that Sequoya would have been sent to the London clinic had her medical history been disclosed. I am bolstered in this finding given the father's failure to tender any information from the emergency department that might support his contention that the call to the CAS and by inference the sexual assault allegation was not his doing.

The CAS investigated the sexual assault allegation and did not verify the complaint. There is no evidence that it demanded any form of safety plan with either parent which often occurs even if a sexual assault complaint cannot be verified. On the evidence I heard, the child was subjected to a sexual assault evaluation without any hint of a valid reason.

November 2013 Complaint

The November call to the CAS was made by the father's new partner's mother. It had to do with allegations of "emotional harm, exposure to partner violence". None of the allegations were confirmed and neither party appeared to deem it important to question the facts leading to the complaint. What is clear is that the caller had no access to either the mother, her home or her new partner so whatever information she gave the CAS came from the father who was the only person with the necessary access.

In the end, the only inference supported by the evidence respecting the calls to the CAS is that they were not made in good faith and they were intended to interfere in some manner with the mother's parenting of the children. These calls were, in my opinion, indicative of the father's unwillingness to legitimately share parenting with the mother and he thus has abandoned the parenting side of their pre-separation agreement.

Notwithstanding that I lay the blame for these calls directly at the father's feet, I am convinced he did not decide to lodge these complaints without encouragement. From the father's history and having heard him at trial, recognizing and thinking through the nuances of the events complained about appears to be beyond his personal capabilities and taking the time to make the calls appear out of character. Notwithstanding who else participated, the father embraced the lie and did his best in evidence to support it.

Holiday Arrangements

The final series of complaints from the mother I will address are related to the sharing of holidays. When the agreement was initially implemented, the parents had not discussed how the holiday arrangement would be resolved. They appeared to leave that detail for the first holiday that arose and as soon as the holiday aspect of the agreement had to be implemented, problems arose. Most assuredly, if the holiday fell in a week when the children were with their father, he took advantage and dictated how the day would be shared with little to no discussion. Beyond this finding, I do not intend to review this evidence since it mainly arises as a result of the default of both parents to define this part of their agreement.

General Findings: Shared Parenting

In context of defining a general line of communication between these parents, the evidence supports that it is primarily based on conflict. This is not the fault of just one of the parents but appears to be an extension of the unresolved issues between them coming from their cohabitation. Both exhibit flashes of stubbornness and self-centredness and neither seems to want to quit the arguing that defined their relationship. In context of the evidence respecting communications, I sensed a significant want of trust and respect for the other coming from both parents and I do not see that ending any time soon.

Neither parent attempted to outline in evidence what they had discussed in reaching their agreement and this fact and what has occurred since leads me to conclude that absolutely nothing was discussed except that placement and holidays would be shared. In this regard, I find the agreement to share was not based on the needs and interests of the children but with the sole focus being the interests of the parents.

Notwithstanding that I have rejected most of the father's evidence on specific complaints, I do not reject in total his sense that the mother's communication style was somewhat unfocused and at times appeared to come with an agenda that was not conducive to meeting the interests of the children. Part of the fault lies with the fact neither ever did define boundaries and both continued to carry grudges. In the end, I cannot be certain the mother's efforts at communication were essentially defined by bona fides or that the father's responses were essentially defined by mala fides.

By way of example, the request to communicate respecting the tantrums did not appear to me to be mainly focused on discipline styles as the mother suggested but more so on her sense that either the father or his father was giving the children everything they wanted and she wanted that to stop. This was unclear but on the evidence, I find her effort was to lay blame rather than find a resolution. As to Sequoya's urinary tract infection, both parents spent considerable energy in their communications trying to convince the other he/she was wrong in the choice of detergents and soaps that would prevent a recurrence of the infection but neither considered the wisdom of a fulsome medical inspection to identify how to best treat her condition when, irrespective of the soaps and detergents either parent used, the infection continued to reappear.

On these facts, an ability to communicate and cooperate never existed as between these parents and no amount of tinkering or mandated programs (as the father suggests) will resolve this reality. On these facts, neither parent truly respects or trusts the other with the result that neither will ever be able to truly trust and respect parenting choices made by the other.

In the result, I find any form of shared parenting will not work in the interests of the children. Luckily, the children are developing normally and have no identified special needs. This fact has significantly tempered the damage that would likely have arisen as their parents' personalities continued to clash after separation. Based on what I have heard, the parents' personality clashes will eventually impact the children. The clashes are far too many and no child can avoid sensing the ill-will their parents' exhibit toward each other and this will begin to negatively define their own development.

It may be argued that these are harsh comments given that the parents were unrepresented when their agreement was reached and they cannot be expected to understand how to formalize the nuances of their agreement. I do not agree. Had either of them considered the demands for negotiation respecting parenting that likely occurred during their own cohabitation, one or the other would have raised a few general matters that needed to be discussed or considered given the circumstances that led to their separation. Absolutely nothing was raised or discussed.

Who Will Make the Parenting Decisions?

As a consequence of my findings regarding the complaints to the local CAS, I cannot have the necessary amount of trust in the father's willingness to make bona fide parenting decisions that support an extended placement regime with the mother. I am also uncertain who is making many of the decisions in his household that will affect her time with the children. Any attempt to control a third party in an order is futile: I will not attempt to do so on these facts and I cannot support a custody order in favor of the father.

Since their separation, there is no evidence the mother has attempted to interfere with the spirit and intent of the placement agreement in context of the parenting decisions she has made. While I have some reservations about the bona fides of some of her attempts at reaching decisions with the father, I have no evidence that does not support her ability to make child-focused decisions respecting the children's time with their father.

The likelihood of conflict between the parents in the future is real and the potential for conflict demands a custodial order to focus the right of one to make the parenting decisions demanded in the interests of the children. This order will issue in favor of the mother.

General Findings: Placement

As indicated earlier, the week-on, week-off agreement has essentially worked in the interests of the children. They both significantly enjoy the time spent in each home and it appears they both have meaningful attachments to their parents which is the result of the existing arrangement. To the extent that the parents' placement agreement has worked, it should be respected, particularly when it has worked in the interests of the children.

The issue is whether the existing arrangement should be endorsed where only one parent will make parenting decisions?

Since the children are developing normally and have no identified special needs, I see nothing major that would stand in the way of splitting off decision making and leaving the existing placement regime in place. As their circumstances presently stand, neither child demands much in the way of decision making on the major incidents of custody. In context of daily decisions, the father will have to respect and comply with the mother's directives respecting bedtime, addressing identified problematic behaviours, completion of homework and providing remedial medical or dental treatment in the home.

Since I have made a custody order to regulate the parenting decisions, an access order to the father will define the children's time with him as an extension of the regime put in place following the week-on/week-off pre-separation agreement.

Mother's Decision-making Authority

The mother is entitled to make all decisions related to incidents of custody except choice of the child's residential community, a change of a child's name and a child's holiday travel out of the Province with the father. This latter incident should be shared.

For the purposes of clarity and notwithstanding existing arrangements, the mother is entitled to choose the children's school, doctor, dentist or other medical specialist; and, she is entitled to maintain possession of all official documents relating to the children or in their names except their health cards that will be exchanged with the children.

Unless she is unavailable, the mother shall make emergency medical, dental or treatment decisions for the children. If she is unavailable at the point of the emergency, meaning unavailable by telephone, the father is entitled to make immediate decisions required.

Rights of the Father

The father is entitled to receive executed consents for the release of educational and medical/dental information and to timely notice of and invitation to attend any meeting scheduled with an educational, medical or dental specialist. He is entitled to travel out of the Province with the children for a holiday provided he gives the mother 60 days notice and sufficient particulars to allow the mother to maintain contact with the children during the holiday. In this right, the mother is obligated to cooperate in securing the appropriate travel documents at the father's expense. The father is entitled to 90 days notice from the mother if she intends to change the surname of the children or if she intends to move their place of residence out of the City of St. Thomas.

Communications

Both parents are entitled to immediate telephone notice of any emergency medical or dental or educational circumstance while the children are in the care of one or the other. The parents shall exchange cell phone numbers through which they are most readily accessible and shall not use such numbers except in the case of emergency.

The parents shall communicate non-emergency information by email. Given the alternating week access ordered above, these emails are mainly intended to exchange information about the daily needs of the children the other must know in anticipation of the next exchange and the daily routines of the children that the father must respect. Each parent acknowledges they will check their emails daily and will limit these communications to child-focused issues. Each will be respectful of the other in context of the language of their email exchanges.

Holidays

On the evidence, only three appeared to generate conflict in the evidence: Halloween, Christmas morning and Mother's Day/Father's Day.

Halloween

I do not consider Halloween to be a holiday. It is merely a day where both parents want to see their children dressed up and take part in the excitement the children have for the day. Trick or treating shall occur in the neighborhood where the children are residing in the week it falls. Both parents may accompany them for that purpose. After they have finished trick or treating, both parents may accompany the children to the home of a grandparent who also wants to see the children dressed up. In the event the parents cannot (or do not from time to time) agree on timing, trick or treating in the neighborhood shall occur between 6:00 and 7:00 P.M. and visits to family will follow immediately thereafter. Neither parent is entitled to alter these times without the prior and clearly articulated consent of the other.

Christmas

As to Christmas, between December 24 at 7:00 P.M. and December 26 at noon, the access schedule shall be interrupted. The children shall be in their mother's home from December 24th at 7:00 P.M. until December 25th at noon and in their father's home from December 25th at noon until December 26th at noon. Neither party gave me any indication of family traditions that needed to be considered or respected so in the end, these time lines have been set arbitrarily.

Mother's Day and Father's Day

Where applicable, the access schedule shall be interrupted between 10:00 A.M. and 7:00 P.M. each Mother's Day and Father's Day. The children will spend those hours with the parent in whose name the day is focused.

Child Support

The parties indicate they will be able to agree on this issue once these reasons are delivered. Neither party shall attempt to take out an order from these reasons until the support issue can be defined. This will avoid having two separate final orders.

Order

The basis of terms of the order is articulated above and the parties are capable of locating them to prepare an order. In the event of disagreement, the order can be settled before me on a regular domestic management day.

Costs

I do not intend to entertain submissions on costs. Success has been split and neither parent has walked away from this hearing with clean hands.

Justice M.P. O'Dea