Court File and Parties
Ontario Court of Justice
Between:
Anna Rozpedzik Applicant
— And —
Anthony Garcia Respondent
Before: Justice A.W.J. Sullivan
Heard on: October 31 and November 1, 2017
Reasons for Judgment released on: January 9, 2018
Counsel:
- Larry A. Silverberg, for the applicant(s)
- Amandeep Nanar, for the respondent(s)
SULLIVAN J.:
[1] Introduction
1This is the decision in a trial held on October 31 and November 1, 2017 in the matter of Anna Rozpedzik (Anna) and Anthony Garcia (Anthony) regarding the issues of custody, weekly access and child support for their son Jacob Dylan Garcia, born May 13, 2013.
[2-7] Background and Relationship History
2Anna and Anthony met through an online social media dating site in December 2009 and began dating shortly thereafter in January of 2010. Their relationship continued through May 25, 2013. During this time they never lived together and did not marry.
3Anna is 33 years old and is employed as an automobile insurance adjuster. Anna resides in Mississauga Ontario.
4Anthony is 39 years old and employed for a community-based social services agency Saint Stephen's in Toronto. Up until approximately June of 2017 Anthony resided in Scarborough Ontario. In June of 2017 he moved to Mississauga, Ontario and now resides approximately a 15 minute drive from Anna's home.
5Jacob's primary residence since birth has been with his mother Anna in Mississauga.
6Anthony has had regular and consistent access with his son driving from Scarborough to Mississauga for pickup and return during overnight access, or for evening community access exercising this in Mississauga.
7Anthony's current access is every other weekend overnight access from Friday at about 6:30 p.m. through to Sunday at 6:00 p.m. and each Tuesday evening from 5:30 p.m. through to 7:30 p.m. From all accounts, Anthony has consistently maintained this access on a regular basis.
[8-11] Positions of the Parties
8In this trial, Anna seeks sole custody of her son with a regular schedule of access between her son and his father. She also seeks monthly child support and Section 7 costs.
9Anthony is seeking joint custody and a variation to his time with Jacob requesting regular midweek overnight access in addition to the current every other weekend. Anthony argued at trial that he is and has always been equally involved in addressing Jacob's needs. Anthony suggests that if he has equal time with his son, he need not pay child support, as the parties would be parenting equally and their salaries are quite similar. He agrees to contribute to Anthony's Section 7 costs.
10Anna opposes a joint custody order. She argues that the parties have had poor communications and an acrimonious relationship such that a joint custody order would not address their son's special needs.
11It should be noted that prior to this trial the parties did agree to a final order outlining Section 7 expenses until full time daycare ends, holiday and vacation times between them both. This is set out in two final consent orders of Justice Parent, dated September 25, 2014 and February 15, 2017.
JACOB'S SPECIAL NEEDS
[12-17] Diagnosis and Treatment
12At trial, both the applicant mother and respondent father testified that their son Jacob has been diagnosed with Autism Spectrum Disorder.
13This diagnosis was confirmed by Doctor Angelo Simone, a pediatric specialist in a brief reporting letter dated November 24, 2014. Jacob was referred to ErinoakKids Centre for Treatment and Development (ErinoakKids Centre) and he is receiving several types of therapies for his special needs ranging from individual therapy sessions and group sessions focusing on his speech, behaviour and feeding concerns. Some of these services the family has obtained through government assistance at ErinoakKids Centre and has paid for private services through Morneau Shepell, in particular for Jacob's speech therapy.
14At trial the court did not receive testimony from specialist or other individuals. The only witnesses were the applicant mother Anna and the respondent father Anthony. This in part was due to the narrowing of the issue through the case management of the file at the early stages and in part to some understanding and agreements between the parents regarding their son's developmental needs.
15A review of the document prepared by Anna to obtain funding for Jacob's behavioural therapy indicates that he benefited from the work at ErinoakKids Centre and from his pre-schooling programs. He was developing some adverse reactions around eating becoming distressed at mealtimes and not liking certain foods. He has trouble dealing with frustrations and could quickly break down into a tantrum in a matter of minutes as well as having some obsessive-compulsive tendencies and the slight deviation to structure and certain sequences in his schedule that he can become very distressed about. Anna sought and received funding for Jacob's IBI therapy to assist him in developing skills/methods to manage behaviour in order to reduce meltdowns and tantrums and provide assistance with his feeding challenges.
16The parent's direct or principal evidence was through affidavits, Exhibit 1 for Anna and Exhibit 7 for Anthony.
17They were both cross examined on their direct evidence and I found that neither's credibility was put into serious question when cross-examined.
[18-25] Anna's Role in Addressing Jacob's Needs
18The central task I had at this trial was to evaluate each of the parent's respective vision of how they have cooperated to parent Jacob to address his special needs and how their respective plans will do so in the future.
19Anna testified that she was the one who noticed that Jacob was not meeting some of his early developmental milestones. She brought this to the attention her son's pediatrician and Jacob was subsequently diagnosed.
20In her testimony, Anna outlined how she has been the principal parent to not only obtain but follow through with the special therapy sessions required for Jacob. The court heard that the applied behavioural sessions are mainly provided during the weekday and during working hours requiring her to make alternate arrangements with her employer to leave work to bring Jacob to the sessions. Speech Therapy and some Group Behavioural Programs are given after hours or on some weekends.
21Anna was the parent that applied for and obtained through a private funding source, Presidents Choice Children's Charity a subsidy of 2500 dollars that was used to obtain through Morneau Shepell ABA Sessions (Applied Behavioural Analysis).
22Anna testified that initially Anthony was resistant to the assessments made of Jacob as having autism and thus their son's need for ABA therapy and speech and language. She notes that Anthony initially did not bring Jacob to speech therapy sessions on Sundays through Morneau Shepell as it interfered with his time with Jacob or was not convenient for him. Anna testified that subsequently, from her understanding, Anthony has arranged for separate speech therapy sessions for Jacob. She was not clear on the exact details of these services arranged by Anthony.
23It was at this point in the parent's testimony that it became clear to me that effectively they have been working separately and in silos regarding their parenting to address Jacob's needs.
[24-50] Anthony's Involvement and Communication Breakdown
24Anthony took issue with this indicating that he has a close relationship with his son's service providers such as his son's daycare and has brought his son to speech therapy sessions which he arranged.
Anthony testified as follows: paragraph 10 to his affidavit:
"I am aware of our child Jacob's developmental issues. I take this matter very seriously. I have been involved by taking the child to speech therapy, visiting the pediatrician to be updated on the child's health, participated in therapies and transport child to group socialization classes. I go out of my way to ensure I am involved in every aspect of the child's life."
25The above is an example of how divergent the parent's testimony was in this trial regarding how they have cooperated to address their son's needs. I found that there has been very little in the way of meaningful cooperation between them both. Indeed I also found that although Anthony has shown love and maintained his regular access with his son Jacob, he has not assisted and shared the same role in addressing Jacob's needs as demonstrated by Anna since Jacob's birth.
26Both Anna and Anthony have listed a series of complaints and difficulties that they have experienced between each other in attempting to parent Jacob since shortly after his birth on May 13, 2013 some four years.
27Anna indicates that it began weeks after his birth when Anthony was insisting on overnight access after there was a difference on or about May 24, 2013, when Anthony was driving her to a doctor's appointment and an argument ensued causing Jacob to miss his appointment as Anthony stopped midway and refused to drive Anna and Jacob to the appointment.
28Within days Anthony insisted on overnight access. Anna indicates at the time she was breast-feeding Jacob. This was the first time that police were called about access. From the testimony it's not certain who involved the police. Anna testifies that after this incident there were five further police involvements between March 2014 and May 2016. Most of these were around access and visitation and Anthony insisting, according to her evidence, that he have access despite the fact that at times Jacob was ill and on medication and/or bad weather did not make it conducive for access to take place.
29Anna has indicated other difficulties with Anthony was early on when she was breast-feeding and visits were occurring at an Early Years Centre and Anthony refused to permit Anna to console and breast-feed Jacob when Jacob was cranky.
30Anthony also shaved Jacob's hair during an access visit leaving a vertical strip in the middle of the child's head. Photos of this haircut were entered into evidence. There was no consultation surrounding this. When Anthony was questioned about why he did this, his response was that he had the permission of his son Jacob who at the time would have been just over a year old.
31Anna further deposed that often Anthony insisted on access even though there were difficult weather advisories and this meant that Jacob would be on the road during these periods of time.
32On another occasion, October 23, 2014, when Anna advised Anthony that Jacob was ill and vomiting Anthony insisted on visits that were taking place at a local Ontario Earlier Years Center. Apparently this visit was cut short as Jacob continued to vomit and had a high fever. There were email exchanges about this event that were entered into evidence. Anna indicates that often, despite the fact that Jacob is ill, Anthony would insist on access and threaten the involvement of the police or a Children's Aid Society if it did not take place.
33A more recent example of the difficulties in communication between the parties is when Anna advised Anthony that given the fact that he chose to take vacation and had advised her of his dates in advance, specifically August 18 to August 23, 2017, that she would be out of the country on vacation during this period of time. According to Anna, Anthony changed his confirmed vacation time to earlier dates claiming he had to cancel the original dates due to work commitments. Anna believes this was done to cause confusion and problems for her.
34More concerning for the court is the fact that the parents have had difficulty communicating around Jacob's therapy. Anthony gave evidence that he has arranged for Jacob's speech therapy independent of the one arranged by Anna. Anna indicates that from her knowledge potentially Anthony has had Jacob at four different speech therapists. Recently it might have changed to the same service that Anna has been using through Morneau Shepell.
35It appears that there has been little communication by the parents jointly with these therapists and lack of information sharing on this front.
36In addition to Jacob's speech therapy, he was receiving through ErinoakKids Centre socialization therapy known as ABA and IBI. Anthony through his testimony indicated that he has attended a few of these sessions when given through ErinoakKids Centre and/or recently through Morneau Shepell. In contrast, Anna has been the parent to both arrange these sessions and take time off work, using her vacation time, according to her testimony, to bring her son to these sessions during the week when they are mainly offered.
37An example of the difficulty in the parent's communication and willingness to cooperate around this key area of Jacob's therapy was when Anna advised Anthony in the spring of 2017 that there would be another round of group social therapy sessions (ABA) through Morneau Shepell and asked him if he would like to bring Jacob to these sessions. According to Anna, Anthony complicated matters by trying to switch these therapy sessions to a location in Toronto, indicating this would be a fair compromise as he was still residing in Toronto. It appears from the evidence that when the sessions were being given in June/ July 2017, Anthony had made his move to Mississauga. From the evidence it appears that Anthony did not bring Jacob to any of these sessions as he eventually objected to having to do so during his time with Jacob.
38Anthony on his part testified that he has always had problems with Anna in arranging access and sharing of information regarding the therapies and daycare providers that his son has received services from.
39Anthony testified that as recently as September 2017, Anna denied access to him as they could not settle on the sharing of transportation between the respective houses. This issue arose over the fact that an earlier court order of 2014 indicated that Anna would be forgoing a request for Section 7 daycare costs and Anthony would absorb the travel costs until daycare ended in September of 2017 as Jacob started full time school. With the daycare ending Anthony requested the drives to be shared, which caused a flurry of differences between parties. Anthony testified that although he had advised Anna in advance, she refused to pick up her son causing him to keep Jacob an extra night. Anna accuses Anthony of unilaterally creating this difficulty despite the fact that he now lives some 10 minutes from her home having moved to Mississauga in June of 2017.
40Regarding this issue of pickup, the fading away daycare and the link to Section 7 expenses I reviewed the parties final orders in this regard and I note the following:
a) In the September 24, 2014 consent final order of J. Parent, paragraph 5, Anthony agreed to be responsible for collecting Jacob and returning his son to the Applicant's residence after access.
b) In addition in paragraphs 6 and 7 of this same consent final order, the only Section 7 cost that were waived to assist Anthony with travel cost to exercise assess were daycare expenses and swimming.
41Anthony further deposed that Anna had offered to change the access arrangements between them when Anthony moved to Mississauga, which he did in June of 2017. Yet he complains that Anna has not offered an extension or a new schedule of access. Anthony argues that Anna is seeking sole custody as an attempt to keep Jacob with her as long as possible so that Anthony would need to continue to pay full child support. He argues on several occasions in this trial that he should have weekday evening overnight access and equal time between each household and therefore this would vary support payments or eliminated completely support since they would roughly have the same time with Jacob and their salaries are similar. As he puts it, if he is to pay child support it should be commensurate with the amount of time that he would have his son in his care.
42Anthony suggests that now that he has moved to Mississauga that both parents should not move from Mississauga so that Jacob can have consistency with school, therapies, doctors and dentists and that if any parent were to move outside Mississauga the other parent remaining should have Jacob primarily in that parents care.
43Anthony on the one hand states he wants more time during the week with his son but indicates in his affidavit that he does not want to disrupt his child schedule but rather he wants to be an integral part of it. Anthony's current access is every other weekend from Friday 6:30 p.m. to Sunday at 6:00 p.m. and every Tuesday and Thursday evening access 5:30 p.m. to 7:30 p.m.
44Anthony complains about Anna not being open to all channels of communication which he says he has always been open to. Since Jacobs birth, he accuses Anna of being hostile and aggressive because of her own insecurities and therefore this is the cause of difficulties between them both when it comes to cooperating regarding their son's best interests. Anthony testified that when people are around Anna does not act hostile and aggressive to him and that she communicates and works together. She is upset, however, when no one is around and she has angry outbursts. He goes on to request the ability to video record all interactions of both of them when they are together. This he outlines in paragraph 45 of his principal affidavit.
45Unconsciously when Anthony testified in direct examination explaining how he arranged services for his son, he used the term "my speech therapy sessions." He did this on several occasions prompting the court to ask whether he was referring to his own speech therapy sessions or those arranged by him for his son. Anthony clarified that he was referring to those he arranged for Jacob. It became clear to the court that Anthony and Anna have been working in silos in relation to speech therapy and other aspects of Jacob's needs.
46It is also evident to the court that despite Anthony's testimony, in terms of his involvement in other therapies, specifically the IBI and ABA that Anthony has not taken the time from work to do so. The court did find that he participated in a few socialization sessions offered on weekends through Morneau Shepell, similar to those that were initially offered at ErinoakKids Centre, but not in a similar fashion as Anna has done by taking time off from work over the years.
47Anthony testified that he is employed and has been for the last eight years with Saint Stephen's house. Though this employment he is offered several benefits which include, as he puts it in paragraph 36 of his affidavit, … 35 hours annually for medical appointments for an employee's child with advance notice, he also is provided with five weeks paid vacation per calendar year and four floater days per year for a total of six weeks per year which allows him, as he puts it, to spend time with Jacob.
48When Anthony gave his testimony, I asked him specifically how often he brought his son to therapy sessions during the week and it became evident that over the past 3 years he did this on approximately two to three occasions since his son's diagnosis, other than the weekend speech therapy sessions that he arranged and a few socialization sessions given on weekends in the community. This despite the fact that he has available to him through his employer up to 75 hours per year or 6.25 per month offered through his employment to cover child related appointments.
49One of Anthony's complaints has been that the sessions for Speech and Therapy offered to his son have been in the West end of Toronto, specifically in Mississauga. Anthony works and resides in Toronto and Scarborough requiring a significant distance of travel. This can explain why Anthony has arranged for some of the speech therapy during the weekend when he has his son to occur through a separate service. This service was at times different from those offered through Morneau Sheppel and recently returning to Morneau Sheppel but by a different speech therapist and again just recently switched to the same individual that Anna has been using with Morneau Sheppel for most of Jacob's sessions.
50Anthony subsequently advised Anna that he was not going to bring his son to any of these sessions if they were scheduled during his access times. It appears however in the testimony and evidence that when the sessions were offered in the early summer 2017 that Anthony was either in the process or had moved to Mississauga from Toronto and therefore the issue of distance regarding travel time was no longer an obstacle.
LEGAL CONSIDERATIONS – BEST INTEREST
The court must ascertain a child's best interests from the perspective of the child rather than that of the parents. Gordon v. Goertz, [1996] 2 S.C.R. 27.
No one factor in the statutory definition of a child's best interests is given statutory preeminence. Wilson v. Wilson, 2015 ONSC 479.
A young child with attachments to both parents needs sufficient contact with both, without prolonged separations to maintain a meaningful and close relationship with them. Van Den Driessche v. Van Den Driessche, 2011 CarswellMan 255 (Q.B. Family); Wilson v. Wilson, 2015 ONSC 479.
In resolving custody disputes, emphasis must be placed on the critical importance of bonding, attachment and stability in the lives of young children. Barnes v. Parks.
The court should consider the level of hostility and the extent to which that stability may undermine the child's stability. Wilson v. Wilson, 2015 ONSC 479.
The court should consider how the person seeking access has used contact for a purpose collateral to the child's best interests. Lusher v. Lusher (1988), 13 R.F.L. (3d) 201 (Ont. Prov. Ct – Family).
Financially supporting one's children in a responsible manner is an important part of being a parent. The failure to do so is a factor militating against a joint custody order as it demonstrates poor judgment and an inability to prioritize the child's interests. See my comments in Jama v. Mohamed, [2015] ONCJ 619; P.H. v. T.J., 2017 ONCJ 166.
Best Interests – C. (J.R.) v. C. (S.J.), 2010 CarswellNS 126 (N.S. S.C.):
What does the parent know about child development and is there evidence indicating what is suggested to be known has been or will be put into practice?
Is there a good temperamental match between the child and the parent?
Can the parent set boundaries for the child and does the child accept those restrictions without the need for the parent to resort to harsh discipline?
Does the child respond to the parent's attempt to comfort or guide the child when the child is unhappy, hurt, lonely, anxious, or afraid?
Is the parent empathetic toward the child? Does the parent enjoy and understand the child as an individual or is the parent primarily seeking gratification for his or her own personal needs?
Can the parent examine the proposed parenting plan through the child's eyes and reflect what aspects of that plan may cause problems for, or be resisted by, the child?
Has the parent made changes in his or her life or behaviour to meet the child's needs, or is he or she prepared to do so for the welfare of the child?
JOINT CUSTODY
It should only be considered where both parents have a strong claim for custody. Only then, should the court look at communication and cooperation. If one person's behaviour is problematic, it shouldn't be ordered.
The Ontario Court of Appeal in Kaplanis v. Kaplanis, [2005] O.J. No. 275, sets out the following principles in determining whether a joint custody order is appropriate:
There must be evidence of historical communication between the parents and appropriate communication between them.
It can't be ordered in the hope that it will improve their communication.
Just because both parents are fit does not mean that joint custody should be ordered.
The fact that one parent professes an inability to communicate does not preclude an order for joint custody.
No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.
The younger the child, the more important communication is.
[51-60] Joint Custody Analysis
51In Giri v. Wentges, 2009 ONCA 606 which says:
"[10] Second, as this court has repeatedly held, joint custody requires a mutual commitment between parents to cooperate on matters pertaining to the raising of their child, and an ability for the parents to put their own interests behind those of the child. The Ontario Court of Appeal in Kaplanis v. Kaplanis, [2005] O.J. No. 275 has made it clear that an interim custody order and how it has worked is a relevant consideration for the trial judge. Ladesic-Hartmann v. Hartmann"
52Graham v. Bruto, 2008 ONCA 260, the court of appeal stated clearly that the joint custody and parallel parenting option was not in the best interests of the child of that family because the parents disagreed on too many important issues that affected the child's best interests. Also in Roy v. Roy, [2006] O.J. No. 1872.
53The Court of Appeal has upheld joint custody or parallel parenting in the absence of reasonably effective communication between the parents only where it has been necessary to sustain a child's contact with a parent who has been subjected to a campaign of alienation. So, for example, such an order was upheld where a mother had laid down a pattern of resisting the father's access and was found by the trial court to be unable to appreciate the importance of the relationship with their children. See Andrade v. Kennelly, 2007 ONCA 898.
54Joint custody should not be ordered where there is poor communication and the parties fundamentally disagree on too many issues affecting the child's best interests. See: Graham v. Butto, 2008 ONCA 260 ; Roy v. Roy, [2006] O.J. No. 1872 (Ont. C.A.).
55In Ciutcu v. Dragan, 2014 ONCJ 602 : Justice Sherr at paragraph 33 wrote the following about joint custody orders and special needs children:
"In Kaplanis, the court emphasizes that it is particularly essential for parents to have good communication when a child is young. The same reasoning applies, if not even more, to special needs children. Their needs are complex and it is essential to their well-being that there should be an effective decision-making process in place for them. For these children, important decisions frequently need to be made about medical treatment, supportive services, education and activities. They need stability and consistency in decision-making and conflict can be particularly harmful for them. See: Kenney v. Kenney, [2007] O.J. No. 2564 (SCJ -- Family Court)."
56In Smith v. Robinson, [2007] O.J. No. 458 (SCJ), the court refused a request for joint custody for a child with selective mutism, finding that there was not the necessary level of cooperation between the parties. The court found that the child required decisive, informed and consistent parenting.
57Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard of perfection is not required, and is obviously not achievable. See: Griffiths v. Griffiths, 2005 ONCJ 235 , 2005 CarswellOnt 3209 (OCJ). The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. See: Warcop v. Warcop.
58In S. (S.) v. K. (S.) 2013 ONCJ 432 Justice Sherr wrote that courts should assess the dynamics of a family when determining if a joint custody order is appropriate. Particularly, the court should examine if the granting of such an order is:
a) more or less likely to de-escalate or inflame the parents' conflict;
b) more or less likely to expose the child to parental conflict; and
c) Whether a parent is seeking the order as a mechanism to inappropriately control the other parent. Parents who seek such orders for the purpose of asserting control over their former spouse and children tend to be rights-based, overly litigious, unbending and the best interests of their children can be secondary considerations. For such parents, a joint custody order can be a recipe for disaster. It can become a springboard for that parent to assert control and make the lives of their former partner and children much more difficult.
59In paragraph 504 of Izyuk v. Bilousov, 2011 ONSC 6451 , 2011 CarswellOnt 12097 (SCJ), the court writes:
"In the wrong family circumstances, a joint custody order can perpetuate hostilities, indecision, and power struggles. Children - particularly children already exposed to the upset of family breakdown - look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully."
60In making any parenting decision, the court must consider the child's best interests and the relevant best interest factors set out in Subsection 24 (2) of the Children's Law Reform Act. The court has taken these factors into consideration.
DISCUSSION
There are some factors that support Anthony's request that joint custody order be made, being:
a) The parties have been able to agree on where the child lives.
b) The parties have been able to agree on a holiday schedule with the consent orders in 2014 and 2017.
c) There have not been arguments about Jacob's need for services to assist with his Autism.
d) The parties were able to agree on temporary child support. The father has complied with that agreement although there has been a difference in contributing to the cost associated with Jacob's ABA and IBI treatment.
[61-86] Court's Findings and Reasoning
61Notwithstanding these positive factors, the court finds that it is in Jacob's best interests to grant Anna custody.
62The evidence revealed that the level of communication between the parties is very poor. This has been reflected in their behaviour towards each other at times and in their email exchanges.
63I commented on above in this decision regarding the evidence that Anna and Anthony have had disagreements over issues of who is to drive Jacob to or from visits when the school is not being used, changing dates at the last moment around Mother's Day and summer vacations and having difference on whether cost associated with Jacob's ABA and IBI sessions were waived by Anna to cover Anthony's gas cost to travel to exercise access. I find that Anthony caused much of this confusion by not taking the time to understand the consent orders in place and this does not support a request for joint custody.
64Given the above information in this Final order that remains in place today, I find that the difficulties caused by Anthony insisting as he did that Anna collect Jacob and linking this to Jacob not being in daycare any longer was his wrong doing. This and not contributing to the cost of Jacobs ABA and IBI sessions other than 300 and some dollars on one occasion just recently, is a clear example of the lack of cooperation that the Ontario Court of Appeal speaks of when it states that such action does not support a joint custody order. It is also one reason in this trial why I find so as well.
65These differences overall to not contribute to nurturing a health level of cooperation and are somewhat minor in comparison to when it comes to analyzing which of the two parents has addressed Jacobs' needs since birth.
66The court heard that Jacob is a child of routine and that he has difficulty when this is thrown off. He has made strides and improvements. He has known his mother's home as a consistent part of his life with visits to his father. He has recently started school and from all accounts is doing well.
67Anthony on the one hand suggests he is intimately involved with his son's service providers however he complains that Anna has not informed him of pertinent information regarding his son's needs and that the service providers have not been willing to share information with him suggesting somehow that Anna is creating this problem.
68Jacob is now 4.5 years old. From all accounts he loves and knows both of his parents and extended family members. Their plans are similar in that they both will be directly involved in Jacob's care. Both parents' plans outline that they will have free time with their son principally surrounding weekends as Jacob is in school full-time. They both agree on the school that he currently attends.
69The parents have never lived together with Jacob and there is no previous history of them parenting Jacob together to assess how they cooperated in Jacob's best interests. Jacob's primary residence since birth has always been with his mother and he has had a regular schedule of consistent access with his father. This reality he is familiar with.
70Until June of 2017 the parents lived at opposite ends of Toronto. Anthony in Scarborough and Anna with Jacob in Mississauga.
71There is evidence in this trial that from almost the early days of Jacob's life, there has been conflict and differences between the parents over small and larger issues regarding the care and time spent with their son. Police have been involved on several occasions dealing with access times as well on occasion a Children's Aid Society.
72Another example of poor communication or deliberate action that has caused confusion between the parents is when Anthony, for some unexplained reason, waited some three weeks before calling Jacob's doctor after Anna's dog bit Jacob. This of course caused the family doctor to immediately insist, out of an abundance of caution, that Jacob be seen by a doctor over this bite. One has to wonder why Anthony waited until a significant period of time had passed to call the Doctor without advising Anna? Anna had informed Anthony of the bite and Jacob showed no stress from this bite. On the one hand Anna should have addressed this sooner, although the evidence was the dog had its shots. Anthony on his part could be blamed for waiting the time that he did if he had this level of concern and further he should have told Anna that he was calling the doctor knowing there might be steps needed to be taken once the doctor was aware of this incident.
73Both parents' plans outline the fact that they are now living quite close together. As such, Jacob will have the benefit of each parent involved with his school schedule and both parents can participate in driving Jacob to school, picking him up, attending school functions and meetings as necessary. Jacob's primary services regarding his autism needs will be delivered in Mississauga.
74Anthony requests that the services continue in Mississauga. When asked at trial Anthony via his counsel conceded that overall, despite the differences he has had with Anna, he has never felt that she has made a decision that is contrary to Jacob's interests. He believes, however, that it is necessary for him to have joint custody in order for him to secure a role in his son's life now and in the future.
75I found that the evidence indicates that he had the ability to do this but failed to do some of the heavy lifting required to address his son's needs in his developmental years, in particular around behavioural therapy. It is true that Anthony did bring his son to speech therapy, yet this was not arranged in consultation with Anna.
76There has been no evidence of the parents sitting down with individuals working with their son recently to review their son's progress. Instead it appears that Anthony has arranged his own speech therapy for his son outside of the services that Anna has arranged. Indeed evidence indicated that they do not know much of the progress and work done by the other speech therapists until very recently when Anthony switched back to using the same service that Anna has been using and indeed the same therapists.
77It is not that Anthony has obtained an inferior service or ignored this issue of Jacob's development, but rather this is an example of how the parents have not had the level of cooperation that would have shown how they could have worked together in a joint custodial setting.
78Anthony also testified that he had at least 7 to 8 hours per month as a benefit from his employment that he could have devoted to his son's needs. This in particular could have been used by Anthony to bring his son to IBI and ABA therapy both at ErinoakKids Centre and in the community during working hours when these services have primarily been offered.
79Other than the three to four occasions did Anthony bring his son to such therapy sessions over the past four years? It has been Anna who located extra funding in order to obtain the services in the community after ErinoakKids Centre ended its sessions. It has been Anna that took the time off work, at her own costs, primarily using holiday time to bring her son to the sessions. Indeed this past summer 2017 the evidence was that Anthony was given the schedule of times on which he could have brought his son to these sessions. Initially he agreed to do just that but then he suggested that possibly they could be moved to Toronto although at the time he was in the process of moving or had moved to Mississauga and then concluded that he would not bring his son or could not find the time to do so.
80The evidence indicates that Anthony had all the opportunity to participate in the parenting of Jacob in particular around areas of his life when services were required but it appears it was not convenient or that he did not seem to understand the significance. Whichever it may be, he had this opportunity and Anna did not get in the way of this and Anthony simply did not take up this role. Joint custody is not going to assist in this regard nor should it be put in place with the hope that one parent will improve their parenting skills.
81Anthony's lack of being willing to roll up his sleeves and get on with the hard part of parenting when given opportunities is exactly what the Ontario Court of Appeal talked about in the recent decision of Porter v. Bryan 2017 ONCA 677.
82In Porter, the parents had a 2016 consent order in which the parents had joint custody and a shared parenting time of their child and one requested to move with the child. What I find instructive from that case is the Court of Appeal comments on the issue of which parent was the actual primary caregiver to the child within this joint custody/ shared parenting regime that had been in place for some time.
83In Porter the Court of Appeal notes that parenting is much more than having a child for a given period of time during access.
84Parenting involves the multitude of responsibilities, decisions and worries that come with being a parent, during waking and sleeping hours. It requires a parent to be involved in the small and the big activities or decisions in a child's life when there has been every opportunity to do so. That is, parenting is being involved in decisions as well as devoting significant time in all aspects of the child's life, and experiencing the bumps and scrapes and the highs and lows of parenting. It is not sufficient to have happy access time and then suggest you are an equal parent to a child.
85Anthony's parenting of Jacob to date has not exhibited these parenting qualities to support an order of joint custody.
86The evidence also points the fact that he has enjoyed his time with his father. The evidence shows that Anthony loves his son and when they are together, he plans activities both in the community and with extended family that benefit Jacob. Both Anna and Anthony work hard at their jobs and are building their own lives that will help Jacob in the future. There is no reason why Anthony could not have extended time with his son in the community and at his new condominium in Mississauga albeit somewhat smaller than his last condominium.
ORDER
The applicant Anna Rozpedzik shall have the custody of Jacob Dylan Garcia born May 13, 2013.
Anna Rozpedzik shall consult with the father Anthony Garcia regarding all important decisions concerning Jacob including those related to his education, health, treatment, extracurricular activities and will do so in good faith with the respondent. If after 14 days a joint decision cannot be made Anna Rozpedzik shall make a final decision in Jacob's best interest.
Both parents shall be listed as contact persons with all medical, educational, recreational and social agencies involved with the child.
In the event of serious illness, accident or other misfortune involving the child, the party then having the child in their care shall immediately and promptly notify the other party.
The applicant shall provide the respondent with 90 days advance notice of any intention to relocate the ordinary residence of the child outside of the city of Mississauga.
The applicant, Anna Rozpedzik and the respondent, Anthony Garcia shall cooperate and sign all necessary documents to obtain Anthony's Canadian passport. Anna Rozpedzik will maintain the Canadian passport with her for safekeeping and provide the same to Anthony Garcia as requested for international travel with their son Jacob.
Anna Rozpedzik shall provide to Anthony Garcia Jacob's Canadian passport at least two weeks in advance of any international travel arranged by Anthony Garcia for Jacob with him that has been agreed upon between the parties. Upon Anthony Garcia's return with Jacob, Anthony Garcia shall return to Anna Rozpedzik Jacobs' passport for safekeeping.
Anthony Garcia shall have the following access time with Jacob:
Alternate weekends from 6:00 p.m. Friday pickup at school to Monday return to school. If Monday is a statutory holiday and/or PA day return to the applicant Anna Rozpedzik at an agreed-upon time. This will commence or follow the rotation currently in place.
Every alternate Wednesday after school return to school Thursday.
Anthony Garcia shall have telephone access each Tuesday evening for up to 15 minutes and on Sunday evening maximum 15 minutes when he does not have his son with him.
Anthony Garcia shall continue, pursuant to paragraph 5 of the final order of J. Parent dated September 25, 2014, to pick up and drop off Jacob from Anna Rozpedzik's home in Mississauga when Jacob is not being picked up or dropped off at school as set out in this order.
To minimize what the child must travel with, both parents shall have sufficient clothing for him and these items shall not travel back and forth between households.
The child shall be allowed to take his preferred belongings between households.
If either the applicant, Anna Rozpedzik or the respondent, Anthony Garcia plan to take a vacation without Jacob and not be available for his/her respective access/vacation entitlements with Jacob that parent shall provide at least two months advance notice of such vacation plans to the other parent. The party canceling visitation/parenting time has the responsibility to arrange at their own expense any babysitting or child care for the child if they cannot personally be with Jacob based on the time set out in this order.
The child may travel within Canada for vacation purposes with either parent, which travel will not require the consent of the other party.
Either party proposing international travel involving the child shall provide the other party with full particulars at least 45 days prior to the intended travel, including the exact itinerary, destinations, accommodations, and methods of communication.
The parent travelling with the child shall ensure that the child initiates a telephone call (or call by video link such as Skype or Facetime) to the non-travelling parent at a pre-arranged time, at least once every three days of the trip.
If either parent plans a vacation without the child, the parent will give the other parent a telephone number where he or she can be reached in case of emergency or if the child wishes to contact the travelling parent.
Anna Rozpedzik shall remain responsible for ensuring that Jacob obtains ABA (Applied Behavioural Analysis) and IBI (Intensive Behaviour Intervention) therapy and any other therapies concerning Jacob's developmental needs and autism. These services shall be considered a Section 7 expense and proportionately shared between the parties.
The applicant and the respondent shall alternate taking Jacob to his therapy appointments either at ErinoakKids Centre or other provider after receiving confirmation of such appointments. Jacob shall be picked up from school and either returned to the applicant's residence if not already with the applicant or remain with the respondent father if Jacob is to be with him considering the access schedule.
Both the applicant and the respondent may attend all of the child schedule therapy appointments. Anna Rozpedzik will be responsible for arranging these appointments and shall promptly communicate any therapy dates, times and locations to Anthony Garcia through email when such appointments become available. Anthony Garcia shall promptly respond via email within 12 hours and advise Anna Rozpedzik about whether or not he is able to attend.
Both the applicant and the respondent are free to attend parent-teacher meetings and should do so preferably together but if this is not practical then individually. The applicant and the respondent should advise themselves directly from the school regarding all field trips or classroom activities and both the applicant and the respondent are free to attend these activities in consultation with each other. The costs associated with field trips or classroom activities will be considered a Section 7 costs and shared proportionately.
Both parents are free to obtain information about Jacobs' extracurricular activities directly from the service provider as well as all medical appointments and information directly from the medical service provider.
The Final Orders of Justice Parent dated September 25, 2014 paragraphs 1 to 4 and 7 to 13 and Feb 15, 2017 paragraphs 1 to 13 outlining statutory holidays and holiday times and vacation periods agreed to between the parties shall continue in force and take precedence over regular schedule of access.
Anthony Garcia shall pay monthly child support to Anna Rozpedzik for their son Jacob Dylan Garcia born May 13, 2013 on the first of each month commencing January 1, 2018 in the amount of $450 dollars per month based on an annual income of 48,832 dollars.
The current Section 7 expenses for Anthony as set out above in this order and shall be paid proportionate to income 36.3% Anthony Garcia and 63.7% Anna Rozpedzik. Each of the applicant and the respondent will pay their proportionate share of the Section 7 costs directly to the service provider. If the applicant incurs the above-mentioned costs directly she shall provide to Anthony Garcia a receipt of payment of the Section 7 costs noted in this order and Anthony Garcia shall pay his proportionate share to Anna Rozpedzik within seven days.
Unless agreed upon between the applicant and the respondent any community activities for Jacob will be paid for by the respective parent who might register Jacob in that activity. Unless agreed upon between the applicant and the respondent each is not obligated to bring Jacob to a community activity that the other has registered Jacob in unless agreed upon between them.
A Support Deduction Order will issue.
The parties shall communicate primary by way of e-mail. For anything of a time sensitive or urgent nature, the parties shall call or text and a response shall be provided as soon as the parent receives that communication. Each party shall check their e-mail account at least once a day. Each party shall respond to e-mailed inquiries within 24 hours of receipt (except during vacations). E-mail communications shall be brief, civil and relate only to parenting or financial issues. Neither party shall let the child see any e-mails exchanged between the parties.
Neither party shall allow any person to make negative or disparaging comments to the child about the other parent or members of their family or household. They shall at all times encourage the child to have a positive and respectful relationship with the other parent.
The parents shall not communicate about issues or non-emergency arrangements when the child is present or nearby. They shall not convey messages or documents using the child as an intermediary. They shall not encourage the child to make requests or proposals on their behalf.
The parties shall not question the child or comment to the child about the other parent's personal life and activities.
Costs
Regarding cost, any party may serve and file submissions (not more than 2 pages) and a bill of costs and a signed offer to settle. The party responding to the above request shall have 30 days, after receiving the same, to serve and file the documentation as noted above. Parties are to request that this file be brought to my attention regarding costs.
Released: January 9, 2018
Signed: Justice A. W. J. Sullivan
