Court File and Parties
Court File No.: F0-11-000028-01 Date: 2014-07-09 Ontario Court of Justice
Between: James William Harrington, Applicant
— And —
Caleigh Helen Ross, Respondent
Before: Justice P.T. Bishop
Heard on: May 26, 2014
Reasons for Judgment released on: July 9, 2014
Counsel:
- Beth Allison White, for the respondent
- Harrington on his own behalf, for the applicant
Judgment
Bishop J.:
[1] This matter comes before me by way of a motion to change the final order of this court of October 29, 2012. That order is as follows:
The Applicant, James Harrington, and the Respondent, Caleigh Ross, shall have joint custody of the children Liam James Harrington, born September 13, 2001, and Sydney Lara-Jean Harrington, born March 9, 2005. Caleigh Ross shall confer with James Harrington on all important decisions about the children including education, health care, recreational activities and religious activities. In the event of a dispute, Caleigh Ross shall have final decision making authority.
Caleigh Ross shall keep James Harrington advised as to all educational, medical, social or recreational events, personnel or agencies involved in the children's lives and James Harrington shall be entitled to communicate directly with all such personnel and agencies and attend all events.
The children shall reside in the primary care of Caleigh Ross. In the event that Caleigh Ross seeks to move from the Dryden area with the children, she shall either obtain the written consent of James Harrington or give 60 days' notice of her intention to James Harrington.
James Harrington shall have reasonable, liberal and generous access to the children upon reasonable notice to Caleigh Ross in addition to specified access as follows:
(a) James Harrington shall have access to the children every second weekend from Friday after school to Monday at school, unless Monday is a statutory holiday in which case access shall extend to Monday at 7:00 p.m.
(b) Summer School Holidays: Regular access shall be suspended. James Harrington shall have access to the children on a week on/week off basis, with exchanges taking place at 5:00 p.m. on Fridays. The children shall be returned to the care of Caleigh Ross no less than two days before school recommences. In the event that either party wishes to have one period of two consecutive, uninterrupted weeks with the children, neither party shall unreasonably withhold consent. James Harrington shall advise Caleigh Ross of his preferred weeks by June 1 of each year, failing which Caleigh Ross shall determine the weeks in which access will occur.
(c) Christmas School Holiday: Regular access shall be suspended. James Harrington shall have the children for one week during the Christmas school vacation. Commencing 2012 and in even numbered years thereafter, James Harrington's weeks shall include Christmas day. Commencing in 2013 and in odd numbered years thereafter, Caleigh Ross shall have the children on Christmas day. James Harrington shall advise Caleigh Ross of his selected week by December 1 of each year, failing which Caleigh Ross shall determine the week in which access will occur.
(d) March Break: In alternate years, commencing in 2013, regular access shall be suspended and James Harrington shall have the children from the Sunday following the last day of school at 5:00 p.m. until the Sunday before school commences at 5:00 p.m.
(e) Each parent shall provide ongoing contact information for the children and shall encourage and facilitate contact between the children and the other parent.
The parent receiving the children into his/her care shall be responsible for transportation at exchanges.
James Harrington shall pay child support to Caleigh Ross for the support of the children, Liam James Harrington, born September 13, 2001, and Sydney Lara-Jean Harrington, born March 9, 2005, in the amount of $400.00 per month, commencing November 1, 2012, in accordance with his annual income of $27,300.00, pursuant to the Child Support Guidelines.
A Support Deduction Order to issue.
Unless the support order is withdrawn from the Director's Office, Family Responsibility Office, it shall be enforced by the Director and amounts owing under the support order shall be paid to the Director, who shall pay them to the person to whom they are owed.
Payments may be made to: Family Responsibility Office Box 2204 Station P Toronto, ON M5S 3E9
The parties shall share equally in the reasonable extracurricular or extraordinary expenses of the children pursuant to Section 7 of the Child Support Guidelines, including daycare costs.
For as long as child support is to be paid, James Harrington shall provide updated income disclosure to Caleigh Ross by June 1st of each year, in accordance with section 25(1) of the Child Support Guidelines.
All other claims shall be dismissed.
The costs awarded to Caleigh Ross, payable by James Harrington, pursuant to the temporary order of April 23, 2012 in the amount of $500.00 and the temporary order of September 24, 2012 in the amount of $1000.00, in the total amount of $1,500.00, shall be waived.
There shall be no further order as to costs.
[2] A consent temporary order was issued on November 6, 2013 as follows:
The order of Justice Peter T. Bishop of October 29, 2012 was amended to include:
3(a) The applicant shall also have access to the children each Monday commencing November 11, 2013 with the applicant returning the children to school on each Tuesday morning and thereafter until further order of the court.
Adjourned to November 25, 2013 at 2:00 p.m. to set trial date.
Relief Sought
[3] The applicant father is seeking custody of both children. The respondent mother is seeking maintaining the existing order and increased child support based on the father's reported 2013 income of $35,108.64.
Evidence of James William Harrington
[4] Mr. Harrington is concerned that the mother has not been open to mediation and wishes to have equal sharing of the children and equal care for them. At trial he was seeking a week on and a week off regime as he has been sober for two and a half years, is presently unemployed but he has no intention of remaining so. He believes that having a week on and a week off will produce less conflict between he and the respondent.
[5] He lives in Wabigoon Lake and is on a disability pension as he suffers from a hernia and is awaiting surgery. He described his residence situation and moved in with Lisa Marie Bernier on May 1, 2013.
[6] At present he states he has no addiction issues but was previously addicted to OxyContin and attended Alcoholics Anonymous.
[7] He met Ms. Bernier at Alcoholics Anonymous and moved in together after a two month relationship. Ms. Bernier has three children of her own.
[8] He admits that Ms. Bernier's child Elizabeth has issues as she is a cutter and does harm to herself.
[9] He declared bankruptcy after separation and claims expenses one of which is $190.00 a month for alcohol, but clarifies that as a mistake.
[10] Through email he accused the mother of these children of sleeping with his father who presently lives in New Brunswick.
[11] He admitted to texting the mother about rumours of her cocaine use and discussed with the children that it is unfair for him not to have a week on and a week off schedule.
[12] He attempts to relate to the children and provide a balanced diet for them. There have been some issues at school as his present partner drops in all the time and interacts with the children at that location.
[13] He sometimes has difficulty meeting the schedule but wants to co-parent with his new partner Lisa Bernier.
[14] The plan is for the two youngest girls in this blended family to share a bedroom.
[15] He admitted that his present partner and the mother of these children do not really talk to each other and there has been some name calling back and forth.
Evidence of Lisa Marie Bernier
[16] Ms. Bernier is the father's present partner and they met in March of 2013 at an Alcoholics Anonymous meeting.
[17] Ms. Bernier was attending Alcoholics Anonymous as her daughter has some addiction issues.
[18] Ms. Bernier has some education in early childhood pre-schooling and is on various committees in Dryden with respect to mentoring and the Mayor's committee for children and youth.
[19] In 2006 she obtained custody of her three children and that case is presently before a different court.
[20] In January of 2013 her daughter attempted some harm and Child and Family Services were involved. There was a further suicide attempt and Ms. Bernier is involved with the child protection agency.
[21] Ms. Bernier gave her views on parenting and how she perceived this family situation working out.
[22] She advised that the father served a notice of trespass to property on the mother when the mother tried to serve a motion for an adjournment. There are apparently three trespass notices against the mother.
[23] In cross examination she stated that Sydney one of the children of this application gets excellent report cards and she talks to her about schooling.
[24] There was some name calling as the mother called her a selfish bitch and created scenes and told her to not pop in and out of the children's lives at school. She was accused of interfering.
[25] She confirmed that Mr. Harrington attended some doctor's appointments with the children, but it is difficult juggling all of the schedules of all of the children.
[26] Mr. Harrington's forte is not being a tutor and she would step in to act as a team with him.
[27] She confirmed that one child was late 28 times at school and there was a meeting with the principal wherein she was directed not to interfere.
Evidence of Caleigh Helen Ross
[28] Ms. Ross is the mother of the children and grew up in Vermillion Bay, Ontario but has been living in Dryden since she was 19 years of age.
[29] When she and Mr. Harrington were together they lived at Sandy Beach Road, but she now lives in an apartment on Kirkpatrick Avenue in Central Dryden. She was not able to afford to maintain the former family home. There are three bedrooms and the children are close to their school, the New Prospect School.
[30] She works as a dental assistant and has had full time employment for 15 years. She pays all the bills and her present partner Dean Martin does not contribute to the household expenses. She has been dating Mr. Martin for the last four years. Mr. Martin is employed in Red Lake, Ontario.
[31] One of her main concerns is the father's parenting skills as she is more the disciplinarian and the father wants to be a buddy to the children.
[32] She has no debts except for a car payment and intends to start a savings plan for the children's education.
[33] Her daughter Sydney told her that she was concerned about Ms. Bernier's child who was cutting herself and there have been difficulties with the father arranging to take the children to school if Ms. Bernier is unable to do so.
[34] She described the circumstances around trying to serve process on an adjournment request and was rewarded with a no trespass notice. She was told to leave the Harrington-Bernier residence. They have been at the Harrington-Bernier residence three times for exchanges of the children and can no longer be on the property as it has to take place in the driveway.
[35] The father sent annoying and untruthful emails saying that she sold marijuana and cocaine, but that has never been the case and she is not a user.
[36] Her daughter Sydney stated that she was upset when Ms. Bernier is at the school and had to talk to the principal about it. The children are doing well in school.
[37] She was called by the principal of the school and a meeting was held on how everyone was to get along. The decision was that Lisa Bernier was not to interact with the children at school.
[38] She was concerned that the father has been coaching the children to say it would be fair if he had the children half time.
[39] She denied having any intimate relationship with the applicant's father and was upset with the accusations and innuendo that he made through emails.
Decision
[40] Having heard all of the evidence I am finding there has been no material change in the circumstances with respect to the custody of these children.
[41] The father appears to think that because he is the biological father he can abuse the children's mother verbally and in writing in attempt to get his way. In the past he had an addictions issues and examples of his bullying and inappropriate emails are as follows:
Email May 1, 2014 in response to an email for extra time: "Not fixated just remember the past on how unhealthy it was lets not forget you slept with my dad.…and since I have dealt with the past I can move on something you can't do because if I remember correctly you are not happy with yourself…….like how big your boobs are and how weird your feet are and your eyes are too far apart..…just try and be happy with yourself and if you can work on your core and just be happy with yourself you will find out that all this lashing out will not help! I remember that is all and I will pray that you can just be happy within yourself!!"
Email April 29, 2014 dealing with extra access: "I don't understand why I should be saying thank you to spend time with my own children……and in Caleigh's world consistency and stability does not equal only Caleigh's way of parenting and if that was the case we should all be in the Caleigh Ross school of parenting. We have different parenting skills and that is ok!!!We should not have to thank each other for an EQUAL opportunity to be in our own children's lives and you don't know the only way to parent but you could at least put medication on your daughters side or remind her of it and maybe pick up a book with her as she is having trouble reading!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!That would be consistent or the stable thing to do!!! Or did you not know any of this??????????????????????????????????????????You need to worry only about your house because I am VERY capable of being a parent just as much as you THINK you are!!! God Bless!!!!"
Text message response when the mother responds to a request for joint custody by saying "I am sorry I do not agree at this time. I'm not saying Jamie is a bad parent however he is completely dependent especially with no job??" The response from Ms. Bernier is "That's your only defense??? Really Caleigh??? He makes enough money on disability and we are committed to one another. He's not dependent he is a financial contributor just like I am!!! Who said the man has to be the main bread winner? We are a team. We work together. Thanks for saying that Jamie is a good parent! It will help in mediation."
[42] The tone of these emails is aggressive and confrontational.
[43] Ms. Bernier has a high opinion of herself and her parenting roles and her interaction with the children of this union which are not her children. She has been admonished by the principal of the school. The fact that there are three trespass notices served by the father on the mother militates against an equal parenting regime. In all of the circumstances, there has been no material new circumstance to change custody and grant the father what he is seeking.
[44] In fact, there is evidence that Mr. Harrington and his present partner have taken an aggressive confrontational mode which could result in the changing of the joint custody order. I have not decided to change that custody order and day to day care and control remains with the mother. If this situation continues that may be reviewed.
[45] With respect to child support the father initially filed a financial statement showing income from all sources at $35,108.64 with the projected income for 2014 at $20,899.00 averaging $27,998.00 per year.
[46] There has not been a significant change in income and I am going to leave the child support at $400.00 per month as previously agreed upon in the consent order of October 29, 2012.
[47] If costs are an issue I can be spoken to.
Released: July 9, 2014
Signed: Justice P.T. Bishop
