Court File and Parties
COURT FILE NO.: 15-6648 (Stratford) DATE: 2016/05/17 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: Ancy Joy Waxman Applicant – and – Adam Collier Waxman Respondent
COUNSEL: Marie A. Tukara, for the applicant Steven M. Bookman and Maia Rabinovitch, for the respondent
HEARD: April 26, 2016 (Stratford)
BEFORE: Raikes J.
Motions
[1] The Respondent father moves for an interim order expanding access to his son, Asher, born March 16, 2014. Asher is now two years old. The Respondent also seeks to vary the exchange location which is presently in the parking lot at a Sobey’s in Stratford. He asks that the exchanges take place at the parties’ respective residences.
[2] The Applicant mother opposes the motion to expand access, to change exchange location and seeks an order requiring the Respondent to contribute to the hockey registration fees for their son, Isaiah, born January 4, 1999. Isaiah is now 17 years old.
Facts
[3] The parties began cohabiting in January, 2008. They married on May 22, 2011 and separated in December, 2014. They are the biological parents of Asher and adoptive parents of Isaiah. The Respondent does not have regular access with Isaiah and blames the Applicant for his now strained relationship with Isaiah.
[4] On separation, the Applicant moved out of the matrimonial home with the two children. There is a dispute in the evidence as to whether that occurred with any forewarning to the Respondent. In any event, she now resides with the children at her parents’ home.
[5] The Applicant deposes that during the marriage, she was the primary caregiver for the children as the Respondent worked principally in Toronto during the week and was home on weekends. The Respondent denies this characterization of their parenting roles. He deposes that they were equally involved in the parenting of the children during the marriage.
[6] Soon after separation, the parties worked with the Applicant’s pastor to try to work out access terms. Those discussions resulted in written agreements dated December 23, 2014 and January 14, 2015 which dealt with access on a short-term basis. By those agreements, the Respondent had access to Asher on Mondays and Fridays which the Applicant contends was the Respondent’s preference as it permitted him to work Tuesday through Thursday in Toronto.
[7] The Respondent has a different take on these agreements: he was desperate to have any time with Asher and agreed to these terms at the Applicant’s insistence. The Respondent deposes that the Applicant has effectively frustrated his access with the children from the outset by raising unsubstantiated and unfair mischaracterizations of his competence to parent, especially to care for Asher.
[8] Certainly, the evidence indicates that the Applicant asserted concerns with respect to the Respondent having Asher in his care overnight. She was initially opposed to such visits because she felt the Respondent would be unable to properly care for Asher. As a result, some very limited overnight visits by the Respondent with Asher occurred in April and May, 2015. At a Case Conference held in June 2015, the parties discussed phasing in regular overnight access for Asher on a gradual basis.
[9] The Respondent was unsatisfied with the pace of the “phasing in” and the lack of regular access to Asher. He brought an interim motion seeking increased access with Asher initially returnable on September 29, 2015. The parties spent the day of the motion engaged in discussions to resolve the issue and the motion was adjourned to October 14, 2015.
[10] On October 14, 2015, the parties attended before Justice Garson with a consent endorsement for access in accord with an interim access schedule. Justice Garson granted the consent order requested on that date. By that Order, the Respondent has the following access:
a. Week one- Monday 8:30 a.m. to 3 p.m., and Friday 8:30 a.m. until Sunday at 7 p.m.;
b. Week two- Thursday from 8:30 a.m. to Friday at 8:30 a.m.
[11] The parties have generally adhered to the above schedule since the Order of Justice Garson. The Applicant deposes that the Respondent has asked for additional time with Asher and she has agreed to most but not all of those requests. She has never asked to intrude upon the Respondent’s time with Asher.
[12] Both parents depose that Asher is a “happy” child. There is no suggestion that Asher is doing poorly under the current access regime; in fact, he seems to be doing very well by all accounts.
[13] The Respondent seeks to expand his access time with Asher as follows:
a. Week one- Monday at 8:30 a.m. to Wednesday at 8:30 a.m., and from Friday at 8:30 a.m. to Monday at 8:30 a.m.;
b. Week two- Thursday at 8:30 a.m. to Friday at 8:30 a.m.
[14] The Respondent asks that this revised regime start May 1, 2016 and continue pending further order of the Court or agreement between the parties.
[15] With respect to increased access and the exchange location, it is the Respondent’s position that:
This is the natural evolution of the discussions between the parties that the Respondent’s access with Asher gradually expand;
It is critical to the bond between the Respondent and Asher that they have more time together;
The maximum contact principle in s. 16(10) of the Divorce Act is engaged and increased access is in Asher’s best interests;
There is no genuine need for exchanges to be done in a grocery store parking lot when, as here, the parties still get together for sexual relations which clearly refutes any allegations of fear by the Applicant.
[16] The Applicant submits that:
The current access regime was agreed to only six months ago and is working well;
There has been no change in circumstance which warrants a change;
Interim orders should not be varied absent a change in circumstance given the effects that these sorts of changes may have on the child;
There have been incidents where the Respondent has been aggressive on exchanges so she remains fearful.
[17] As for the hockey registration costs, the Respondent acknowledges that these are an extraordinary expense; however, he asserts that they had an arrangement during the marriage to alternate the years each would pay that expense. He has paid the past two years. Accordingly, the Applicant should pay this year; they should share the expense, if any, in years following.
[18] The Applicant denies the alternating year scenario and points out that she is already paying other expenses like skates and tournament fees for Isaiah. She is only asking for 50% of the hockey registration cost which is generous to the Respondent.
Analysis
[19] I will deal first with the hockey registration issue, then with expanded access and the change of access exchange location.
a. Hockey Registration
[20] Isaiah was playing hockey while the parties were together. Neither party suggests that he should not be engaged in this activity. Given their respective incomes, this is a reasonable expense to incur.
[21] Whatever the arrangement between them for dealing with this expense during the marriage, they are clearly on different footing now. They are separated and the expense is one which falls under s. 7 of the Federal Child Support Guidelines. The parties are presently earning close to the same income. I find that the Respondent should contribute $1000 to this expense, particularly as the Applicant is incurring related expenses for Isaiah with no contribution from the Respondent.
b. Access
[22] Section 16(2) of the Divorce Act permits the court to make an order for interim custody and access where an application is made under s. 16(1) of the Act. In doing so, the applicable test is “the best interests of the child”. Those interests are determined by reference to the conditions, means, needs and other circumstances of the parties: s. 16(8) Divorce Act.
[23] The Divorce Act mandates that the court give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child: s. 16(10). The best interests of the child must be ascertained from the perspective of the child: Young v. Young, [1993], 4 S.C.R. 3 at pp. 47 and 99.
[24] I am guided by the factors in s. 24(2) of the Children’s Law Reform Act (CLRA) in assessing the best interests of the child. I note, however, that s. 29 of the CLRA provides that a court shall not make an order that varies an order in respect of custody or access “unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child”. The requirement of a material change in circumstances applies regardless whether the order made was by adjudication on the merits or consent order: Ceho v. Ceho, 2015 ONSC 5285 at para. 68. Although s. 29 does not strictly apply here as this matter is under the Divorce Act, the principle which underlines s. 29 CLRA is instructive.
[25] In Ceho v. Ceho, supra, Justice Price wrote the following at paras. 87 and 88:
The jurisprudence in relation to Rule 29 demonstrates that the requirement it imposes of proving a material change in circumstances goes beyond the need to consider the status quo as one of several factors relevant to the best interests of the children. In any motion involving custody or access, or primary residence of the child, the welfare of the child is paramount, but the existence of a prior determination of those issues, by adjudication or consent, requires the court to weigh the status quo more heavily than other factors. If it is not possible to arrive at a determination that reflects the best interests of the child, then the status quo should be preserved. Additionally, where a prior determination of the issues has been made, stronger evidence of a risk of harm to the child is required to support an interim variation of the status quo than at trial.
The party applying to change a status quo that has resulted from a consent order for custody must generally prove a “manifest” change of circumstances justifying the change. In Serruys v. Serruys, the Court of Appeal did not find such a “manifest” change of circumstances, to justify a change in the status quo. This case was decided on the basis of the Family Law Reform Act, R.S.O. 1980, c. 152, just prior to the enactment of s. 29 of the Children’s Law Reform Act. In Eaton v. Eaton, the British Columbia Court of Appeal echoed the words of Justice Zuber in Sypher v. Sypher, in 1986:
I start with this position: that this Court should be slow to interfere with any decision respecting custody, and particularly slow when interfering with any interim custody decision.
Having started with that principle, the Court of Appeal set aside the interim variation order on the ground that there was no evidence of a risk of harm to the child.” [Emphasis in original]
[26] In Greve v. Brighton, 2011 ONSC 4996, Justice Ricchetti expressed the approach to be taken on a motion to vary an interim consent order dealing with custody/access arrangements at para. 24 as follows:
Whether the court approaches this motion as a motion for interim relief to vary an interim consent order or to vary the status quo on the existing custody/access arrangements which have been in place for the past year, the result is the same. While the court has jurisdiction to vary the September 3, 2010 Order, it should only do so where the moving party has a demonstrated change in circumstances and, as a result of those changed circumstances, there are compelling reasons that the order should be varied to meet the Children’s best interests.” [Emphasis added]
[27] The party moving to vary the previous order for custody or access bears the burden of proving a change in circumstances affecting or likely affecting the best interests of the child. That burden is not insubstantial given the objectives which underlie s. 29:
The avoidance of children moving back and forth; and,
The avoidance of serial motions on the very same issue which may exhaust the parties’ resources and unduly burden the court.
[28] Thus, the party moving to vary a prior interim order as to custody or access must establish:
There has been a change in circumstances affecting the best interests of the child since the making of the prior order; and,
The best interests of the child require a change in the status quo having regard to the circumstances of the child including the factors in s. 24(2) of the CLRA: Ceho v. Ceho, supra, at paras. 90-91, 93 and 94. Put another way, there are compelling reasons that the order should be varied to meet the child’s best interests: Greve v. Brighton, supra, para. 24.
[29] Turning to the facts of this case in the context of the factors to be considered, the evidence establishes the following:
Asher is doing wonderfully under the current regime;
That regime has been in place for only six months;
The Respondent wishes to expand his access with Asher, i.e. it is the Respondent’s wishes which are driving this motion, not Asher’s needs or circumstances;
Asher has an excellent relationship with each parent who appear to be capable of meeting his needs while in their care;
The views and preferences of a two year old cannot be ascertained;
Both parties work but make Asher a priority when in their care;
The Applicant supports Asher learning about and participating in the Jewish faith through the Respondent;
Asher may have a language development issue which is being addressed. Both parties are cognizant of the concern and prepared to ensure Asher gets the help and support he needs;
No trial date has been set. The next step is a Settlement Conference which should be done by the Fall of this year, following which a trial date will be set.
[30] The position of the Respondent assumes that the earlier order was intended to be but a stepping stone along the path to greater access. The Order of Justice Garson does not reflect that intention. There is no suggestion that access will expand upon certain milestones being achieved, or that the access will be revisited. Instead, the Order, made on consent, is consistent with the establishment of a status quo expected to take the parties to trial barring a material change in circumstances. There is no such material change present here.
[31] I observe that the evidence reflects an effort by the Applicant to accommodate more time between Asher and the Respondent. Her willingness to accede to some but not all requests should not be interpreted as a concession that the access regime ordered is deficient or not in Asher’s best interests. The Applicant should not be at risk that by failing to be churlish she has somehow prejudiced her right to stand by the order the parties obtained by agreement between them.
[32] The evidence on this motion establishes that the Respondent is actively involved in Asher’s life. He appears to be a loving and caring father. I certainly understand his desire to spend more time with Asher, but he agreed to the terms of Justice Garson’s Order. If those terms were inadequate, he should have gone forward with his motion then. Nothing of any substance has happened since the Order was made to throw into question the merits of the access arrangements from Asher’s standpoint. The Respondent should push forward to a negotiated final agreement on custody and access and, failing that, move to trial as reasonably quickly as possible where a final determination will be made.
[33] In summary, I am not satisfied that the Respondent has met his burden to establish a change in circumstances affecting or likely to affect Asher’s best interests which is necessary to a variation of Justice Garson’s Order. The status quo is working well for Asher and it is Asher’s best interests which govern. The maximum contact principle is subject to the child’s best interests which are being met at this stage.
c. Exchange Location
[34] I agree with the request by the Respondent that the exchanges should be made by the parties at their respective residences. The Applicant’s suggestion of fear of the Respondent’s aggression is belied by their ongoing sexual encounters. It is certainly beneficial to Asher to spend less time sitting in a car waiting to change vehicles, especially with the warm weather soon to arrive.
[35] In my view, exchanges at the parties’ residences facilitate a greater degree of normalcy for Asher. The parties will be parents to Asher for life. They can and must find an equilibrium to their dealings bearing in mind that Asher is counting on them to be civil and respectful to one another. The parties should note that the failure to act as mature adults on the exchanges may affect the ultimate outcome of custody and access issues.
Conclusion
[36] I conclude as follows:
The Respondent shall pay to the Applicant the sum of $1,000 for Isaiah’s hockey registration expenses.
The Order of Justice Garson dated October 14, 2015 shall be varied only to the extent that the Respondent shall be responsible to drop off Asher at the end of his access visits at the Applicant’s parents’ residence at R.R. #5, Stratford, Ontario and the Applicant shall be responsible to drop off Asher for the start of the Respondent’s access visits at the Respondent’s residence at 176 Cobourg St., Stratford, or as the parties may mutually agree.
The balance of the Respondent’s motion to expand access to Asher is dismissed.
If the parties cannot agree on costs, they may make written submissions not to exceed three pages within 15 days of release of this decision.
“Justice R. M. Raikes” Justice R. M. Raikes