Court File and Parties

Garland v. Brouwer, 2016 ONSC 5966

Court File No.: 552/10 Date: 2016-09-22 Superior Court of Justice – Ontario

Re: Michael David Garland, Applicant And: Candace Brouwer, Respondent

Before: Mr Justice Ramsay

Counsel: Elizabeth Mourao for the Applicant Claude Leduc for the Respondent

Heard: September 22, 2016 at Welland

Endorsement

[1] The Applicant and the Respondent have joint custody of their seven-year-old daughter. The Respondent mother has primary residence. The Applicant father moves to change the previous order to expand his residence time with the child.

[2] The parties lived together in 2009 and 2010. On October 31, 2011 Henderson J. made the initial custody order. On August 20, 2013 Matheson J. varied the parenting schedule on consent. The consent order contained the following clause:

Unless there is a material change in circumstances the parenting schedule will not be revisited until the child reaches grade 6.

[3] In my view that clause does not have the restrictive effect argued by the Respondent. It does not mean that the clause cannot be revisited until the child is in grade 6. Clearly it can be if there is a material change in circumstance. The requirement for a material change in circumstance would have been present anyway, under s.29 of the Children’s Law Reform Act. The effect of the special clause is to allow a review once the child is in grade 6 whether there is a material change in circumstance or not.

[4] Either way, the child is not in grade 6 yet so I cannot vary the existing order unless there has been a material change in circumstance. The procedure to follow is set out in Gordon v. Goertz, [1996] 2 SCR 27, para. 49:

49 The law can be summarized as follows:

1. The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.
2. If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.
3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.
4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect.
5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.
6. The focus is on the best interests of the child, not the interests and rights of the parents.
7. More particularly the judge should consider, inter alia: (a) the existing custody arrangement and relationship between the child and the custodial parent; (b) the existing access arrangement and the relationship between the child and the access parent; (c) the desirability of maximizing contact between the child and both parents; (d) the views of the child; (e) the custodial parent's reason for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child; (f) disruption to the child of a change in custody; (g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

50 In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child's access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new?

[5] In 2013 the parties were living with their respective parents. The Applicant had not completed his education. By 2015 he had completed his education and acquired his own home with his new spouse. This year the Applicant has been transitioning her and the child’s residence from that of her parents to the home she owns with her fiancé, whom she is to marry next month, at which point the transition will be complete. The Applicant and his spouse have a four month old son. The Respondent and her fiancé are expecting next spring. The Respondent is fully employed. I conclude that there has been a change in circumstances that is material to the child’s best interests in the parenting arrangements. Both parents are now in a much better position to take care of the child’s needs. They have established themselves and their family life. The child is no longer a toddler of 3 years. She has moved on to the next stage in her life, the age of reason. In particular, the Applicant is able to spend more time with his daughter.

[6] At the moment, the father sees the child every Wednesday from after school to Thursday morning drop off at school, and every other weekend. When it is his weekend, the child goes home to her mother for the Thursday night between mid-week and weekend access. When it is the mother’s weekend, the father does not see the child for six nights, from Thursday morning to Wednesday afternoon. Recently the child has expressed to her father some disappointment about not seeing the baby for such a long interval.

[7] The father’s proposal as to the basic structure of residence is that he should have the child every other weekend from Wednesday after school until the return to school on the following Monday. This strikes me as a very modest increase in his time, and one that can be accomplished without disruption to the child’s schedule. In fact, it will make the schedule smoother, with less back and forth. It would be in the child’s best interest for that reason, and because it maximises the child’s time with both parents and minimizes long absences from both parents and the new and expected half-siblings, as well as the new step-parents, with whom the child is bonding nicely. As the child is about to move finally into her mother and stepfather’s new home, if there is going to be a change, this would be a good time to make it.

[8] The mother’s objections do not strike me as valid. I do not see the disruption she claims to fear and I am not worried about the Applicant’s ability to help his daughter with her homework.

[9] Both parents are English speaking. They decided to enrol the child in a French school to give her the advantage of learning the other official language. The mother was educated in French immersion and the father was educated in English. The mother’s French is fluent. The father’s French is basic. But the father has never had trouble helping the child with her homework. This is not the only English speaking family with a child in the French school. The school is understanding and supportive.

[10] I think that the mother’s objections to the extra overnight are not based on the child’s best interest.

[11] The father also proposes equal time on holidays including Christmas. He already has the child for extra time when his weekend precedes a holiday Monday. I think that in general his proposal would make the child’s life more complicated. It would be fairer to the parents, but that is not my concern. I do not think that the child cares as much about all these holidays as the parents do. As to Christmas, the child has already got used to spending Christmas Eve with her father and Christmas Day with her mother. That should continue. Subject to that, the basic rotation should continue through the Christmas holidays. The proposal to have one week each at Christmas is at odds with the purpose of minimizing long absences.

[12] The parties will be living a few blocks apart. This should make things easy for them. The child should go out for Halloween with both parents at once.

[13] As for summer vacation, the parties give each other one week of time on suitable notice. I agree with the father that it is time to expand it to two weeks, but not yet to two consecutive weeks.

[14] The parties have made certain changes to the arrangements with written consent. I propose to incorporate them into my order, except where I have decided to discontinue them.

[15] I vary the previous orders to make the following provisions for custody and access: a. Paragraphs 1, 2, 5, 6, 7, 8, 9 and 10 of the order of Henderson J. dated October 21, 2011 are not varied and continue to operate. Paragraph 14 has been fulfilled. b. The order of Maddalena J. dated June 13, 2013 is set aside. c. Paragraphs 2, 3, 4 and 6 – 9 of the order of Matheson J. dated August 20, 2013 are not varied and continue to operate. Paragraphs 1 and 5, including Schedule A are set aside and replaced by the following. d. Commencing the week of September 28, 2016 the child shall reside with the Applicant every Wednesday from pickup at school to drop off at school the following Friday. e. Commencing the week of October 5, 2016 and in alternate weeks thereafter the child shall reside with the Applicant every Wednesday from pickup at school to drop off at school the following Monday. f. When school is not in session on a day when the child is to change residence, the change shall take place at noon. g. The party who has the child on Halloween shall allow the other party to participate trick-or-treating. h. Notwithstanding clauses d., e. and f. the child shall be with the Applicant every Christmas Eve from 10:30 am to 6:30 pm and with the Respondent every Christmas Eve from 6:30 pm until Boxing Day at noon. i. The party receiving the child shall pick her up at school if she is at school, at the other party’s home if she is not at school or on any occasion at another agreed location. Pickup may be made by another adult who is known to the child. j. Both parties may have the child for two non-consecutive full weeks during summer vacation on 30 days’ notice to the other party commencing summer 2017. The two weeks may be consecutive commencing summer 2020. k. Either party may apply for or renew a passport for the child at his or her own expense. The other party shall provide the necessary consent. The passport shall be provided to either parent for the purpose of travelling with the child within the terms of the court order. l. The Respondent shall provide notarized copies of the child’s health card and birth certificate to the Applicant within 30 days, and entrust him with the originals on request for the purpose of applying for or renewing a passport or for any legitimate purpose for which originals are necessary. m. The parties’ obligation to provide annual financial disclosure shall be accomplished by service of a copy of the party’s notice of assessment by September 1 every year for the preceding tax year, commencing September 1, 2016.

[16] I decline to make any special provision for review. The order can always be reviewed on consent or on proof of a material change in circumstances. No doubt it will be changed a few more times before this child grows up.

[17] The parties may make written submissions to costs consisting of argument not exceeding three pages, a bill of costs and any offer to settle, the Applicant by September 29 next, the Respondent by October 6.

J.A. Ramsay J. Date: 2016-09-22