DATE: 20060512
DOCKET: C43696
COURT OF APPEAL FOR ONTARIO
MACPHERSON, SHARPE and ROULEAU JJ.A.
B E T W E E N :
NORMA ANNE ROY
Robert Lawson for the appellant
Plaintiff (Appellant)
- and -
MILES MICHAEL HARVEY ROY
Miles Roy respondent, appearing in person
Defendant (Respondent)
Heard: May 8, 2006
On appeal from order of Justice Terrance P. O'Connor of the Superior Court of Justice dated November 17, 2004.
BY THE COURT:
[1] The appellant, Norma Sandaluck, appeals the judgment of O’Connor J. dated November 17, 2004. At the conclusion of a long trial, he ordered that the parents (Ms. Sandaluck and Miles Roy) have “shared parenting” of their two children and share most parenting responsibilities. The trial judge called this “the equal sharing parenting plan approach.” A central feature of the plan was that the parents would spend equal time with their children.
[2] The trial judge also dealt with a large number of other issues, including child support, spousal support, the sale of the matrimonial home and the appointment of a parenting co‑ordinator to assist the parents in resolving disputes.
[3] We are of the view that the “shared parenting” component of the trial judge’s order cannot stand.
[4] The Supreme Court of Canada and this court have consistently held that joint or parallel custody should only be ordered where the parents can co‑operate and communicate effectively: see, for example, Young v. Young, [1993] 4 S.C.R. 3 at para. 44; Kaplanis v. Kaplanis, [2005] O.J. No. 275 at 4 (C.A.).
[5] The basis for the trial judge’s order of shared parenting was the recommendation of Mary Satterfield, a mediator who worked long and hard, but ultimately unsuccessfully, to resolve the parties’ disagreements after being appointed by the trial judge following 12 days of evidence.
[6] Unfortunately, virtually the entire record – interim proceedings before another judge, the mediator’s own description of the parties’ relationship, the trial judge’s own comments during the trial and his observations in the judgment, and the fresh evidence filed by both parties – establishes that a foundation for a joint or parallel custody order set out in the case law, namely co‑operation and effective communication, has been and continues to be entirely missing from this case.
[7] In her interim order granting the appellant sole custody of the children, Templeton J. stated:
In the circumstances of the apparently complete communication breakdown between the parties, the open discord and the history of substantial instability in the parties’ relationship over a number of years, joint custody would not be in the best interests of the children.
[8] Mary Satterfield, the court‑appointed mediator, testified that the respondent told her that “he doesn’t want to have anything to do with [the appellant]…he wouldn’t give [her] the time of day.” She also testified that the parties have a “horrendous mistrust” of each other. Moreover, in her report to the judge, after 10 mediation sessions with the parties, she stated: “[W]e have been unable to obtain agreement about a parenting plan. We are not even close.”
[9] During the trial, the trial judge observed: “[T]here is a horrible rift between you in terms of communication. You are simply unable to trust each other and communicate to each other so that you can jointly parent these kids.” In his judgment, he referred to “the enormous antipathy and mistrust that pervades their relationship.”
[10] The fresh evidence filed by both parties does not relieve this bleak picture. Indeed, it is filled, on both sides, with accusations and recriminations and is virtually silent about the children and their best interests.
[11] In light of this record, a shared parenting order was, with respect, inappropriate in November 2004, and remains so today. The respondent does not assert that he should be granted sole custody of the children and the record amply supports the appellant as sole custody parent if a choice is required. Accordingly, we order that the appellant have sole custody of the children.
[12] However, on all other issues, the trial judge’s order is in the best interests of the children and should be maintained.
[13] The appellant contends that the equal time the children spend with their parents should be overturned and that the respondent’s access should be limited to that set out in Templeton J.’s interim order (every second week‑end and one three‑hour period on one weekday evening each week).
[14] We disagree. The record amply supports the trial judge’s conclusion that “[i]t is in the children’s best interest that they spend more or less equal time with each parent.” His conclusion is also consistent with s. 16(10) of the Divorce Act, R.S.C. 1985, C. 3, which enunciates “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…”.
[15] The appellant seeks an increase in child support payments. However, this request is dependent on a revision in the distribution of time the children will spend with each parent. Accordingly, this component of the appeal must fail as well.
[16] The appeal is allowed on the shared parenting issue. The appellant shall be the sole custodial parent with power to make all major decisions concerning the children, including decisions relating to place of residence, schooling, religion and medical treatment. The trial judge’s order is modified in accordance with this disposition. We note that the access regime set out in paragraphs 1 and 2 of the trial judge’s order should continue, but under the heading “Equal Access” replacing “Shared Parenting” and with this introductory sentence: “The children are to spend equal time with their mother and father as set out in the following access plan.”
[17] In light of partial success, the appellant is entitled to a costs recovery which we fix at $10,000 inclusive of disbursements and GST.
RELEASED: May 12, 2006 (“JCM”)
“J. C. MacPherson J.A.”
“Robert J. Sharpe J.A.”
“Paul Rouleau JA.”