COURT FILE NO. D45027/08

DATE: 2012-04-04

Citation: Duncan v. Johnson, 2012 ONCJ 186

ONTARIO COURT OF JUSTICE

TORONTO NORTH FAMILY COURT

B E T W E E N:

RESIA DUNCAN

DOROTHEA DADSON, for the APPLICANT

APPLICANT

• and -

ADAM JOHNSON RESPONDENT

H. LINUS ALI, for the RESPONDENT

HEARD: MARCH 28-30, 2012

JUSTICE S.B. SHERR

REASONS FOR JUDGMENT

Part One – Introduction

[1] The applicant, Resia Duncan (the mother), has brought a motion to change the order of Justice Carole Curtis dated February 6, 2009 (the final order). This order provides that the parties share joint custody of their son, (the child), born on […], and that the child’s primary residence be with the respondent Adam Johnson (the father), with reasonable access to the mother on reasonable notice, including every weekend.

[2] The mother now asks for an order of sole custody and child support, with specified access to the father. She seeks her costs of the motion.

[3] The father has brought his own motion to change the final order. He also seeks sole custody of the child. He asks that the mother’s access take place on alternate weekends. He also seeks his costs.

[4] Justice Curtis directed that there be a trial of these issues. The court considered the affidavit material filed by the parties in support of their change motions and the oral evidence given by the parties and their supporting witnesses.

Part Two – Background facts

[5] The mother is 21 years old. She was 16 years old when the child was born. The mother presently lives by herself. She is not employed and not in school. She has a grade twelve education. She hopes to return to school in September of 2012 and wants to take a course called Police Foundations.

[6] The father is 23 years old. He is in school studying law enforcement and works part-time. He resides with the child, his mother, who is 60 years old (the paternal grandmother) and his older brother Andrew in a home owned by the paternal grandmother. The father is also a serious track and field athlete involved in daily training.

[7] The child primarily lived with the mother from the time he was born until the spring of 2007. The mother was residing with her own mother (the maternal grandmother).

[8] The parties lived together at the home of the paternal grandmother with the child from the spring of 2007 until they separated in April of 2008.

[9] The mother issued an application for custody and child support in this court on June 25, 2008.

[10] The father brought a motion for temporary custody dated July 31, 2008, stating that the mother had denied him access since June 12, 2008.

[11] On August 11, 2008, on consent, Justice Curtis made a temporary without prejudice order, granting custody of the child to the mother, with specified access to the father, including alternate weekends.

[12] On October 20, 2008, Justice Curtis ordered the father to pay the mother temporary child support of $43 per month.

[13] On February 6, 2009, on consent, Justice Curtis made the final order. As noted above, that order gave the parties joint custody of the child, with the primary residence with the father.

[14] The parties were flexible about access after the final order was made. In April of 2009, the mother moved to Brampton to live with the maternal grandmother. She exercised access on most weekends, but not on weekdays.

[15] The mother claimed that the father denied her access starting on August 18, 2009.

[16] The mother issued an application asking for sole custody of the child and child support on October 13, 2009. The mother did not make any reference to the final order in this application. In her affidavit sworn on December 3, 2009, the mother deposed that she regretted not advising her counsel about the existence of this order.

[17] On December 4, 2009, the parties consented to a temporary order that the mother have access on three out of every four weekends, as well as on Tuesdays and Thursdays for a few hours after school.

[18] Justice Curtis directed the mother to bring a motion to change the final order, instead of an application. The mother did this on July 9, 2010.

[19] The father filed his response to motion to change, that included his own claim to change the final order, on September 29, 2010.

[20] On October 4, 2010, the parties agreed that the mother would have temporary access on three weekends out of every four weekends – with the drop-off to take place at the child’s daycare on Mondays. They agreed to eliminate the midweek visits. This access regime has not changed since then.

[21] On December 8, 2010, the mother brought an application and temporary motion for a restraining order against the father. The restraining order was not granted.

[22] On December 14, 2010, the parties consented to a temporary order that set out in some detail how decisions about the child would be made, including what school and daycare the child would attend and who the child’s doctor and dentist would be. The order also provided a mechanism for communication.

[23] The mother moved back to Toronto in April of 2011.

Part Three – Positions of the parties

[24] The mother claims that she was pressured by the father to consent to the final order. She said that she had been the child’s primary caregiver and had been subject to physical and emotional abuse by the father. She regrets entering into the consent to the final order.

[25] The mother states that there has been a material change in circumstances since the final order was made. She says that the father has ignored the final order and acted unilaterally in making decisions for the child. She said that the father has denied access, is disrespectful to her and does not promote the child’s relationship with her. She claims that the father is not residing with the child and the child is living with the paternal grandmother. She states that the father has shown that he is incapable of caring for the child on his own. She alleges that the father has shown that he puts his own interests ahead of the child’s.

[26] The mother states that it is in the child’s best interests that she be awarded sole custody. She says that she is better suited to give the child the care, attention and stability that he requires. She also states that she is a better influence on the child as the father can be violent and aggressive. The mother expressed concern that the child is exposed to two of the father’s brothers who have lengthy criminal records. She submitted that the father’s home is unstable and that his family does not support her relationship with the child. She says that she cannot effectively communicate or cooperate with the father. In the alternative, the mother believes that an equal time-sharing arrangement would be best for the child.

[27] The father completely denied the mother’s allegations of abuse and misconduct. He claimed that he was the primary caregiver for the child from February of 2008 until the mother over-held the child after an access visit in June of 2008 and denied him contact with the child for two months. He testified that except for this two-month period, the child has lived with him, in the paternal grandmother’s home, since February of 2008.

[28] The father also claimed that there has been a material change in circumstances. He says that it is in the child’s best interests that he be awarded sole custody as he does not believe that he can make important decisions with the mother. He testified that he would be content to maintain the existing parenting arrangements as set out in the temporary orders. He submits that the child is thriving in his care. He expressed concerns that the mother frequently changes her residences and is unreliable.

Part Four – Credibility and analysis of contested evidence

[29] Neither parent was a credible witness. Their evidence was often inconsistent with prior statements that they had made and the evidence of witnesses they called to support them. They both were poor historians and tailored their evidence to place themselves in a positive light, justify their behaviour and place the other in a negative light. They made multiple allegations against the other that were usually unsubstantiated. I placed little weight on their evidence except to the extent that it was not disputed by the other party or was supported by independent evidence.

[30] I also treated the evidence of the supporting witnesses that each party called with caution. These witnesses were all friends and family members who presented as aligned with the party who called them. Many would clearly overstate evidence in an effort to assist the party they were supporting. The mother also called the father’s ex-partner (Kerryann), who was clearly still upset with the father (she alleged that their relationship ended due to his having had an affair). I did not hear from any independent witness, such as a teacher or health care professional for the child.

4.1 Child’s residence

[31] The evidence of the parties about the child’s historical living arrangements was a good example of the unreliability of their evidence.

[32] The mother testified that she was the primary caregiver for the child and that the child had always lived with her until the final order. She testified that after the final order (that granted primary residence to the father) she had the child with her 50% of the time until she moved to Brampton in April of 2009. She testified that since April of 2009, she has had the child with her on three out of every four weekends.

[33] This evidence was different than that contained in the mother’s affidavit sworn on December 3, 2009. In that affidavit, she claimed that the child had been with her 50% of the time until August of 2009, not April of 2009 (when she moved to Brampton). The maternal grandmother testified that the mother saw the child on some weekends after April of 2009.

[34] A friend of the mother’s (Katarina) also presented a different version of the child’s residential history. She testified that the mother lived with her from November of 2008 until April of 2009. She testified that the father exercised only sporadic access to the child during this period, contradicting the mother’s evidence that there was an equal sharing of parental time with the child up until April of 2009.

[35] Kerryann also gave a different version of the child’s residential history. She testified that the child was not living with either parent, but rather with the paternal grandmother from November of 2008 until April of 2009 (during which time Kerryann was living with the father) and spending a lot of time at her home as well.

[36] The father’s evidence about the child’s living arrangements was just as unreliable. He testified that the child lived with him continuously from February of 2008 (with the exception of the two months when he was denied contact), yet he consented to the mother having temporary custody of the child in August of 2008. He also deposed in an affidavit sworn on July 31, 2008 that the child had lived with him from September of 2006 until June of 2008. This was clearly not the case.

[37] My findings of fact about the child’s historical living arrangements after hearing from all of the witnesses are as follows:

a) The child lived primarily with the mother from birth until the spring of 2007.

b) The parties resided together from the spring of 2007 until April of 2008 in the home of the paternal grandmother. The mother and the paternal grandmother primarily parented the child during this period with the assistance of the father, who at the time was in school full-time and involved in intensive track and field training.

c) The child primarily resided with the mother after the parties separated in April of 2008, but spent a lot of time with the father and the paternal grandmother.

d) The mother denied access to the father from June-August of 2008.

e) The child went freely back and forth between the parties from the fall of 2008 until the final order on February 6, 2009.

f) From the final order until April of 2009, the child lived primarily with the father, but spent considerable time with the mother.

g) Since April of 2009, the child has lived with the father, at the home of the paternal grandmother, and has exercised access with the mother three out of every four weekends.

4.2 Mother’s consent to the final order and allegations of abuse

[38] The mother alleged that she was pressured to consent to the final order. She claimed that the father had previously been physically and emotionally abusive to her. The mother’s evidence about physical abuse was vague and not proven on a balance of probabilities. She said that the father had hit or pushed her on three occasions. Little detail was provided, including dates. There was little in the way of corroboration of these allegations, although Kerryann testified that the father once verbally threatened her, she called the police, the father was charged and he eventually entered into a peace bond. Kerryann made no allegation of physical abuse against the father. I did believe the mother’s evidence that the father, at times, would immaturely insult her during arguments and that he sent some inappropriate texts to her in 2009 and 2010. I also accept the father’s evidence that the mother would also act inappropriately during their verbal disputes.

[39] The mother made no allegations that the father abused her after the temporary order was made on December 14, 2010. This is the order that specified how the parties were to make decisions and communicate with one another.

[40] The mother provided no evidence that would persuade me that she was pressured into signing the consent to the final order. She received advice from duty counsel, spoke to the judge and admitted that she understood the terms of the order. She did not return to court to change the order until October of 2009, and then only after her access to the child had been denied for several months.

[41] The mother’s explanation about how the father pressured her into consenting to the final order also made little sense. She claimed that he told her that if she didn’t give him 50% of the child tax benefit, that he would take away the child from her. She could not explain how this translated into giving her consent to the final order. The mother’s unstable living arrangements during this period are probably a better indicator of her motivation to consent to the final order. The evidence revealed that the mother was frequently changing residences up until the final order. She deposed that in April of 2009 she had to leave the residence she was living in at the time of the final order due to an altercation with her roommate. I accept the father’s evidence that the mother’s housing was unstable up until the time of the final order.

[42] It was apparent to the court that the mother had entered into the consent voluntarily - she just regretted the decision.

4.3 Father’s living arrangements and care of the child

[43] The mother alleged that the father is not living with the child – rather the child is living alone with the paternal grandmother. She alleged that the paternal grandmother is the child’s primary caregiver. The father testified that he has always lived with the child and that while the paternal grandmother provides considerable assistance, he is the child’s primary caregiver.

[44] The mother’s evidence in support of her contention that the father is not living with the child was very thin. She had no direct knowledge of this. She relied on her child pointing at a house in November of 2009 and saying “that is Daddy’s house”. Even if this happened, the court is not willing to rely on the mother’s interpretation of the evidence of a five-year-old child. Katarina also testified that the child tells her that the father does not live in the home. I did not find the evidence of this witness to be reliable. She was clearly aligned with the mother and conceded that she had been involved in many shouting matches with the father. Further, she is the witness who stated that the father was only seeing the child sporadically in 2009, when even the mother stated that the child was spending 50% of the time with him. The mother also relied on Kerryann’s evidence that the father was living with her during the spring of 2009. There were difficulties with this evidence. She was not an independent witness, often confused about dates and her evidence was contradicted by the father, who testified that he did not live with her, but rather spent many late evenings at her home after putting the child to bed. Wherever the truth lies, her evidence supported the father’s evidence that he lived with the paternal grandmother after April of 2009.

[45] I find that the father has been living with the child and the paternal grandmother since at least April of 2009. I also find that he is highly involved with the child’s care. The witnesses described that the father, the paternal grandmother and Andrew use a team approach to care for the child. All of them are involved in the child’s routines, take him to school and daycare, participate in his homework, play with him and involve him in activities. The paternal grandmother is at home full-time and appears to be in charge of a lot of the child’s instrumental care, such as getting him up in the morning, feeding him and taking him to daycare. The father testified that he arranges his schedule to take the child from daycare to school (half-days in the afternoon), picks him up in the afternoon and will spend time with him until he goes to school in the evening. Andrew, who is a police officer, testified that he will often spend time with the child in the evenings when he is off work. The father is involved with the child’s school, speaking daily with the teacher and helping out on field trips. The father takes the child to participate in track and field and takes him to track meets. The track and field coach (and godfather - Craig) testified how impressed he is with the father’s commitment to the child and how the child tries to emulate his father. The father gave up the opportunity to attend colleges in the United States on a full track and field scholarship in order to care for the child. This demonstrates a high level of commitment.

[46] I did not accept the mother’s argument that the father is incapable of looking after the child himself or putting his own needs ahead of the child’s. The evidence indicated otherwise.

4.4 Denial of access

[47] The mother claimed that the father denied her access to the child from August 18, 2009 until December 4, 2009 (indicative of how the aligned witnesses tended to overstate evidence, the maternal grandmother testified that the father had denied the mother access for one year). The father was vague in his denial of this allegation, stating that he didn’t think that the mother went that long without seeing the child, maybe a month. He complained about the mother not being reliable about exchanging the child as justification for the access denial. The paternal grandmother was also vague in her evidence on this point and felt that only one month had passed by without access. She was quite outspoken and certain about other events. The police had been to their house to try and intervene. It is highly unlikely that the paternal grandmother would not remember such an important event. I didn’t believe either of the father or the paternal grandmother on this issue.

[48] It was apparent that the denial of access was the primary motivator for the mother to return to court. I accept her evidence that she was denied access in 2009 for slightly over three months.

4.5 Unilateral behavior by the father

[49] The mother claimed that the father has acted unilaterally in making decisions for the child and has excluded her from the child’s life.

[50] There was some merit to the mother’s allegations, but I find that they were overstated. The mother acknowledged that she has been able to consistently exercise her access to the child since October of 2010 and that the father will frequently accommodate her requests to change the access or provide her with extra time. This shows that the father does recognize the importance to the child of facilitating his relationship with the mother and being flexible about parenting time. The mother is able to speak to doctors about the child’s medical care and to speak to the child’s teachers. She is aware of all service providers for the child. She is not excluded from the child’s life.

[51] However, the father has acted unilaterally at times. He changed the child’s daycare in 2009 without prior consultation with the mother. He registered the child for school in September of 2010 and did not include the mother in the process. The fact that this was the only school in the child’s area is not a good excuse for not including her in the discussion. He arranged for a new doctor for the child in 2009, without prior consultation with the mother. The child’s former doctor had moved to Richmond Hill and a new doctor had to be arranged, but the mother should still have been included in the process. The mother was not included in discussions with the school to defer the child’s participation in a French Immersion program in June of 2011. The father has the child engaged in track and field. He has invited the mother to track meets, but won’t permit her to go to practices. He said that she would be in conflict with the parents of other team members. This evidence was directly contradicted by Craig, who testified that the mother did not have any conflicts with these people. It was apparent that the father just didn’t want the mother to come to the child’s practices.

[52] The parties agreed that they are currently in agreement about the major issues in the child’s life, including what school and daycare he attends, who his doctor and dentist are and his religion.

Part 5 – The legal framework

[53] Section 29 of the Children’s Law Reform Act provides the statutory authority for varying a custody or access order. It states:

29. A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.

[54] The Supreme Court of Canada decision in Gordon v. Goertz (1996) 1996 191 (SCC), 19 R.F.L. (4th) 177 S.C.C. sets out a two-stage process for the court to consider when asked to vary a custody or access order:

a) First, 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.

b) If the threshold is met, the court 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.

Part 6 – Material change in circumstances

[55] In Gordon (Paragraphs 10-16), the court discusses what evidence is required for the moving party to meet the threshold condition of establishing a material change in circumstances. The court says that the question is whether the previous order might have been different had the circumstances that now existed prevailed earlier. On an application to vary a custody order, the judge must be satisfied:

a) of a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child;

b) which materially affects the child; and

c) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.

[56] In Zolaturiuk v. Johansen, 2009 15907 (Ont. S.C.J.), the court took a wide interpretation of what constituted a material change in circumstance, stating that material does not mean major. The court found that if the existing order was not working or needed to be clarified or fine-tuned, this can be material. The court wrote at paragraph 42:

Some of Mr. Hoy’s recommendations -- specifying pickup and drop-off times; clarifying how many days there are in a week – are not really “changes”. Instead they are clarifications, intended to inject some certainty among parents who haven’t been able to agree. That ambiguity has led to needless disruption and upset for the child. That represents a lack of success of the terms of the order, which in my view represents a material change in circumstances requiring correction.

[57] The onus of establishing the material change is on the person seeking the change. If the material change cannot be established, the motion is to be dismissed.

[58] I had no difficulty finding a material change in circumstances in this case. The father denied the mother’s access for over three months in 2009. The police were being called to intervene in their disputes. The father was making unilateral decisions about the child, contrary to the terms of the final order. The mother had little choice but to bring this case back to court.

[59] Further, in the summer of 2010, there was a troubling incident about the child’s health care. The father testified that he asked the mother for the child’s immunization card. He said that she told him that she had lost it. He then obtained a second immunization card. He planned to take the child for his immunization shot. Fortunately, before doing this, he learned that the mother, without telling him, had taken the child for the immunization shot to another doctor. She did have the child’s immunization card. The mother denied telling the father that she had lost the card and felt that the father had obtained the second card so that he could register the child in school without her knowledge (the immunization record was required for registration). This incident, whoever one believes, was indicative of the mistrust between the parties at the time. This lack of communication could have harmed the child, who could easily have received two immunization shots.

[60] I find that the immunization incident, in combination with the conflict between the parties, the unilateral actions by the father and the denial of access to the mother, constituted a material change in circumstance that affected the best interests of the child and necessitated a re-examination of the parenting terms contained in the final order.

Part Seven – Analysis of best interest factors

[61] The next step is to decide what custody and access order is in the child’s best interests.

[62] Subsection 24 (2) of the Act sets out criteria for assessing the best interests of a child. I will consider each of these criteria, as set out in clauses (a) to (h) of subsection 24 (2), in the paragraphs below:

(a) the love, affection and emotional ties between the child and each person entitled to or claiming custody of or access to the child, other members of the child's family who reside with the child, and persons involved in the child's care and upbringing;

[63] The parents both love and are emotionally connected to the child. The child is closely attached to both parents.

[64] The parents have each shown the following positive parenting characteristics:

a) They both legitimately want what they feel is best for the child.

b) They are both committed to the child and want to be fully involved in his life. In the case of the mother, she longs for more time with the child and to become more involved with him.

c) Both parents had witnesses who testified that they are attentive with the child, care for his physical needs and are good parents.

d) Since October of 2010, they have been flexible in arranging parenting time for the child.

e) Since the court order of December 14, 2010, the parties have not been involved in any significant arguments, and they haven’t had a dispute on any major issue regarding the child. The evidence indicates that they are maturing themselves.

f) The father has responsibly looked after the child’s physical, emotional and developmental needs. The collateral witnesses described the child in very positive terms. He was described as bright, active, intelligent, inquisitive and friendly. He is doing well in school, is happy and has many friends. The parents deserve credit for this.

g) The father involves the child in extra-curricular activities. The child receives a lot of attention in the paternal home and is well cared for.

h) Both parents acknowledged the importance of the other’s role in the child’s life.

[65] The child has primarily lived with the father since February of 2009. It is understandable that one witness would have described the child as a “daddy’s boy”.

[66] The child has a very close relationship with the paternal grandmother, who has been actively involved in his life. He also has a close relationship with Andrew and Craig.

[67] The child also frequently sees the maternal grandmother and Katarina on weekends. He also plays with Katarina’s child. The child has positive relationships with these people.

(b) the child's views and preferences, if they can reasonably be ascertained;

[68] The mother argued that the child wants to live with her. Katarina also stated this. I didn’t find this evidence reliable. In fact, it raises a concern that the mother and Katarina are inappropriately talking to the child about this. It is important that the mother not let the child feel responsible for not being with her more often. There is a risk of this happening if she is letting him know how unhappy she is that he can’t spend more time with her. This can be very confusing and unsettling for a child this age. I heard other evidence that the child is very happy with his current circumstances. Given his age, the child’s views and preferences cannot be reasonably ascertained.

(c) the length of time the child has lived in a stable home environment;

[69] The child has lived in a stable home environment for over three years. He is thriving in this arrangement. This is an extremely important factor in determining his best interests.

[70] The mother has historically struggled to maintain a stable residence and has had to move several times. She has been more stable recently, maintaining her present residence since April of 2011.

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

[71] The father has done an excellent job looking after the child’s education. He is actively involved with the school, the child’s attendance at school is good and the child is doing well at school.

[72] The mother has had the opportunity to be more involved with the child’s school. She did not contradict the father’s evidence that she rarely exercises this option.

[73] The father has provided the child with a safe and secure home. The child is well supported and loved in the home. He has a good routine which is developmentally appropriate. The mother’s concern about two of the father’s brothers was unwarranted. Neither of these brothers resides in the home and the only evidence before the court was that they have treated the child well.

[74] The court has more concerns about the mother. She was very young when she had the child. I heard uncontradicted evidence that the maternal grandmother was very unhappy about her pregnancy and eventually made the mother leave her home in April of 2007. I heard evidence that she has often been unsupportive of the mother (although she presented as a strong supporter of the mother at the trial). The mother was isolated and had to rely on the paternal family. The mother’s life has been in a state of flux since she separated from the father in April of 2008. She has not followed through with her schooling (last attending in July of 2011) and hasn’t worked to any significant extent. She testified that she babysat, without pay, for an aunt from October of 2011 until February of 2012. She is presently not working or going to school. She receives social assistance. She plans to go back to school in September of 2012, but this appears to have been a goal, more than a reality, for the past few years. Due to her lack of supports, the mother has had to frequently change residences. Some of the father’s witnesses expressed frustration with the mother’s lack of reliability. They described how she would make plans to pick up the child and then change them at the last minute. I have taken into consideration that this evidence comes from witnesses aligned with the father, but I was left with some doubt as to whether the mother would be sufficiently organized to get the child to school, appointments and activities to the degree that the father has been able to do so.

[75] The mother has not paid any child support to the father in the past three years. This creates concerns about her judgment and maturity. Is she only willing to properly provide for the child if he is in her care?

[76] The court has concerns about the maturity and judgment of both parents. This is not really that surprising, given how young they were when the child was born. Both have denied access to the other at times and have engaged in petty arguments, contrary to the best interests of their child. The father has sometimes acted unilaterally in making major decisions, being insensitive to the importance of the mother being involved with these major decisions (as well as the requirement for her to be fully involved in these decisions as set out in the final order).

(e) any plans proposed for the child's care and upbringing;

[77] The father has provided a reasonable plan to care for the child. The child will continue to live with him at the paternal grandmother’s home. This is the child’s home. He is comfortable and secure there. It is appropriate accommodation for him. The father will continue to receive the parenting assistance of the paternal grandmother and Andrew in caring for the child. The father was able to describe the daycares, schools and community activities in his area for the child, as well as the child’s friends. The father has arranged appropriate medical care for the child. The father plans to complete his schooling by February of 2013 and then he hopes to find work as a corrections officer. The child will continue with his present daycare and school. He intends to follow the school’s recommendation as to whether the child should participate in the French Immersion program starting in September of 2012. The father emphasized that the mother will continue to have significant time with the child. He expressed no concern about the mother being able to attend parent-teacher meetings, school events and to speak to the child’s health care providers. The father’s plan was child-focused and appropriate.

[78] The mother’s plan was a little less concrete. This is understandable as the child is not in her care. She plans to have the child attend the same school, although it is some distance from her residence, raising a concern about whether she will be able to make the logistical arrangements for this (the mother does not drive). She plans to go to school in September of 2012 and change the child’s daycare. She has not selected the child’s daycare and hopes that she could obtain a subsidy – otherwise it would not be affordable. She expressed hope that she could quickly obtain this subsidy, but provided no evidence that this was possible. She hopes to have some support from the maternal grandmother and Katarina. The court has some reservations about the level of support that the mother can expect to receive from the maternal grandmother given their problems in the past and the fact that the maternal grandmother lives in Brampton. The mother says that her residence is appropriate for the child. She also hopes to have the child involved in extra-curricular activities. She is willing to support generous access with the father.

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

[79] The father’s plan has proven to be permanent and stable.

[80] The mother’s plan is not as permanent and stable as the father’s. She does not have the same level of support as he does.

(g) the ability of each person applying for custody of or access to the child to act as a parent;

[81] I have already made many comments about the abilities of each parent to act as parents.

[82] At times, the father has acted immaturely and has not recognized the importance of the mother’s relationship with the child. However, this is not constant behavior and I find, for the most part, that he has facilitated this relationship. His attitude towards the mother has improved significantly since December of 2010.

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

[83] This is not a factor.

Part Eight – Custody

[84] Both parties take the position that it is in the child’s best interests that they have sole custody.

[85] I find it to be in the child’s best interests that the parties continue to share joint custody of the child.

[86] The Ontario Court of Appeal in Kaplanis v. Kaplanis 2005 1625 (ON CA), [2005] O.J. No. 275 sets out the following principles in determining whether a joint custody order is appropriate:

1. There must be evidence of historical communication between the parents and appropriate communication between them.

2. It can’t be ordered in the hope that it will improve their communication.

3. Just because both parents are fit does not mean that joint custody should be ordered.

4. The fact that one parent professes an inability to communicate does not preclude an order for joint custody.

5. 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.

6. The younger the child, the more important communication is.

[87] Courts 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. 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. Warcop v. Warcop, 2009 6423 (Ont. SCJ.).

[88] In Ladisa v. Ladisa 2005 1627 (ON CA), [2005] O.J. No. 276 (OCA), the Ontario Court of Appeal upheld a trial decision awarding joint custody to the parents where, despite their strife, they could communicate effectively when necessary and put the interests of the children ahead of their own.

[89] In Growen v. MacKenzie 2008 ONCJ 170, Justice Margaret McSorley wrote that the court should look at how parents parented prior to the separation to determine if co-parenting and cooperation is possible, and determine if the parents can return to this after the stress of litigation is over.

[90] In Hajkova v. Romany, 2011 ONSC 2850, the court thoroughly reviewed the case law in this area and wrote at par.17:

The courts in recent years have found that in cases where there is conflict between the parents, but there is a degree of cooperation between them in the care of the children, that it may be in the best interests of the children that they have joint custody of the children. An order may be put in place for parallel parenting.

[91] The communication between the parties is far from perfect. If I had been called upon to decide this issue in December of 2010, I would have likely found that the high level of conflict between the parties precluded the making of a joint custody order. However, matters have significantly improved since that time as:

a) There have been no difficulties in the mother exercising her access.

b) The parties have been flexible with one another in rearranging access to meet both their mutual needs and the needs of the child.

c) The parties have not engaged in any significant arguments.

d) The parties have, for the most part, cooperated in issues about the child.

e) The mother has maintained good communication with the paternal grandmother about the child.

f) While the parties do not have lengthy discussions, they have treated each other respectfully in text messages and in their conversations.

g) There has been a significant reduction in unilateral action by the father.

h) There are currently no disagreements about the child’s medical care, education or religion.

[92] Lastly, another reason for not changing the existing joint custody order is that the material changes in circumstances that I have set out above were in large part due to the father’s behaviour. This court remains concerned that the father may not fully appreciate the importance of the mother’s role in the child’s life and that he may revert to improper unilateral behavior without a court order that ensures this involvement. The court does not want to send the message to litigants that they can ask to change a joint custody order to sole custody based on poor communication, when they have been the person primarily responsible for this poor communication.

Part Nine – Parenting arrangement

[93] The present parenting arrangement has worked very well for the child. He is a secure, happy, healthy and well-adjusted child. He has many friends and is well-connected to his school and his community. There is no reason to significantly change this arrangement. The father’s plan provides the child with the stability, security and continuity that the child requires. The mother’s plan is far less certain. The father also has more support than the mother to meet the child’s needs. In the final analysis, the mother’s claim at trial was centered more on her regret about initially consenting to the final order and her yearning to have more time with the child, than it was about the child’s best interests. It is in the child’s best interests to maintain his primary residence with the father.

[94] It is also in the child’s best interests to continue to spend generous time with his mother. The final order lacks specifics about parenting time. Given the history of the parties, a specified parenting schedule is warranted. The temporary agreement reached in October of 2010 has been of considerable assistance to the family, as there have been no significant access conflicts since it was made. With some modifications, it should continue. Holiday access should be specified, recognizing that holidays should be shared between the parties. It is also in the child’s best interests that the mother be entitled to see the child on occasion during the middle of the week. The court order will provide that during the week prior to the father’s weekend with the child (the fourth weekend out of the four weekend schedule), the mother will be entitled to pick up the child from the daycare on Tuesday and return the child to the daycare on Wednesday.

[95] The temporary order of December 14, 2010 has successfully clarified decision-making for the child and will also continue with minor modifications.

Part Ten – Child support

[96] I will briefly deal with the issue of child support. The father did not make a claim for child support in his change motion. He did mention it in an affidavit filed with the court a few days before the trial and mentioned that he wanted child support during his evidence. This issue was not referred to by his counsel in his closing argument.

[97] I find that it is not appropriate to order child support at this time, given both the lack of notice of the claim and the mother not having any income, due to being on social assistance. This determination is without prejudice to the father’s right to claim child support in the future.

Part Eleven – Conclusion

[98] The order dated February 6, 2009 shall be changed on a final basis as follows:

a) The parties shall share joint custody of the child. The child shall primarily reside with the father.

b) Starting on April 13, 2012, the mother shall have the child with her on three out of every four weekends. These shall be three consecutive weekends, followed by one weekend with the father. The mother shall exchange the child at his daycare, with pickup on Friday after daycare and dropoff on Monday before daycare. If a statutory holiday follows the mother’s access weekend, she shall return the child to the daycare on Tuesday.

c) Starting on May 1, 2012, the mother shall have the child every fourth Tuesday afternoon, with pickup from the child’s daycare (this should be the Tuesday before the father’s weekend with the child) until Wednesday morning, when she shall return the child to the daycare.

d) The child shall spend Father’s Day with the father and Mother’s Day with the mother, even if those days do not fall on their regular weekend, from 10:00 a.m. until 7 p.m.

e) In even-numbered years, starting in 2012, the mother shall have the child with her during the winter school break from December 24th at 3:00 p.m. until December 30th at 3:00 p.m., and the father shall have the child with him for the balance of the winter school break. In odd-numbered years, starting in 2013, this schedule shall be reversed.

f) Commencing in the summer of 2012, both parents may have two exclusive weeks of vacation time during the summer with the child. The mother can have the first choice of these weeks and is to notify the father of these weeks in writing by May 15th each year. The father will then get to choose his two weeks and shall notify the mother in writing by June 1st each year.

g) There shall be reasonable telephone access between the child and both parents.

h) The regular access schedule shall be suspended during any holiday, summer or special access times described above.

i) The father shall execute directions to permit the mother to directly obtain information from service providers for the child.

j) The mother is to deliver the child’s immunization card to the father within ten days. Only one immunization card shall be used for the child. The father is to destroy the second card on receipt of the card from the mother.

k) The father is to deliver a copy of the child’s health card to the mother within ten days.

l) The child shall continue to use his current doctor for his annual checkups and non-emergency care. In the event of an emergency, the party who takes the child for treatment shall immediately notify the other party of the nature of the emergency and the treatment. This shall be done as soon as possible when the emergency occurs so that if possible, both parents may attend.

m) During even-numbered years, the father shall take the child for his annual checkups and immunizations. During odd-numbered years, this shall be the mother’s responsibility. The person who is taking the child for the checkup and immunization shall advise the other party that the appointment has been scheduled and the results of the appointment. The immunization card shall be held that year by the parent who is in charge of immunizations for that year.

n) The child shall continue to use his current dentist.

o) The child shall continue in his present school and daycare. They are not to be changed without the other parent’s consent or court order.

p) The father is to immediately notify the mother about any parent-teacher meeting or school event and the mother will be entitled to attend.

q) The father shall contact the child’s daycare and school within ten days and advise them that the mother is an alternate emergency contact and provide proof of doing this to the mother’s counsel. However, except for her scheduled time with the child, the mother is not to remove the child from his daycare or school without the father’s written consent.

r) The parties shall meet together with the school to determine if they recommend that the child attend the French Immersion program. If this program is recommended by the school, the child shall attend the program in September of 2012.

s) The father is to immediately notify the mother about any of the child’s track and field practices, meets or performances and the mother will be entitled to attend. If a track and field practice or meet falls on her parenting time, the mother will ensure that the child will attend them.

t) The parties shall sign any and all documentation, upon request of the other, required to permit the other to travel with the child or obtain travel documentation for the child as directed by this order. The parties shall give each other a minimum notice of thirty days of their intention to travel with the child. The travelling parent shall give the other parent a complete itinerary of where they will be staying and facilitate telephone contact with the other parent.

u) The parents shall provide each other with changes of address or phone contact numbers within 24 hours of such change.

v) The parties are to treat each other with civility in all communications with one another.

w) The parents are free to agree on further access.

[99] If any party wishes to seek costs, they are to serve and file written submissions by April 13, 2012. The other party will then have until April 23, 2012 to respond. The submissions should not exceed three pages, not including any offer to settle or bill of costs. Based on my findings, the parties should strongly consider entering into an agreement not to seek costs.

[100] The parties have been litigating with each other for close to four years. It is time for them to stop their fight and focus on working together to be the best parents they can be for the child. They have shown some indication that they are capable of doing this in the past 15 months. They both have parenting strengths. However, if the parents continue in a power struggle over the child it is likely just a matter of time before he will be harmed. It is time for the parents to be responsible adults and move on with their lives. This court strongly suggests that, absent emergency, the parties attend mediation before returning to court.

Justice S.B. Sherr

Released: April 4, 2012