Court File and Parties

Court File No.: Brampton 1270/02 Date: 2012-04-11 Ontario Court of Justice

Between: Charmaine Bolt, Applicant

— And —

Gregory Shirley, Respondent

Before: Justice P.W. Dunn

Heard on: 30 March 2012

Ruling on Motion released on: 11 April 2012

Counsel: Ms. Gabriella Deokaran, for the applicant Ms. Deepa Singh, for the respondent

Decision

P.W. DUNN, J.:

Background

[1] Charmaine Bolt and Gregory Shirley are the biological parents of Jalen Darius Shirley, born 23 January 2002 (Jalen). Ms. Bolt is considered the applicant and Mr. Shirley the respondent in these proceedings.

[2] There are two orders that affect this family. The first was on 19 December 2002 when Justice Baldock, pursuant to Minutes of Settlement, granted sole custody of Jalen to Ms. Bolt. Mr. Shirley was awarded access:

(1) On a reasonable basis at reasonable times with forty-eight hours notice;

(2) Every Sunday at agreeable times;

(3) Any other days or times as the parties may agree, on forty-eight hours notice by Mr. Shirley.

[3] The second order was by Justice Baldock on 10 February 2006, also in accordance with Minutes of Settlement. Precipitating this order was Mr. Shirley's motion to change in which he sought increased access. The orders of 10 February 2006 had detailed access provisions dealing with holidays, but the principal term was that Mr. Shirley was to have access on alternate weekends from Fridays at 7:00 p.m. to Sundays at 7:00 p.m., extended to Monday if access falls on a long weekend.

[4] Now before the court was Mr. Shirley's motion (as the moving party, but still the respondent) dated 28 November 2011 (in Vol. 4, Tab 7) (the "motion") in which he requested an order for shared parenting on a weekly basis. The motion was opposed by Ms. Bolt, who wished to preserve the present custody and access arrangement.

[5] There is as well in the court process, Mr. Shirley's motion to change dated 30 September 2010 in which he asked for orders for joint custody and for Jalen to spend a week with each party on a rotating basis.

[6] Mr. Shirley was required to pay child support which he regularly did. There was no issue about child support or section 7 expenses in the motion.

Affidavits Considered

[7] In preparation for Mr. Shirley's motion, I read the following affidavits:

• Respondent's affidavit, sworn 23 November 2011 (Vol. 4, Tab 7)
• Affidavit of Brandon Maitland, sworn 21 November 2011 (Vol. 4, Tab 7C)
• Affidavit of Rupi S. Badwal, sworn 21 November 2011 (Vol. 4, Tab 7C)
• Affidavit of Junior Fearon, sworn November 29, 2011 (Vol. 4, Tab 7C)
• Affidavit of Beth Nugent, sworn November 23, 2011 (Vol. 4, Tab 7C)
• Affidavit of Mohamed Aziz, sworn 25 November 2011 (Vol. 4, Tab 7C)
• Affidavit of Lloyd Montague, sworn 28 November 2011 (Vol. 4, Tab 7C)
• Affidavit of Phyllis Shirley, sworn 28 November 2011 (Vol. 4, Tab 7C)
• Affidavit of Ian Shirley, sworn 28 November 2011 (Vol. 4, Tab 7C)
• Affidavit of Annette Shirley, sworn 28 November 2011 (Vol. 4, Tab 7C)
• Affidavit of Tymeka Wade, sworn 3 February 2012 (Vol. 5, Tab 2)
• Affidavit of Charmaine Bolt, sworn 27 February 2012 (Vol. 5, Tab 3)
• Respondent's Affidavit, sworn 30 March 2012 (Vol. 5, Tab 4)

Respondent's Arguments for Shared Parenting

[8] Mr. Shirley's reasons for requesting shared parenting were:

(1) Since Jalen was three months old, he has had regular access to his son.

(2) Mr. Shirley lives a stable lifestyle. He has been married to Annette Shirley for six years, and he held a responsible job for the same employer for fifteen years. Ms. Annette Shirley had a warm relationship with Jalen, and he came to her when he needed comforting.

(3) Mr. Shirley was committed to the same values regarding Jalen's future as Ms. Bolt – the importance of education, the benefits of commitment to sports and personal values.

(4) Mr. Shirley believed his communication with Ms. Bolt was sufficiently compatible to ensure regularity of routine in the proposed weekly access schedule.

(5) Jalen is a good athlete, excelling in baseball and basketball, and Mr. Shirley coached Jalen's basketball team. Several deponents referenced above confirmed Mr. Shirley's competence as a coach and a good person. Much of his access time was consumed in attending practices and sports events.

(6) Ian Shirley, Mr. Shirley's brother, filed an affidavit (sworn 28 November 2011) in which he emphasized the importance for a black youth to have a father very present in his or her development.

(7) The parties were only a seven minute drive away from each other. Jalen's school was geographically close to both residences, and Jalen had friends near Mr. Shirley's house.

(8) One of the main reasons for Mr. Shirley's request to have week access was that he believed that alternate weekend access did not allow enough time for him to engage in activities other than sports. He wanted to take Jalen to places and engage in other than athletic endeavours with his son.

Applicant's Arguments for Status Quo

[9] Ms. Bolt's arguments for preserving the status quo access regime were:

(1) Jalen was thriving in the present arrangement. His school marks and attendance and learning skills were very good; he was a contributing member of the community and no agency had any concerns about him.

(2) Although Ms. Bolt did not act in a coaching role with Jalen, she did attend his games and practices, as did Mr. Shirley.

(3) Ms. Bolt believed that Mr. Shirley was too harsh with Jalen in exercising his coaching authority and in supervising homework.

(4) Jalen was emotionally close to Tymeka Wade, his sister who lived with him and Ms. Bolt. He was strongly attached to his brother, Tristan Hackett who did not live with his siblings. Since Mr. and Mrs. Shirley did not have children, Ms. Bolt believed that at Mr. Shirley's, Jalen did not have sufficient emotional support.

(5) Ms. Bolt believed that Mr. Shirley was at least partially motivated to seek increased access as an avenue to pursue a diminishment in paying child support.

(6) Although Mr. Shirley had a continuous record of involvement with his son, the parties never lived together. In Jalen's eyes, Ms. Bolt believed, Mr. Shirley was viewed as a person who loved him, but in the capacity of a devoted access parent, who focused largely on sports events.

Children's Lawyer Report

[10] The Children's Lawyer did a comprehensive and I believe fair report dated 16 August 2011. It recommended that Ms. Bolt retain sole custody and that Mr. Shirley have the following access:

(A) Alternate weekend access from Fridays after school until Monday mornings; access pickups and drop-offs to be at school, to include statutory holidays and professional development days;

(B) Alternate Thursday overnights;

(C) Two weeks summer access, with other access as in the 2006 orders by Justice Baldock;

(D) Both parties to take counselling for anger management and parenting issues.

[11] What is important in the Children's Lawyer's report are the reasons for its recommendations. The report made the following observations (inter alia) which I found compelling:

(1) Jalen was clear with the clinical investigator, Ms. Tamara Genesove, that he wanted the access to remain as it is. It was significant that Jalen's actions indicated that he carefully considered the issue and was comfortable with his decision.

(2) Jalen acknowledged that sometimes Ms. Bolt shouted at him, but he was not concerned by that. However, he did believe that Mr. Shirley as basketball coach was hard on him. His father was also a task master in supervising Jalen's homework.

(3) Jalen's level of socialization was greater at Ms. Bolt's. The boy's favourite activity at his mother's was to play board games with his brother and sister. He had a very close rapport with his sister Tymeka. The report stated:

[Jalen] said that usually at his father's home, he goes to the basement to play ball and sometimes his father comes down with him.

(emphasis added)

(4) The report stated:

Jalen appears to be most strongly connected to his mother and her extended family. He views them as his primary source of support. The observation visit at [Ms. Bolt's] home was indicative of this close relationship. He appeared happy and comfortable in their company.

Jalen appears less connected to [Mr. Shirley]. During the observation visit, there appeared to be an emotional distance between them. There was little communication.

Ms. Genesove discounted the importance of the observational interview at Mr. Shirley's, because Jalen was unhappy that day since a fun trip had to be cut short to accommodate Ms. Genesove's visit. However the clinical investigator met Jalen privately on two other occasions. Jalen's comments about Mr. Shirley and his demeanour indicated to Ms. Genesove that there was a problem in the father-son relationship.

(5) The report stated that Jalen described Ms. Annette Shirley as a good and patient person. Ms. Genesove opined that the boy "appears to feel more support from [Ms. Annette Shirley]. That should come as an unexpected observation since Jalen has had much more involvement over the years with Mr. Shirley.

Court's Analysis

[12] At the hearing, Ms. Singh spoke eloquently on Mr. Shirley's behalf. Clearly, Mr. Shirley is a very committed father who laudably wanted to play a major role in his son's development. Ms. Singh pointed to the number of deponents who praised Mr. Shirley as a coach and a father. However, most of the affidavits described Mr. Shirley as a coach. A few discussed his relationship with Jalen, but the comments were abbreviated.

[13] Many if not most parents who have loving access arrangements with a child, pine to spend more time with that young person. However, often the custody-access arrangement stops short of shared parenting. The usual reason for a non-shared parenting arrangement is that sole custody is viewed as offering greater stability and continuity in the child's life. Sometimes shared parenting is in the child's best interests. That is often where the child is older and knows how to live with differences in discipline and routines in the two homes.

[14] In the case at bar, I will accept the recommendations of the Children's Lawyer and I approve of the reasons for its position. Jalen is performing very well under Ms. Bolt's aegis. There is no reason to disturb the access plan in place, especially when Jalen found it satisfactory. Perhaps what Mr. Shirley should do, if he wants to engage in other activities with Jalen, is spend less time on sports and more time in those other activities.

[15] I am also mindful of the clinical investigator's concern that if Jalen was with Mr. Shirley more frequently, that might increase the boy's anxiety over his father's criticisms of him. There was a moving note in Ms. Genesove's report. Jalen never told his father that his father gets angry too easily:

[Jalen] thought if he told his father this, he would say "sorry" but would still react in this way.

Disposition

[16] The respondent's motion dated 28 November 2011 is dismissed.

[17] Mr. Shirley's motion to change dated 30 September 2010 is adjourned to 10:00 a.m., 18 June 2012, courtroom 210, for a trial management conference.

Released: 11 April 2012

Justice P.W. Dunn