Court File and Parties

Court File No.: FO 80-11 Date: 2013-05-09 Ontario Court of Justice

Between:

Steven Thomas Spack, Applicant

Wayne G. Stickland, for the Applicant

— And —

Brandy Labine, Respondent

On her own behalf

Heard: August 21, 2012 and February 22, 2013

Decision

Klein, J.:

Background

[1] I heard this trial over two days, August 21, 2012 and February 22, 2013. It involved primarily each parent's views as to what would amount to a custody/access order in the "best interests" of their 2 daughters, Jayden (8) and Taylor (5).

[2] Steve Spack and Brandy Labine began dating in February 2003 while both were students at Canadore College. They began living together in the spring of 2004 and remained in a relationship until their separation on February 15, 2009. They were never married to each other and have remained separated.

[3] During the course of their relationship, two daughters were born, namely, Jayden May Spack, born August 8, 2004 and Taylor Ann Spack, born December 7, 2007.

[4] From the date of separation in February 2009 until February 2010, Brandy lived with the children in the former home shared by the parties. In February 2010 she moved to a home which she purchased with the help of her family, a home that she continues to live in with the two girls.

[5] In March 2010, March 31st, the parties entered into a separation agreement (exhibit 4 at trial) whereby they agreed to a joint custody arrangement with the children residing with Brandy from Wednesday to Friday, with Steve from Monday to Wednesday and with each parent on alternating weekends. Further arrangements were agreed upon for birthdays, holidays and summer. This agreement provided for joint decision-making re: the girls. Neither party was to pay support to the other except for a onetime $5,000 payment from Steve to Brandy. Steve was to retain ownership of the home and also assumed debts of about $150,000. They agreed upon the Child Tax Credit and Universal Child Care Benefit being received by Brandy and that each would claim one child for income tax purposes. The agreement was prepared by the parties and there was no certificate of Independent Legal Advice.

[6] In August of 2010, Brandy unilaterally changed the child custody/access arrangements as she felt then (and continued to maintain that the position at trial) that it was not in the girls' best interests to be moved around between the parents' home as much as was originally agreed upon.

[7] Significantly, by letter dated August 27th, 2010, the parties signed a letter addressed to "To whom it may concern" advising that "the children live half time with each of us". Either, by that date or very shortly thereafter, that statement was not accurate.

[8] On October 8th, 2010, Brandy's then counsel, Paul Murray, sent a letter to Steve with a draft agreement suggesting changes to that of March 31st, 2010 to accord with the situation that was in effect at that time. Steve did not agree with that suggested change and maintained that position through the trial.

[9] Steve instructed his counsel, Wayne Stickland, to bring an application to this court returnable on April 7th, 2011 together with a motion returnable March 10th, 2011 seeking an order for joint custody and a re-instatement of the residency arrangements contained in the "home-made" agreement of March 31st, 2010. All documentation was executed February 24th, 2011 - over 5 months after Brandy's action to change the custody/access/residency arrangements of the March 21st, 2010 agreement.

[10] On May 26th, 2011 Justice L. Duchesneau-McLachlan heard the motion and ordered week-about residency arrangements during the summer months and during the school year the girls would be with Steve each Friday from 4 p.m. to Sunday at 7 p.m. and each Tuesday and Thursday from 4 p.m. to 7:30 p.m.

[11] On October 4th, 2011 Her Honour made an order that an assessment report be prepared pursuant to s.30 of the Children's Law Reform Act ("CLRA") that report dated January 18th, 2012 (exhibit 2 at trial) was prepared and filed with the court.

[12] On March 8th, 2012 Justice G. P. Rodgers heard a number of motions brought by the parties including claims for joint access and for specific access during the school breaks with such terms and conditions as His Honour deemed appropriate.

[13] Justice Rodgers made a without prejudice Temporary Order for the children to be in the custody of Brandy. Steve was to have access to the girls every 2nd weekend from Friday at 4 p.m. to Sunday at 7 p.m. and each Tuesday and Thursday from 4 p.m. to 7:30 p.m. and set March Break access times. His Honour also confirmed the summer access ordered by Justice Duchesneau-McLachlan on May 26th, 2011 as continuing on a week-about basis. He specifically confirmed Steve's s.20(5) CLRA rights to access information concerning the girls' health, education and welfare. Justice Rodgers ordered the use of a communication book by the parties and placed certain conditions on the types of activities that the girls could engage in and the level of supervision that should prevail.

[14] With few exceptions that is the pattern of life that has been on-going for Jayden and Taylor and the parties up to the trial of this matter.

[15] Steve was remarried in the fall of 2012 where he now shares his life with his spouse Fiona and her son Aidan. Court was told that they are expecting a child in the not too distant future.

[16] Brandy continues to reside with Jayden and Taylor in the home into which they moved in February 2010.

[17] The children for the most part and, from all reports, are doing very well under the present arrangement. Jayden has some anxiety due in no small part to the conflict that continues to exist between her parents.

Issues

[18] The issues that were extant throughout the trial were:

1. Custody: Joint vs. Sole

2. Access:

   • Week-about
   • Every 2nd weekend
   • Week nights
   • Special occasions:
     • Birthdays (Children, Steve and Brandy)
     • Holidays (Christmas, March break, Summer)
     • Mother's Day
     • Father's Day

3. Support

4. Costs

[19] Determination of these issues was complicated by a number of factors which I am listing in no specific order of importance or priority:

1. The fact that the parents' attitude towards each other is "toxic";

2. The varying parenting styles / techniques and expectations;

3. The evidence throughout of poor communication between the parents, leading to distrust of each other, to an inability to see the other person's point of view, and, ultimately, to a very bad example for these two girls who they both profess to love very much;

4. Steve and Brandy's vision of what the future should look like for their daughters was not too far apart. How we should get there was a different story;

5. Steve thinks the girls should enjoy extra-curricular activities – be outside more with less computer time, i.e. camping, tennis, hiking, traveling.

6. Steve feels that his extended family has lost out under the present conditions. He does not want to share his precious time with his daughters with his parents, their grandparents, or with his siblings.

7. On a bright note, communications have improved to the point where Steve and Brandy can speak on the phone – Re: child issues.

8. Brandy claims her full-time role as the primary parent of Jayden and Taylor should continue. She seeks sole custody as "someone has to make decisions", "someone has to be in charge". Steve will always be the girls' father and it is very important that they have him in their lives and have his influence.

9. Brandy is firm in her conviction that the week-about regime is too much movement, commotion and upset in the children's lives. Her core belief is that they need stability in their day-to-day routines.

10. The task of reconciling these two visions for the benefit of Jayden and Taylor has its challenges but ultimately falls to me as the trial Judge.

The Law

[20] I am guided in this mission by the legal principles set out in the Legislation - specifically the CLRA and the case law.

Children's Law Reform Act

Section 20 - Father and mother entitled to custody

(1) Except as otherwise provided in this part (Part III), the father and mother of a child are equally entitled to custody of the child.

(5) Access – the entitlement to access to a child includes the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child.

(7) These rights of custody and access are subject to alteration (change) by court order or by separation agreement.

Section 24 - Best interests of child

(1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).

(2) The court shall consider all the child's needs and circumstances, including:

(a) the love, affection and emotional ties between the child and:

• (i) each person entitled to or claiming custody of or access to the child,
• (ii) other members of the child's family who reside with the child, and
• (iii) persons involved in the child's care and upbringing;

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

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

(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;

(e) the plan proposed by each person applying for custody of or access to the child for the child's care and upbringing;

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

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

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

(3) Past conduct – A person's past conduct shall be considered only:

• (a) in accordance with subsection (4); or
• (b) if the court is satisfied that the conduct is otherwise relevant to the person's ability to act as a parent.

(4) Violence and abuse – In assessing a person's ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against:

• (a) his or her spouse;
• (b) a parent of the child to whom the application relates;
• (c) a member of the person's household; or
• (d) any child.

(5) Same – For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse.

Definition of Custody

"Custody" is not defined in the Act. It consists of a bundle of rights and obligations. As a trial court I am often called upon to allocate rights of custody like:

• Right to physical care and control of child;
• The determination of a child's place of residence;
• The discipline of a child; and
• Who is to make decisions re: child's education, religion, health care/treatment

[21] Exercise of all or some of these "incidents" of custody may rest in both parents jointly or be entrusted to one of the parents.

Principles

[22] For most children, fundamental to their identity is an ability to love and accept love from each available parent.

[23] The children should have maximum contact with both parents if it is consistent with their best interests.

[24] The starting point for considering joint custody orders is that they should only be made where both parents have a strong claim for custody. Only then should the court look at communication and co-operation.

[25] Most joint custody decisions are made following a trial of the issues and not at some earlier point on motion materials.

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

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

ii. Joint custody cannot be ordered in the hope that it will improve communication;

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

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

v. 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; and

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

[27] The case of Graham v. Bruto, 2008 ONCA 260, [2008] O.J. No. 1306 (C.A.) states:

Joint custody should not be ordered where there is poor communication and the parties fundamentally disagree on too many issues affecting the child's best interests.

Courts require evidence that the parties are able to communicate effectively, since joint custody requires that they make long-term decisions together regarding the child. A standard of perfection is not required, and is obviously not achievable. The issue is whether a reasonable measure of communication and co-operation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis.

[28] It is clear from the decision in Geremia v. Harb, [2008] O.J. No. 1716 (SCJ):

Where a conflict between parents (such as an inability to communicate effectively) is primarily the fault of one parent, that parent should not be able to use the conflict as justification to oppose a joint or shared parenting order. To do so allows an obdurate parent to engineer a result in his or her favour.

[29] Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict.

[30] The court can take into account how the interim custody order has worked between the parties when considering joint custody.

[31] Ultimately, the court must decide if a joint custody order is in the children's best interests and consider those factors set out in s.24(2) CLRA.

[32] To paraphrase the Supreme Court of Canada decision Van De Perre v. Edwards, 2001 SCC 60, 19 RFL (5th) 396:

Custody and access decisions are inherently an exercise in discretion. Consideration of the unique circumstances of each child is the very essence of this process. The discretion vested in me as the trial Judge enables a balanced evaluation of the best interests of the children and permits the trial Judge to respond to the constellation of factors which can both positively and negatively affect the children.

Assessment

A section 30 assessment was prepared pursuant to court order and received under the signature of the assessors, Perspectives Inc., January 18, 2012. Recommendations were included for the court's consideration. Ms Chayka and Ms Campbell both testified on the first day of trial.

[33] Why do courts obtain and admit assessment reports?

The veritable mountain of information contained in the assessment report about the family is a major contribution to the evidence needed to make a decision as to the children's "best interests". Assessments are more likely to be focussed on the children than are the allegations of the litigants, the mother and father, given the adversarial nature of a trial. Assessments can provide the court with a picture, written and verbal, of who these children are.

[34] What assessments cannot do?

It is well established law that the trial Judge should not delegate decision-making authority re: any aspect of custody/access regime to the assessor. The final determination of the children's best interests resides with the trial Judge after weighing all of the evidence.

[35] The assessment, as I said earlier, did provide a great deal of information to the court.

[36] It was clear that the children were observed to enjoy positive interactions with both of their parents and that both parents were effective in their parenting.

[37] The only negative reported was the use by the mother of a discipline technique called "the sits", the use of which she defended throughout despite the concerns expressed by the assessors. Although not something they could endorse, or frankly, I could endorse, it does not amount to abuse and within the mother's purview as the children's parent to use. The fact that the children have a good relationship with Brandy would seem to negative any concerns that were raised.

[38] The assessors were very much alive to the need to give 'careful consideration" in regard to transitional periods for the children. They considered the roles that each parent may play in the rearing of the children, viewing the different parenting styles as being a positive as one parent balanced the other and ultimately being beneficial in the development of the children's coping skills, adaptation to change and problem-solving.

[39] The assessors rightly highlighted the children's rights to be able to enjoy activities/time with either parent without the burden of guilt being brought to them by their parent's view of the appropriateness of such activities which might lessen their, i.e. the children's enjoyment.

[40] The assessment was clear in highlighting the role the parents can play by contributing to the children's opportunities in life, in a variety of ways, thus enriching the children's lives.

[41] Their recommendations flowed from those core findings.

Analysis

[42] Brandy and Steve have a history of animosity and antagonism towards each other, a history that to some degree still exists.

[43] Brandy appeared to be somewhat rigid and inflexible. She holds strong opinions about the validity of her parenting style. Those opinions may not allow for other, more moderate views. Brandy was critical of Steve's care of the children or his choice of activities with them. Some of that criticism bordered on Steve's ability to provide the children with a safe environment. I find that such beliefs by Brandy were overly critical of Steve.

[44] Steve's actions in the past have crossed the boundary of what is acceptable behaviour. Things like entering Brandy's residence against her wishes, refusing to speak to Brandy or acknowledge her presence. Some of this has occurred in the presence of the children.

[45] The attitudes and actions of both parents in the presence of or within ear-shot of the children have negatively affected the children. How could it not? And most particularly, Jayden, who is very guarded in her words and actions in order to "not cause upset or sadness on the part of either parent".

[46] This very real discord that has affected these children cannot be allowed to continue. It is not in the best interests of these children for their parents to continue to fight with each other or for either Brandy or Steve to speak ill of each other. These "bright, energetic, verbally expressive young girls" deserve better from both their parents.

[47] They know that equal amounts of their genetic material come from each parent. Their parents' strengths and weaknesses reside in them.

[48] They know and appreciate the strengths that both Brandy and Steve bring to their relationship.

[49] They fear the effects of the weaknesses.

[50] When Brandy and Steve criticize something/anything about each other, they are, in effect, criticizing something in these children.

[51] Jayden cannot remain the peacekeeper/peacemaker between her parents. It is a role no child should be placed in and it is not in her best interests.

[52] Brandy and Steve are the models of adult behaviour that Jayden and Taylor will emulate. They will learn how adults solve their problems, how adults positively interact and they are relying on their parents to show them the way. This should not be seen by either parent as a victory for Brandy or a loss on Steve's behalf. It is a rather simple determination by this court that the best interests of these little girls, of Jayden and Taylor, cannot be met by a joint custody order. Having said that, I am acutely aware that a final order has to be precise, to avoid conflict in interpretation, to provide access as intended, to provide information to father. I have specifically not made any order placing restrictions on what Brandy and Steve may do with the children as I am convinced that they will act in the children's best interests.

[53] I do not believe that either Brandy or Steve want to damage in any way these delightful little girls. But both parents must change their behaviour towards each other to allow Jayden and Taylor to feel free to love both parents and to revel in and enjoy the parents' good qualities.

[54] These little girls are a precious gift given to both parents, to Brandy and Steve, and they are only little girls for a very short time. Brandy and Steve should not waste brilliant moments with Jayden and Taylor.

[55] The question that still must be answered by me is can these two parents work co-operatively in Jayden and Taylor's best interests? Can they communicate appropriately? And most importantly, would joint custody be in the children's best interests?

[56] The recommendation of the assessors of shared custody is overly optimistic as to the parents present ability to communicate with each other, to share necessary information and to dial down the animosity that bubbles up between them.

[57] Both Steve and Brandy can parent Jayden and Taylor but a joint custodial arrangement would encourage and promote the continuance of the basic level of discord that too often comes between them and which ultimately causes the best interests of Jayden and Taylor to be negatively affected.

[58] On that basis I am convinced that the children's best interests will best be served by leaving matters as they are, that is, with Jayden and Taylor to be in the custody of their mother Brandy.

Support

[59] Support was a minor part of the trial but an issue since at least the first day of trial August 20, 2012.

[60] Based on a gross annual income of $47,087 for the year of 2011 – 2012 and according to the Child Support Guidelines for 2 children support should be $698.00 per month.

[61] Arrears should be calculated from August 2012 being the first day of trial.

[62] Prior to that date, payment by the Applicant of family debts of approximately $150,000 amounted to the equivalent of payment of child support for the years following separation to August 2012.

Costs

[63] Costs generally follow the cause in civil matters which include domestic cases. Cases involving custody of and access to children are determined on a "best interest" test. Typically both parents present evidence to assist the court in determining what order best meets the "best interests" of the children. The trial before me followed that route and I had two days of evidence followed by argument as to what was in the best interests of Jayden and Taylor Spack. Neither party prolonged the trial nor did they obstruct the ordinary flow of evidence by delving into areas that did not help in the determination of the children best interests. The issue of child support was not contested except where it might be affected by the court's decision on the issue of custody and access. There was very little time spent on this issue as the determination was not in doubt once custody and access were sorted out.

[64] The section 30 assessment which assisted the court in determining the custody and access issues was paid for by the Applicant father. The recommendations in that assessment may have prolonged matters by the mere fact that they supported, mostly, the position taken by the Applicant throughout. I am not convinced that the Applicant was unreasonable in any fashion for moving forward with the trial and for vigorously pressing his case for joint custody and a shared parent regime. The Respondent was equally justified in pressing forward with her vision as to what was in the children's best interests. In the end result both parents had a full airing of their respective positions or the issues of custody and access and informed the court as to what they thought might best meet the "best interests" of their children.

[65] Costs are a discretionary indemnification device under R. 24 of the Family Law Rules. Cases involving issues such as costs require the trial Judge to look at the effect of the trial result and the actual costs if arriving at that result. The Respondent was self-represented. Her costs were essentially lost time of work or school for two days of trial. I fix those costs $300.00. They are payable forthwith.

Final Order

[66]

Custody and Access

1. The Respondent mother Brandy Labine will have custody of the children, Jayden May Spack born 08 August, 2004 and Taylor Ann Spack, born 07 December, 2007.

2. The Respondent shall consult with the Applicant father Steven Thomas Spack on any major issue concerning the children. She shall be entitled to make any final decision after making these consultation efforts.

3. The Respondent shall execute whatever directions or authorizations that may be required for the Applicant to communicate directly with service providers for the children, including schools, medical practitioner and counsellors.

4. The Applicant shall have access to the children on the following terms and conditions:

   a) Every other weekend from Friday at 4 p.m. to Sunday at 7 p.m. extending to Monday at 7 p.m. if this weekend falls on a long holiday weekend.

   b) Every Tuesday and Thursday from 4 p.m. to 7:30 p.m.

   c) The two week Christmas school break is to be evenly divided between the parties. In even-numbered years, Steve shall have the children with him during the first week and Brandy shall have the second week. This will be reversed in odd-numbered years.

   d) Christmas Day and Boxing Day will be treated separately. In even-numbered years, Brandy will have the children with her from Christmas Day at 2 p.m. to Boxing Day at 6 p.m. and then return the children to Steve for the balance of his week. This will be reversed in odd numbered years.

   e) The children shall spend two exclusive weeks with each parent during the summer. Brandy will choose her two weeks before April 30th of each year. Steve shall choose his two weeks on or before May 30th of each year.

   f) All other summer access to on a week-about basis from Sunday at 10 a.m. Steve is to pick up and drop-off the children at Brandy's home.

   g) The March Break shall be divided more or less equally from Friday after school to Tuesday at 7:30 p.m. The remainder of the week with the other parent. In even-numbered years the children shall spend the first half of the break with Brandy and in odd-numbered years with Steve.

   h) The regular access schedule is suspended during holiday and summer access.

   i) Each parent shall allow reasonable private telephone access to the other when the children are with them. It is suggested that such calls occur at 7 p.m.

5. Brandy and Steve shall use a communication book to exchange important information about the health, education and welfare of the children including scheduled events. The communication book shall not be used to record complaints about each other or as a record of grievances.

Support

6. Support payable by the Applicant to the Respondent for the two children, Jayden and Taylor shall be in the amount of $698.00 per month commencing August 1, 2012 and continuing on 1st day of each month thereafter.

7. Any arrears that may have accumulated as a result of the making of this order at this time shall be repayable at the rate of $200.00 per month commencing May 1, 2013 and continuing on the first of each month thereafter.

Costs

8. The Applicant shall pay costs fixed in the amount of $300.00 directly to the Respondent. They are payable forthwith.

Released: May 9th, 2013

Signed: Justice Lawrence J. Klein