Court File and Parties

Court File No.: Halton 12-448 Date: 2013-12-05 Ontario Court of Justice

Between: Caroline Downman Applicant

— AND —

Mitchell Wilson Respondent

Before: Justice R. Flaherty

Heard: July 15, 16, 17, 2013

Reasons for Judgment released: December 5, 2013

Counsel: Christopher Martin, for the Respondent Caroline Downman, on her own behalf

FLAHERTY J.:

Introduction

[1] This case was tried by me in Milton on July 15th, 16th, and 17th, 2013.

[2] At issue is the custody of the child Jamie Suzanne Wilson, born September 29, 2008.

[3] Jamie was 5 years old this September 2013.

[4] Her parents, the applicant and the respondent were in a romantic relationship when she was conceived, and both very much wanted to have a child together.

[5] They cohabitated at the applicant mother's house in Oakville for a time shortly before Jamie's birth in September 2008, until June 1, 2010 when they separated.

[6] The respondent father's daughter from a previous marriage, Alexandra, who was about 12 in 2008, lived with them in Oakville until they separated.

[7] After the parties separated, Mr Wilson, the respondent moved back to Hamilton where he owns a home. By agreement Jamie went back and forth between Hamilton and Oakville and spent equal time with the applicant and the respondent.

Background and Prior Proceedings

[8] In August 2012, when Jamie was about to start Junior Kindergarten in September, the parties couldn't agree on whether she would attend school in Oakville or Hamilton. Justice O'Connell held an emergency hearing and she decided that Jamie would attend Pilgrimwood Public School in Oakville.

[9] Jamie attended that school two days a week, Tuesdays and Thursdays from September 2012 to June 2013.

[10] She continued to spend equal time with each parent.

[11] She was to be starting Senior Kindergarten in September 2013 and the parties were unable to agree about whether she would attend school in Hamilton or Oakville and where her primary residence would be. Both parties accepted the reality that once Jamie was going to school full time she would need stability and couldn't be shifted back and forth between Oakville and Hamilton.

[12] Justice O'Connell requested the OFL do a report and recommendation.

[13] That report, completed by Krystal Dorian, RSW, MSW clinical investigator, dated February 12, 2013, has been filed. Ms. Dorian gave evidence at the trial.

Decision and Reasons

[14] Following the trial and after due consideration of the evidence and submissions, I decided that on balance, the best interest of the child Jamie required that both parents have joint custody with her principal residence to be in Hamilton, with her father where she was to attend school, with midweek access to her mother as well as every other weekend during the school year, and made the appropriate endorsement with reasons to follow.

[15] These are my reasons.

Legal Framework

[16] The Children's Law Reform Act, Section 24(2), says I must have regard for the best interest of the child considering first of all the love, affection, and emotional ties between the child and each person claiming custody of her – sec 24(2)(a)(i).

[17] In this case both parents are fully committed to the child.

Emotional Ties and Family Relationships

[18] Next, I must consider, the love, affection and emotional ties between other members of the child's family who reside with the child – sec 24(2)(a)(ii).

[19] On the mother's side there are none. Her two children from her previous marriage, Tyler and Courtney, reside nearby, with their father, Ted Downman, and are more appropriately considered under sec 24(2)(a)(iii). Mr Wilson's daughter and Jamie's half sister, Alexandra, does reside with Jamie and Mr Wilson. Alexandra is 17 and is in the second year of a 4 year program at Mohawk College in Hamilton. Mr Wilson has had sole custody of her since she was 10. She resided with Mr Wilson and Ms Downman when Jamie was born, and has a warm and loving relationship with her. Alexandra likes and respects Ms Downman, in contrast to how Ms Downman's two children feel towards Mr Wilson.

[20] While Alexandra has her own life to lead, she is involved with Jamie extensively and available to care for her.

[21] Next, I must consider the love, affection, and emotional ties between the child and other persons involved in the child's care and upbringing.

[22] First of all, there is Mr. Wilson's mother, Cindy Wilson. She is 67 years old and lives within five minutes of Mr Wilson's home. Jamie refers to Ms Wilson's house as her 3rd home in discussions with the assessor. Ms Cindy Wilson has a swimming pool at her home and taught Jamie to swim there. She is to be Jamie's primary caregiver when Mr Wilson is unavailable.

[23] Mr Wilson also has a brother and sister in the Hamilton area who also have children, all of whom interact with Jamie. Cindy Wilson's home is often the scene of family gatherings where Jamie is welcomed and cared for.

[24] On Ms Downman's side, there are as noted, her two children Tyler and Courtney. Both have a warm and loving relationship with Jamie. They have never been on the best of terms with Mr Wilson, rightly or wrongly perceiving him as being responsible for the breakup of their parents' 16 year marriage.

[25] Tyler attends Brock University; Courtney attends Glendon College more locally and frequently babysits Jamie.

[26] Ms Downman has a married sister who is an RCMP officer in Barrie who sees Jamie 4 or 5 times a year.

[27] There was no mention of other family support locally for Ms Downman.

Practical Parenting Considerations

[28] Other aspects of the case which bear on Jamie's needs and circumstances emerged from the evidence which I will address.

[29] Were Jamie to attend school in Oakville and reside with Ms Downman, she would have to be gotten ready and taken to school by someone unknown on Mondays when Ms Downman starts work at 8:00 am in Hamilton and cared for by someone unknown after school on Tuesdays and Thursdays when Ms Downman works until 7:30 pm in Burlington.

[30] In Hamilton, Mr Wilson can take her to school every day and pick her up every day, and his work place is only a few minutes away should there be an emergency.

[31] Mr Wilson relies on his mother to care for Jamie in his absence, while Ms Downman relies on a neighbour and a 15 year old babysitter.

[32] Jamie's school in Hamilton is right next to where Mr Wilson's house is, a short walk away.

Concerns Raised and Addressed

[33] While Ms Downman expressed concerns about the area where Mr Wilson's house and Jamie's school are located as being lower socio-economic and high crime as compared to Oakville, I heard no evidence to that effect, although I acknowledge that is a common perception among Oakville residents.

[34] Ms Downman expressed concerns that Mr Wilson may end up being a lot less available to parent Jamie than he holds himself out to be due to work commitments. So far he has always made appropriate parental commitments, most notably in the case of his daughter Alexandra.

[35] Mr Wilson stated in court, in his material, and to the assessor, that if Jamie did not live with him, and go to school in Hamilton, he would be less involved with her, that he would be a "part-time dad". That strikes a negative chord with me. I certainly didn't get that from Ms Downman. Her commitment to Jamie is unconditional.

[36] Notwithstanding that, it would certainly be not in the best interest of the child Jamie for her father to play a diminished role in her life, and that is what is paramount.

Response to Assessor's Recommendation

[37] I am well aware that contrary to what I have decided, the very capable assessor who reported on behalf of the Children's Lawyer of Ontario recommended that Jamie attend school in Oakville and reside with her mother, and that Ms Downman be granted sole custody.

[38] She said "Jamie is comfortable in Oakville, the town in which she was born and spent her entire life".

[39] Yes, she was born in Oakville but she could have just as easily have been born next door in Burlington or Port Credit. As noted elsewhere in the report, Jamie is equally comfortable in Hamilton, where she has lived half of her life since she was 1½ years old.

[40] The other point that the assessor made about Oakville was that the school Jamie attended for Junior Kindergarten in Oakville had reported areas of concern regarding her learning and developmental issues and were taking steps to address them in the coming school year of Senior Kindergarten. That turned out not to be the case.

[41] Finally, the assessor suggested changing schools would cause further disruption to Jamie's life.

[42] Children often attend a different school when they move from Junior to Senior Kindergarten. The main disruption in Jamie's life was caused by the constant shuffle back and forth from Hamilton to Oakville which has now been resolved.

Parenting Capacity

[43] With respect to custody, it seems to me that despite their profound disagreement about where Jamie should attend school and reside, the parties have been very successful in their parenting of Jamie so far.

[44] They resolved the support issues, the extraordinary expenses and the holiday and special day schedules very well. They are both excellent parents, and I am confident they will find the right path forward in this child's best interest.

Costs

[45] Justice O'Connell ordered the respondent to pay the applicant costs of the interim proceedings of $3,000 within 30 days of December 11, 2012. I assume that was done. In any event I will expect written submissions from Mr Wilson's counsel as to what costs, if any, he is seeking by January 1, 2014, and Ms Downman's response to be filed by January 20, 2014 for a ruling in due course.

[46] Judgment accordingly.

Released: December 5, 2013

Signed: Justice R. Flaherty