Court File and Parties
Court File No.: 194/11 Date: January 13, 2014 Ontario Court of Justice
Between:
AGNIESZKA SUCHANEK Applicant
— AND —
CHRISTOPHER ROBERT LAVOIE Respondent
Before: Justice Roselyn Zisman
Heard on: November 18, 19, 20, 21 and December 27, 2013
Reasons for Judgment released on: January 13, 2014
Counsel:
- Mariola Bednarska, counsel for the applicant
- Christopher Robert Lavoie, on his own behalf
Zisman, J.:
1. INTRODUCTION
[1] This trial was about what custodial and access arrangements are in the best interests of Austin Andrew Lavoie ("Austin" or "child") born November 13, 2009.
[2] The applicant, Agnieszka Suchanek ("mother") commenced an application on April 20, 2011 seeking sole custody, supervised access to the respondent, Christopher Robert Lavoie ("father"), and child support. At trial, the mother no longer pursued supervised access to the father and was content that the temporary alternate weekend schedule remain in place with the addition of some weekday access.
[3] The father filed an answer and claim for joint custody, access and for child support less than the Child Support Guidelines due to his obligations to pay support for two other children.
[4] The issue of child support was settled on a final basis on November 2, 2012 with the father agreeing to pay full table amount of child support of $447.42 per month based on his income of $49,683.00. The father continued to seek an order of joint custody at trial and access in accordance with the recommendations of the Office of the Children's Lawyer.
2. BACKGROUND
[5] The mother is 31 years old. The mother was born in Poland and when she was 6 years old her mother left for Canada and she and her brother were cared for by her maternal grandmother. When the mother was ten years old she came to Canada to join her mother and step-father. She did not have a relationship with her biological father growing up but has now begun to communicate with him. The mother is currently attending community college studying to become an early childhood educator.
[6] The father is 38 years old. The father was raised by his mother and step-father and never met his biological father. He has a close relationship with his mother and sister. He has been employed for the last seven years as a process technician for an aerospace company and enjoys his employment. He works night shifts from 11:00 p.m. to 7:00 a.m. so he begins to work Sundays at 11:00 p.m. and would end his work week on Fridays at 7:00 a.m. The father is currently on short term disability due to depression and anxiety.
[7] The father has two children from a previous relationship, Ally who is 12 and Chloe who is 10 years old. He has been involved in ongoing and very high conflict litigation with Crystal Wiskin, the mother of those children. The children are currently residing with him on an alternate week basis.
[8] The father has a current partner, Dale Ouellette and they do not have any children together.
[9] The parties met in 2006 and began living together in 2007. They have one child, Austin born on November 13, 2009. It is the mother's position that the father did not want Austin and wanted her to have an abortion.
[10] The father admits that he did not want to have another child as he still had financial problems because of his break-up with Ms. Wiskin and was trying to sort out their parenting issues. The mother did not tell him she stopped using birth control pills and did not tell him until she was 5 ½ months pregnant. But he assumed responsibility and was overjoyed at Austin's birth.
[11] The parties separated within a few weeks of Austin's birth. The mother took the child and left the matrimonial home and moved in with her mother and step-father where she has resided since that time.
[12] The parties continued to see each other quite frequently and the father spent considerable time with Austin and the mother until July 2010 when all access stopped.
[13] The parties disagree as to why all access stopped. The father testified that the mother denied him all information about Austin and refused to allow him to see Austin. He tried to avoid court as he was already in court proceedings with Ms. Wiskin with respect to his daughters and wanted to negotiate a parenting schedule. The mother testified that the father was not interested in seeing Austin and that she offered supervised access because she was worried about Austin's safety in his father's care but the father would not agree. She also testified that the father did not want to go to court as he did not wish to pay child support.
3. COURT PROCEEDINGS
[14] The mother commenced an application on April 20, 2011. There was some delay before the case conference was scheduled.
[15] At the case conference on November 4, 2011, the parties reached a temporary consent that the father would exercise supervised access every week at the supervised access centre for three months and the access would then be reviewed.
[16] At the next court attendance on February 10, 2012 the parties agreed that access had gone extremely well and the father would exercise unsupervised access every Saturday for several hours at his home.
[17] On May 7, 2012 access was again expanded, on consent, to every Saturday from 9:00 a.m. to 6:30 p.m. and every Wednesday from 4:00 p.m. to 6:30 p.m.
[18] The endorsement of July 31, 2012 indicates that although both parties agree that access is going well and overnight access should commence they could not agree on the duration and frequency. A contested motion was scheduled.
[19] On August 28, 2012, after reviewing the motion materials and hearing submissions, the case conference judge ordered that the father have access every Friday from 5:00 p.m. to Saturday at 6:30 p.m. and every Wednesday from 3:00 to 7:00 p.m. It was suggested that the parties attend mediation.
[20] The parties were again in court on November 2, 2012 at which time they were able to finalize the child support issues and Christmas access for 2012 and they agreed to expand the father's access to alternate weekends from Friday at 5:30 p.m. to Sunday at 5:30 p.m. and to continue the Wednesday access. The parties and the court agreed that the Office of the Children's Lawyer should be appointed.
[21] Andrea Barclay was appointed as the clinical investigator. She held a disclosure meeting on June 14, 2013 with the parties and at the time she understood that both parties agreed to her recommendations. Despite the high conflict between the parties and inability to communicate, Ms. Barclay recommended joint custody with increased access to the father that would evolve to a shared parenting arrangement.
[22] The mother telephoned Ms. Barclay the next day and indicated she was no longer in agreement with the recommendations. Ms. Barclay released her report on July 14, 2013.
[23] After a trial management conference was held, the trial was scheduled to proceed on the week of November 20, 2013. Both parties testified as did the maternal and paternal grandmothers, Ms. Ouellette and Ms. Barclay. Mother's counsel summonsed Dr. Sarsam, the father's doctor, to testify but as he was out of town on holidays his evidence was not heard until December 27, 2013 at which time submissions were also made.
4. EVIDENCE AND FINDINGS OF FACTS
4.1 Allegations of abuse by the mother against the father
[24] The mother alleged that her relationship with the father was emotionally and verbally abusive and there was a great deal of fighting throughout the relationship. She alleged that the physical abuse consisted mostly of pushing and shoving. She alleged that she had to leave the relationship due to safety concerns. She made many allegations to Ms. Barclay as part of the Office of the Children's Lawyer investigation regarding the father choking, slapping and biting her but did not repeat or expand on those incidents in her testimony. Further, the father was never cross-examined about any of these incidents.
[25] The mother testified that when Austin was about two weeks old, she had an argument with the father as she did not feel supported by him and they were fighting about finances. She was packing up her belongings to leave and the father pushed her and she almost fell over the baby who was on the floor in a bassinette. She called her mother to come get her and her mother came the next morning and she left with Austin. She also testified that on at least 50 other occasions she would run to the door and the father would push her to block her from leaving.
[26] The father admitted that there was mutual fighting, shoving and pushing between the mother and him. He admitted that the relationship involved physical altercations but denied that he was ever physically abusive. He testified that he did not like conflict and tried to avoid it but the mother would become very emotional, say very nasty things to him and then it would escalate to pushing and shoving and he would defend himself. The mother would bite and scratch him.
[27] With respect to the incident leading up to the mother leaving, he confirmed the statement in his answer that the mother was preventing him from spending time with Austin or even holding the baby and she tried to lock herself in the bedroom. A struggle ensued with the bedroom door as she was trying to keep him out and the mother fell back. He recalled there may have been two incidents with a struggle with a door when one of them was trying to leave. He denied that he ever pushed the mother to cause injury to the child or that he would ever injure the child.
[28] The maternal grandmother did not corroborate any of the details of the incident leading to the separation and could not have been concerned about the mother's safety as she waited until the next day to pick up her daughter. The maternal grandmother testified that the mother called her crying and asked that she come pick her up which she did the next day. She could hear the father was angry and screaming. She testified that the mother told her the father accused her of having an affair and that he slept all day and was not helping her with the baby. There was no mention of any physical abuse.
[29] The maternal grandmother did not testify that the mother ever told her about any emotional, verbal or physical abuse allegedly suffered by the mother throughout the relationship.
[30] The mother filed as an exhibit (Exhibit 8) a series of Facebook messages between the paternal grandmother and the mother. In one of those messages there is a reference by the paternal grandmother about the father admitting to her that he got into a physical fight with the mother and Ms. Wiskin as well. But neither the father nor paternal grandmother were cross-examined about this admission.
[31] In the examination of Ms. Barclay, mother's counsel suggested that her investigation was flawed as she did not consider the issue of domestic violence and its impact on the child. Ms. Barclay testified that she did consider these allegations but both parties admitted that there was some degree of mutual aggression in the relationship. She also considered that there had never been any reports to the police, the children's aid society and that the relationship continued for at least eight months after the mother reported she left the relationship because of concerns about her safety.
[32] I find that the mother has exaggerated the allegations of abuse against the father. I find it incredulous that the mother, who has a close relationship with her mother, would not have discussed and reported details of any such abuse to her. I also find that if these incidents had happened the mother would have reported them if not to the police then at least to her family doctor especially as she alleged the father had physically abused her while she was pregnant.
[33] Mother's counsel had an obligation in cross-examination to provide the father with an opportunity to respond to the allegations made by the mother as part of the investigation with the Office of the Children's Lawyer, in accordance with the rule in Browne and Dunn, and she also had an obligation to provide the paternal grandmother with an opportunity to explain the alleged admission made to her by the father.
[34] I also found that mother's evidence lacking in sufficient detail to be credible. Her reliance on the incident that led to her leaving the home seemed contrived in an attempt to justify her actions. Rather than being afraid for her safety or the safety of the child, I find that she was feeling overwhelmed with caring for a young infant and felt the father was not being as supportive and helpful as she wished. I also find it relevant that the mother continued to have an intimate relationship with the father for over eight months after the alleged incident and would spend time with him two to three times a week and sometimes more including overnights in his home. The mother did try to explain that she continued to see the father because she loved him and hoped he would get help for his depression and anger.
[35] Although the issue of domestic violence is a relevant consideration in the determination of what parenting arrangements are in a child's best interests, I find that in this case, there were some incidents of mutual verbal and physical aggression. The relationship between the parties was tumultuous and the parties clearly had some difficulties in their relationship but there is no basis to find the father was more to blame than the mother. I find that there are no concerns of domestic violence that would impact on either parent's ability to parent this child.
4.2 Allegations by the mother that the father physically abused the children
[36] The mother quite dramatically testified that she feared for Austin's safety in the father's care as she saw how he treated his other children when she resided with him from 2007 to 2009. Upon further scrutiny, the mother admitted that the father never hurt Ally or treated her inappropriately. She then testified that Chloe was a behavioural problem from the time she was young. The mother testified that she witnessed the father yell at Chloe because she would not clean up and the father shoved a drawer at her. On another occasion, she testified that the father "beat" Chloe with a wooden spoon while they were on a camping trip. She also testified that the father once dragged Chloe across the floor because she would not go home and at other times he would lock her in the bathroom as a punishment and leave her there for between half an hour to an hour. The mother testified that she did not agree with this type of treatment but never reported it to anyone.
[37] The father testified that he did not physically abuse any of his children. The father could not recall any incident with a drawer. The father explained that they had been camping and Chloe had woken him up and told him Ally was gone. He panicked and looked for her for ten to fifteen minutes. Chloe then told him it was a joke and Ally was found sleeping in the tent. When the father tried to explain the seriousness of what she did, Chloe became defiant and he spanked her on her bum with a wood stick. This happened in about 2008 and there have been no other incidents reported. The father was not cross-examined about any of the other allegations made by the mother.
[38] The father testified that for the last six months or a year he has been having some difficulties with Ally and Chloe as they are testing his authority and are telling him that their mother says they do not have to listen to him. He tries to manage their behaviour by talking to them but fears that the two mothers are ganging up on him and he also worries about the impact on Austin. If there are arguments he removes Austin from the area. Although there is a joint custody order in place with a shared week about schedule there are times recently when his daughters are not residing with him.
[39] There is no allegation that the father has used inappropriate discipline with respect to Austin. However, the mother testified she is afraid for Austin because of the father's depression and everything else going on in his life including concerns about his finances and that if he became frustrated he would take it out on Austin since she saw what he did to Chloe.
[40] The mother's allegations regarding the father's inappropriate discipline of Chloe and her concern about how he would treat Austin were another example of her tendency to be overly dramatic and exaggerate.
[41] Ms. Barclay observed the father with Austin and found him to be a competent and caring parent. There is no basis to find that there is any valid concern about his current or future treatment of Austin.
4.3 Allegations by the mother regarding the father's mental health
[42] The mother testified that she was concerned about Austin's safety due to the father's depression, anxiety and anger issues. She testified that she terminated access in July 2010 because the father told her he had gone to the hospital and was under "suicide watch".
[43] The father testified that he did have an anxiety attack in July 2010 as he felt overwhelmed with trying to fight two custody cases at this same time. Both the mother and Ms. Wiskin were attending each other's court cases and using information from one case against him in the other case.
[44] The father testified that he continued to see his family doctor and attended counselling through his employment assistance program (EAP). He had tried some anti-depressant medication for a few weeks but stopped as he did not like taking medication.
[45] Ms. Barclay was cross-examined about the lack of thoroughness in her report as she did not speak to the father's doctor and the father's counsellor. Ms. Barclay explained that she had tried to contact the doctor but had been unable to connect with him and counsellors through the EAP have a policy of non-disclosure. However, Ms. Barclay testified that the father was functioning well and had met all of his parental responsibilities and she did not observe or have any information that he was not able to function despite a diagnosis of depression.
[46] Ms. Barclay also noted that she had recommended ongoing counselling for the father and had also recommended counselling for the mother to deal with some unresolved childhood trauma and also with her anger issues. Ms. Barclay testified that she witnessed first-hand the mother's anger when she telephoned her, after the disclosure meeting, yelling and screaming at her. I agree with the father that the mother's aggression and negativity is also evident in the text messages that have been entered as exhibits.
[47] Dr. Haithen Sarsam has been a family physician for 30 years and has been the father's family doctor since 2004. He testified that the father has had three episodes of emotional disorders since 2004 namely, in 2006, 2009 and recently in June 2013. Dr. Sarsam diagnosed the father's depression and anxiety as being related to environmental stressors. Dr. Sarsam prescribed anti-depressants in 2006 and again in 2013. The father stopped taking the medication after several weeks as he could not afford the medication and felt he was being helped through his counselling. Dr. Sarsam also supported the father's application for a short term disability leave from his employment.
[48] It was Dr. Sarsam's opinion that the father's mental health issues did not impact on his ability to parent. Dr. Sarsam testified that he would have concerns about the father's ability to parent if he was suicidal, aggressive, a threat to himself or others or if he had any addiction issues. Dr. Sarsam confirmed that the father did not have any of these issues.
[49] Dr. Sarsam referred the father to a psychiatrist to confirm his diagnosis. The psychiatric consultation report of Dr. Noel Amaladoss was entered as an exhibit. Dr. Amaladoss agreed with Dr. Sarsam's diagnosis and was satisfied that the father's counselling was assisting the father cope with his depression and anxiety. There was no indication of any aggression. No other treatment was recommended or any concern noted that the father stopped taking the anti-depressant medication.
[50] Dr. Sarsam explained that the diagnosis of a "major depression" is a psychiatric term used in accordance with the DSM-IV and does not signify any heightened concern. He testified that the fact the father has had three episodes in about ten years is not excessive or extreme. He estimated that as many as 60% of his patients, especially single parents, suffer from depression and it does not prevent appropriate parenting. He testified that depression is a symptom of modern life and that the condition can be well managed and controlled.
[51] In response to a question from the court, Dr. Sarsam testified that if the environmental conditions improved, he would expect the father's depression and anxiety would improve. He also explained that the father told him he was under stress because of his court proceedings and not because of stress related to parenting his children and he never complained about parenting his children.
[52] I found Dr. Sarsam's evidence to be very helpful. He clearly was well acquainted with the father's mental health issues. He referred the father for a psychiatric consultation to confirm his own diagnosis and treatment plan as he was not a specialist. His evidence that the father's current diagnosis of depression and anxiety did not impact on his parenting abilities was not shaken or challenged.
[53] Despite the fact that Dr. Sarsam brought his entire medical file with him and mother's counsel had an opportunity to examine the file, not one question was asked of the doctor regarding the mother's allegation that the father was under suicide watch in July 2010. As this allegation was the basis for the mother terminating the father's access and insisting that access be supervised, I draw a negative inference from the failure to explore this issue with Dr. Sarsam.
[54] I find that on the totality of evidence that there is no basis for the mother's concerns that the father's current diagnosis of depression and anxiety impact on his parenting abilities or that there is any basis for her to be concerned about the child's safety in the father's care.
[55] I also find that there was no basis for the mother to terminate the father's access in July 2010 or insist his access should be supervised because of her concerns about the father's mental health. I concur with Ms. Barclay's conclusion that the mother cut off the father's access in July 2010 because of her annoyance with him and her negative attitude towards the father rather than a genuine concern that Austin would not be safe with the father because of his depression.
4.4 Parenting concerns
[56] In addition to the mother's concerns that have already been reviewed, the mother did not see any positives in the father's role in Austin's life. The mother testified that she wanted the father to be involved in Austin's life and denied that she ever interfered in his ability to be a part of the child's life. It was her position that the father was not interested in Austin.
[57] However, during the investigation by the Office of the Children's Lawyer, when asked what the father did well, the mother said that he took good care of his fish and car but then even turned this into a negative and said he was obsessive about them. The mother presented many negatives about the father but with few specifics. The only specific concerns the mother mentioned were about the father taking Austin to an airshow that was inappropriate because he was afraid of loud noises and about the father allowing Austin watch an inappropriate movie.
[58] According to the mother everything is fine and will be fine if the father would just leave her and Austin alone.
[59] The maternal grandmother, during the investigation by the Office of the Children's Lawyer also could not see a role for the father in Austin's life and he stated he should not have any input. She explained in her testimony that she was only referring to the father's attempts to interfere with the mother's decision with respect to the child's daycare and not that he should never have a role in any decisions. She also expressed concerns that the father did not like Polish people and did not like it when they spoke Polish to Austin.
[60] The mother stated that she did not believe the father would support Austin learning Polish based on her discussions with Ms. Wiskin even though she had never asked the father.
[61] With respect to the child learning Polish, the father indicated that he had no problem with this. He explained that he had asked the mother not to speak to Austin in Polish at the access exchanges as he did not know what was being said.
[62] The father and the paternal grandmother in their testimony and during the investigation by the Office of the Children's Lawyer were complimentary regarding the mother's abilities to parent and felt she had done an excellent job raising Austin. The only concerns raised were with respect to the mother's attempts to marginalize the father's role in Austin's life and the disparaging comments the mother makes about the father.
[63] The mother entered as an exhibit a series of messages between herself and the paternal grandmother to bolster her testimony that she had tried to encourage a relationship between Austin and the paternal grandmother during the 18 months that the mother had terminated the father's access. I agree with the paternal grandmother's assessment that the mother unnecessarily controlled the terms of contact by insisting that she be present during short visits at a coffee shop and made numerous excuses as to why access could not occur. It is completely understandable that the paternal grandmother became frustrated and gave up trying to arrange access.
[64] The paternal grandmother testified that after the father and Ms. Wiskin separated she tried to maintain a relationship and she used to see Ally and Chloe every week until Ms. Wiskin stopped allowing the girls to come to her house. She felt the mother was doing the same with Austin.
[65] The mother's lack of insight into the importance of the father's role and her inability to encourage a relationship with the father is exemplified on an occasion when Ms. Wiskin was dropping off Ally and Chloe at the father's home. The mother and Austin were in the car but the father could not see them as the car windows were tinted. The father later sent an email to the mother asking why she had not let Austin say hello to him as the girls' told him Austin wanted to say hello. When the father next saw Austin he was upset and asked his father why he had not wanted to see him or say hi to him. The mother's response was that Austin had not wanted to see or say hi to his father.[1]
[66] When I asked the mother if looking back on this incident she might have done something different, she responded that she could have made sure Ms. Wiskin dropped her and Austin off before she dropped Ally and Chloe at the father's home. She showed absolutely no insight as to how such a simple gesture of allowing Austin to say hello to his father would have shown him that his parents get along. She could not put aside her own feelings for the child's sake.
[67] The mother agreed that when she lived with the father she did not like Ms. Wiskin and expressed negative views about her and how she was trying to interfere with the father's relationship with his daughters. However, she testified that she was heavily influenced in her negative opinion by the father and his family. She began a relationship with Ms. Wiskin, when the father was not seeing Austin, as she felt they were family and it was important for Austin to have a relationship with his sisters. She now considers Ms. Wiskin to be a close friend and they often spend time together with the children. She explained that they do not speak about the court proceedings or the father.
[68] The mother confirmed that they were going to each other's court cases as it was stressful and they both needed support. The mother testified that they recently stopped going to each other's court cases as a worker from Halton Region, who was assisting the mother, told them it looked bad.
[69] The mother also confirmed that she was in court when the recommendations of the Office of the Children's Lawyer in Ms. Wiskin's case were discussed. The mother also shared the recommendations of Ms. Barclay with Ms. Wiskin. Ms. Barclay explained that two different clinical investigators had been assigned for the two cases and there had been no discussions between them about their respective reports.
[70] Ms. Barclay concluded that the mother was heavily influenced by the maternal grandmother and Ms. Wiskin. In voicing concerns about the father, the mother relied on Ms. Wiskin's negative experiences with the father. It was Ms. Barclay's impression that the mother's negativity about the father increased with the mother's relationship with Ms. Wiskin.
[71] Ms. Wiskin was listed as a witness in the mother's trial management conference brief but was not called as a witness. As Ms. Wiskin did not testify it is difficult to draw any conclusions as to whether or not she is or has influenced the mother. However, it is somewhat strange that the two women would have formed such a close friendship and have aligned themselves in a concerted effort to minimize the father's role in their children's lives.
[72] I also find it significant that the mother testified that she was concerned about the negative influence that Ally and Chloe are having on Austin and yet only wanted to limit the time Austin spends with them while in his father's care. She did not voice the same concerns about limiting the time she spends with Ms. Wiskin with Ally, Chloe and Austin even though she agreed that the girls can behave the same way with their mother. The mother denied she was influenced by Ms. Wiskin. She only wanted sole custody just like Ms. Wiskin wanted.
4.5 Decision making and communication issues
[73] The mother testified that the father had to get his own way with respect to any decision and yet based on the evidence it is clear that the father has so far always agreed with the mother's decisions.
[74] The father has attempted to communicate with the mother regarding Austin but the mother views his questions as an unwarranted intrusion. For example, last year when it was time for Austin to begin junior kindergarten, the father sent the mother an email indicating he had inquired about the school closest to the mother's residence and it had an all-day program and felt it would be convenient and a good choice. The mother reacted by saying that she wanted Austin to stay in his current daycare as it was a Montessori program and if he did not agree they could resolve the issue in court. The father readily agreed that letting Austin stay in the same daycare was a good choice. The mother did not seem to grasp that the father just wanted to be included in the discussion and choice made. The mother testified that she was now researching a French immersion program for Austin. She did not see the need to advise the father and testified that she was going to let him know about it after she finished her research.
[75] The mother chose her family doctor to be Austin's doctor and the father agreed with this choice also.
[76] The father has attempted to communicate with the mother regarding Austin's development. For example, when Austin became ready to be potty trained the father sent an email to the mother asking for information so they would co-ordinate their approaches. The mother replied that she would fill him in but then never followed up.
[77] The father began a communication book so they could share what Austin was doing when in each other's home. The mother stopped using the book as she did not see the point.
[78] Despite the mother's evidence that Austin began to be afraid of the dark when he began to spend overnights at his father's home, she did not share that information with the father. Instead she accused him of refusing to get a nightlight at his home. Ms. Barclay confirmed that the father did have a nightlight and was appropriately dealing with Austin's fears of the dark. I draw the inference that instead of the mother trying to make sure Austin was comfortable staying overnights at his father's home the mother attempted to sabotage the overnights.
[79] The father believes that he and the mother can communicate but the mother picks and choses what she wants to communicate about with him and she does not believe that she needs to consult with him about any decisions.
[80] I find that rather than there being an inability to make joint decisions there is a deliberate attempt by the mother not to involve the father in any decisions that need to be made.
[81] Most of the disputes or misunderstandings have involved access arrangements. The parties have been able to remain cordial to each other at access exchanges. There have only been two occasions with some tension. Once the mother testified that she wanted to check the father's car seat and the father pushed her away and wouldn't let her inspect it. The father denied he pushed her away and the mother was able to look at the car seat. On another occasion the father and Ms. Ouellette testified that he had parked in the maternal grandparents' driveway while he was picking up Austin the step-grandfather shouted at him to get out of the driveway. The mother testified that the step-grandfather just asked them to move the car. In any event, the father never parked in the driveway again.
[82] Another example of the mother's lack of communication arose during the trial. During the maternal grandmother's testimony, she stated the mother was planning to move out into her own residence very shortly. The mother had never mentioned she was moving in her own testimony and in fact testified about the benefits of residing with her mother and stepfather and the assistance they provide her. That evening the mother sent the father the information about her new residence. During the mother's reply evidence, she was asked why she had not mentioned she was moving. She stated that she did not feel she needed to tell the father. The mother was permitted to introduce Google maps to show the distance between her new residence and the father's home. The distances are not significantly greater although they will increase the travel time.
4.6 Mother's plan of care
[83] It is the mother's position that she should have sole custody of Austin. It is the mother's position that the father never wanted Austin and wanted her to have an abortion. She suggested that the father exercise access on alternate weekends from Friday to Sunday and on Monday and Wednesday evening for a few hours. In view of the difficulties that the father is experiencing with Ally and Chloe she wishes access to be on the weekends when they are not in the father's care. The mother will continue to have the assistance of her mother with respect to picking Austin up at school if she is unable to do so and with any other help she may need.
[84] The mother opposes Austin spending more overnights at his father's home. As the father works nights, she should be able to care for Austin rather than a third party and she worries about what would happen if there is an emergency. She is always concerned about Austin's safety as she always has at the back of her mind that he was on "suicide watch" in July 2010. She does not believe that the medical care and counselling he is receiving is sufficient to meet concerns about his depression, anxiety and anger issues.
4.7 Father's plan of care
[85] The father wishes to be involved in his son's life by spending more time with him and being part of the decision making. Based on his own experience as a child he believes it is important for a child to have a father who is actively involved in his child's life and who can be a good role model. He believes he has a lot to offer his children. He seems baffled as to why both of the mothers of his children have taken such an aggressive and confrontational approach to trying to reduce his involvement in his children's lives.
[86] The father plans to return to work and when he does so, he will continue working the night shift as this allows him to spend more time with his children. As he does not start work until 11:00 p.m. he testified that he has more than enough time to put Austin to bed and make sure he is settled for the night. He finishes work at 7:00 a.m. and then he can get Austin up, get him ready for school and take him to school. His workplace is only 12 minutes from his home. During the night either Austin would be left in the care of Ms. Ouellette, the paternal grandmother, a neighbour or another responsible adult.
[87] Ms. Ouellette was cross-examined about her relationship with the father as she was a part of his plan and is no longer living with him. Ms. Ouellette testified that she is living at her parent's home and at the father's home but mostly returns when the children are not there. She explained that she feels the litigation needs to stop, that it is detrimental to Ally and Chloe and she cannot be another adult involved in condoning what is going on with the girls and feels they are being used by their mother against the father.
[88] Ms. Ouellette described the father as a loving, nurturing parent who respects his children's individual personalities. She has observed the father discipline the children by talking to them and giving them time-outs and has only seen him spank Chloe one time in three years. She is aware of the mother's allegations that the father was physically abusive to her and to the children but she testified that he has never been abusive to her or the children.
[89] In response to a question from the court regarding Austin's sleeping routines, Ms. Ouellette stated that he is a good sleeper and does not normally wake up during the night.
[90] The father is seeking a parenting schedule in accordance with the Office of the Children's Lawyer recommendations. He testified that he is finding that the few hours of access to Austin during the week to be problematic as both Ally and Chloe attend different schools and have different times they are finished school and further Ms. Wiskin has enrolled Chloe in activities on Wednesday evening, so he is driving around a great deal. He would prefer a schedule where Austin spends more time with him and he testified that Austin is now accustomed to sleeping overnights at his home.
4.8 Office of the Children's Lawyer recommendations
[91] Ms. Barclay's curriculum vitae was entered as an exhibit. In addition to being a clinical investigator for the Office of the Children's Lawyer, she is also an experienced social worker for the children's aid society and an individual, couples and family counsellor. Ms. Barclay has taken further specialized training in dealing with high conflict families.
[92] With respect to the mother's evidence that she felt pressured to initially agree with her recommendations and had concerns about the lack of fairness in the process, Ms. Barclay explained that the mother had a support person with her, that she met with the parties together and separately, that she did not have private discussions with the father or change her recommendations after the disclosure meeting. She explained to the parties that if they did not agree with her recommendations then the court would determine the issues and that if they agree with the general principles they could still negotiate on the specifics.
[93] Austin was described as a very lovable, smart and well-adjusted child. He was very balanced and understood that he lived in both of his parents' homes. He was excited and happy to spend time with both of his parents. He was described as a joyful child and his parents, sisters, Ms. Ouellette and his grandparents were all important to him. There is nothing to suggest that Austin has been affected by the conflict between his parents.
[94] Ms. Barclay found that both the mother and the father were excellent parents and both had great parenting skills. She was impressed by the mother's understanding of Austin's developmental needs and felt that the mother was such a loving parent who wanted what was best for Austin that she would be able to see the benefit of the father's role. The mother has been able to make good parenting decisions, except for excluding the father from the child's life for almost 18 months. Ms. Barclay saw a "spark of hope" that the parents would be able to jointly make decisions as they had actually not disagreed about any major decisions.
[95] Ms. Barclay considered that her recommendations would be challenging to implement. She testified that it was not an issue of the parents' inability to make joint decisions that was concerning but the concern was with respect to the level of distrust and the conflict between them. But in her view, the benefit of the father being involved outweighed the risk of any ongoing conflict. It was Ms. Barclay's opinion that both parents needed support and ongoing help parenting and she had recommended counselling. She also recommended the use of a parent co-ordinator.
[96] In response to a question from the court as to an alternative to a parent co-ordinator, Ms. Barclay suggested that joint counselling through a local social service agency or mediation were both available at subsidized rates. The mother, in her reply testimony, seemed to agree that she would be open to attending joint counselling but then back tracked and said only if she had time as she was very busy with her school schedule. With respect to how to implement better communication, Ms. Barclay suggested the use of either the Family Wizard or a communication book.
[97] Ms. Barclay explained that she struggled with her recommendations as Austin was a happy, healthy, well-adjusted child so his current schedule was an important consideration. The time schedule she proposed would gradually increase the time the child spent with his father. The schedule was consistent with and geared to children between three to five years old as it reduced the number of days a child is away from each parent. She acknowledged that it provided more time with the father and shorter blocks of time with the mother. The schedule made sure Austin stayed in the same daycare and spends time with his sisters. At the age of five, she recommended increased blocks of time and that generally when a child turns twelve years old the schedule should be reviewed again.
[98] In questioning by the mother's counsel, Ms. Barclay did not agree that her recommendations were contingent on Ms. Ouellette residing with the father. She felt confident that the father would arrange appropriate care for Austin when he was working.
5. THE LAW
5.1 Applicable Statutory principles
[99] In determining the issues of custody and access the sole consideration is what is in the best interests of a child. Each case must be decided by a careful consideration of the unique circumstances and needs of the individual child. In determining what custodial orders are in a child's best interest, a court is guided by section 24 of the Children's Law Reform Act and the factors set out in section 24(2). Section 24 provides as follows:
Merits of application for custody or access
- (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). 2006, c. 1, s. 3(1).
Best interests of child
(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. 2006, c. 1, s. 3(1); 2009, c. 11, s. 10.
Past conduct
(3) 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. 2006, c. 1, s. 3(1).
Violence and abuse
(4) 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. 2006, c. 1, s. 3(1).
[100] I have considered all of these factors in reaching my decision. I have considered the mother's allegations of domestic violence against herself and as previously indicated I did not find the mother's allegations to have been proven on a balance of probabilities. I wish to re-iterate that I find that both parents were involved in some mutual pushing, shoving and name calling and neither is more to blame than the other. I reject the mother's allegations that the father was emotionally and verbally abusive to her. Further, I have considered and rejected the mother's allegations that the father physically abused his other children. I note that such allegations are inconsistent with the father's current joint custody order of those children and the fact that they reside with him on alternate weeks. Therefore, I find there is no conduct by the father that impacts on his ability to parent.
[101] I have also considered the principle that children should have as much contact with both parents, provided that such an order is consistent with their best interests.[2]
5.2 Sole custody, joint custody and parallel-parenting
[102] The term custody refers to decision-making and authority over a child's upbringing. An order of sole custody permits one parent to be responsible for the care and upbringing of a child including making decisions regarding the education, religion, health and well-being of the child. The parent is able to make decisions generally to the exclusion of the other parent.
[103] An order of joint custody requires both parents to be equally responsible for the care and upbringing of a child including jointly making decisions about all aspects of a child's life. This is regardless of where the child resides. Ideally, a child benefits if both parents, despite not being able to get along as partners are still able to get along as co-parents and discuss and agree upon issues that affect the upbringing and care of their child.
[104] The ability of parents to communicate or the inability of parents to communicate is generally the pivotal issue in determining if there should be an order of sole or joint custody. The case law has established that in order for a court to order joint custody there must be some evidence before the court that, despite their differences, the parties can still communicate effectively with each other.[3]
[105] However, the cases have also recognized that just because one party states that the parties cannot communicate does not preclude a court from ordering joint custody where an examination of the past and present relationship indicates that the parties have the ability to behave appropriately with each other in the presence of the child and put their conflict aside for the sake of their child.[4]
[106] On the other hand, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order for joint custody. There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another.[5]
[107] Parallel parenting is a parenting arrangement that has evolved to deal with high conflict cases where neither a sole custody order to one parent nor a cooperative joint custody order will meet a child's best interests. Parallel-parenting orders can take two different forms. A "divided parallel parenting" regime where each parent is given separate areas of parental decision–making, independent of the other parent or a "full parallel parenting" regime where parents are given the right to make major decisions regarding the child while the child is with them without the consent of the other parent.
[108] In [V.K. v. T.S.][6], Justice D. Chappel thoroughly reviewed the case law and set out in paragraph 96 of her judgment factors the court should consider in determining whether a parallel parenting regime, rather than sole custody, is appropriate: as follows:
a) The strength of the parties' ties to the child, and the general level of involvement of each parent in the child's parenting and life. In almost all cases where parallel parenting has been ordered, both parents have consistently played a significant role in the child's life on all levels.
b) The relative parenting abilities of each parent, and their capacity to make decisions that are in the child's best interests. Where one parent is clearly more competent, responsible and attentive than the other, this may support a sole custody arrangement. On the other hand, where there is extensive conflict between the parties, but both are equally competent and loving parents and are able at times to focus jointly on the best interests of the child, a parallel parenting regime may be ordered.
c) Evidence of alienation by one parent. If the alienating parent is an otherwise loving, attentive, involved, competent and very important to the child, a parallel parenting arrangement may be considered appropriate as a means of safeguarding the other party's role in the child's life. On the other hand, if the level of alienation is so significant that a parallel parenting order will not be effective in achieving a balance of parental involvement and will be contrary to the child's best interests, a sole custody order may be more appropriate.
d) Where both parties have engaged in alienating behaviour, but the evidence indicates that one of them is more likely to foster an ongoing relationship between the child and the other parent, this finding may tip the scale in favour of a sole custody order.
e) The extent to which each parent is able to place the needs of the child above their own needs and interests. If one of the parties is unable to focus on the child's needs above their own, this may result in a sole custody order, even if that parent is very involved with the child and otherwise able to meet the child's day to day needs.
f) The existence of any form of abuse, including emotional abuse or undermining behaviour, which could impede the objective of achieving a balance of roles and influence through parallel parenting.
[109] In [K.H. v. T.K.R.][7] Justice S. Sherr adopted the above-noted factors and added the following further considerations:
The likelihood of one category of decision-making conflicting with another (the spillover effect) and the ability of the parents to navigate those conflicts. For instance, it might appear on the surface that there is a clear delineation between medical and educational decisions. However, that might not be the case with two parents determined to fight and perpetuate conflict. If a school recommends speech-language therapy or therapeutic counseling to take place at school, high-conflict parents will likely fight over whether these are medical or educational decisions.
Whether the parents have the ability to navigate scheduling conflicts between activities and appointments. Since they are each acting independently in their own sphere of decision making, what happens when both soccer practice and math tutoring are scheduled for the same time?
The geographical distance between the parties. Decisions by the non-residential parent are easier to implement if the parties reside close to one another. If the parties live far apart, the residential parent may not be able to take the children to a doctor, tutor, counselor, school or activity (depending on the area of decision-making) chosen by the non-residential parent. If the parents cannot communicate well, the geographic distance between them can create significant conflict and adversely affect the children.
The family dynamics. The court must evaluate if a parallel parenting order is more likely to de-escalate or inflame the parents' conflict.
6. ANALYSIS
6.1 Custody and decision-making issues
[110] In this case the mother seeks sole custody whereas the father seeks joint custody. The Office of the Children's Lawyer has recommended joint custody with joint decision making.
[111] I find that both parents are excellent parents and clearly committed to Austin. Each parent has strong ties to Austin and each parent is now actively involved in his life. Each parent is capable of making decisions that are in Austin's best interests.
[112] Although the mother has been Austin's primary caregiver she deliberately excluded the father and his family from Austin's life during a crucial period of his upbringing and has continued to marginalize the father's role. I find that the mother cannot be trusted to assume the role of a sole custodial parent that would respect the importance of the father in the child's life. The mother had nothing positive to say about the father. She does not trust or respect him as a parent. She has continued to raise allegations that are unfounded and has not seen the necessity of even consulting with him about issues that affect Austin. The mother did not discuss Austin's attendance at junior kindergarten with the father and when the father raised it as an issue she was dismissive of his inquires and took the attitude that if he did not agree with her, the court would have to resolve the issue. If the mother had the sole authority to make the decisions, it is clear that she would not even consult with the father as she does not seek or value his input but rather sees the father's inquires as an intrusion.
[113] In contrast, the father views the mother as a loving and competent parent and values her role in Austin's life. If not for the fact that the mother has been Austin's primary caregiver and, except for her attitude and treatment of the father, is a good parent, I may have considered that the father should be given sole custody as it is clear that he would encourage and respect the importance of the mother in the child's life. I therefore conclude that it is not in the child's best interests for either parent to be granted sole custody.
[114] It is important for Austin that both parents continue to be involved in his life. The parents do not disagree about any major decisions and their conflict to date has been quite minimal. However, it is clear that despite the best efforts of the father, the mother is not prepared to communicate with him. Both parties distrust each other and this has made and will continue to make communication, co-operation and joint decision making difficult. To their credit, the parties have for the most part been able to contain their conflict and act civilly towards each other in Austin's presence.
[115] However, in view of the dynamics between the parties and their lack of a history of co-operation and ability to communicate, an order for joint custody with no clear parameters with respect to decision making will only further exacerbate the conflict between the parties. The discord between the parties has been contained as the father has, despite not being consulted in advance, agreed with the mother's choice of doctor and daycare for Austin. But as Austin gets older more decisions will have to be made such as the present decision of where he goes to school, what school program is most suitable and what extra-curricular activities he should attend.
[116] In this case, I find that it is in Austin's best interests for a parallel-parenting order to be imposed with clear rules and boundaries. Although the conflict between the parties is too high for a cooperative joint custody order it is not so high that the imposition of a detailed parenting order will increase their conflict. The father in particular has been respectful and considerate of the mother's views and Austin's best interests. As a result I find that he is the parent that will be prepared to consider and accommodate any scheduling difficulties or overlap in appointments and will use his decision making authority responsibly and not as a method of perpetuating the conflict between the parties. I am hopeful that the mother will do the same.
[117] Despite the mother's current move, the parties still reside close enough to each other that a parallel-parenting order is workable with respect to the choice of school, health care providers and activities.
[118] Austin is a happy, healthy, well-adjusted child. At present there are few decisions that will have to be made.
[119] Both parents are competent and responsible. The parent who has Austin in his or her care should have the responsibility of making any day-to-day or emergency decisions. Each parent should keep the other fully informed of any decision they have made or information they have received regarding Austin's health, education or general well-being.
[120] With respect to longer term decisions, the parents should consult with each other and attempt to come to a timely consensus. But if they cannot agree, then one parent must be chosen to have the ultimate responsibility for making the decision.
[121] The mother has always been the parent to ensure that Austin's health needs are met. As Austin attends the same family doctor as the mother it is practical that she continues to be the parent to make any medical and health related decisions after consultation with the father and in accordance with any recommendations of the health providers.
[122] Although the mother has unilaterally made all educational decisions for Austin, I am concerned that if provided with the legal authority to continue to make these decisions, she will use this authority to marginalize the father. The mother's choice of school could potentially jeopardize the father's ability to pick up and deliver Austin to school if it is too far away or the times do not coincide with his responsibilities to his other children. Further, the father is the parent who can be best trusted to consult with the mother and seriously consider her views regarding the choice of school and school program. Accordingly, the father will be given the authority to make the final decision regarding educational matters if the parties cannot agree.
[123] The mother would like Austin to learn Polish and the father was agreeable to him attending language school to learn Polish. The mother will therefore be permitted to enroll Austin in an after school or weekend Polish language program.
[124] Neither party indicated there were any religious issues and therefore each parent should be entitled to share their religious preferences with Austin during their time with him.
[125] With respect to communication, it is essential that there be a mechanism for the parties to share information about Austin. The father attempted to use a communication book to facilitate communication between the parties and Ms. Barclay has recommended that the parties continue to communicate in this way. The father is prepared to use the Family Wizard for communication purposes but the mother made no submissions with respect to using this on-line tool. I have provided in my order that the mother chose the method of communication and advise the father.
6.2 Parenting schedule
[126] The mother's proposal for access would continue the alternate weekend access and limit mid-week access with Austin to a few hours. She would further require that access not occur during the weekends when the father's daughters are in his care.
[127] In view of the importance of the father in Austin's life, there is a benefit to the father being more directly involved in caring for him during the school week. Further the length of time that Austin is away from the father, under the present access schedule, is not conducive to the continued development of a relationship with him.
[128] Ms. Barclay's recommendations regarding her proposed parenting schedule and the rationale she provided for that schedule was not weakened in cross-examination. The mother's proposal is more about diminishing the father's contact than a consideration of the child's best interests. I find that the parenting plan proposed by Ms. Barclay maximizes the time Austin spends with both parents and does not separate him from either parent for any extended amount of time. It also gradually increases the time the child spends with the father. Further, it minimizes the number of times that the parents are together at the exchanges.
[129] The parties agreed with Ms. Barclay's recommendations that the holidays be divided. There were no specific submissions made with respect to this issue. I have concerns that the recommendations simply state for some of the holidays that the time be shared equally. Given that there have been several instances of miscommunications or misunderstandings about the holidays, at this time it is preferable to have a detailed order in place.
[130] I also order that transportation relating to access, when necessary, will be shared equally. As the majority of the exchanges will occur at daycare or in the future at school, the sharing of the transportation will not be onerous.
7. ORDER
[131] There will be a final order as follows:
Residency schedule
1. The applicant and respondent shall have joint custody of Austin Andrew Lavoie born November 13, 2009 pursuant to a parallel parenting regime pursuant to the terms of this Order.
2. The child shall reside in the care of the respondent on the following schedule:
i. Week one: Wednesday at 3:00 p.m. to Friday morning at day care/school or 9:30 a.m. (commencing Wednesday, January 15, 2014)
ii. Week two: Wednesday at 3:00 p.m. to Thursday morning at day care/school or 9:30 a.m. and Friday at 3:00 p.m. to Monday morning at daycare/school or 9:30 a.m. (commencing Wednesday, January 22, 2014)
3. Commencing January 1, 2015, the child shall reside in the care of the applicant and respondent on the following schedule:
i. Alternating weekends from Friday at 3:00 p.m. to Monday at morning at daycare/school or 9:30 a.m.
ii. With the respondent every Wednesday after school to Friday morning at daycare/school or 9:30 a.m.
iii. With the applicant every Monday after school to Wednesday morning at daycare/school or 9:30 a.m.
4. The parenting time for the respondent on the alternate weekends shall coincide with the same alternating weekends that the respondent's daughters are in his care and shall be adjusted as necessary.
5. When the child is not in school, the respondent will be responsible for picking up the child at the applicant's residence at the commencement of his parenting time and the applicant shall be responsible for picking up the child from the respondent's home at the commencement of her parenting time. Other individuals who are known to the child may pick up the child if necessary, at the discretion of the party who would otherwise be responsible for picking up the child.
6. The Respondent and Applicant shall share, equally, all school vacations and holidays. The residency schedule set out at paragraphs 1 to 3 above will be replaced during vacations and holidays as follows:
a) Christmas vacation is that period of time commencing at the end of the last day of school in December and terminating on the first day of school in January. Commencing Christmas 2014, the Respondent shall have the child in his care from the last day of school, as above, until Christmas Day at 1:00 p.m. The Applicant shall have the child from Christmas Day at 1:00 p.m. until Boxing Day at 6:00 p.m. In odd-numbered years the Respondent shall have the last half of the Christmas school vacation, including New Year's Eve and New Year's Day. In even-numbered years, the Applicant shall have the last half of the Christmas school vacation, including New Years' Eve and New Year's Day.
b) The Respondent shall have the child for Easter weekend in odd-numbered years commencing Thursday after school to Tuesday at the start of school (or at 9:30 a.m. if the child is not in school). The Applicant shall have the child for Easter weekend in even-numbered years.
c) Summer vacation is defined as that period of time which starts on the first day following the last day of school and terminating on the day prior to the first day of school in the school district where the child go to school. Commencing in 2014, each party shall have the child in his/her care for two non-consecutive 5 day weeks. In even years, the Respondent shall submit his choices to the Applicant by May 1st each year and in odd years, beginning 2015, the Applicant shall submit her choices to the Respondent by May 1st each year. In the event the chosen weeks are not provided by that date, the other parent may make their summer plans with the child. In order not to jeopardize the child's daycare placement, the parties shall communicate the days the child is not attended daycare. Vacation time from the daycare shall be evenly shared by the parties.
d) In odd-numbered years, the Respondent shall have the child for Thanksgiving weekend from Friday after school to Tuesday at the start of school. The Applicant shall have the child for Thanksgiving weekend in even-numbered years.
e) The Respondent shall have the child every Father's Day from 10:00 a.m. until Monday at the start of school if the day does not fall on his parenting weekend. The Applicant shall have the child every Mother's Day from 10:00 a.m. weekend until Monday at the start of school if the day does not fall on her parenting weekend.
f) The child shall spend his birthday with the party who has care of him in accordance with the residency schedule set out at paragraphs 1 to 3. The party who is not parenting on the child's birthday shall have two hour access during that day having regard to the parties' work schedules.
g) All other holidays and special occasions, including but not limited to, Family Day, Victoria Day, Canada Day, the August Civic Holiday, and Halloween shall follow the residency schedule set out at paragraphs 1 to 3.
h) Parenting time shall only be altered on consent of the parties, by further court order, or on the recommendation of a medical professional in the event of medical emergency. Both parties shall discuss any medical emergency concerning the child with the professional in that event.
i) There shall be no make-up time for missed parenting time, unless the parties agree otherwise.
j) If the child is sick, the transition from one parent's care to the other parent's care is to proceed unless the child is too sick to travel between the parties' homes as per the determination of the child's doctor.
k) Neither party may object to the other's plans with the child and must respect each other's ability to care for the child appropriately.
l) Neither party will arrange activities for the child when the child is scheduled to be with the other parent without that parent's prior written consent.
m) Both parties shall be at liberty to attend scheduled school events, parent-child meetings and extracurricular activities whether or not they occur during their parenting time.
n) There shall be no restrictions placed on the child with respect to personal items, toys and gifts he wishes to take with him between the residences of the parents. Should the child wish to take a gift, toy or article of clothing, he shall be permitted to do so, without the intervention of the other parent.
o) Both parties are to provide the other by email with their current addresses and a phone number where they can be reached at all times.
p) Both parties are to advise the other by email if the child will be other than in the Applicant's home or the Respondent's home for more than one night, and to provide the details of where the child is, as well as a phone number.
Communication
7. Neither party shall speak in a disparaging or negative manner about the other party or allow or encourage others to do so in the presence of the child.
8. Neither party shall discuss with the child, or with another party in the presence of the child, present or past legal proceedings or issues between the parties related to present or past legal proceedings, including any financial issues relating to the parties or the child, or regarding conflicts between the parties relating to parenting issues. Each parent may respond briefly, in a reasonable manner, to questions with respect to such matters initiated by the child.
9. Neither party shall leave out or accessible to the child information or documents pertaining to any issue arising from the parties' separation and including any material that pertains to the matters referred to in paragraph 8 above, and neither will permit the child access to their personal email where communications regarding these matters are stored. Both parties shall ensure that the child will not have access to information regarding the parties' separation by password-protecting any area of their personal computers that hold such information.
10. The parties shall communicate about the child either by use of the Family Wizard or a communication book or by email. The applicant shall advise the respondent within one week of the release of this judgement as to her preferred method or methods of communication. Any communications shall not be read by the child. Each party will respond promptly by return email to the email of the other or by return posting of information on the Family Wizard or by responding in the communication book. The parties shall exchange information regarding the child's care, developmental milestones, food likes and dislikes, scheduled activities and appointments, medical and otherwise, and any requests for changes in the parenting schedule. All communications between the parties regarding the child shall not be deleted nor shall they be forwarded to third parties without the other parent's consent. All communications shall be brief, respectful, related solely to the child with no reference to either of the parties or their activities. Absent an emergency, the parties shall not communicate with each other more than once a week.
11. The parties shall share all documents pertaining to the child by scanning the document and then sending it to the other parent by email. The parents shall not rely on the child to transport documents between them.
12. If one party requests information or a temporary change in the parenting schedule, the other party shall respond within 48 hours. Requests made giving less than 48 hours notice shall be responded to as soon as possible. In the event of an emergency or truly time-sensitive matter, the parties shall telephone or text each other. If a reply requires more time than 48 hours, an email shall be sent advising that the reply cannot be reasonably given with this time period and advising when the response can be expected.
13. Any discussions between the parties at transition times, activities or other special events where the child is present or nearby shall be limited to brief and cordial interchanges. If one party considers that the discussion is not courteous, both shall discontinue the conversation and shall take up the issue later by email.
14. If one party finds what the child has said about the other parent to be of significant concern, that party shall first ask the other parent, by email, what actually happened. If a complaint is made by the child to one parent about the other, the child shall be encouraged to talk directly to the parent he or she is complaining about.
15. The parties shall engage in a counselling program to improve their communication skills with each other regarding their parenting of the child.
16. Each party shall be entitled to make one telephone call to the child on any day that the child is out of his or her care for a 24 hour period. The telephone call shall be made between 6:30 p.m. to 7:00 p.m. and may last up to ten minutes. The telephone call may be used to wish the child good night and provide general comfort, but shall not be used to question the child about parenting methods or the activities of the other party.
17. Neither party shall go to the other's home except for the purpose of picking up the child, or on the consent of the other. The child shall take responsibility for the movement of his possessions as necessary between the parties' homes as is consistent with his age.
Decision-Making
18. Major decisions regarding the child's medical care and treatment (e.g. surgery, long term medication, major diagnostics, counselling or therapy) shall be made in consultation with the child's current physician, dentist and other health-care providers. If the parties are unable to agree on major decisions relating to the child's medical care and treatment, the applicant's decision will prevail.
19. Major decisions affecting the child's educational programming (e.g. psycho-educational assessment or testing, school choice, school program or tutors) shall be done by the parties in consultation with the child's home room teacher. If the parties are unable to agree on major decisions relating to the child's education, the respondent's decision will prevail. However, the choice of school shall be equally accessible to both parties' homes.
20. The applicant shall be permitted to enroll the child in one Polish language program each school semester to take place if possible during her parenting time.
21. Neither party shall interfere with religious observance of the other with the child. Neither party shall place the child in formal religious education without the consent of the other. If the parties are unable to agree on whether or not the child should participate in formal religious education, the Applicant's decision will prevail.
22. Before making any final decision in their area of decision-making each party shall inform the other of their intended decision. They shall consult with one another in regards to any and all major decisions and shall seek the other's input over the areas in which they have authority. It is only after this consultation process that the party shall be able to make a decision and, upon doing so shall immediately inform the other party of the decision that he or she has made. Neither party shall be entitled to make a major decision in their area of decision-making power without first giving the other party 30 days prior written notice.
23. Each party shall be entitled to receive copies of all medical, dental, school and other reports related to the child and shall be entitled to consult with the child's teachers, caregivers, physicians, dentists, and other health care providers concerning the general well-being of the child. Each party shall be listed on all documents pertaining to the child and shall be entitled to attend any of the child's scheduled appointments. Both parties are to execute consents or authorizations to all persons, including teachers, doctors, dentists and others involved with the child to speak fully and openly with both parties.
24. The child's health card shall travel with the child between the parties' households.
25. The child's school will be advised to contact the party in whose care the child is, in the event of an illness, or other emergency at the school. The parties shall provide the school with their contact numbers for this purpose.
26. Each party shall be responsible for making day-to-day decisions for routine emergency medical care while the child is in his/her care, and shall keep the other party fully informed, by e-mail, communication book or the Family Wizard of any minor illnesses, emergencies, treatments, medications administered or prescribed while the child is in his/her care.
27. In the event of a serious illness, accident or other misfortune involving the child, the party then having the child in their care shall immediately and promptly notify the other party. During any period of illness or recovery, each party shall have generous and reasonable contact with the child, consistent with the conditions of this order and the welfare and happiness of the child.
Mobility Restrictions & Travel
28. Neither party shall change the child's residence from the Region of Halton and not move more than the current distance being 7 kilometres between their respective residences without the other's consent.
29. In the event that one party is unable to care for the child during his/her parenting time (as a result of illness, employment or otherwise) for more than 24 hours, the other party shall be entitled to first refusal to care for the child. In the event that the notified party is unable to care for the child, the other parent will assume responsibility for arranging and paying for alternative childcare.
30. If one of the parties is required to travel outside of the Region of Halton at a time when the child is to be in school, the child shall not be taken out of school in order to travel with that parent without 30 days' notice to the other parent and unless they have the written consent of the other parent.
31. Should either party desire to take the child from the Province of Ontario for vacation purposes, they shall advise the other party in writing of dates of travel, location, flight details (if applicable), address and phone numbers where the child can be reached where they are going.
32. Should a passport be required for the child, the parties shall cooperate with each other in providing the necessary information to make the application. The Applicant shall keep the passport at her residence and it will be made available to the Respondent as required. Both parties shall provide necessary authorizations to allow the other party to travel outside the country with the child.
[132] If either party is seeking costs, brief written submissions with a bill of costs are to be submitted by the party seeking costs within 14 days and the other party shall have 14 days to respond.
Released: January 13, 2014
Signed: "Justice Roselyn Zisman"
[1] The children's statements were not admitted for the truth but only as an explanation of the context of the incident and subsequent discussion between the parties.
[2] Gordon v. Goertz, [1996] 2 S.C.R. 27
[3] Kaplanis v. Kaplanis, [2005] O.J. No. 275 (C.A.)
[4] Ladisa v. Ladisa, [2005] O.J. No. 276 (C.A.)
[5] Ibid.