Court File and Parties

Court File No.: D-528-12 EXT 01 Date: 2015-07-30 Ontario Court of Justice

In the Matter of the Children's Law Reform Act, R.S.O. 1990, c. C.12

Between:

Bruce Thrush (Applicant/Father) R. Parise for the Applicant

— And —

Kayla Hiros (Respondent/Mother) D. Berlinguette for the Respondent

Heard: July 24, 2015

Before: Justice John Kukurin

Reasons for Decision

Background

[1] These are my Reasons for the decision on motion (at Tab 18, Volume 2) brought by the father. The father's motion claim is ostensibly for an order requiring the Respondent mother to comply with certain provisions of an existing court order dated December 11, 2013 which was made on their mutual consent. The motion claim identifies the specific provisions which are set out in the order:

Paragraph (2) – which gives each parent the right to meet with and obtain from anyone providing any services to the child Bryson, any and all information relating to the child, and which also imposes on each of the parents, the obligation to advise the other of them as to the child's health and general welfare, and more specifically, of any school or medical appointments.

Paragraph (3) – which requires the parties to confer on all important matters relating to the child, including in (3)(b), any changes to the child's schooling other than to comply with local school board requirements.

Paragraph (8)(j) – which requires the mother to afford to the father the first opportunity to care for the child on occasions when she is unable to do so.

[2] Although some general reference was made to the claim with regards to paragraphs (2) and (3) of the order, the preponderance of the father's argument was with respect to paragraph (8)(j). There is another motion by the father (at Tab 22), which was returnable for the first time this day. It was adjourned to August 24, 2015 for hearing mainly because it was served on short notice and fairness demands that the mother have some time to review it and respond to it if desired. The claims in the motion at Tab 22 deal more comprehensively with the mechanics of the obtaining of information sought by the father related to the mother's work schedule and her periods of inability to care for the child herself.

The Mother's Employment and Failure to Provide Schedule

[3] The mother works at a Pizza Restaurant. She states that she gets her weekly schedule of her work days/hours from her employer each Thursday. She has been employed at her present employment since June 2014. The father claims she has never provided him with her work schedule for any of the weeks she has worked, now spanning a period of over a year. Her work schedule, provided to him by her would disclose:

"… occasions when the Respondent mother is unable to care for the child …"

The mother does not deny that she has not provided to the father any of her work schedules.

[4] The significance of this information relating to the mother's work schedule is that it would, according to the father, not only trigger the mother's obligation to afford him the opportunity to exercise his joint custodial care of the child, but it would also keep him in the loop as to when these opportunities would arise, thereby enabling him to make necessary decisions and reasonable arrangements to implement such decisions.

The Mother's Use of Alternate Childcare

[5] The evidence is that the mother, since she started working at her employment, has not advised the father of any period of time when she was by reason of her employment, unable to care for the child Bryson. What she has done is to place Bryson in the hands of alternate caregivers, primarily Larch Street Kids Day Care, which has included some evenings, but according to the mother, not overnights. She has also entrusted Bryson's care to her "family" and to her boyfriend, although these she claims were for short periods only, perhaps an hour or two.

[5] The mother's main contention is that the provision in paragraph 8(j) of the order does not, and was not meant to include those times when she was personally unable to care for Bryson due to her work commitments. Rather, paragraph 8(j) is intended to apply to those occasions that are longer in duration, like a few days or a week, when she is unable to provide her own care, such as, for example, when she has to be out of town for awhile. Occasions such as she contemplates as being caught by paragraph 8(j) have never arisen since the date of the order.

Court's Analysis

[6] The mother is absolutely wrong in her position as to the application and meaning of paragraph 8(j) of the order. It does in fact apply to any period or periods when she is unable to provide her own personal parental care of Bryson, whether because of employment commitments, or her absences away from her home or otherwise. By unilaterally placing Bryson in the day care facility, and by deliberately denying to the father timely access to the information as to her days and hours of work for her next following work week, she is frustrating the father's legal entitlement to the joint custodial care of Bryson that he should be able to enjoy under the court order.

[7] There appears to be some problem, according to the mother, with the father caring for Bryson instead of the day care facility, during some of her time at her employment. This has something to do with eligibility of the child for a day care space, and/or with the mother's entitlement to a daycare cost subsidy. Unfortunately, the mother does not provide enough of the details by way of her evidence for the court to make any determination as to the validity or the importance of these issues. Nor does she provide this information to the father, and he appears to encounter a roadblock when trying to obtain information directly from the day care facility, despite having an order that very clearly entitles him to do so (an order made on consent of the mother).

Enforcement Through Variation Rather Than Contempt

[8] The order sought by the father is for the court to direct the mother to comply with an order already made some time ago. It makes little sense to simply order that:

"The Respondent mother shall comply with paragraph 8(j) of the December 11, 2013 order".

This would resolve nothing as she is already under that very obligation. Compliance is often sought by a motion for a finding of contempt. However, such motions have peculiarities that, at times, make them somewhat inappropriate to pursue and relegate them to remedies of last resort.

[9] The enforcement of a joint custody or an access order is not infrequently effected by a variation of a term of the order, particularly one that has turned out to be problematic for one reason or another. Variations can be minor (ie tweaking), or moderate, or major revisions. One such order has already been made in this very case on June 10, 2014 by Humphrey J. who dealt with the provision in paragraph (8)(c) dealing with the father's responsibility of pick up and drop off of the child and who is authorized to do this besides himself. Regardless of the degree of the change in the order, there is a pre-requisite for the motion applicant, under the Children's Law Reform Act, namely, to demonstrate a material change in circumstances.

S.29. A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child. R.S.O. 1990, c. C.12, s. 29

Material Change in Circumstances

[10] I am satisfied that there has been a material change in circumstances since the date of the order. The combination of:

• The mother becoming employed at her present place of employment
• The mother placing the child in daycare while she works
• The mother failing to advise the father of her schedule in advance of her work days

provide the material changes in circumstances that are needed to meet the statutory threshold for a variation.

Upcoming School Transition

[11] There is another circumstance that has emerged that has some impact on the claims in this motion. Any order made should take into account the likelihood that the child Bryson will be attending school (as opposed to a day care) for the first time in September 2015, which is about one month away. To date, the mother has not disclosed to the father, nor to the court, any details with respect to the name and location of the school, the child's grade, the start date of classes, the duration of the child's school days, his teacher's name, or the academic schedule including non-school days (statutory holidays, Spring break, Christmas break, summer break and professional development or other days with no classes).

[12] Neither the father nor the court knows from the mother whether it is her intention to keep utilizing day care once Bryson starts attending school, and if so, why she intends to do so, and when she intends to do so.

Order

[13] There will be an order as follows.

1. Paragraph (8)(j) of the order of Humphrey J dated December 11, 2013 is amended by adding thereto the following:

This shall include the following:

(i) The Respondent mother shall provide to the Applicant father complete details of her weekly work schedule by 12 noon each Friday.

(ii) The Respondent mother shall provide to the Applicant father by August 10, 2015, complete details of the child's proposed schooling and education which shall include the name and location of his school, his grade, his teacher's or principal's name, hours of his classes on school days, and schedule of school days and non-school days for the forthcoming academic year.

(iii) The Respondent mother shall provide forthwith to the Applicant father five original signed and dated copies of an Authorization addressed to:

"To Any Service Provider to Bryson Thrush born February 1, 2011"

And containing the following wording:

"You are hereby authorized and directed to provide to Bruce Thrush any and all information in your possession or control that he may request from you with respect to our child Bryson Thrush, subject to his paying your reasonable expenses for retrieving and transmitting such information."

(iv) The Respondent mother shall provide to the Applicant father by 12 noon each Friday, details of any alternate child care planned or proposed by her for the next ensuing week, including the names of proposed alternate caregivers, dates and times of such care and reasons for such care.

(v) The Applicant father shall, by 12 noon on each Saturday, advise the Respondent mother of which days and times he wishes to exercise his entitlement to joint custodial care of the child Bryson for the next ensuing week, failing which he shall forfeit such entitlement.

(vi) For occasions of exercising entitlement to paternal joint custodial care pursuant to paragraph 8(j) of the order of December 11, 2013, the Applicant father, or his designate, shall be responsible to pick up the child at the residence of the mother at the start of each period of such care, and the mother, or her designate, shall be responsible for picking up the child at the residence of the father at the end of each such period, provided that the parties, may by written, signed and dated agreement, may change the location of exchanges of the child.

(vii) All communications between the Applicant father and the Respondent mother with respect to clauses (i), (ii), (iv) and (v) above shall be by text messages or by e-mail messages to the address of the other. Each shall provide their respective addresses for text messaging and for e-mail forthwith to each other and to their respective counsel who shall share this information with each other and with their respective clients. This applies to any changes to such addresses as may be made from time to time.

2. Cost of this motion at Tab 18, if sought by either party, shall be by written submissions of maximum three pages, served by August 14, 2015, and replies thereto served by August 21, 2015, all filed with the court no later than August 21, 2015.

3. The motion at Tab 18, Volume 2 is adjourned to August 24, 2015 at 9:30 am.

Released: July 30, 2015

Justice John Kukurin