Court File and Parties
Court: Ontario Court of Justice
Date: January 15, 2016
Court File No.: Brampton 706-14
Between:
PAMELA DAWN MARIE MACPHERSON Applicant
— AND —
LISA ANN MARIE BASTARACHE Respondent
Before: Justice P.W. Dunn
Heard: January 6, 2016
Ruling Released: January 15, 2016
Counsel
Pamela Dawn Marie MacPherson: Self-represented
Lisa Ann Marie Bastarache: David Anthony, Esq.
Endorsement
DUNN J.:
ADMINISTRATION IS PROHIBITED FROM ACCEPTING FURTHER FILINGS IN VOLUME 2. START A NEW VOLUME 3.
I accept for filing the Applicant's affidavit sworn 15 December 2015 and I request administration to place it in the Continuing Record.
Documents Reviewed
[1] Each party has a motion before the court. In preparation for the motions, I read: (with all documents in Volume 2)
- The affidavit of the Respondent, sworn 9 November 2015 (Tab 5), (Exhibits (A) to (i) inc.).
- The Respondent's motion, dated 9 November 2015 (Tab 4).
- The Respondent's Dispute to the Office of the Children's Lawyer's report (Tab 3).
- The Applicant's motion dated 26 January 2015 (Tab 6).
- The Applicant's affidavit sworn 25 November 2015 (Tab 7) Exhibits A to H inc.
- The affidavit of Hailee D. Morrison sworn 23 November 2015 (Tab 8).
- The affidavit of Nathalie Escudero sworn 24 November 2015 (Tab 9).
- The note by Liam Graigner dated 25 November 2015 (in Tab 9).
- The Respondent's affidavit sworn 28 December 2015 (Tab 10) Exhibits A to F inc.
- The affidavit by Kim Bastarache sworn 28 December 15 (Tab 11).
- The affidavit by Stamatio Diakovasiliou, sworn 28 December 2015 (Tab 12).
- The Applicant's affidavit sworn 15 December 2015 (unfiled).
Overview of Motions
[2] I turn to the requests in the Respondent's motion but I will also refer to claims in the Applicant's motion, where they are opposed or agreed with the Respondent's demands.
Custody Arrangement
[3] On 11 December 2014, this court granted a temporary joint custody order, with the Respondent having primary residence. The Respondent would consult with the Applicant, but the Respondent would make final decisions if the parties do not agree.
[4] In paragraph 4 of the Respondent's motion, the Respondent asks that that order continue, as well as the order for the Respondent to have primary residence (requested in paragraph 3 in the motion).
[5] In her motion, the Applicant requested in paragraph 4, that joint custody continue, but that if the parties do not agree, the issue should go to mediation.
[6] In this case, there needs to be someone to make final decisions, because there is substantial disagreement between the parties.
[7] I do not agree with the Applicant's proposal for mediation. Mediation is a cumbersome and possibly expensive process. A mediator would need to be chosen who ideally would be willing to stay involved. It is doubtful whether the Applicant could afford to contribute to the fees of mediation. Also, it takes time to set up a mediation process, and in this case, with a 4 year old child, often decisions need to be made immediately.
[8] The Applicant believes the Respondent does not act fairly sometimes in her decision-making. However, both parties agree that the child is thriving, so the Respondent must be making good decisions. I see no reason to change the provisions in the orders of 11 December 2014 regarding joint custody decision making. Hence paragraph 1 in the orders of 11 December 2014 continues. Paragraph 4 in the Applicant's motion is dismissed.
Weekend Parenting Time
[9] Regarding the Applicant's weekend parenting, the present arrangement is that the Applicant picks up the child at the Respondent's residence and then on Sundays, the Respondent collects the child from the Applicant.
[10] The Applicant would like the Respondent to take the child to the Applicant's at 7:00 p.m. on Fridays. Then on Sundays, the Applicant would return the child to the Respondent at 7:00 p.m.
[11] Through the history of this case, the Respondent has always complained about the irregularity of access exchanges involving the Applicant. This is because of the Applicant's changing work schedules (especially when the Applicant had two jobs) but also, because the Respondent believed the Applicant was not as diligent as she could have been in exercising timely access.
[12] The Respondent allows as how the Applicant is more careful about parenting times before court appearances. Also the Applicant now has a permanent job with a predictable (but complicated) work schedule which helps somewhat.
[13] However, even today the Applicant expressed some uncertainty about her work hours. She was even reluctant to tell Mr. Anthony what they were until I intervened. It turns out that the Applicant's work hours are variable. The Applicant has some control over her hours, but she may have to fill in for other workers at times. Also the Applicant stays at work to take certain courses to improve her work position.
[14] In view of the above, I support the present arrangement whereby the Applicant will pick up the child on Friday evenings on her parenting weekends. That will allow the Applicant to make her own work arrangements on Fridays, and it will avoid the Respondent waiting for the Applicant to return home. Paragraph 1(e) (formerly paragraph 1(f) in the Applicant's motion is dismissed.
[15] Temporary order for the Applicant to have parenting times on alternate weekends from Fridays at 7:00 p.m. until Sundays at 5:00 p.m. The Applicant will pick up the child from the Respondent's residence on Fridays, and the Respondent will retrieve the child from the Applicant's on Sundays. In the event the Applicant cannot pick up the child from the Respondent on Fridays by 7:00 p.m., the Applicant may collect the child on the Saturday morning at the Respondent's between 9:00 a.m. and 10:00 a.m., and keep the child on Sunday evening until 6:30 p.m.
[16] Paragraph 2(a) in the Respondent's motion has been granted. Paragraph 1(a) in the Applicant's motion is dismissed.
Primary Residence and Relocation Restriction
[17] Returning to the issue of primary residence, the Applicant believes an order for primary residence is not needed. I believe it is. Historically, the child has been in the care of the Respondent for the greater part of her young life. Then the Applicant concedes that if the Respondent is to have primary, there should be an order that the child's residence not change until she finishes grade 12.
[18] On consent, temporary order for the Respondent not to move the child's residence more than 20 kilometres from her present residence until the child finishes elementary school, or if the parties consent to a move by the Respondent.
[19] Hence, paragraph 5 in the Applicant's motion is dismissed and paragraph 3 in the Respondent's motion is granted.
Midweek Access on Days Off
[20] Paragraph 2(b) in the Respondent's motion is granted. Temporary order for the Applicant to parent the child on the Applicant's rotating day off, according to the Applicant's work schedule.
[21] The present arrangement is that on the Applicant's day off, she picks up the child from the Respondent's, then takes her to school. Then the Applicant picks up the girl from school and returns her to the Respondent.
[22] The Applicant would like to have the child overnight on the night before her midweek day off. If I understand the Applicant's work schedule, that day off would be a different day in each week, although it would be predictable. For example, if in week 1 the Applicant had a Monday off, then in week two, she would be off on a Tuesday.
[23] I find that the Applicant's day-off schedule would be too confusing for the girl.
[24] I appreciate that the present arrangement for access on the Applicant's days off involves a lot of driving for the Applicant. Perhaps the Applicant should consider not exercising her access in favour of another arrangement.
[25] The status quo should continue.
[26] Temporary order that on the Applicant's days off work, she will pick up the child from the Respondent's and take the child to school. Then after school, the Applicant will pick up the child from school and return her to the Respondent.
[27] Paragraph 1(d) in the Applicant's motion is dismissed.
Frequency of Weekend Access
[28] In paragraph 1(b) of the Applicant's motion, she requests parenting time on every 5th weekend. The Respondent is opposed and believes that access on alternating weekends is the most fair to both parties.
[29] I agree that the status quo of access on alternating weekends should continue because the child is accustomed to that arrangement. Hence, paragraph 1(b) in the Applicant's motion is dismissed.
Access on Respondent's Weekends
[30] In paragraph 1(c) of the Applicant's motion, she asks for access on the Respondent's parenting weekends from 8:00 a.m. to 12:00 p.m.
[31] I find that that would be unfair to impose on the Respondent's weekend time with the child.
[32] Paragraph 1(c) in the Applicant's motion is dismissed.
Professional Development Days and Additional Access
[33] Paragraph 2(c) in the Respondent's motion is granted on consent.
[34] In the event of school professional development days, the parties' present arrangement for parenting time shall continue unless the parties agree otherwise in writing.
[35] On consent, paragraph 1(d) in the Respondent's motion is granted.
[36] Temporary order for the Applicant to have such further parenting times as the parties agree upon in writing.
[37] Paragraph 1(d) in the Applicant's motion is dismissed.
Child Support and Section 7 Expenses
[37] Regarding child support, the Applicant makes no claims against the Respondent. However, the Respondent may wish to claim child support from the Applicant.
[38] Leave is granted to serve and file an amended Answer regarding child support, child support arrears, Section 7 expenses and Section 7 arrears.
[39] Paragraph 5 in the Respondent's motion is granted.
[40] Because the Respondent will deal with Section 7 expenses in her amended Answer, paragraph 6 in the Respondent's motion is dismissed.
[41] I would not encourage the Respondent to claim child support from the Applicant. It was not the Respondent's original intention to do so. It would only exacerbate the already very serious problem the parties have in communication and arranging parenting times.
[42] I also would not be very hopeful that the Respondent would be successful in collecting arrears of s.7 expenses. Until now, the Respondent was reasonably satisfied to pay for and provide funding for the child's clothing and activities. Again, I do not see that the Applicant has the funding to pay some $2,200.00 towards Section 7 arrears.
[43] I suggest that the parties focus on trying to agree on future Section 7 expenses that would be best for the child.
Child's Surname
[44] Paragraph 7 in the Respondent's motion requests that the child's surname changed to "Bastarache-MacPherson". This request is dismissed as being beyond the powers of this court. Because there is an order for joint custody, presumably the Applicant's consent would be needed in an Application to the Registrar-General, for a name change. See the Change of Name Act R.S.O. 1990 c.C.7 as amended. Paragraph 7 in the Applicant's motion is also dismissed regarding the child's name.
Transfer to Superior Court
[45] The Respondent withdraws paragraph 9 in her motion (that requested a transfer to Superior Court over divorce issues).
Costs
[46] Permission is granted to either party to request costs for this motion, which would have to be presented to me.
[47] In paragraph 8 of the Respondent's motion, she requests costs for the 1 December 2014 motion. The Respondent was almost entirely successful. The Applicant turned down the Respondent's two offers to settle. The motion was necessary because of the Respondent's problems in arranging access with the Applicant. The Respondent is entitled to costs, but the Applicant could not afford the quantum requested by the Respondent.
[48] Paragraph 6 in the Applicant's motion is dismissed (regarding costs).
[49] Order for the Applicant forthwith to pay the Respondent's cost of $900.00 inclusive of HST and disbursements.
[50] The Applicant must come to learn that parties to litigation must always be seen to be reasonable and cooperative.
[51] The court has now dealt with the Respondent's motion in its entirety.
Holiday Access Schedule
[52] Returning to the Applicant's motion regarding holidays, the following paragraphs are on consent. Temporary orders granted as follows:
[53] New Year's Eve and New Year's Day shall be rotated each year with the Applicant having New Year's Eve in odd years, and the Respondent having New Year's Eve in even years. The exchange will happen on New Year's Day at 12 p.m.
[54] Mother's Day is split between the parties where the child will stay with the party whose weekend it is, but be exchanged to the other party on the holiday Sunday at 2 p.m. for the remainder of the day.
[55] Thanksgiving shall allow for access to the party whose weekend it falls on, with the exception of the holiday Monday, when the exchange to the other party will occur at 10:00 a.m. and continue for the remainder of that day.
[56] Easter shall allow for access to the party whose weekend it falls on, with the exception of the holiday Sunday, when the exchange to the other party will occur at 10:00 a.m. and continue for the remainder of that day.
[57] The parties disagreed over Christmas access. After due consideration of their positions, it is fair that Christmas be shared. Paragraph 2(b) in the Applicant's motion is dismissed.
[58] Temporary order for the Applicant to have the child on Christmas Eve and until 10:00 a.m. on Christmas day in even years. In odd years, the Respondent will have the child from Christmas Eve until 10:00 a.m. on Christmas day. At 10:00 a.m. on Christmas day, the child will go to the other party to enjoy parenting time.
[59] Paragraph 2(g) in the Applicant's motion is dismissed. (child's birthday access)
[60] On consent, on the child's birthday, the child will stay with the party she was scheduled to be with until 2:00 p.m. on that day, and then the child will be transferred to the other party.
[61] Paragraph 2(h) in the Applicant's motion is dismissed (access on a party's birthday).
[62] On consent, a temporary order for the party who has a birthday to have access from after school, if the child is in school that day, or from 2:00 p.m. if the party's birthday falls on a weekend or a P.T. day. That access will continue to 7:00 p.m. that day.
[63] Paragraph 3 in the Applicant's motion is granted on consent.
[64] Temporary order that the holiday schedule will supersede the regular access schedule.
[65] The Court has now dealt with the Applicant's entire motion.
Next Steps and Case Management
[66] This case is adjourned to 10:00 a.m. 5 April 2016 courtroom 208 for a Settlement Conference/Trial Management Conference. Nothing further is to be gained by further case conferences where the issues of custody and access are revisited. It is time to focus on getting final orders in this case.
[67] Unless the parties reach final consents before the return date, they should prepare for a trial management conference on the return date. Trial Management Conference briefs are required.
[68] Order that there will be no further motions in this case, without the court's permission, requested in a 14B motion on notice to the other party. Such a motion must contain a draft of the motion the party wishes to bring. In the court's discretion, a hearing on the request for a motion may be required. This court will not readily grant further motions in this case.
[69] Administration is to send the endorsement to the Applicant and to Mr. Anthony.
Released: January 15, 2016
Justice P.W. Dunn