Kinlocke v. Campbell, 2022 ONCJ 259

DATE: June 7, 2022

COURT FILE NO. FO- 755-12

ONTARIO COURT OF JUSTICE

B E T W E E N:

WAYNE KINLOCKE

- and -

MONIQUE CAMPBELL

Before Justice Sarah Cleghorn

Heard on April 25 and 26, 2022

Reasons for Judgment Released Electronically

Mr. Antal Bakaity………..……………..…….…......………...……for the Applicant

Mr. Trenholme/Ms. Bernard…………..………...…….….……for the Respondent

CLEGHORN, J.:

Introduction

[1] The parties have one child together, Soraya Heather Campbell-Kinlocke, born […], 2010. At the commencement of the trial, the parties filed Minutes of Settlement, resolving most of the issues, including an agreement that Ms. Campbell was to have sole decision-making responsibilities.

[2] Two issues require judicial determination. First, the regular parenting schedule for Mr. Kinlocke. Secondly, Mr. Kinlocke is seeking a reduction in child support payable as he claims he has high access costs.

Evidence at trial

[3] I will begin by setting out the relevant evidence heard at trial. The parties separated when Soraya was 6 months of age. At the time of separation, both parties were living in Brampton. Mr. Kinlocke testified that he had Soraya in his care, 50% of the time. Ms. Campbell testified that she had Soraya in her care 60% of the time. The parties were able to arrange different parenting schedules for Soraya, without the involvement of the court, until August of 2020. In August of 2020, Mr. Kinlocke testified that Ms. Campbell removed Soraya from his home, without his consent. As a result, he started this court application.

[4] There are two orders that are significant in how the current parenting schedule came to be. First, there is the interim consent order of Justice Rogers, dated September 16, 2020, under which the parties agreed to the following parenting schedule:

a) Commencing Friday, September 18, 2020, and on every Friday thereafter, from Friday at 4:00 p.m. to Monday at 8:00 a.m., with the Applicant father, Wayne Kinlocke; and,

b) Commencing Monday, September 21, 2020, and on every Monday thereafter, from Mondays at 8:00 a.m. to Fridays at 4:00 p.m., with the Respondent mother, Monique Campbell.

[5] Secondly, there is the interim consent order of Justice Rogers, dated April 14, 2021, under which the parties agreed that Ms. Campbell could relocate with the child to Guelph, Ontario.

[6] After that, Ms. Campbell made the move to Guelph with Soraya. The parties have largely maintained the interim parenting schedule with Mr. Kinlocke being responsible for all the transportation. As of January 2022, Mr. Kinlocke has started his parenting time on Saturdays, around 9 a.m. and returned Soraya to school on Monday mornings. Mr. Kinlocke finds the commute on Friday nights to be difficult and frustrating due to rush hour traffic.

[7] In addition to the above orders, a report by the Office of the Children’s Lawyer was completed and is dated February 11, 2021. The author of the report, Tracy Majewski, testified at trial.

[8] Soraya struggles academically. She is currently two grades behind in her education. Her current school has implemented an Independent Education Plan for her. Ms. Majewski, on these specific issues of Soraya’s learning challenges, observed that Ms. Campbell has the greater insight into what is required to assist Soraya. Ms. Majewski noted that Mr. Kinlocke puts his best efforts forward, but Soraya reported to her, that her father can become upset and angry with her when trying to assist her with schoolwork, and that his methods of helping Soraya with homework proved counterproductive at times. Mr. Campbell acknowledged this fact, testifying he could respond with anger out of frustration. In the OCL report, Soraya described Mr. Kinlocke screaming at her over homework. The impact on Soraya, is that “she feels sad, mad and scared, as she tries to do her math properly.”

[9] The parties do not dispute that there is an inability to communicate with one another. Mr. Kinlocke believes it is Ms. Campbell who refuses to speak to him. Suffice it to say, the parties do not have the ability to speak to one another, which includes meeting Soraya’s needs in terms of her academic struggles. I mention this for two reasons. First, it is relevant in terms of Soraya’s education. Secondly, it is relevant in terms of the exchanges that need to take place for the parenting schedule.

[10] Ms. Majewski’s recommendations for Mr. Kinlocke’s parenting time included the following:

• Soraya should spend the first two weekends of a three-week rotation cycle, with Mr. Kinlocke and then the third weekend of the rotation with Ms. Campbell.

• Mr. Kinlocke should pick up Soraya on Friday after school or at an agreed time, on his weekends. He may return Soraya to school on the Monday morning. If he cannot facilitate this, then Ms. Campbell should pick up Soraya at 5 p.m. on the Sunday of his weekends.

• Mr. Kinlocke should have parenting time with Soraya every Wednesday overnight if he can facilitate her return to school on the Thursday morning. If he is not able to make the school drop off on Thursday mornings, then Mr. Kinlocke should have a community visit with Soraya on Wednesday evenings bringing her back by 8 p.m.

Positions of the Parties

[11] Having summarized the evidence leading up to the current parenting schedule and the concerns surrounding Soraya's learning challenges, I will now outline what each parent is requesting.

Ms. Campbell’s request

[12] Ms. Campbell is currently a full-time student. Her studies thus far have been online because of the pandemic. She expects that she will return to in-person learning in September of 2022. She will be arranging for before and after-school care for Soraya and her younger sibling in September of 2022.

[13] Ms. Campbell has a younger second child, who does not form part of this Application. Ms. Campbell's concerns with the current schedule are that it does not allow for weekend family time as a unit. Mondays through Thursdays are focussed on school. There is little time left to enjoy carefree family time, given the week's demands. In addition, Soraya has not been able to spend time with important family friends, including her godmother, Ms. Marie-Anne Smart. Ms. Smart testified to her involvement with Soraya since birth. Suffice it to say that she has been an active and essential person in Soraya's life. The pandemic and the move to Guelph have resulted in Ms. Smart's inability to visit with Soraya as she works Mondays through Fridays.

[14] Ms. Campbell reports that Soraya is tired on Mondays. She does not know if this is impacting Soraya's schooling. Ms. Campbell would like to set up tutoring for Soraya on the weekends when Soraya is not tired from the school day. Having some weekend parenting time will allow her to implement this plan.

[15] Ms. Campbell requests that Mr. Kinlocke have parenting time with Soraya on alternating weekends from Friday from after school until Sunday in the evening.

Mr. Kinlocke’s request

[16] Mr. Kinlocke is currently unemployed but is actively seeking work. Before the pandemic, he was working as a chef. He lives with his mother, Ms. Esper Powell, and his brother, in a three-bedroom home in Brampton. Soraya shares a room with her grandmother, in which each has their own bed.

[17] Mr. Kinlocke testified that the parenting schedule had been equally divided until the move by Ms. Campbell to Guelph in September of 2020. Mr. Kinlocke finds the drive to facilitate his parenting time difficult for the pick-ups on Friday evenings. He testified that the drive from Brampton to Guelph takes him about forty-five to sixty minutes, depending on traffic. The drive from Guelph to Brampton, in rush hour, can take him up to two and half hours.

[18] Mr. Kinlocke has asked Ms. Campbell if he can pick up Soraya directly from school on Fridays to help beat some rush hour traffic. Ms. Campbell agreed to him doing this on several occasions, but she does not allow it most of the time.

[19] In January of 2022, Mr. Kinlocke began collecting Soraya for his parenting time on Saturdays to avoid the rush hour traffic that occurs Friday evenings. He does not experience any difficulties ensuring Soraya arrives in Guelph on time for school on Monday mornings.

[20] Regarding helping Soraya with homework, Mr. Kinlocke reports that Soraya does not bring any homework with her on the weekends. He looks through her school bag to ensure there is none. However, he does have Soraya read during the weekends, and his mother does math questions with her.

[21] Mr. Kinlocke spends $30 to $40 per week on his transportation costs to facilitate his parenting time.

[22] The paternal grandmother, Ms. Esper Powell, testified. Without question, Ms. Powell has been an essential and active person in Soraya’s life. Ms. Powell cared for Soraya starting when she was three months old when the parents were both working. Her commitment and time spent with Soraya have remained high. Ms. Powell is the one who assists Soraya with math, as she can do so in a calm manner and with patience. She provides Soraya with positive feedback.

[23] Mr. Kinlocke is requesting that the recommendations made by the OCL of three weekends per month, Fridays until Mondays, and a mid-week overnight visit be ordered.

Law and Analysis

[24] Having summarized the evidence and the parties' positions, I will now turn to the law and my analysis. It is trite to state that section 24(1) of the Children's Law Reform Act drives the analysis concerning parenting time for Mr. Kinlocke. Under that provision, it is Soraya’s best interests that are the primary consideration.

[25] The parents were able to arrive at the Final Minutes of Settlement on the issue of decision making and the primary residence of Soraya being with Ms. Campbell. The OCL report shows that the parents cannot communicate, and the parental relationship is fractured. There is no communication between the parents to discuss Soraya's needs. Soraya's views and preferences were to spend more time with Ms. Campbell.

[26] Soraya is surrounded by loving, committed parents and extended family members. As one might expect, Soraya is bonded with her parents, grandmother, and family friends.

[27] Not surprisingly, by the time of trial significant changes had occurred since the OCL report. With the most significant being the move by Ms. Campbell from Brampton to Guelph. When she authored her report, Ms. Majewski was aware that a move was contemplated and considered the potential relocation when making her recommendations.

[28] Ms. Majewski did not contact the parents or Soraya upon completion of her report in February 2021. She testified she could not comment on whether her recommendations should change given her lack of involvement since February of 2021.

[29] Soraya's educational needs are of concern. The evidence establishes that Ms. Campbell is the parent who is best suited to meet Soraya's needs in this area. Ms. Campbell's plan to arrange a tutor on the weekends makes good sense. It allows Soraya to engage in learning when she is not tired from the school day. Ms. Campbell is the parent who can provide the stability required to meet Soraya's educational needs. Soraya reports that her mother does not get angry with her over her schoolwork and can help her.

[30] One of the factors that I must consider is the relationship between Soraya and her siblings. Soraya has a younger sibling who resides with Ms. Campbell. She also has two older, independent siblings who live in Brampton. Mr. Kinlocke is the father of the two older siblings. I did not hear any evidence of how much time the older siblings spend with Soraya. The current parenting schedule does not allow Soraya and her younger sibling to have weekend time together, a time to relax as a family and partake in activities together.

[31] Soraya must continue her relationships with her extended family members and friends. The current parenting schedule does not allow Soraya time to spend with her godmother or important members of Ms. Campbell's life.

[32] Soraya had difficulty expressing how much time she would like to spend with each parent to Ms. Majewski. However, she did report that she wanted more time with Ms. Campbell, including weekends. Soraya said "she was not happy" with the current arrangement at the time of the report. She would like to spend weekends with both her parents, "as they do more fun things on the weekends." She also misses her mother and younger sibling when she is not with them. In Ms. Majewski's view, "It was evident that Soraya feels more emotionally safe at Ms. Campbell's home, where she finds her mom less likely to shout at her and that she is "nice."

[33] Ms. Majewski described her observations of Soraya as follows:

At this time, Soraya is a shy and gentle child who is playful, joyful and active, once relaxed and comfortable. However, Soraya's lack of self-esteem was evident to this writer and was also reported by her school. In addition, Soraya has had learning difficulties for several years, which have not been adequately addressed, by her parents, partly due to their inability to work together for her. As a result, Soraya is behind academically and struggling with her confidence. It is time that Soraya is put at the front of this dispute so that her needs can adequately be met.

[34] Ms. Majewski reports that "significant emphasis" must be placed on Soraya's education as "Soraya is struggling and suffering."

[35] For Soraya to have the best chance at achieving academically, she requires structure and routine in an environment where she feels comfortable learning. It is also important for Soraya's views and preferences to spend weekend time with both her parents to be considered. Soraya wants and needs to spend weekends with her mother and younger sibling. The current schedule does not allow for either of these things to occur.

[36] The OCL's recommendations were made when a move to Guelph was contemplated. Now that it has occurred, difficulties in following the parenting schedule for Mr. Kinlocke are evident. On Mr. Kinlocke's account, the commute during rush hour is frustrating. Given this, I cannot find that a mid-week overnight visit is in Soraya's best interests. This would require Soraya to spend up to two and a half hours on a school night commuting from Guelph to Brampton. This would be disruptive to her schooling.

[37] Soraya's views and preferences are to spend weekend time with both her mother and her father. This will allow her to do "fun things" with both parents and continue her strong relationships with her paternal grandmother, sibling, extended family, and friends. It will further allow Ms. Campbell to set up tutoring for Soraya on weekends when she is more alert and mentally ready to learn.

[38] Keeping Soraya's educational needs at the forefront, she should return to school Monday mornings without commuting at the start of her school week. On Sunday evenings, a return to her mother's home means Soraya can begin Mondays rested and ready to learn.

[39] Based on the above, I find it is in Soraya's best interests that the following parenting schedule for Mr. Kinlocke be implemented, and a Final Order shall issue, as follows:

• Commencing Friday, June 10, 2022, and every alternate Friday after that, from Friday after school to Sunday at 8:00 p.m., with the Applicant father, Wayne Kinlocke. If Monday is a statutory holiday and unless otherwise set out in the parties' executed consent dated April 25, 2022, the parenting time shall be extended to Monday at 8:00 p.m.

• Commencing Wednesday June 15, 2022, Mr. Kinlocke may have a community visit with Soraya, in Guelph from after school until 8:00 p.m. Mr. Kinlocke shall advise Ms. Campbell the Monday prior whether he will be exercising his mid-week parenting time.

[40] With the new parenting schedule in place, I cannot find that Mr. Kinlocke has high access costs. There shall be no reduction to table child support payable.

[41] The following orders shall issue in addition to paragraph 39:

• If either parent decides to travel with Soraya, the parent planning to travel shall provide 30 days written notice including complete itinerary and contact information. The parties shall sign required travel authorization forms. Neither party is to unreasonably withhold their consent to the travel.

• The ordinary residence of Soraya from Guelph, Ontario shall not be changed unless the parties’ consent or pursuant to a court order.

[42] Should costs be an issue, Ms. Campbell shall file and submit her costs submissions, including any offer to settle and bill of costs, on or before June 24, 2022. Mr. Kinlocke shall file and submit his submissions concerning costs, including any offer to settle and bill of costs, on or before July 15, 2022. If the court does not receive submissions, there shall be no order as to costs.

Released:

June 7, 2022

__________________________

Justice Sarah Cleghorn