ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 30071/07
DATE: 20120302

BETWEEN:

GRANT MICHAEL TAYLOR Applicant – and – JOAN BEATRICE TAYLOR Respondent

Self-represented (Father)

R. Gibson, for the Respondent (Mother)

HEARD: February 16, 2012

REASONS FOR JUDGMENT

Ricchetti, J.

[ 1 ] This is a Motion to Change a Final Order by the Father. The Final Order at issue is the Order of Justice Miller dated April 14, 2010 ("Order"). The Order was granted on consent pursuant to Minutes of Settlement signed by the parties.

[ 2 ] On December 15, 2010, the Father brought a motion to vary the custody and access with respect to one of the children of the marriage, Michael.

[ 3 ] S. 15(26) of the Family Law Rules provides:

If the court is of the opinion that a motion, whether proceeding on consent or not, cannot be properly dealt with because of the material filed, because of the matters in dispute or for any other reason, the court may give directions, including directions for a trial.

[ 4 ] Neither party suggested viva voce evidence at a trial was necessary to deal with the issues. The parties exchanged multiple affidavits over a 9 – 10 month period. There was no cross examinations on the affidavits filed.

[ 5 ] I am satisfied, having reviewed the evidence, that a trial is not required. There is no issue of credibility that needs to be resolved. The Court does not require examination and cross-examination to allow for a full exploring of the evidence and issues before the Court. The affidavit materials filed are numerous, extensive and carefully document both parties’ positions and concerns. Further, the evidence at the core of the Motion to Change is not contentious. Given the evidence filed and submissions made, I am satisfied the issues can properly and fairly be dealt with on the materials before me.

The Facts

[ 6 ] The parties were married on June 25, 1983. The parties separated in 2007. They were divorced in December 2009.

[ 7 ] There are two children of the marriage: Crystal Joan Taylor (d.o.b. Aug. 3, 1993) and Michael George Taylor (d.o.b. August 23, 1989).

[ 8 ] Michael has been diagnosed with Pervasive Developmental Disorder/Autistic Disorder and has a long history of seizures. Michael has some independent skills but is incapable of looking after himself or his well being.

[ 9 ] Pursuant to the Order:

i. Father had custody of Crystal;

ii. Mother had custody of Michael with both parents jointly making all decisions regarding Michael;

iii. Michael's residence was shared equally between the Mother and the Father;

iv. The parties agreed to retain a parenting coordinator, Ms. Lourdes Geraldo, when necessary and agreed to share the costs of the parenting coordinator. Ms. Geraldo has a master’s degree in social work and is an accredited family mediator. The parenting coordinator was to have "binding decision making authority";

v. The parties were to provide such authorizations, directions and otherwise cooperate as necessary for any programs and services for Michael;

vi. Residency transfers for Michael were to take place at the Burlington Police Station parking lot; and

vii. The parties were to share Michael's ODSP income equally.

[ 10 ] The parenting coordinator, Ms. Geraldo, received $3,000 from the parties, being $1,500 from each of them from their respective share of the proceeds of sale of their matrimonial home.

[ 11 ] Shortly after the Order, the Mother made some enquiries for support programs for Michael. The Mother did not arrange any programs for Michael while in her care. Essentially, this meant Michael had no support program every second week when residing with the Mother.

[ 12 ] Shortly after the Order, the Father arranged for Michael to attend each day The Camelot Center in Burlington (“Center”) while in his care. The Center is a non-profit, full or part time program for intellectually disabled adults. It provides individualized programming to continue the development of the individual and social interaction. This benefited Michael to participate in the Center’s programs.

[ 13 ] Michael’s camps and summer residency became an issue between the parties. It became necessary for Ms. Geraldo to resolve this issue. Despite trying, Ms. Geraldo was unable to mediate and settle these issues. As a result, Ms. Geraldo was required to hear submissions from both parties and make a final arbitral decision on these issues.

[ 14 ] The parties couldn’t even agree on making submissions. The Father was prepared to provide written submissions. The Mother would only provide Ms. Geraldo oral submissions and only when the Father was not present. Given this position, Ms. Geraldo had to have both parties in the building but in different rooms communicating through a speaker phone. Despite the fact arbitration was expressly contemplated in the Order and it was in Michael’s best interests to participate in the arbitration, it is clear the Mother didn’t want to participate in the process and made it much more difficult than was necessary. It is clear the Mother was not able to put aside her issues with the Father to deal with Michael’s best interests. She would not communicate with or be in the same room as the Father.

[ 15 ] Ms. Geraldo made her "binding" arbitral decision on July 16, 2010 setting out Michael's summer activities and residency schedule.

[ 16 ] On July 30, 2010 Ms. Geraldo wrote to both parties indicating a very small outstanding balance ($172) and a willingness to discuss financial issues given the parties limited financial resources. The Mother was not prepared to pay Ms. Geraldo any more funds. The Father paid the entire balance and provided Ms. Geraldo the further deposit requested.

[ 17 ] The Father wrote to the Mother on August 6, 2010 suggesting she consider Michael’s full time attendance at the Center, whether in the Father’s or Mother’s care. Clearly, the Father was concerned that Michael participate in full time, daily support programs each week and not just during the alternating weeks Michael resided with him.

[ 18 ] An interview date was arranged for the Mother to visit the Center. The Mother states she attended but did not stay for the interview because she had “stubbed” her toe outside the Center and decided not to go into the Center.

[ 19 ] At the end of the summer, Michael continued with the support program at the Center but on the alternating week basis but only when residing with the Father. The Center is prepared for Michael to attend full time (5 days each week).

[ 20 ] At the end of the summer, while in the Mother’s care, Michael participated in no formal support programs.

[ 21 ] It is important to note that, pursuant to the Order, both parents shared Michael’s ODSP monies. Clearly, the Father was putting these monies to good use for Michael by paying for the support programs at the Center.

[ 22 ] In the fall of 2010, the Father wanted the parenting coordinator to deal with a number of issues regarding Michael. The parenting coordinator, having no funds, wrote to the parties requesting monies from the Mother (the Father had already contributed) so that Ms. Geraldo could deal with “additional parenting issues” which had come forward. The Mother did not respond and did nothing. It is clear that the Mother had no interest in participating in the parenting coordinator process any further.

[ 23 ] Ms. Geraldo submitted a Summary Report on December 10, 2010. Some relevant portions of her report include:

i. Confirmation there was an “absence of agreement regarding community programming for Michael” in July 2010;

ii. From the beginning, the Mother had a “lack of trust in this process” (referring to the parenting coordinator process);

iii. The Mother refused to provide a consent to permit Ms. Geraldo to obtain information from Michael’s school, Halton Regional Police, Halton CAS and Community Living Burlington because “of the staff’s views of her and the change in staff” and the police were “biased in their reporting”;

iv. The Mother would not permit an observation visit in her home. No observation visit with the Mother and Michael took place;

v. “Throughout the parenting coordination process, Ms. Taylor expressed difficulty communicating with Mr. Taylor. My office frequently relayed messages between the parents in order to assist in resolving variation in transition times. Ms. Taylor had difficulty participating in the arbitration of the summer schedule and summer programming for Michael”;

vi. The parties difficulties communicating with one another challenged their ability to make joint decisions regarding appropriate programming choices for Michael;

vii. Michael appeared to be relaxed and comfortable in his Father’s home. All family members interacted with Michael in an attentive and nurturing manner;

viii. Ms. Geraldo interviewed Crystal who expressed that she believed Michael would be happier in the Father’s home; and

ix. Ms. Geraldo concluded as follows:

“Without a parenting coordinator in place, Ms. Taylor and Mr. Taylor do not have the necessary supports available to them to assist with communication and decision-making. I am aware that emerging issues require attention and resolution with respect to Michael’s special needs, and scheduling issues. In the absence of a parenting coordinator, communication and joint decision making will be difficult for these parents and will hamper their ability to meet Michael’s needs in an appropriate and timely manner.

Mr. Taylor presents as willing and able to participate in parenting coordination and to work with community professionals regarding Michael’s needs. Ms. Taylor expresses great love and devotion for Michael. She presents as more reluctant and distrustful of parenting coordination and community professionals. The concerns expressed about Ms. Taylor’s mental health and behaviour, warrant further assessment, however this was not possible, given her reluctance to consent to the release of information for community agencies.

A parallel parenting model or sole decision-making model may be more appropriate, given the parents’ financial constraints and Ms. Taylor’s difficulty in working within the parenting coordination process. Given Ms. Taylor’s reluctance to sign authorizations for community professions, the parenting coordination process was not able to receive the necessary information regarding each parent’s ability to meet Michael’s needs.”

[ 24 ] The only response provided by the Mother was that this report was written at the Father’s request. The Mother did not challenge the accuracy of Ms. Geraldo’s statements.

[ 25 ] Ms. Geraldo’s involvement with the parties and Michael came to an end.

[ 26 ] The Father brought this Motion to Change in December 2010. The Mother was served on December 18, 2010. The Mother, initially, did not respond to the Motion. The Father sought an uncontested hearing on the Motion. Before the uncontested trial was held on March 18, 2011, the Mother sought leave to file a Response to the Motion to Change.

[ 27 ] The Mother’s affidavit of March 21, 2011 responded:

i. She did not have the funds to continue to meet with the parenting coordinator as she was in receipt of Ontario Works and could not afford the expense;

ii. The Mother was “not sure that he[Michael] is learning any life skills” at the Center;

iii. The Mother, in March 2011, made inquiries with Community Living Halton who indicated they could provide some limited support while Michael was in her care. The Mother has since obtained some support for Michael for a “few hours” approximately 2 days a week when Michael is in her care;

iv. The Mother hoped to expand support services for Michael; and

v. The Mother responded to the Father’s allegation that the Mother would not respect the residency exchange times by between 15 minutes to 2 hours. The Mother explained she was unable to always meet the transfer time because “there are often special circumstances. Michael may have had sleep disruptions and if I wake him up too early, that may lead to a seizure.”

[ 28 ] The Mother’s September 20, 2011 affidavit provides that:

a) it continues to be in Michael’s best interests to continue with the week about residency arrangement now in place as Michael does not deal well with changes to his routine;

b) the Mother does not agree that her and the Father are incapable of working together to decide what is in the best interests of Michael;

c) Michael benefits from the two different support environments and two sets of peers;

d) Michael’s support during the time with his Mother includes: some “worker” takes Michael on Mondays to work out, on Wednesday he attends a social skills group and on Fridays he attends a cooking skills group; and

e) in response to the Father’s allegation Michael goes to bars and taverns to play billiard, the Mother admits she sometimes takes Michael to a bar to play billiards to learn “practical skills, such as using money and being able to order things for himself”.

[Content continues exactly as in the original decision.]

L. Ricchetti, J.

Released: March 2, 2012