Tanya Yasinchuk v. Chris Farkas, 2012 ONSC 2056

COURT FILE NO.: 13829-04(03)

DATE: 20120402

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

TANYA YASINCHUK

Applicant

• and -

CHRIS FARKAS

Respondent

Counsel:

Sylvano A. Carlesso, for the Applicant

No counsel for the Respondent

HEARD: February 21, 22, 23, 24, 27, 28, 29, 2012

D E C I S I O N

WILCOX, J.

[1] INTRODUCTION

[2] This case concerns the custody of and access to a young boy, Tyler Farkas, born August 13, 2002. The parties are his natural parents who were married and have separated and divorced. Both are remarried, the mother to Mr. Chris Litt, and the father to Ms. Natasha Farkas. Both have children with their new spouses, these being Hudson Litt and Paige Farkas, who are Tyler’s half siblings.

[3] PREVIOUS PROCEEDINGS

[4] Following separation, the parties entered into a separation agreement. Subsequent court proceedings were resolved in minutes of settlement which led to the final order of Nadeau J. dated March 29, 2005. Further court proceedings, brought by the father after Tyler commenced school, resulted in a further final order of Justice Nadeau dated February 26, 2007, on consent. It explicitly said that its terms and conditions shall supplement the terms and conditions of the previous order.

[5] The order of March 29, 2005 provided that the parties would have joint custody of Tyler whose principal residence would be with the Applicant mother. The Respondent father was entitled to regular and holiday access. That access was complicated by the Respondent’s work schedule and was explicitly intended to take place when the Respondent was off work. There were also provisions for support which are not currently in issue.

[6] The February 26, 2007 order deleted and replaced the earlier order’s provisions for summer and Christmas access. As previously mentioned, it also contained a number of terms which, it explicitly stated, were to supplement those in the earlier order including, in summary form:

1- The Applicant shall be the primary caregiver.

2- Neither party shall discuss any ongoing litigation with Tyler.

3- Neither party nor their spouses shall speak badly of nor criticize the other in Tyler’s presence.

4- The parties shall communicate only with each other with respect to Tyler (presumably meaning not with each other’s spouses).

5- Each would have some telephone access to Tyler.

6- The Respondent’s access should only take place on days that he is not working.

7- Tyler’s extra-curricular activities shall continue as much as possible.

[7] PRESENT PROCEEDINGS

[8] The present proceedings were commenced by the Respondent’s amended Form 15 motion to change the orders of Justice Nadeau. His requests are summarized as follows:

1- That he have sole custody of Tyler.

2- That the Applicant mother have liberal and generous access on reasonable notice, including the sharing of holidays.

3- Despite the change in custody, the provisions for him to pay to her the table amount of child support, updated annually, would remain unchanged. However, provisions for payment of extraordinary child expenses would change so that she would pay him.

[9] The Respondent also wanted a number of terms from the existing orders dropped, notably:

1- The requirement that only he provide transportation for access unless the Applicant consented otherwise.

2 – The requirement that he return Tyler to the Applicant if he was called in to work when Tyler was with him.

3- The prohibition on the parties’ respective partners becoming involved in issues regarding Tyler.

4- The requirement that only the parties communicate with one another regarding Tyler.

5- The requirement that the Respondent’s access only occur on days when he is not working.

6- The requirement that Tyler’s extra-curricular activities continue as much as possible when Tyler was with the Respondent.

[10] The Applicant mother responded, disagreeing with all of the Respondent father’s claims, and seeking:

1 - Sole custody of Tyler.

2 - That the Respondent’s access be on alternating weekends, extending to include coincidental statutory holidays, and other changes to the access regime.

3 - That Natasha Farkas be restrained from any communication or contact with the Applicant.

4 - That Natasha Farkas be prohibited from attending Tyler’s school.

[11] REPRESENTATION

[12] The Applicant mother was represented by counsel, Mr. Sylvano Carlesso.

[13] The Respondent father had had counsel at the times of the separation agreement, of the making of the previous orders and for some part of the current proceedings, but had chosen for financial reasons to represent himself at trial with the clerical assistance of his present wife, Natasha Farkas. He was advised that the court would provide some procedural guidance, but not legal advice, and that he could not expect treatment different than the court gave the other side simply because he was unrepresented.

[14] As a result of the Respondent’s indication that he intended to deal in evidence with matters which pre-dated the existing final orders, the scope of the hearing was clarified for his assistance. He was advised that the existing final orders are taken to have been properly made with respect to the circumstances existing at the times they were made. The hearing, then, would involve two main issues. The first was whether there had been any change in circumstances since the making of the previous orders to justify re-opening the case and making a new order. If not, that would be the end of the matter. If so, then the hearing would be about what new order should be made in the best interests of Tyler.

[15] APPLICABLE LAW

[16] Although the parties were married, it is not clear from the available information whether the orders in question were made pursuant to the corollary relief provisions of the Federal Divorce Act, or provincial legislation, specifically the Children’s Law Reform Act.

[17] The Divorce Act provides for the variation of a custody order where there has been a change in the conditions, means, needs or other circumstances of the child occurring since the making of the previous order (s. 17(5)).

[18] The Children’s Law Reform Act requires that there be a material change in circumstances that affects or is likely to affect the best interests of a child before a custody or access order may be varied (s. 29).

[19] Despite the wording differences, the test for variation proceedings under these two provisions has been held to be virtually identical. In Allen v. Allen, 1998 CanLII 14873 (ON SC), 38 R.F.L. (4th) 96 (ONT. GEN. DIV.) Wood J. stated as follows:

26 The decision in Gordon v. Goertz dealt with section 17 of the Divorce Act, R.S.C. 1985 (2nd) Supp.), c. 3. The relief sought and granted in this action was pursuant to the Children's Law Reform Act and the Family Law Act, R.S.O. 1990, c. F-3, of Ontario. Subsection 17(5) of the Divorce Act requires that a court varying a custody order satisfy itself that there has been "a change in the condition, means, needs or other circumstances of the child of the marriage" and that, in making the order, the court shall take into consideration only the "best interests of the child as determined by reference to that change". Section 29 of the Children's law Reform Act requires that a court shall not make an order that varies an order in respect of custody or access unless there has been a "material change in circumstances that affects or is likely to affect the best interest of the child". In my view, the test required under subsection 17(5) of the Divorce Act and section 29 of the Children's Law Reform Act, although differently worded, are virtually identical. As a condition precedent to making an order, both require a material change in circumstances affecting the best interest of the child and both require that the court take the best interests of the child into account in making any order that would vary a previous order. It is therefore my view that the reasoning of the Supreme Court of Canada in the Gordon v. Goertz decision is applicable to and should be followed in a decision varying a custody or access order under the Children's Law Reform Act.

The Procedure To Be Followed As Set Out in Gordon v. Goertz

27 The majority judgment of Justice Beverley McLachlin in the Gordon v. Goertz decision sets out a convenient checklist to be followed by a judge faced with the problem of deciding whether or not a custody or access order should be varied as a result of the move of one of the parties. This checklist is set out at page 201 of the judgment as reported in the Reports of Family Law and is as follows:

1. The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.

2. If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.

3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstance.

4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect.

5. Each case turns on its own unique circumstances. The only issue is the best interest to the child in the particular circumstances of the case.

6. The focus is on the best interest of the child, not the interests and rights of the parents.

7. More particularly the judge should consider, inter alia:

(a) the existing custody arrangement and relationship between the child and the custodial parent;

(b) the existing access arrangement and the relationship between the child and the access parent;

(c) the desirability of maximizing contact between the child and both parents;

(d) the views of the child;

(f) disruption to the child of a change in custody

(g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

[20] Although Gordon v. Goertz was decided in the context of a proposed move by one of the parties, its findings, apart from any that are unique to mobility cases, are applicable also to custody and access cases such as the one at hand.

[21] MATERIAL CHANGE IN CIRCUMSTANCES

[22] The Supreme Court of Canada has defined a material change in circumstances as a change, such that, if known at the time, would likely have resulted in different terms. (Willick v. Willick 1994 CanLII 28 (SCC), 6 R. F. L. 4th 161 at 179).

[23] There is support for the proposition that acrimony between the parties and the wishes of the parties not to be bound by an order any longer are sufficient to find a material change in circumstances.

[24] In Hildinger v. Caroll 2004 CanLII 13456 (ON CA), [2004] O. J. No. 291, both parties brought applications to vary an order for joint custody to sole custody. Their relationship had been acrimonious even before their daughter’s birth. The Ontario Court of Appeal held that the increase in hostility between the parties, aggravated by the father’s move to be closer to the child, amounted to a material change in circumstances. The court noted that neither party wished to be bound by the joint custody order any longer and that one party termed it “obsolete”. (Paragraph 21).

[25] In Wreggit v. Belanger [2001] O. J. No. 47777, the Respondent father appealed an order varying the previous order which provided for the parties to have joint custody of their child, and awarding the Applicant mother sole custody. The Ontario Court of Appeal agreed with the trial judge that a worsening of the conflict between the parties amounted to a material change in circumstances, justifying the decision to vary the order. The court noted that “conflict and lack of cooperation, whatever the source, are an impediment to an effective joint parenting arrangement, as well as a source of stress for the children”. Also, it found that any cause for optimism when the previous order was made that the parties could overcome their hostility and co-parent effectively had clearly vanished by the time of the subsequent order, justifying the variation.

[26] This court finds that there has been a material change in circumstances in the present case. The orders that are sought to be varied were made on consent. That indicates an ability of the parties then to reach agreement. There reasonably would have been an expectation that the orders would be followed and that there would be some continued cooperation. Unfortunately, the evidence showed that the orders were not always followed in various respects. The level of conflict in the situation has escalated, particularly with the involvement of Natasha Farkas. Tyler is aware of the conflict and is negatively affected by it. Joint custody exists in name only. Neither party wishes to continue under the existing orders, which are said to be “unworkable”. Therefore, it is appropriate to determine what new order for custody and access should be made.

[27] BEST INTERESTS OF THE CHILD

[28] In the making of a new order, both the Divorce Act at s. 17(5) and the Children’s Law Reform Act at s. 24(1) require the court to do so in the best interests of the child. The latter Act, in s. 24, provides a non-exhaustive list of factors to consider.

[29] OFFICE OF THE CHILDREN’S LAWYER

[30] The office of the Children’s Lawyer (OCL) became involved pursuant to an order of the court and assigned the case to Ms. Holly Pontello, a clinical investigator, to do an investigation and report pursuant to s. 112 of the Courts of Justice Act. Her affidavit with the report attached, dated December 29, 2010, was filed with the court and became Exhibit 3 at the trial. It forms part of the evidence. The report describes Tyler as being bright, athletic and having a number of other positive attributes. He has lived with his mother from the time of his parents’ separation in July, 2003. His relationship with his mother and stepfather, Christopher Litt, is close and he views his mother’s home as his home. Tyler enjoys time with his father, the Respondent, who is described as nurturing, affectionate and attentive. Tyler would like more time with his father, but does not consider the Respondent’s home to be his home, and would not like to live there full time or in a shared time situation. He is not completely at ease with his stepmother, Natasha Farkas, and not as comfortable in the Farkas home, particularly when his father is not there, but is not fearful of the time he spends with Natasha Farkas.

[31] Little fault with the Applicant mother or Christopher Litt is found in the report. In contrast, it has much more to say about concerning behaviours of the Respondent and Natasha Farkas with respect to their relationship with the Applicant. Tyler is caught in the conflict between his mother on one side and his father and stepmother on the other. That he is being affected emotionally by it is disturbing and raises concerns for his health in the future.

[32] The OCL recommended that the Applicant mother have sole custody of Tyler, but that there be what might be described as a parallel parenting regime. In it, the parties would consult with one another but, if they could not agree, each would have the final say regarding certain issues to do with Tyler. Specifically, the Applicant would be responsible for his “education, medical and psychosocial issues and needs”(sic), while the Respondent father would have the final say regarding “religion, community activities and events”(sic). There were also provisions regarding access and other matters incidental to custody and access.

[33] The Respondent formally disputed the OCL’s report. The dispute was filed as Exhibit 2. In it, he criticizes the clinical investigator’s approach, takes issue with various statements, claims that the information in it is inaccurate and biased, and even alleges the complete fabrication of a statement attributed to Tyler. No further information was provided to the court to indicate what, if anything, the OCL had done in response to the dispute.

[34] The Respondent called Ms. Pontello as a witness. Tactically, this did not serve him well as he was unable to cross-examine her, although his apparent goal was to discredit her report. He questioned her critically regarding things such as the procedure she had followed, the way she had written the report, some of the wording that she had used, and alleged errors in the report. To her credit, Ms. Pontello remained calm and matter of fact and was not defensive. She explained her role and how she performed it to rebut the Respondent’s suggestions that she should have done more or differently. On matters of fact, she was careful to note that she was recalling matters that she had dealt with about one and one half years ago without the benefit of any notes to refer to. Overall, she was an impressive witness whose evidence, both oral and in the form of her report, was not seriously damaged by his questions. Indeed, by focusing on the matters that he did, the Respondent seemed to miss the mark. For example, in disputing whether Tyler felt “terror” or a lesser level of fear as a result of the Respondent’s actions on occasion missed the point that the actions were frightening to Tyler to some extent, potentially put Tyler at risk, and showed questionable judgment by the Respondent. The questions asked did not reveal an appreciation by the Respondent of the overall situation, how it affected Tyler or how it informed the OCL’s recommendations. In the vernacular, he appeared not to see the forest for the trees.

[35] CUSTODY

[36] Tyler has lived with the Applicant mother for his whole life to date, before and after his parents’ separation. This arrangement was provided for in their separation agreement and the subsequent consent orders. The order of Nadeau J. dated March 29, 2005 provided that the parties have joint custody and that Tyler’s principal residence be with the Applicant. This arrangement persisted in Nadeau J.’s order of February 26, 2007 which added that the Applicant mother shall be Tyler’s primary caregiver.

[37] The Respondent’s original motion to change the orders of Nadeau J. sought only to vary the access terms. He testified that it was only after the Applicant sought sole custody in her Response to Motion to Change that he produced his amended motion to change seeking sole custody, on the advice of his lawyer at that time. Indeed, his case, as it unfolded at trial, was mostly about his access and the conflict that has characterized his relationship with the Applicant post-separation. His goal was to have more time with Tyler. Inherent in his position is that having custody would give him control, and remove it from the Applicant. Underlying this case is the theme, sometimes very subtly expressed, at other times more obvious, that the Respondent chafes under the authority of others and wants to exercise control.

[38] As noted above, the material change in circumstance in this case was the increasing level of conflict. The Respondent did not provide evidence that would justify changing the status quo of Tyler primarily residing with the Applicant. The evidence showed Tyler to be doing well in school, to be fully bilingual and to be involved in numerous sports. The Respondent agreed that Tyler is polite, respectful and well dressed. Natasha Farkas’ father, Andre Chartrand, who was called to testify for the Respondent, said he had known Tyler about eight years and had spent significant time with him. He agreed with the positive comments of others regarding Tyler and added more, noting that Tyler appeared to have been raised properly. Some credit is due to both parties, but it cannot be overlooked that Tyler has lived primarily with his mother, who would have had the most opportunity to influence his development. Nevertheless, the Respondent would only admit that the Applicant had raised Tyler properly “outwardly”.

[39] The Applicant continues to reside in Timmins, where Tyler has lived all of his life so far. She remarried, to Mr. Chris Litt, an officer with the Timmins Police, about six years ago. They have a son, Hudson, Tyler’s younger half-brother. She works as a manager with the CNIB.

[40] The Applicant presented as an articulate person with Tyler’s interests at heart.

[41] Tyler has some medical issues, including asthma and a peanut allergy. The Applicant expressed concern that the Respondent did not always give Tyler his medications, and about Tyler’s allegation that the Respondent had exposed him to peanuts. She did not think that the Respondent took Tyler’s condition seriously enough. In any case, it was clear that the Applicant saw to it that Tyler received medical, as well as dental care.

[42] The Applicant has Tourette’s syndrome, which she has undergone treatment for. Tyler might also have it, but this has not been confirmed yet. If he does, the Applicant has experience with it to draw on and knowledge of the treatment options which could benefit Tyler.

[43] The evidence shows that Tyler is affected by the conflict that has been a part of his life. To her credit, the Applicant indicated that she had contacted Child and Family Services to inquire about help with this. She has also asked Tyler’s school to advise her if any behavioural changes are observed in him.

[44] Tyler’s school career so far has been at Lionel Gauthier Public School, a French school. The Applicant is bilingual, whereas the Respondent is not. Therefore, she is better able to help Tyler with his schoolwork. She expressed concern that Tyler was not doing enough of his homework when at the Respondent’s for access, leaving the bulk of it to be done at home before it was due. She also has Tyler’s half-brother, Hudson, at that school. She has been actively involved in the school, participating, for example, in the parent-teacher association. Elaine Denomme was the principal at the school for 15 years until December, 2010, Joanne Hartling was the secretary there and Lisa Picard was a teacher’s aide there. All testified about their involvement at the school with Tyler, the Applicant, the Respondent and Natasha Farkas and had nothing negative to say about the Applicant.

[45] Indeed, there is little negative to say about the Applicant, based on the evidence. The OCL report noted that she did better than the others at not discussing her feelings around Tyler, suggesting that some of that did occur. She prefers structure and routine, which might be necessary in order to manage in her household, at the expense of flexibility. This has caused her to refuse to deviate from the court-ordered access arrangement at times, although not always, as she prefers to follow the order. The Respondent complained about her inflexibility preventing him from having more time with Tyler, despite the terms of the consent orders. He also alleged that the Applicant had animosity towards him and Natasha Farkas that did not serve Tyler’s best interests, although the evidence did not bear that out. It would be understandable in the circumstances if the Applicant did have some animosity for them, but the evidence did not show that it was her animosity that was at the root of the conflict which is negatively impacting the access.

[46] There was little evidence about the Applicant’s husband, Chris Litt, and nothing negative. Even the Respondent spoke positively about him, noting that they were both police officers and shared an interest in soccer, which Tyler enjoys playing. The Respondent took comfort, he said, that Tyler has Mr. Litt in his life as a father figure.

[47] The court is concerned that the Respondent’s focus and priority in this case was more on his own interests than on those of Tyler. There are many indications of this, some of which were quite subtle. A partial list of these is as follows:

a) The Respondent questioned the OCL regarding his losing time with Tyler if the Applicant did not follow access, not regarding Tyler losing time with him. Similarly, the Applicant testified that the Respondent spoke in terms of her owing him makeup access.

b) He spoke of possibly wanting Tyler in sports other than those the boy was in, without acknowledging that Tyler could have a preference.

c) The OCL’s clinical investigator, Holly Pontello, testified that the Respondent had wanted to move Tyler to another (non-French) school because he felt that he was not getting fair treatment at Tyler’s school. Tyler had always gone to that school, was doing well and had friends there, but the Respondent thought of moving him for the Respondent’s own purposes.

d) There was evidence that Tyler did not always get to his scheduled activities if they fell on access times. The Respondent testified that Tyler’s activities took time away from the Respondent, Natasha Farkas, their daughter Paige and others in the family. The Respondent needs to see Tyler’s activities as part of the Respondent’s life, not as things which interfere with access. It is a certainty that the Applicant mother’s time with Tyler is often centered around his activities and does not always involve spending one on one time with him.

e) The former school principal, Elaine Denomme, testified that there were a number of incidents with the Respondent at Tyler’s school involving the Respondent’s demands for access outside of what the orders allowed that led to him being issued a No Trespass Notice by the school board on April 24, 2009. Board representatives met with the Respondent on July 5, 2010 to discuss the matter and wrote to him on August 25, 2010 (Exhibit 4) offering to lift the trespass notice if the Respondent would agree in writing to vary his conditions. He refused to agree unless the same conditions were applied to the Applicant. She had never been issued a Notice of Trespass, and the board refused. So, the Respondent did not agree to the conditions. In taking this position, he put his own interests ahead of Tyler’s.

f) The Respondent was pleased that the new principal had a different attitude and that all parents were treated equally. He made it an issue that he felt that he had been treated differently from the Applicant and from other parents. This was refuted by the retired principal, Elaine Denomme, whose evidence was that the proposal to lift the Notice of Trespass reflected school policy regarding all parents, which policy was subsequently tightened up. That his own behavior was of concern to others and led to conflict did not impinge on his thinking.

g) The Respondent observed in testimony that, with the “primary caregiver” designation in the 2007 order, the Applicant got preferential treatment and he had no rights.

h) The Respondent said that he and Natasha Farkas had asked Tyler if he would like to live with them, commenting that it would be a nice feeling to have, to know that Tyler would like to.

[48] In fairness, the Respondent did frame matters in terms of Tyler’s interest at times. However, the overwhelming impression from the evidence was of a man struggling to satisfy his own psychological needs often at the expense of his relationship with Tyler and of Tyler’s own needs.

[49] NATASHA FARKAS

[50] The Respondent is married to Natasha Farkas and they have a daughter, Paige, Tyler’s younger half-sister. The evidence regarding her came from others, as she did not testify. She was present in court throughout the trial and was of considerable assistance to the Respondent in presenting his case.

[51] Ms. Farkas’ involvement in the case causes the court great concern, as it affects Tyler’s interests, often in a very negative way.

[52] Melanie Hall was called as a witness by the Respondent. She is acquainted with both the Applicant and Ms. Farkas and testified that they did not get along, but had a profound dislike for each other, although she had seen them be polite with one another.

[53] Ms. Farkas was charged with the criminal harassment of the Applicant in 2006. There are no details of the allegations in the evidence, but the Respondent testified that the charge had been withdrawn in 2008 when Ms. Farkas entered a peace bond requiring her to stay away from the Applicant for three months.

[54] The order of 2005 contained two paragraphs which are set out as follows:

Paragraph 11 – The Respondent shall be responsible for picking up and dropping off the child directly from both the regular access visits and the holiday access visits and shall not have any other person present unless consented to by the Applicant.

Paragraph 15 – The Applicant and the Respondent shall not allow any partner of theirs to become involved in issues involving the child and shall encourage their respective partners to communicate any and all messages from each other and to facilitate all communication between the Applicant and the Respondent to their child.

[55] The order of 2007 contained the following paragraphs:

3. Neither party shall discuss with Tyler the issues involved in any ongoing litigation between the parties or their spouses. Neither party nor their spouses shall speak badly or criticize the other in Tyler’s presence. Both parties and their spouses shall always speak positively about the other in Tyler’s presence.

4. Only the parties themselves shall communicate with one another regarding any issue or circumstance about Tyler’s welfare, except in an emergency situation. The parties shall immediately provide to one another their correct email addresses and shall update any changes in their email addresses immediately following the occurrence of the change.

[56] The evidence showed that Ms. Farkas has been actively involved in the breach of these provisions, contributing to the conflict in this case.

[57] The Applicant expressed a belief that it is important that the Respondent pick up and drop off Tyler for access, as that is important time for them together. The requirement for him to do so was put in place because Ms. Farkas had yelled from the street, causing conflict. Often, however, it is Ms. Farkas who does the pick up and drop off.

[58] There was little evidence of Chris Litt being involved in this situation, but a great deal regarding Ms. Farkas’ involvement. Some of it is in the OCL’s report and will not be set out in detail here.

[59] The Applicant testified that Ms. Farkas had often answered the telephone when the Applicant called, and had directed crude remarks at the Applicant. Also, Ms. Farkas had delivered the Applicant’s support payment from the Respondent, remarking on it being the Applicant’s “payday”.

[60] There was evidence that Ms. Farkas had involved herself with Tyler’s school. Exhibit 10 was filed as an example of her signing communications with the school as a parent. Elaine Denomme spoke of Ms. Farkas contacting the school requesting a change of time for access, and attending the school to pick up Tyler for access.

[61] A serious incident occurred at Tyler’s school in October, 2009. Joanne Hartling, the school secretary, testified that she was dealing with an electrical power outage at the school, in the absence of the principal, when Ms. Farkas arrived, seeking to take Tyler for lunch. Ms. Farkas was trespassing, being subject to a Notice of Trespass, as was the Respondent, and would not leave when asked. Also, she had taken Tyler from the school before and not returned him, resulting in the police being called. Therefore, Ms. Hartling wanted to be sure of the situation and was looking in the dark for a note confirming the access arrangements. Ms. Farkas was quite loud and uncooperative. She did not wait for Ms. Hartling to confirm the situation, but left the school with Tyler.

[62] Lisa Picard testified that she was working as a teacher’s aide in a classroom near the school office that day when her attention was caught by loud voices. She looked down the corridor and observed Ms. Farkas speaking loudly and being very intimidating to Ms. Hartling. Ms. Picard spoke of this being unexpected of a parent in school, especially with children in the corridors. She confirmed that Ms. Farkas had said that she was going to get her “son” and had gone in the direction of his classroom. Both Ms. Farkas and Tyler were gone from the school a few minutes later when Ms. Picard checked.

[63] As a result of this incident, the police were called and Ms. Farkas was charged with causing a disturbance and trespass. The Respondent confirmed in evidence that the charge of causing a disturbance was withdrawn when Ms. Farkas pleaded guilty to the trespass.

[64] Despite the prohibition on the parties and their spouses speaking badly of or criticizing the other in Tyler’s presence, the Respondent gave evidence of an incident which took place when the Applicant, Respondent and Ms. Farkas were all present at Tyler’s soccer game, sometime after the 2007 order containing that prohibition was made. In what can only be characterized as a heated exchange, Ms. Farkas called the Applicant a “herpes queen” in reference to an affliction the Applicant has. Tyler, he said, may have been close enough to hear it. The Applicant’s version was that she and the Respondent were on the field with the players as parents were allowed to be, and as Ms. Farkas wanted to be. The Applicant and Ms. Farkas got close together and Ms. Farkas said words to the effect of, “get away, Herpes Queen” while there were children around. The Applicant stated that it was not the first time that Ms. Farkas had said such in public. One time, it occurred at an exchange when the Applicant had Tyler in her arms. In addition, she spoke of a number of occurrences when the Applicant had kissed Tyler, after which Ms. Farkas had wiped his mouth, saying not to kiss his sister until he had wiped it, because the Applicant was full of diseases. The Applicant also commented that Tyler had spoken of Ms. Farkas saying that the Applicant talked like a pig.

[65] With respect to the 2007 order’s requirement that the parties communicate only between themselves regarding Tyler’s welfare, the court notes that much of the communication between the parties was by email, at the suggestion of Nadeau J., to try to avoid conflict. An email dated November 23, 2011 was entered as Exhibit 12. It is from the Respondent’s email address, is addressed to the Applicant’s email address, and appears to be from him to her. It is in large bold letters and ends with the statement, in large, bold capital letters, “Go fuck your hat!!! I’m done with your lies”.

[66] The Respondent stated under cross-examination that Ms. Farkas, not he, authored that email, that some emails – he did not know the number – were between the Applicant and Ms. Farkas and that the Applicant would not know it did not come from him. The Applicant confirmed that she thought she was communicating with the Respondent, not with Ms. Farkas, and now does not know what the Respondent has sent or received. The Respondent allowed that an apology would be appropriate, but made an attempt at justifying Ms. Farkas’ action by saying that her frustration is “off the scale”.

[67] In light of the email, the Respondent was asked whether he or Ms. Farkas spoke for him, to which he responded that he did. Nevertheless, it was a good question in the circumstances. The court had noted at the outset that the Respondent was curiously unable to answer some simple questions about his Notice and Amended Notice of Motion to Change. Then, he requested to have Ms. Farkas act in effect as his counsel to question him in-chief when he was on the witness stand, which request was refused. She supported him throughout the trial in a clerical capacity, which was generally appropriate, unobtrusive and helpful. However, it became apparent during his cross-examination of the Applicant that Ms. Farkas was virtually dictating to him the questions to ask, and that he was listening to her, not to the answers. This was noted independently by the court and by the Applicant’s counsel, who objected.

[68] Despite the allegations involving her, Ms. Farkas was not called to the witness stand to refute or explain them. The opportunity certainly existed. There was no explanation offered for not calling her. That leaves it open to the court to draw an adverse inference against the Respondent. The failure to call her as a witness amounts to an implied admission that her evidence would not support the Respondent’s case, or would even be contrary to it. (see Miller v. Carley (2009) 98 O.R. (3d) ONT. S. C. J., pp. 465-7)

[69] It is clear that Ms. Farkas is deeply involved in this matter, and not always in a positive way. Some involvement by step-parents in Tyler’s life is, obviously, inevitable. However, she has taken on a too prominent and controversial role and overstepped her boundaries. These boundaries were defined, to some extent, by the court orders. Her involvement, particularly in light of the unfriendly relations between her and the Applicant, needs to be reduced. To date, it has contributed to the ongoing conflict, to the detriment of Tyler. She should leave the dealings with the Applicant to the Respondent and focus on providing Tyler with a respectful, conflict-free environment when he is with her. To his discredit, the Respondent has not recognized this nor taken appropriate steps to see that Ms. Farkas acted properly for the benefit of Tyler.

[70] JOINT CUSTODY

[71] The parties have had, in name, joint custody of Tyler up to now. Primary residence has been with the Applicant mother. The 2007 order added a term that she shall be the primary caregiver, the intent or legal effect of which is not clear. Both parties have claimed for sole custody in order to eliminate their conflict. Nevertheless, the option of joint custody remains open to the court, which must decide what is in the best interests of the child. In Williamson v. Massinger, [2011] O. J. No. 605 (S. C. J.), D. L. Chappel J. of the Ontario Superior Court of Justice noted that the case law provides guidance regarding the factors to consider in deciding between sole and joint custody and stated the following:

30 The Ontario Court of Appeal's approach to joint custody has evolved over the years. In Kruger v. Kruger7 and Baker v. Baker,8 the court held that joint custody is an exceptional remedy that should only be granted in circumstances where the parties demonstrate co-operation and appropriate communication, and are willing to try a joint custodial arrangement. Since that time, the court has dropped the requirement of consent to a joint custody order, but has maintained that in order to grant joint custody, there must be some evidence before the court that despite their differences, the parties are able to communicate effectively with each other.9 The rationale for this principle is that the best interests of the child will not be advanced if the parties are unable to make important decisions regarding the child under a joint custody regime.

31 While some measure of communication and cooperation between the parties is necessary to support a joint custody order, the court is not required to apply a standard of perfection in assessing the parents' ability to work together. As Quinn, J. remarked in Brook v. Brook, "the cooperation Page 10 needed is workable, not blissful; adequate, not perfect."10

32 A mere statement by one party that there is an inability to communicate will not be sufficient to preclude a joint custody order. The court must carefully consider the parties' past and current parenting relationship and reach its own conclusions respecting the parties' ability to communicate, rather than simply relying on allegations of conflict by one or both of the parties.11 Furthermore, the existence of conflict and strife between the parties from time to time, and at the time of trial, will not necessarily preclude the court from making an Order for joint custody. The question to be determined is whether the nature, extent and frequency of the conflict between the parties is such that it is impacting or likely to impact on the well-being of the children. If the evidence indicates that the parties, despite their conflict with each other, have been able to shelter the child from the conflict reasonably well and put the child's interests ahead of their own when necessary, an order for joint custody may be appropriate.12 The question for the court to determine is "whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis.” 13

33 Where an objective review of the historical and more recent evidence clearly indicates that there has never been an ability to cooperate or communicate effectively, or that one or both of the parties is/are unable to put the needs of child before their own, joint custody is not an appropriate order.14 In these circumstances, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for making of order of joint custody.15

[72] Despite the joint custody designation, the reality has been more of a sole custody situation, with the Applicant making the decisions regarding the choice of schools, doctors, dentists, treatments and sports. This appears not to have been contentious. The Respondent’s focus in his motions to change and, for the most part, his evidence at trial, was regarding access and the time he had with Tyler. The evidence also indicated that the parties had divergent opinions about the appropriate care and treatment of Tyler’s medical conditions, about his participation in sports, and even about the school he should be in, casting doubt on their ability to achieve consensus. Be that as it may, the weight of the evidence indicated that the parties are not able to communicate effectively with one another on a consistent basis. Furthermore, as previously noted, the Respondent put his own interests ahead of Tyler’s at times. Taking all of this into account, the court does not see this as an appropriate case for joint custody.

[73] PARALLEL PARENTING

[74] The OCL’s recommendation included a form of what is known as parallel parenting by allocating decision-making authority on some matters to the Applicant and on other matters to the Respondent. The use of parallel parenting has been accepted by the courts in some circumstances. In the case of Ursic v. Ursic 2006 CanLII 18349 (ON CA), [2006] O. J. No. 2178, the parents were able to shield their child from their disagreements and put his interests above their own to the extent that they were able to live for months separately in the same home. The Ontario Court of Appeal upheld the trial court’s decision to impose a parallel parenting regime of sorts, with some modifications. In that case, it was within a joint custody arrangement, unlike the sole custody arrangement recommended by the OCL in the present case.

[75] This court does not find the parallel parenting regime to be appropriate in the present case. The situation does not resemble that in Ursic. Here, both parties believed that the other was interpreting the orders to their own benefit, and to the detriment of the other. It is likely that the decisions made by one party on some matter would somehow clash with the decisions made by the other party on another matter, leading to further conflict.

[76] ACCESS

[77] A challenging aspect of this case is the crafting of access terms which will work. There are limits to what a court can do. Once the decision is released, the court, obviously, is not in a position to watch over people’s shoulders and enforce the terms or be a referee for them on an ongoing basis. Much depends on the parties’ respective levels of maturity and on their own judgment. They need to make the order work for Tyler’s sake. Although their relationship failed and each has moved on, they will always be bound together by Tyler. Life will be easier with less conflict and more trust. Trust must be earned, through fair dealings and demonstrated reasonableness and reliability. Even if they are not friendly with each other, the parties should at least be polite, respectful and business-like, especially in Tyler’s presence.

[78] Life does not always follow a schedule. Flexibility in access is preferable in many cases in order to accommodate the unpredictable, if the parties can make it work. This is a case which, more than most, would be well served by flexible access arrangements, primarily due to the nature of the Respondent father’s work schedule. Unfortunately, the parties’ relationship does not accommodate much flexibility in the access arrangements. The evidence showed that the Applicant mother preferred to stay within the boundaries of the orders, and to have predictability and routine. The Respondent father’s view is different. He testified that he had agreed to but not with the terms of the orders. Conflict arose when he tried to obtain access that was more than or different from what the orders provided. The former school principal, Elaine Denomme, confirmed that there had been a number of such incidents and that the Respondent had made a statement to her to the effect that no court order was going to stop his access to his son! This case requires definite access arrangements which can be enforced if need be. This is to reduce the opportunity for conflict to arise through disagreement or misunderstanding. Having said that, there would still be a need for flexibility at times. Indeed, there was some evidence that the parties had been able to agree on occasion to access outside of the order’s terms. However, the terms of any agreement to deviate from the specified terms of access will need to be carefully worded and recorded, again to minimise the opportunity for conflict.

[79] The Respondent does not work nine to five, Monday to Friday, which complicates the access. According to him, his shifts are on a 28 day cycle as follows:

On: 3 days and 2 nights, beginning on a Friday

Off: 5 days, Wednesday through Sunday

On: 2 days and 2 nights

Off: 5 days, Friday through Tuesday

On: 2 days and 3 nights

Off: 4 days, Monday through Thursday

They are 12 hour shifts, from 7:00 to 7:00. He has two consecutive weekends off in each cycle always coinciding with the periods he is off for 5 consecutive days. Mid-week, he appears to be off work for some or all of each Wednesday in the late afternoon or evening when Tyler would be off school.

[80] In addition, he might have overtime or be sent on courses, which adds to the complication. The existing orders required access to take place only when he was not working. There is some sense to this requirement, but it was also the source of some of the conflict between the parties, as it was not always followed. Therefore, it will be done away with to reduce the conflict. The evidence showed that, although Tyler does not consider the Farkas residence to be his home and that he is more comfortable there if his father is present, it would not be inappropriate for him to spend some time with his stepmother, Natasha Farkas, and half-sister, Paige, without the Respondent being present, provided Natasha Farkas avoids any derogatory words or actions aimed at his mother.

[81] ORDER

[82] 1) Paragraphs 1 and 8 through 17 of the order of Nadeau J. dated March 29, 2005 and paragraphs 1 through 11 of the order of Nadeau J. dated February 26, 2007 are set aside and replaced by the following.

2. The Applicant mother, Tanya Yasinchuk, also known as Tanya Litt, shall have custody of Tyler Farkas, born August 13, 2002.

3. REGULAR ACCESS

a) The Respondent shall provide to the Applicant a copy of his current work schedule from time to time in order to facilitate planning for access.

b) Assuming that the Respondent’s 28 day cycle of 12-hour work shifts is as follows (as described in the body of the Decision):

On: 3 days and 2 nights, beginning on a Friday

Off: 5 days, Wednesday through Sunday

On: 2 days and 2 nights

Off: 5 days, Friday through Tuesday

On: 2 days and 3 nights

Off: 4 days, Monday through Thursday

the Respondent father shall have the following regular access:

(i) In the first 5-day period that he is off work, from Thursday after school until Sunday at 7:00 p.m. Pickup shall be at Tyler’s school.

(ii) In the second 5-day period that he is off work, from Friday after school until Monday at 7:00 p.m. Pickup shall be at Tyler’s school.

(iii) Each Wednesday, from after school until 8:00 p.m. Pickup shall be at Tyler’s school. Tyler’s homework for the day is to be completed during that time.

c) The regular access shall be subject to and suspended during the access specified for special occasions as follows:

4. CHRISTMAS ACCESS

a) The Christmas break will begin at 10:00 a.m. on the day immediately following the last day of school before the break and shall end at noon on the day immediately prior to the resumption of school after the break.

b) In even-numbered years, the Applicant shall have Tyler for the first half of the school break, and the Respondent shall have Tyler for the second half of the break.

c) In odd-numbered years, the Respondent shall have Tyler for the first half of the break, and the Applicant shall have Tyler for the second half of the break.

d) However, in even-numbered years, the Respondent shall have Tyler from noon on Christmas Eve to noon on Christmas Day and the Applicant shall have Tyler from noon on Christmas Day to noon on Boxing Day. In odd-numbered years, the Applicant shall have Tyler from noon on Christmas Eve to noon on Christmas Day, and the Respondent shall have Tyler from noon on Christmas Day to noon on Boxing Day.

5. MARCH BREAK

(a) March break begins at 4:30 p.m. on the Friday of the last day of school before the break and ends at 4:30 p.m. on the Friday immediately before the resumption of school at the end of the break.

(b) In even-numbered years, the Applicant shall have Tyler for the March break.

(c) In odd-numbered years, the Respondent shall have Tyler for the March break.

(d) The parent that does not have Tyler during the March break week will have him for the weekend at the end of March break from Friday at 4:30 p.m. until Sunday at 4:30 p.m. when the regular access schedule would resume.

6. EASTER WEEKEND

(a) Easter weekend begins at 4:30 p.m. on the Thursday before Good Friday and ends at 4:30 p.m. Easter Monday.

(b) In even-numbered years, the Respondent will have Tyler for the Easter weekend.

(c) In odd-numbered years, the Applicant shall have Tyler for the Easter weekend.

7. SUMMER HOLIDAYS

(a) Summer holidays shall commence at 4:30 p.m. on Friday of the weekend following the end of school in each year. Each party shall have Tyler on alternating weeks thereafter, changing to alternating two-week periods in 2015.

(b) In even-numbered years, the Respondent shall select the commencement of his weeks with Tyler, and notify the Applicant in writing by April 1st of that year.

(c) In odd-numbered years, the Applicant shall select the commencement of her weeks with Tyler and notify the Respondent in writing by April 1st of that year.

(d) However, in each and every year, Tyler shall be in the Applicant’s care during the last week of August and on Labour Day weekend so as to prepare for his return to school.

8. THANKSGIVING WEEKEND

(a) Thanksgiving weekend begins Friday at 4:30 p.m. and ends on Monday at 4:30 p.m. (b) In even-numbered years, the Applicant shall have Tyler for Thanksgiving weekend. (c) In odd-numbered years, the Respondent shall have Tyler for Thanksgiving weekend.

9. TYLER’S BIRTHDAY

Tyler’s birthday shall be spent with the parent that he is with as a result of the summer access schedule. However, communication with the parent that he is not with on that day shall be arranged and facilitated.

10. MOTHER’S DAY/FATHER’S DAY

Mother’s Day and Father’s Day shall be spent with the respective parent for the entire day beginning at 10:00 a.m. and ending at 7:00 p.m.

11. EXCHANGES FOR ACCESS

Pickups and drop offs for access shall be by the Respondent or his designate, who shall be a responsible adult.

INCIDENTS OF CUSTODY AND ACCESS

12. The parties shall use a communication book to exchange information relevant to Tyler. The book shall go with Tyler at access and return with him at the end of access. It shall contain information relevant to Tyler’s care. It shall not be used to convey any hostile comments. The parties shall, on an ongoing basis, provide to one another copies of all reports, documents, tests, or other written material brought by Tyler from school while in their care.

13. The Respondent, as access parent, has the same right as a custodial parent to make inquiries and to be given information as to the health, education and welfare of Tyler. This shall be by direct communication between the Respondent and the relevant professionals. The Applicant shall sign any release forms reasonably required to facilitate this. The Applicant shall also keep the Respondent advised of the identity and contact information of all professionals and organizations dealing with Tyler. For greater certainty and without limiting the foregoing, this shall extend to and include all coaches, instructors, supervisors and organizations for sports or other activities that Tyler might be involved in from time to time.

14. The parties shall encourage Tyler to participate in all sports and activities in which he is enrolled, and ensure that Tyler attends his sports and activities as scheduled.

15. The parties shall exchange and keep current their contact information to facilitate contact between them, and between each of them and Tyler.

16. Telephone access from Tyler to either parent shall be encouraged and occur at least once per week. A telephone call with the parent not providing care to Tyler at the time shall not be denied, especially if initiated by Tyler. During the summer access schedule, Tyler shall have telephone contact with either parent as frequently as he wishes, but no less than two times per week. Tyler shall be given complete privacy during these calls.

17. Tyler shall be free to communicate with either parent by any means, including written and electronic forms of communication. Tyler shall be given complete privacy to do so.

18. There shall be such further and other access as the parties might agree upon from time to time. Any such access arrangements should be recorded in writing in duplicate and signed by both parties, and a copy should be retained by each party.

19. The Applicant and Respondent shall recognize the importance of other events, holidays, family occasions or opportunities that might arise in Tyler’s life and shall cooperate with each other to allow him to be able to participate in these events. The Applicant and the Respondent shall give the other advance notice of such occasions. Neither shall unreasonably insist on strict adherence to the access schedule where to do so would prevent Tyler from participating in these. However, any agreement to deviate from the access schedule to accommodate these should be recorded in writing in duplicate and signed by both parties, and a copy should be retained by each party.

20. Neither the Applicant nor the Respondent shall allow any partner of theirs to become involved in communicating or dealing with any professional, institution or organization, coach, instructor or supervisor that Tyler is involved with in matters affecting Tyler, except on an emergency basis.

21. The parties shall require their respective partners to communicate any and all messages from each to the other and to facilitate all communication between the parties and Tyler.

22. Neither party nor their spouses shall discuss with Tyler or in his presence any issues involved in any litigation between them, whether terminated or ongoing.

23. Neither party nor their spouses shall speak badly of the other party or of the other party’s spouse to Tyler or in his presence.

24. Only the parties themselves shall communicate with one another regarding any issue or circumstance about Tyler’s welfare, except in an emergency situation.

[83] Submissions about the awarding of costs and the quantum thereof are invited. Any submissions by the Applicant’s counsel shall be served on the Respondent and filed with the court within two weeks of the release of this decision. Any submissions by the Respondent shall be served on the Applicant’s counsel and filed with the court within one week after that. Submissions shall be limited to three pages plus any Bill of Costs.

Justice James A. S. Wilcox

Released: 20120402