ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-10-00001530-0000
DATE: 20120703
B E T W E E N:
ELIZABETH XIDIS
S. Codas, for the Applicant
Applicant
- and -
MICHAEL XIDIS
Appearing on his own behalf
Respondent
M. Demeda, appearing on behalf of the Office of the Children’s’ Lawyer
HEARD: June 22, 2012
ENDORSEMENT
Justice Thomas A. Bielby
[ 1 ] The issues for me to decide are those of custody and access. The parties are the parents of two children, Helena, born February 25, 1999 and Giorgio, born April 17, 2008.
[ 2 ] The parties were married to each other on May 4, 1996 and separated on February 4, 2010.
[ 3 ] Currently, the children reside with their mother, the applicant, and the respondent, their father, exercises access Wednesday evenings and alternate weekends.
[ 4 ] The respondent is content the children primarily reside with their mother. The issue is whether or not I should make a joint custodial order, as requested by the respondent, or a sole custody order, as requested by the applicant. It seems that in asking for joint custody, the respondent wishes to participate in the decision-making process as it relates to the children.
[ 5 ] It should be noted that January 2012 the parties entered into Minutes of Settlement. At that time, both parties were represented by counsel. As part of the settlement, the parties agreed that the issues of custody and access would be argued, on a final basis, by way of a long motion during the week of June 18, 2012.
[ 6 ] It was further agreed that the applicant was to file her affidavit at least 75 days prior to the motion date and the respondent at least 55 days before the motion date. The applicant‘s reply material was to be filed at least 45 days before the hearing of the motion.
[ 7 ] These minutes of settlement were incorporated into an order of Justice Price, dated January 27, 2012
[ 8 ] At the hearing of this motion the respondent was no longer represented by counsel. Further, the respondent had not filed an affidavit as contemplated by the minutes of settlement. The respondent did not ask to file any affidavit material.
[ 9 ] I allowed the respondent to refer to a transcript of sworn evidence relating to his Ontario Court of Justice trial after which he was acquitted of the assault and the wrongful confinement of the applicant. I also had regard to his affidavits filed before January 2012 but I would not allow him to give evidence relating to anything more recent.
[ 10 ] In that regard, I agreed with the submissions of the applicant’s counsel that a process was in place that had been agreed to by both parties and which had been made into an order. To allow the respondent to give evidence at the hearing of the motion would prejudice the applicant as she would not be able to give reasoned reply evidence.
[ 11 ] The respondent wished to proceed and advised the court that he wanted to get the matter finalized.
[ 12 ] I also note that the minutes of settlement allowed counsel for the Office of the Children’s Lawyer to make submissions as to the children’s views and wishes and that the OCL representative would be the first to make submissions.
[ 13 ] Mr. Demeda was appointed by the OCL on behalf of the children. He advised the court that he had observed both children in the presence of both parties individually and that the children seemed to be relaxed and exhibited normal behaviour.
[ 14 ] He also interviewed various third parties and no real concerns were raised.
[ 15 ] He did indicate that Helena is very close to her mother and is very protective of her. Mr. Demeda did not find any evidence of attempts by the applicant to alienate the respondent from the children.
[ 16 ] He went on to say that Helena never expressed any fear about being with her father, but was afraid to be away from her mother.
[ 17 ] Helena did express to Mr. Demeda that before separation the respondent did yell a lot and used cruel language. She went on to say that since separation the respondent no longer exhibits that type of behaviour.
[ 18 ] Mr. Demeda described Helena as becoming a very independent young lady and that her father has to understand that she does not want to participate in activities that interest her younger brother.
[ 19 ] Helena advised Mr. Demeda that she loves her father but that she would like to decide when she will visit with him. While Mr. Demeda advised the court that he made it clear to her that the decision was not hers to make, he did submit that to force Helena to see her father on a fixed schedule would be frustrating for all. It was his recommendation that Helena be allowed to exercise her discretion concerning the time she spent with her father.
[ 20 ] In his submissions, the respondent did not take much issue with this and understood that as a child enters the teen years a fixed schedule is often not workable.
[ 21 ] The applicant supports the recommendation of counsel for the OCL.
[ 22 ] The applicant submits that the respondent should exercise access alternate weekends, alternate March breaks, and one week at Christmas and for two separate weeks in the summer.
[ 23 ] She does not wish the respondent to exercise access Wednesday evenings as he is doing now.
[ 24 ] On the issue of custody, the applicant submits that the parties cannot cooperate and that the respondent does not respect her or value her opinion. She submits their relationship was and is one of high conflict and the exposure to such conflict is not in the children’s best interests.
[ 25 ] The applicant relies on a series of cases that indicate that in conflict situations joint custody is not appropriate. In that regard, I make note of Graham v. Bruto 2007 CarswellOnt 1012 , a decision of Justice Backhouse of the Superior Court of Justice. At paragraph 64 the learned judge recognizes that conflict can be an impediment to joint parenting and from paragraph 65 I quote:
The single most damaging factor for children in the face of divorce is exposure to conflict. The more repeated or continuing the conflict, the greater the risk to the child. In such a case, a joint custody situation that puts the children in the middle of conflict every few days makes little sense.
[ 26 ] From Belair v. Vercholuk 2008 CarswellOnt 1071 , a decision of Harris J. of the Ontario Superior Court of Justice, paragraph 25, I quote:
Joint custody requires a mutual commitment between parents to co-operate fully with each other and, in the doing, to put their own particular interests aside for the best interests of the child. Joint custody is the reward for parents who have managed, through all the pain and panic of separation, to insure their child comes first.
[ 27 ] The applicant agrees that she should consult with the respondent on major decisions relating to the children but submits she should be granted the sole right to make the decisions.
[ 28 ] The respondent says that he and the applicant can and are cooperating with respect to the children. He says they communicate by text messaging and email and make arrangements for the children.
[ 29 ] There is an issue of credibility when it comes to what conflict was in the marriage and the cause of such conflict. The applicant makes some serious allegation of violence and intimidation. The respondent denies this and points to the outcome of his criminal charges wherein the trial judge accepted his evidence over that of the applicant and dismissed the charges against him.
[ 30 ] When hearing a motion on affidavit material it is almost impossible to make findings of credibility. I do note, however, that Helena did reference yelling and cruel language when the parties were together. Further, the most current material is the recent affidavit of the applicant to which the respondent has not responded.
[ 31 ] I also note that the final decision making issue did not appear to be a major one for the respondent. He said that the applicant was a good mother and inferred she made good decisions. It seemed to me that he just wants to stay connected and remain in the loop as it relates to his children.
[ 32 ] Given the facts before me and given the submissions of all three of the parties I will grant the applicant custody of the two children with access to the respondent. The children seem to be thriving well within the current arrangement. I accept that the parties cannot co-operate to the extent necessary to exercise joint custody.
[ 33 ] The respondent will have the right to consultation and will have the right to have direct communication with the children’s schools and health care providers. As the custodial parent, the applicant will have the right to make the final decision.
[ 34 ] As to access and for the present, I will order the access proposed by the applicant with the following qualifications. The respondent will continue with his Wednesday night access. Counsel for the children did not suggest Wednesday evening access was a problem and after hearing the submissions there was no good reason put forward to suggest that such access was not in the children’s best interests.
[ 35 ] Helena will have discretion as to the time she spends with her father, whether in the schedule as set out in the order or at other times that she wishes to spend time with her father.
[ 36 ] I also note that, as the youngest child gets older, access, especially summer access, can be adjusted. The respondent sought for this summer two two-week periods of access but the applicant thought this might be too much for a four year old child. I will accept that premise for this year but dependent on how summer access goes this year and with the child a year older next year, the parties can consider a variation which might be in their best interests and more importantly in the best interests of the children.
[ 37 ] As for telephone access, I am going to leave it discretionary but will order that the respondent not communicate with Helena during the school day, including the school lunch period.
[ 38 ] Apart from the fixed schedule of access, other access shall be at reasonable times and on reasonable notice.
[ 39 ] There is one more issue I need address and that is in regards to where the children are to be picked up and dropped off for access. The applicant wants it to be at a public place and suggests a certain bakery. The respondent submits that it can be done in their driveways with neither parent getting out of the car. The parent in the car can text the other that he or she has arrived and then the children can be sent out the door and go directly to the car.
[ 40 ] The respondent’s proposal works if the children are willing to cooperate. There is some evidence that the children have acted out when it is time for an access period. This seems contradictory to submissions of Mr. Demeda that the children seemed relaxed in the presence of the respondent. Counsel for the applicant submitted that a public place makes it less likely that the children will act out as they cannot seek refuge in their home.
[ 41 ] Practically we are only dealing with the youngest child Giorgia. If Helena determines when she will see her father why would she act out at the time access commences? If a public exchange is necessary to avoid conflict, it seems to me that, if they each stay in their car, the conflict can still be avoided.
[ 42 ] However, I will err on the side of caution and I will order that, as requested by the applicant, access be facilitated at a public place until the end of this year. Thereafter, and assuming access has been regularized, access will be facilitated in the driveway of the children’s home. It seems to me that the children will be more co-operative and amenable if their parents can show them that the conflict is being minimized and that the access exchange does not have to be a public spectacle. Unless the parties agree otherwise, in writing, either party picking up or dropping off the children shall remain in their vehicle and communication is to be by cell phone text messaging.
[ 43 ] Accordingly I order the following:
- An order shall issue in accordance with the following paragraphs as set out in the applicant’s motion dated, April 11, 2012 and returnable June 22, 2012:
(a) Paragraph 1.
(b) Paragraph 2 subject to the deletion of the initial words, “in the alternative to paragraph 1” and with the deletion of the last sentence in subsection (e) of that paragraph.
(c) Paragraphs 3, 4, and 5.
(d) Paragraph 6 with the added sections (c) Wednesday evenings from 5:00 p.m. to 8:00 p.m. and (d) all access between Helena and the father is to be subject to the wishes of Helena.
(e) Paragraph 7 with the addition of the following after the word Northside: This arrangement shall continue until the end of 2012. Thereafter the pickup and delivery shall occur at the homes of the parties. The parent or designate dropping off or picking up shall remain in their vehicle and shall by cell phone text the other parent to advise of their arrival. The other parent shall at all times remain in their home and the exchange shall then take place with the children walking unescorted between the car and the home.
(f) Paragraph 8, 9, 10, 11, 12, 13 and 14.
(g) Paragraph 15 shall be amended to read as follows: An order that the father will be entitled to exercise reasonable telephone access with Helena, including text messaging and/or BBM on her cell phone during non school hours. School hours are defined to include the school lunch break.
(h) Paragraph 16 to be added as follows: The father shall have other reasonable access on reasonable notice as the parties can agree on and with respect to Helena, at her discretion.
[ 44 ] With respect to the costs of this motion, I will accept written submissions of not more than 5 pages in length, within 21 days of the release of this endorsement.
Justice Thomas A. Bielby
Released: July 3, 2012
COURT FILE NO.: FS-10-00001530-0000
DATE: 20120703
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ELIZABETH XIDIS Applicant - and – MICHAEL XIDIS Respondent REASONS FOR JUDGMENT Justice T.A. Bielby
Released: July 3, 2012