Court File and Parties
Court File No.: FC-10-164-00
Date: 2012/07/05
Superior Court of Justice - Ontario
Re: CAROLYN HOLLAND, Applicant
And: IAN FOWER, Respondent
Before: Mr. Justice Paul Kane
Counsel:
Carolyn Holland, self-represented
Ian Fower, self-represented
Heard: June 27, 2012
Endorsement
[ 1 ] Each of these parties brought a motion on June 27, 2012.
[ 2 ] Mr. Fower seeks an order that his four-year-old son spend every day with him between the hours of 08:00 and 17:00 from the end of school on June 25 until the start of school on September 5, 2012. Mr. Fower is currently on sick leave recovering from surgery to his shoulder and does not anticipate returning to work until late September or October. As such, he is at home and wants to have his son spend the days with him rather than being cared for by a third party.
[ 3 ] Ms. Holland in her cross-motion opposes the above relief sought by the father. She seeks an order that the child’s summer schedule be determined by her only, that the terms thereof be enforceable by police and that the father provide work schedule options available to Mr. Fower upon his return to work. Ms. Holland wants to review these schedules and be able to determine what days the father will have access to the child upon his return to work.
[ 4 ] This application was started in February, 2010. Ms. Holland sought custody of the child with access to the father. In his Answer, Mr. Fower seeks custody with access to the applicant.
[ 5 ] Nicholas is the only child and is presently four years old.
[ 6 ] On March 12, 2010, the respondent was noted in default and Ms. Holland was thereupon granted interim custody.
[ 7 ] On August 9, 2011, Kershman J. decided a motion by the mother for interim custody and a cross-motion by the father for an interim parenting arrangement. The court ordered that the principal residence would be with the mother. The father was to have interim access consisting of:
(a) Tuesday each week from 08:00 until Thursday at 18:00 hours, plus
(b) Alternate Sunday evenings from 18:00 to 21:00 hours with the child being at daycare and pre-school during the day,
(c) The above schedule was to be adjusted as necessitated by any changes from time to time in the father’s work schedule impacting on his time with the child.
[ 8 ] The above order states that all major decisions are to be discussed between the parents but in the event of a disagreement, the mother’s decision was to prevail.
[ 9 ] On December 20, 2011, on a variation motion before Johnston J., Mr. Fower argued that his work schedule had changed as he was then off work Friday, Saturday and Sunday each week. He sought to have the child from 08:00 Friday until 14:00 Saturday in week 1 and from Friday morning until Monday at 14:00 hours in week 2. The father acknowledged that it was in the child’s interest to maintain the existing school and daycare plan.
[ 10 ] Johnston J. amended the access schedule established by Kershman J. and granted access to the father consisting of:
Week 1
Lunch hours Monday to Friday during the school year,
07:30 Thursday until 18:00 hours on Friday,
Once every eight weeks, from 07:30 Friday until 17:00 on Saturday.
Week 2
Lunch hours Monday to Friday during the school year,
07:30 on Friday until 14:00 hours on Monday.
Other
If either parent is unable to provide daycare during a time they are scheduled to do so, other than the time the child attends pre-existing daycare and pre-school, the other parent shall have a first refusal right to care for the child.
[ 11 ] Johnston J. specifically decided not to deal with the summer schedule which is now before this court.
[ 12 ] The parties were back in court before Mackinnon J. on March 6, 2012, on Ms. Holland’s motion regarding summer access. That court ordered that each parent would have two non-consecutive weeks each with the child during July and August with the mother to have the first choice of weeks. Surgery on Mr. Fower’s shoulder was then contemplated but had not yet occurred.
[ 13 ] Ms. Holland’s position is that she wishes to choose or has chosen courses or camps for Nicholas during the five weeks in July and August beyond the combined four weeks of holidays with the parents. She stresses that Nicholas will benefit with the camps/courses she has chosen which will continue the progress he has made during the past school year and better position him to succeed at Junior Kindergarten which he will start in September rather than spending time with his father. She does not suggest the child is being otherwise harmed spending time with his father. She admits that were she to take a third week holidays this summer, she would want to spend that time with her son rather than have him attend a camp.
[ 14 ] Ms. Holland states that Nicholas this past year was in half-day pre-school with the balance of the day spent at daycare. She indicates that the father after his surgery unilaterally removed Nicholas from daycare in order to have the child with him thereby indicating that he does not respect the fact that she, and not he, has interim custody.
[ 15 ] Mr. Fower submits his rehabilitation time off work is an unscheduled bonus in permitting him to spend time with his son and he opposes the child be cared for by third parties rather than himself. Mr. Fower is not opposed to Nicholas attending some camps but feels they should be fewer than proposed by the mother. He cannot understand why none of his suggested camps are acceptable to the mother.
[ 16 ] I had the parties each fill out a calendar for July and August at the beginning of the motion and discuss the same prior to argument.
[ 17 ] An assessment of the parents and child on the custody/access issues is scheduled to commence this July or August. This court anticipates that the parties’ anxiety as to the outcome thereof is directing their positions on this motion.
[ 18 ] As a general principle, there must not, depending on the facts, be a revolving door of continuous interim motions in an action like this. That said, Johnston J. specifically did not rule on summer access.
[ 19 ] I do not accept the argument that a four-year-old needs to be in programs most of the summer in order to better prepare him for Junior Kindergarten. I do not accept that this father has the unilateral right to withdraw the child from daycare. Absent allegations as to harm to the child, the interim custodial parent’s choice of summer programs should not be used to defeat time the access parent can spend with the child resulting from unforeseen circumstances unlikely to be repeated in the future.
[ 20 ] Based on the above factors, this summer’s schedule will be as follows:
(1) July 3 to 6, the child will be in a morning program selected by the mother and then with his father between noon and 17:00 each day;
(2) July 9 to 13, the child will be in an all-day farm program chosen by his mother;
(3) July 16 to 22, vacation with his mother;
(4) July 23 to 29, vacation with his father;
(5) July 30 to August 3, the child will be in a half-day camp chosen by his mother and then cared for by his father from noon until 17:00 hours each day;
(6) August 6 to 12, vacation with his father;
(7) August 13 to 19, vacation with his mother;
(8) August 20 to 24, half-day camp chosen by the mother with the afternoons spent with the father from noon to 17:00 hours;
(9) August 27 to 31 are to be divided equally between the parties, namely two and one-half consecutive days with each parent. No camps.
(10) With the start of school in September, 2012, the access schedule contained in the above order of Johnston J. will apply and be enforceable.
[ 21 ] The Ottawa Police Services are requested to enforce the interim custody and access orders herein.
[ 22 ] Mackinnon J. in her above order provides for delivery of work schedules by each parent to the other and changes thereto. This court is not prepared to go further on that issue at this point.
Kane J.
Date: July 5, 2012
ONTARIO SUPERIOR COURT OF JUSTICE RE: CAROLYN HOLLAND, Applicant, AND IAN FOWER, Respondent, BEFORE: Kane J. COUNSEL: Carolyn Holland, self-represented Ian Fower, self-represented ENDORSEMENT Kane J.
Released: July 5, 2012