COURT FILE NO.: 1771/10

DATE: 2012-07-09

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Aysha-Leigh Karen Perron, Applicant

AND:
Michael Gaston Beaulieu, Respondent

BEFORE: Justice E. Gareau

COUNSEL:
T. Ross, Counsel, for the Applicant

M. Walz, Counsel, for the Respondent

HEARD: July 5, 2012

ENDORSEMENT

[ 1 ] At issue is the relief requested by the respondent father by notice of motion at Tab 10 of Volume 2 of the continuing record. At the outset of the motion, counsel indicated there was a consent to some relief requested in the notice of motion. Accordingly, on consent an order is granted, as requested, in paragraphs 1 and 4 of the notice of motion at Tab 10, Volume 2 of the continuing record.

[ 2 ] That left to be argued the claims in paragraph 2, 3, 5 and 6 of the notice of motion.

[ 3 ] The respondent father is requesting expanded access to his children, Shaya Tarrant Beaulieu born August 1, 2004 and Lundyn Beaulieu born March 21, 2008 from two to three overnight periods each week on his days off from work and a summer access of week-about during the summer of 2012. The father also seeks an order that the mother notify him any time she travels more than 50 kilometers from Sault Ste. Marie, Ontario and specific telephone access three times each week between 7:00 p.m. and 8:00 p.m. when the children are not in his care.

[ 4 ] This matter is scheduled for trial the week of October 22, 2012, if reached.

[ 5 ] The issues of interim custody and access were previously dealt with by the court by my order granted on January 20, 2011. I provided written reasons with respect to that order. My intention in the order of January 20, 2011 was to provide very specific access to the respondent father on his days off and during the summer holiday period. In the motion that resulted in the January 20, 2011 order, the respondent father requested a transfer of custody from the mother to himself, which I rejected ordering that the applicant mother have interim custody of Shaya and Lundyn.

[ 6 ] The affidavits filed at Tabs 11, 12 and 13, Volume 2 of the continuing record indicate that on many areas of difficulty, such as summer access in 2011 and what transpired during the Easter weekend in 2012, the applicant and the respondent have differing versions on what in fact occurred. It is impossible for a court, on a motion, to determine which version is to be believed. This must be left to a trial where the court will have the benefit of viva voce evidence with cross-examination.

[ 7 ] What the parents do agree on is that their relationship is not good and that they have difficulty co-operating with each other. These difficulties date as far back as the motion which I heard on January 18, 2011 and these difficulties led me to make the order of January 20, 2011 exact and precise as to its operation.

[ 8 ] The father’s ongoing access is clearly set out in paragraph 2(a) of the order of January 20, 2011. The parties should be clear by the terms of that order that the father has interim access to Shaya and Lundyn from 4:00 p.m. on his first day off from work to 6:00 p.m. on his third day off from work, giving the father two consecutive overnight visits with his children on his days off from work.

[ 9 ] There should be no confusion about this access and no dispute between the parties. Similarly, there should be no confusion about the father’s summer access with the children. This is clearly set out in paragraph 2(e) of the January 20, 2011 order. Provided he gives notice to the applicant, in writing, by April 1 st the applicant is entitled to three weeks of his choice in either July or August. The difficulty is that the respondent father has not provided written notice to the applicant mother by April 1 st . This resulted in the father having only two weeks of summer access with the children in 2011 and no agreement for summer access in 2012. The applicant mother has proposed that the respondent father have summer access in 2012 during the periods of July 8 to July 15, August 5 to August 12 and August 26 to September 2 nd , but the father has rejected that proposal suggesting that the summer schedule be a week-about schedule commencing Monday, July 9, 2012.

[ 10 ] My intention in making the order I made in paragraph 2(e) was to avoid conflict between the parties over summer access. This conflict could have been avoided if the father had complied with paragraph 2(e) of the order and provided the mother with written notice by April 1 st . If the father had done this, he could have had any three weeks of his choosing for summer access with Shaya and Lundyn in 2012.

[ 11 ] On the material before me, I see no basis to substantially alter the terms of the January 20, 2011 order on an interim basis. This is especially so given the fact that the parties are 3½ months from trial. The trial judge will be in a far better position to determine the consequences of altering the existing arrangement on Shaya and Lundyn and I am not prepared to alter the January 20, 2011 order to any great extent on a motion brought so close to trial.

[ 12 ] Since the parties cannot agree on the respondent father’s 2012 summer access despite the provisions of paragraph 2(e) of the January 20, 2011 order, the respondent shall have summer access to Shaya and Lundyn from Friday, August 3, 2012 at 6:00 p.m. to Friday, August 17, 2012 at 6:00 p.m. and from Monday, August 26, 2012 at 6:00 p.m. to Monday, September 2, 2012 at 6:00 p.m. That will give the father three weeks summer access with Shaya and Lundyn, which was the intention of the January 20, 2011 order. The mother shall have a similar uninterrupted three-week period with Shaya and Lundyn from July 20, 2012 to August 3, 2012 and from August 18 to August 25, 2012. To accomplish this, paragraph 2(a) of the order of January 20, 2011 shall be suspended from July 20, 2012 to September 2, 2012 inclusive.

[ 13 ] To assist the operation of paragraph 2(a) of the January 20, 2011 order to go more smoothly than it has in the past, the respondent is to provide to the applicant a copy of his work schedule within 48 hours of it becoming available to him, commencing September 3, 2012. This will allow the applicant to know exactly when the respondent will be picking up and returning Shaya and Lundyn for access in compliance with paragraph 2(a) of the order of January 20, 2012.

[ 14 ] The request to require the applicant mother to notify the respondent father if she travels more than 50 kilometers from Sault Ste. Marie, Ontario is denied. The applicant has interim custody of Shaya and Lundyn and should not be required to notify the respondent of her whereabouts with the children in the restrictive manner requested by the father. Having said this, if the travels of the mother will in any way restrict the telephone access which the father is entitled to, pursuant to paragraph 2(f) of the order, she should advise the father as to how he can contact Shaya and Lundyn to exercise his telephone access with them.

[ 15 ] The request of the father that telephone access be exercised between 7:00 p.m. and 8:00 p.m. is a sensible suggestion during the school year to alleviate conflict between the parties over telephone access and it is ordered that this take place effective September 4, 2012.

[ 16 ] This order is designed to refine the order previously made on January 20, 2011 to get the parties to trial, which is scheduled for the week of October 22, 2012.

[ 17 ] If, for any reason, the trial does not proceed as scheduled in October, 2012, the respondent father is entitled to renew his claim in paragraph 2 of the notice of motion at Tab 10, Volume 2, of the continuing record for increased ongoing access.

[ 18 ] As to costs, given the positions taken by the parties and the outcome of the motion, I do not feel that this is an appropriate case to make an order for costs. Accordingly, each party shall bear their own costs with respect to the motion at Tab 10, Volume 2 of the continuing record.

Justice E. Gareau

Date: July 9, 2012