SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 315-2012
DATE: 20120807

RE: Melissa Paquette, Applicant

AND

Martin Lecompte, Respondent

BEFORE: Mr. Justice Robert N. Beaudoin

COUNSEL:
Julie Bergeron, for the Applicant
Marc Gauthier, for the Respondent

HEARD: August 2, 2012

ENDORSEMENT

Nature of the Motions

Nature of the Motions

1Each of the parents brings a motion to determine the primary residence of their daughter Naomy Lecompte, born February 10 th , 2008. The issue needs to be decided at this time since Naomy will commence school this September.

Background

Background

2The parties never married; they met in 2007 and lived together for approximately 2 years. According to the mother, during the last six months of that period they lived separate and apart under the same roof. The parties entered into a separation agreement on October 16 th , 2009. That agreement provide for shared custody regime. Since that time, the parties have shared custody of Naomy on a week on – week off basis although the agreement does not specifically provide for this.

3The Applicant maintains that she signed the agreement under duress. Even if that were so, the current regime has been in place for nearly three years. Shortly after his separation with the Applicant, the Respondent commenced cohabiting with Edith Laframboise. They now have a son, Mykael, who was born on September 12, 2011. At about the same time, the Applicant commenced a relationship with Neil Morrison who has a farm in Dalhousie, Quebec. Naomy has been spending her weeks with her mother at Mr. Morrison’s farm since November 2011. Both of these new relationships appear to be positive and stable. Dalhousie is as 30 to 40 minute drive from l’Orignal.

4After the separation, the Applicant initially moved nearby to Vankleek Hill and resided with her parents. Although the Respondent works near Rockland and his new partner works in Ottawa, they remained in the area so as to maintain the shared custody regime. They recently bought a house in l’Orignal. This is to their credit. The shared custody regime has continued even after the Applicant’s move to Dalhousie. While that distance has not caused a problem to date, it will become an issue this fall when Naomy starts school. That drive to and from school would not be in Naomy’s interest. Mr. Morrison is a farmer and moving away from his farm is not an option.

5As noted, the current arrangement has worked reasonably well although it as apparent that communications between the parties are strained. Both parents love their daughter and agree that Naomy should enjoy a positive relationship with the other parent. There is no doubt that each of them can provide for her care and a loving home if Naomy’s primary residence would be with either of them. The parents agree that the current regime cannot continue this fall. They also considered a school at location between their two homes but even that would require excessive travel for everyone, especially Naomy.

6The determination of Naomy’s primary residence must be based on her best interests as set out in section 24(2) Children’s Law Reform Act R.S.O. 190, Ch12. Subsection (e) of that section is of particular relevance:

(e) the plan proposed by each person applying for custody of or access to the child for the child`s care and upbringing.

The mother’s plan

The mother’s plan

7The mother works for Equipe Psychosociale in the elementary school system, in the very school where she proposes to enrol Naomy. This is Ecole Ange Gardien in North Lancaster, Ontario. Her work and holiday schedule would coincide with Naomy’s schedule. She would drive Naomy to school. Naomy would spend minimal time in daycare. Ms. Paquette would be immediately available in the event of an emergency. She will be with her throughout the evening hours until bedtime.

8Although the father has raised concerns about the mother’s ability to enrol Naomy in Ontario since is she has a Quebec address, the mother proposes to maintain joint custody and it appears that so long as one parent has an Ontario address, Naomy’s eligibility to commence school at l’Ange Gardien is up to the school principal. The mother is prepared to provide the transportation and is even prepared to pay any fees that could be imposed without any contribution from the father. She also expects to purchase property in Ontario and that should avoid the eligibility problem. The mother proposes a 60-40 time sharing with the father and is not seeking child support.

9The mother does not intend to change Naomy’s family doctor or other medical resources. She intends to preserve Naomy’s French-Catholic culture and religion. She suggests that some extracurricular activities, such as soccer, could take place in Alexandria. To date, the Father has insisted that Naomy continue to play soccer in Vankleek Hill.

10The mother describes her daughter as being well-adjusted. Naomy has been with caregivers since she was eight months old and the mother says she has excellent social skills and is not overly dependent on her. The mother adds that Naomy is resilient and that she has adapted well though all the changes she has had to deal with.

The father’s plan

The father’s plan

11The father proposes to enrol Naomy at Ecole St. Jean Baptiste in l’Orignal. Until this application was commenced, the father worked twelve hour shifts but he has now rearranged his work schedule to work more regular hours. He would still have to leave the house at 7:00 a.m. and Naomy would presumably be in the care of Ms. Laframboise who is now returning to work. I have been advised that she will be working night shifts but the details of her work hours are unknown. She would have to divide her time between Naomy and her infant son. If she is not available, Naomy would be in the care of a babysitter. In any event, Naomy would have to be bussed to school. Her father would be home in time to meet the bus. The father maintains that being bussed to school would be a positive experience for Naomy as she would be with a friend. He would have to depend on Ms. Laframboise or family members to respond quickly in the event of an emergency.

12Mr. Lecompte is heavily involved in sports activities and he also earns part-time employment as a referee. According to Ms. Paquette, his involvement in these activities was at the root of their problems as a couple. When he spends time on these activities, Naomy is in the care of Ms. Laframboise or others. The father does not deny this involvement but emphasizes that this allows him to earn extra income for his family and that his ability to participate in these activities allows him to develop as a person and this indirectly benefits his family.

13The parties have done their best to focus their evidence on Naomy’s best interests and to avoid excessive criticism of the other but a shared custody regime requires flexibility and accommodation. The mother has offered evidence that the father has been jealous of her time with Naomy and has been overly rigid in his dealings with her over any extra time she might spend with Naomy. For example, if the mother arrives 30 minutes early to pick up Naomy, she must return her 30 minutes early. If the father and his new partner are out for an event or an evening, Ms. Paquette is never invited to look after Naomy and a third party is involved. The father appears to have involved Naomy in the conflict by telling her she will be taking the bus with a friend this fall. A more telling example is Mr. Lecompte’s insistence that Naomy carry his name only and that Ms. Paquette should not be allowed to have Naomy’s name changed to Paquette-Lecompte. He insisted that there be a clause to this effect in the separation agreement. This apparently is the result of an old dispute as to who Naomy’s godparents would be. He also suggests that if Naomy has more time with her mother by being in the car in the morning or by having her mother present in the same school, would somehow be unhealthy for Naomy’s development. He describes Naomy as having a significant need to become more independent and to become more sociable. His description is in marked contrast to the portrait given by the mother and, is in my view, more indicative of his fear that Naomy may form a greater attachment to her mother if principal residence is changed in the Applicant’s favour. He also emphasizes Naomy’s attachment to her new brother.

Conclusion

Conclusion

14I find that the mother’s plan is to be preferred. It offers Naomy more time with one of her parents; namely with her mother. There will be fewer transitions in the course of any given day. Naomy will still spend three out of our weekends with her father and his new family. The Applicant has generously offered him every professional development day even though she herself would presumably have that time off. The week on, week off regime will resume in the summer months. Naomy is young; she has already made new friends in Dalhousie and enjoys her time on the farm. Her mother hopes to have more children with Mr. Morrison. More siblings will become part of the picture. Maintaining the status quo in l’Orignal is less important at this stage of Naomy’s life. Each parent’s plan will require a change of principal residence and yet one more change in Naomy’s young life. I am satisfied that the mother offers greater insight into her daughter’s character and that she will be in a better position to support her at this critical time.

I therefore order as follows:

I therefore order as follows:

15There will be a temporary order awarding joint custody of the child Naomy Lacompte, borne February 20 th , 2008 to the parties with the residence of the child being with the Applicant mother from Monday to Friday in addition to one weekend per month during the school year.

16The Respondent will have Naomy in his care three out of four weekends from Friday after school until the Monday at the commencement of school in addition to every March Break and every “PD” day. The parties shall share all other holiday periods equally and the principal residence of the child will alternate on a week on and one week off basis during the summer months.

17The father shall have reasonable telephone access during the weeks that the child is with the mother during the school year.

18The mother is permitted to register the child in the location where she resides for the 2012-2013 school year.

19As this case involved two parents who were genuinely concerned with the best interests of their daughter and each of them offered reasonable plans for her care, there should be no order as to costs.