SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: D 13437/11
DATE: 2012/08/17

RE: Sarah Elizabeth Stockdale, Applicant

AND:

Derek Boyd Stockdale, Respondent

BEFORE: The Honourable Madam Justice D.L. Chappel

COUNSEL: D.L. Ditchfield, Counsel, for the Applicant

G. Smits, Counsel, for the Respondent

HEARD: August 14, 2012

ENDORSEMENT

I. INTRODUCTION

[ 1 ] This was the hearing of portions of a Motion brought by the Applicant, Sarah Stockdale (“the Applicant”), originally returnable on July 27, 2012, and of a Cross Motion brought by the Respondent Derek Boyd Stockdale (“the Respondent”), also originally returnable on July 27, 2012. The relief which the Applicant sought in her Motion can be summarized as follows:

a. An order dispensing with the necessity of the Respondent signing a transfer of his right, title and interest in the former matrimonial home;

b. An order vesting ownership of the former matrimonial home in the name of the Applicant solely;

c. A temporary order that the Respondent have access to the child of the marriage, namely Addison Elizabeth Stockdale born August 7, 2010 (“Addison”), on alternate weekends, commencing Saturday July 28, 2012, from Saturday at 12:00 noon until 6:00 p.m. and from Sunday at 12:00 noon until 6:00 p.m.

d. A police enforcement clause in relation to custody and access arrangements respecting Addison.

[ 2 ] In his Cross Motion, the Respondent requested an order enforcing the existing overnight access provisions respecting Addison as set out in the temporary order of the Honourable Mr. Justice Arrell dated June 5, 2012, and an order for mid-week access every Tuesday and Thursday from 3:30 p.m. until 7:30 p.m.

[ 3 ] The parties were able to resolve many of the issues raised in the parties’ respective Motions. The matters that remain to be decided are costs in connection with both Motions, and the frequency of mid-week access between the Respondent and Addison.

II. BACKGROUND

[ 4 ] The parties were in a relationship from approximately June 2007 until their separation in April 2011. They were married on July 23, 2009. Addison is the only child of their relationship.

[ 5 ] The Applicant initiated these proceedings on April 26, 2011, shortly after the parties separated. On April 27, 2011, an ex parte order was made granting the Applicant temporary sole custody of Addison. By order dated April 29, 2011, the Respondent was granted temporary access to Addison each Tuesday and Thursday from 5:00 p.m. until 7:00 p.m., supervised by Kim or Chris Stockdale. On May 30, 2011 Arrell, J. granted a temporary order, on consent of the parties, expanding the Respondent’s access to every Tuesday from 3:30 p.m. to 7:30 p.m., every Thursday from 3:30 p.m. until 7:30 p.m. and each Sunday from 12:00 noon until 6:00 p.m. This order stipulated that access was to be supervised by a responsible adult person, save and except that the Respondent may have periods of time with Addison unsupervised not exceeding one hour at a time. These access arrangements remained in effect until June 5, 2012.

[ 6 ] On May 15, 2012, a final order was made pursuant to Minutes of Settlement filed on that date granting the Applicant sole custody of Addison. The order also resolved all child support issues on a final basis. In addition, an order was made directing the Respondent to forthwith sign over all of his right, title and interest in the former matrimonial home to the Applicant.

[ 7 ] The parties were unable to resolve the issue of access on a final basis, and therefore this question proceeded to a Settlement Conference on June 5, 2012. On that date, a temporary order was made varying paragraph 2 of the temporary access order dated May 30, 2011 to provide that until July 15, 2012, the Respondent would have access on alternate weekends on Saturday and Sunday, from 12:00 noon until 6:00 p.m. each day (not overnight). The Respondent was ordered to forward the Applicant an email within one hour of Addison returning from visits setting out certain enumerated items of information about the visit. Pursuant to this temporary order, the Respondent’s access was to increase to alternate weekends, from Saturday at noon until Sunday at 6:00 p.m. (overnight) commencing Saturday July 23, 2012, provided that the Respondent complied with the other access terms of the order. The requirement that access be supervised was removed.

[ 8 ] There is no reference in the June 5, 2012 order to ongoing access on Tuesdays and Thursdays, and the parties subsequently disagreed in their interpretation of the order. The Respondent was of the view that the order did not override the Tuesday and Thursday access that had been ordered on May 30, 2011, and that the intention was simply to implement access terms that would lead to overnight weekend access. The Applicant interpreted the order as overriding all of the temporary access terms of the May 30, 2011 order, with the effect that Tuesday and Thursday visits were terminated.

[ 9 ] The Applicant brought the Motion that was the subject of this hearing, originally returnable on July 27, 2012, due to the Respondent’s failure to comply with the May 15, 2012 order that he transfer title of the former matrimonial home forthwith, and because she did not want to proceed with the overnight access provided for in the June 5, 2012 order. The Respondent initiated his Cross Motion to enforce the terms of the June 5, 2012 order and to reinstate Tuesday and Thursday access.

[ 10 ] On July 27, 2012, the Motions could not proceed because the presiding judge did not have sufficient time to deal with them. The Motions were adjourned, but the parties were subsequently on that same date able to resolve the issues relating to the former matrimonial home. An order was made on July 27, 2012 dispensing with the requirement that the Respondent sign a transfer of his right, title and interest in the former matrimonial home, and requiring the Applicant to indemnify the Respondent for any costs associated with the home or the sale of the home.

III. POSITIONS OF THE PARTIES

[ 11 ] As previously noted, the parties have requested that I decide the issues of costs in connection with both Motions, and the frequency of mid-week access between the Respondent and Addison.

[ 12 ] With respect to access, on the morning of the hearing of these Motions, the Applicant advised the Respondent through counsel that she was agreeable to overnight access from Saturday at noon until Sunday at 6:00 p.m. on alternate weekends, and one mid-week visit each week on Wednesday from 3:00 p.m. to 7:00 p.m. The Respondent’s position differs in that in addition to the weekend access, he wishes to have two mid-week visits each week, on Tuesday and Thursday from 3:00 p.m. until 7:00 p.m. In the alternative, he requested one mid-week visit during weeks when he has weekend access, and two mid-week visits during weeks when he does not have weekend access.

[ 13 ] In support of her position, the Applicant referred to historical concerns about the Respondent’s anger issues, intimidating behaviour towards her, immaturity, failure to cooperate with her in regard to Addison, and concerns regarding the quality of the Respondent’s care of Addison. In addition, she raised concerns about the Respondent’s lack of responsibility, relying in part on what she perceives as the Respondent’s failure to comply with his financial obligations towards Addison and court orders respecting child support and the matrimonial home. She stated that the Respondent had been inconsistent in complying with the term of the June 5, 2012 order requiring him to provide a summary of his visits to the Applicant, and highlighted this as another example of his lack of responsibility. The Applicant also argued that two mid-week visits each week is overly disruptive to Addison’s routine, and stated that the child has been much more settled generally since mid-week access ceased in early June, 2012.

[ 14 ] The Respondent submitted that the Applicant has consistently resisted any attempts on his part to establish a relationship with his daughter. He argued that he has persisted in attempting to pursue a relationship with Addison, that he has exercised his access regularly, and that he has attempted to the best of his ability to follow reasonable directions and suggestions which the Applicant has provided regarding Addison’s care. According to the Respondent, he has a close and loving relationship with Addison, and he has met all of the child’s needs during his time with her. With respect to the allegation that he did not comply with the court order requiring him to submit email reports to the Applicant about his visits, he states that he did in fact send emails on each occasion, but that some of these emails did not reach the Applicant because he inadvertently used an incorrect email address for the Applicant.

III. ANALYSIS

[ 15 ] The factors which I must consider in determining the issue of temporary access in this case are set out in section 16 of the Divorce Act , R.S.C.1985, c. C-3 (2nd Supp.), as amended. Section 16(8) directs that in making a final or temporary custody or access order, the court shall take into consideration only the best interests of the child as determined by reference to the condition, means, needs and other circumstances of the child. Section 16(9) stipulates that the court shall not consider the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent. Further, section 16(10) provides that the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child, and shall take into consideration the willingness of the person for whom custody is sought to facilitate such conduct.

[ 16 ] Applying these principles to the evidence before me, I agree that the alternate weekend access which the parties have agreed to is in Addison’s best interests. With respect to mid-week access, I have decided that the alternative position which the Respondent advanced, specifically one mid-week visit when he has weekend access and two mid- week visits when he does not have weekend time, is most consistent with Addison’s best interests. In reaching this decision, I have carefully considered all of the evidence before me, including the concerns which the Applicant has raised about the Respondent.

[ 17 ] With respect to the Applicant’s concerns about the Respondent’s volatile temper, there is evidence that the Respondent has had problems managing his anger in the past. However, most of the examples of concern which the Applicant has described are historical in nature, and occurred within the context of conflict between the parties. Furthermore, the Applicant has agreed to expanded and overnight access despite these historical concerns. I am satisfied based on the evidence before me that a considerable amount of the conflict between the parties has related to differences in the parties’ views about child care issues, and the Respondent’s frustration about not being able to see Addison more often. I note that there is no evidence in the materials filed in support of these Motions suggesting that the Respondent has ever been aggressive in any manner, either physically or verbally, towards Addison or any other child. In fact, the evidence suggests that the Respondent has a strong and loving relationship with Addison, and that the child responds positively to him. The Applicant acknowledges this point in Exhibit “D” to her Affidavit sworn July 20, 2012, where she states in paragraph (u) “The Respondent’s involvement with Addison as described in his materials is that he sings to her and dances around with her and calls her “his little princess” and that Addison responds very positively to him. The Applicant does not deny this.”

[ 18 ] The Applicant has emphasized concerns about the level of the Respondent’s involvement in the care of Addison, stating that when the parties were together, he never carried out any significant child care tasks independently. The Respondent’s response is that the Applicant was controlling and resistant to allowing him to participate meaningfully in Addison’s care. I accept that the Applicant was the primary caregiver for Addison during the parties relationship and has maintained this role throughout Addison’s life. However, the Respondent has demonstrated a consistent commitment since the separation to remain a meaningful part of Addison’s life, despite strong resistance on the Applicant’s part to increasing his access with the child. He has participated fully in these proceedings, has pursued increasing access to Addison at each stage of the case, and has been generally very consistent in exercising his access with the child. I am satisfied that he has typically been the primary caregiver for Addison during his visits with her.

[ 19 ] With respect to the Respondent’s care of Addison during his time with her, it appears that there have been concerns at times about his attention to issues such as diaper changes, exposing the child to cats, which the Applicant feels has caused irritation to the child’s eyes and nose, compliance with sleep routines and specific times for giving medication, and his failure to follow the Applicant’s suggestions about the child’s diet. I am not able on a Motion for temporary relief to decide important issues of credibility on such issues. I am satisfied, however, that there have been occasions when the Applicant has had legitimate concerns about the Respondent’s care of Addison. However, none of these concerns are of such a nature as to lead me to conclude that additional mid-week access for four hours would be contrary to Addison’s best interests. Furthermore, I note that some of the concerns which the Applicant has raised respecting the Respondent seem speculative in nature. By way of example, she raised concerns that the Respondent had allowed the child in a swimming pool while she had a urinary tract infection, because the child had a vague smell of chlorine. By further example, in Exhibit “F” to her Affidavit sworn July 20, 2012 she concluded that the Respondent “obviously” did not follow her directions regarding sunscreen because Addison had a rash on her body. There is no evidence that she actually spoke with the Respondent on either of these occasions to verify her concerns. The Applicant is clearly a very loving and attentive mother towards Addison. However, the impression that arises from the materials is that she has the Respondent under a constant microscope which is not forgiving of any imperfection.

[ 20 ] Concerns have been raised regarding the Respondent’s inability to cooperate with the Applicant on issues respecting Addison. There is evidence before me to support this concern. However, I conclude that there has been improvement in this area over the past several months. It is significant that the Respondent consented to a final order for sole custody in favour of the Applicant. He has complied with the order requiring him to provide summaries of his visits with Addison to the Applicant within one hour of the visits ending. These email summaries which the Respondent has forwarded to the Applicant have been informative and respectful in tone.

[ 21 ] One of the Applicant’s major arguments against two mid-week visits is that mid-week access is disruptive to Addison’s routine. The Applicant works, and Addison is in daycare during the week. Mid-week visits therefore involve two transitions for Addison, first from the daycare to the Respondent’s care and then to the mother’s care. I agree that structure and routine are very important to all children, and especially to children of Addison’s age. However, the importance of these factors must be balanced with the benefit to the child of maintaining a positive and meaningful relationship with both parents. The Respondent had access to Addison three times per week from May 2011 until June 2012. The Applicant did not initiate any Motions during that time to change these arrangements based on concerns that the schedule was too disruptive to Addison’s routine. There is no evidence that Addison’s overall progress and development have been negatively affected by the transitions that occurred three times per week. I agree that two mid-week visits during weeks when the Respondent has weekend access would be too disruptive to Addison at this stage, particularly since overnight access will just be starting. However, I am confident based on how Addison has managed under the access regime that has been in place over the past year that she will not have any significant difficulty managing two mid-week visits when she does not have weekend access with her father, and one mid-week visit when she has weekend access. I conclude that any less access would render it extremely difficult for the Respondent to remain a consistent and meaningful figure in Addison’s life.

[ 22 ] The parties indicated that they were in agreement that paragraph 4 of the temporary order dated May 30, 2011 should be included in any order which I make. This provision was not continued by the temporary order dated June 5, 2012. The parties also agreed to a number of other terms and conditions being included in an order, including the existing terms requiring the Respondent to provide email reports to the Applicant following visits.

[ 23 ] The Respondent has not enjoyed the benefit of mid-week access since early June, 2012 due to disagreement regarding the intent and interpretation of the June 5, 2012 order and the fact that I was unable to release these Reasons until this time. His next weekend visit is scheduled to begin on Saturday August 25, 2012. I am granting the Respondent an additional visit on Sunday September 2, 2012 from noon until 7:00 p.m. to make up for the mid-week access which he should have been able to enjoy with his daughter this week.

[ 24 ] Turning to the issue of costs, the Applicant seeks costs in the amount of $2,500.00 in connection with both Motions. Counsel for the Applicant did not submit a Bill of Costs in support of this request. She argued that the Applicant’s Motion as it related to the issues respecting the matrimonial home was necessary solely because of the Respondent’s failure to comply with the order of May 15, 2012 requiring him to transfer his interest in the matrimonial home to the Applicant. Counsel for the Respondent argued that the Respondent’s failure to follow through with this obligation was due to his concern that he would remain liable for the debts associated with the home, and that this concern was specifically addressed by the indemnification term in paragraph 2 of the order made on July 27, 2012. He submitted that the Respondent’s conduct in relation to this issue was reasonable in the circumstances.

[ 25 ] I find that the Respondent did not act reasonably in regard to his obligation to transfer his interest in the former matrimonial home to the Applicant, and that the Applicant should not have been required to bring a Motion to resolve this issue. I am satisfied that the Applicant conveyed to the Respondent her agreement to indemnify him in relation to any liabilities connected with the home, but that the Respondent sought a release from those obligations. The Applicant was simply not able to obtain such a release. However, I also conclude that the Respondent has been substantially successful on the access issues which were before the court. The Respondent requests costs in the amount of $2,853.81, inclusive of HST and disbursements. The Respondent acted reasonably on the issue of access. He was successful in obtaining overnight access as well as mid-week visits. The Applicant did not serve an Offer to Settle these issues until the morning of the hearing. The terms of this order are more favourable than those set out in the Offer to Settle. The Respondent responded reasonably to this Offer, and was willing to settle based on the arrangement which I am actually ordering. In my view, the Applicant was not reasonable in attempting to resolve the access issue. Having regard for these considerations, and the fact that success on the Motions was divided, I have determined that neither party is entitled to costs in connection with the Motions.

IV. ORDER TO ISSUE

[ 26 ] Based on the foregoing, a temporary order shall issue as follows:

1. The temporary Orders of the Honourable Mr. Justice Arrell dated May 30, 2011 and June 5, 2012 are changed by substituting paragraphs 2, 3 and 4 of the May 30, 2011 order and paragraph 1 of the June 5, 2012 order with the terms set out herein.

2. The Respondent Derek Boyd Stockdale (“the Respondent”) shall have access to the child of the marriage, namely Addison Elizabeth Stockdale born August 7, 2010 (“the child”), as follows:

a. From Saturday August 25, 2012 at 12:00 noon until Sunday August 26, 2012 at 6:00 p.m.

b. On Tuesday August 28, 2012 from 3:00 p.m. until 7:00 p.m., and Thursday August 30, 2012 from 3:00 p.m. until 7:00 p.m.

c. On Sunday September 2, 2012 from 12:00 noon until 7:00 p.m.

d. Effective the week commencing on Monday September 3, 2012, the Respondent’s access shall be in accordance with the following two week rotating schedule, with a “week” being defined as the period starting on Monday and ending on Sunday:

Week One:

i. On Wednesday from 3:00 p.m. until 7:00 p.m.; and

ii. From Saturday at 12:00 noon until Sunday at 6:00 p.m.

Week Two:

iii. On Tuesday from 3:00 p.m. until 7:00 p.m.; and

iv. On Thursday from 3:00 p.m. until 7:00 p.m.

e. Such further and other access as the parties may agree upon. Both parties shall use their best efforts to arrange additional access on special occasions such as Thanksgiving, Christmas and other holidays or special occasions.

3. If the child is in daycare on the Respondent’s access days, the Respondent shall pick the child up from the daycare and the Applicant shall pick the child up from the Respondent’s home at the end of access. If the child is not in daycare, the parties shall share transportation responsibilities for the purpose of access as agreed upon between them.

4. The Respondent shall communicate with the Applicant via email within one hour after the child’s return from access visits the following information in detail:

a. What the child ate;

b. When and for how long the child slept

c. Whether and when the child had a bowel movement

d. A description of the child’s general activities while in his care, for example, whether she went biking, swimming or to a movie.

5. Upon receipt of the Respondent’s email referred to in paragraph 4 herein, the Applicant shall acknowledge receipt by return email forthwith.

6. The Respondent shall be the care provider for the child at all times during his access with the child. However, in the event that the Respondent is unable to care for the child for periods of time exceeding two hours, the Respondent shall return the child to the Applicant’s care. The Applicant shall do the same, excluding periods when the child is in daycare.

7. The Respondent shall provide the Applicant with the address where his access with the child is taking place and a telephone number where he can be reached during access.

8. The Applicant and the Respondent shall ensure that the child is in a properly installed and approved car seat when they are transporting her in a motorized vehicle.

9. Pursuant to section 36 of the Children’s Law Reform Act, the police force having jurisdiction in any area where it appears that the child may be shall locate, apprehend and deliver the child to the person entitled to custody pursuant to the order dated May 15, 2012, or to the person entitled to access pursuant to this order. For the purpose of locating and apprehending the child, a member of a police force may enter and search any place, including a dwelling house, where he or she has reasonable and probable grounds for believing the child may be, with such assistance and such force as are reasonable in the circumstances.

10. The issue of final access shall be adjourned to a trial date to be scheduled by the Trial Coordinator.

11. There shall be no order for costs payable in connection with the Applicant’s Motion originally returnable on July 27, 2012 or the Respondent’s Motion originally returnable on July 27, 2012.

Chappel, J.

Date: August 17, 2012