Misch v. Pfister, 2012 ONSC 5278

COURT FILE NO.: FS-1-11

DATE: 2012-09-20

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Kevin Leode Misch

Applicant

– and –

Heidi Pfister

Respondent

Michael Lannan, for the Applicant

David Olsen, for the Respondent

HEARD: June 12-15, 18-22, 25-27,

September 17, 2012

REASONS FOR JUDGMENT

the honourable mr. justice p.b. hambly

[1] Kevin Misch (“Kevin”) has brought an application against Heidi Pfister (“Heidi”) in which he seeks an order for joint custody of their child, A.P. (“A.P.”), born […], 2006, age 6. He also seeks an order changing the name of the child to include his surname. Heidi has filed an answer in which she seeks custody. The case was tried before me for 12 days between June 12 and June 27, 2012. The major witnesses were the parties, Kevin’s current partner, Sallyann Robinson (“Sally”) and Wendy Kirk, who is the author of the Report of the Children's Lawyer dated January 3, 2012. Kevin called two supporting witnesses - his brother, Les Misch and his mother, Dianne Misch. Heidi called three supporting witnesses – two close friends with children and a neighbor. I am of the view that it is in the best interests of A.P. that Heidi have custody of her with liberal access to Kevin as he has now, that the current arrangements remain in place and that her name remains as it is.

Overview

[2] Heidi is 41. Kevin is 45. Kevin owns a business jointly with his brother, Trevor, called World Wide Wonders. It is a successful business. In 2011, Kevin reported a taxable income of $78,000. Heidi worked at Sun Life for eight years. She took a maternity leave of one year. Her employment ended there on September 30, 2011. At that time she was an associate product manager. Sun Life paid her until November 5, 2011, at which time she received a six-month separation package. She plans to commence employment as a secretary within a few weeks. In 2010 she earned $54,000.

[3] Kevin and Heidi met in 2002. They lived together at Kevin’s residence at C[…] Court in Waterloo from February 2002 until December 2004 or January 2005. At that time Heidi moved to an apartment at K[…] Drive in Waterloo. She and A.P. lived there from A.P.’s birth until May 31, 2008 when they moved to a house at S[…] Court in Waterloo, which Heidi purchased. Heidi’s residence and Kevin’s residence are about 3 kms. or a five minute drive apart.

[4] Kevin and Heidi had a sexual relationship after they separated which ended only in the summer of 2007. In August 2007 Kevin met Sally on the internet. She is separated from her husband. She has a 25 year old son who lives with his father in England. She has a house and office cleaning business in Hamilton, which she operates with her sister. She owned a house in Burlington when she met Kevin. She sold that house in October 2007. She works in her business in Hamilton on Tuesdays and Wednesdays. Her mother has a house in Oakville where she can reside. She commenced living with Kevin at his house in Waterloo in February 2008.

[5] Heidi told Kevin that she was pregnant in early May 2005. Kevin told Heidi several times "you know what you need to do". By this he meant that she must have an abortion. He took her to Dr. Szoda who is her longtime family doctor to inquire about this and to make arrangements for this to be done. Dr. Szoda expressed the opinion that the pregnancy was too advanced for her to have an abortion. Kevin thought that the doctor was wrong and told him so based on his own research. Heidi wanted to have the child. She made no inquiries about having an abortion. She decided to keep the child. Kevin was angry. He thought that she should not give birth to a child whose parents were incompatible.

[6] Heidi wanted to establish a permanent exclusive relationship with Kevin. This would permit them to parent A.P. together. She wanted them to be a family. Kevin was always frank with Heidi that he had no interest in this. As Heidi's pregnancy advanced, Kevin decided that he wanted to be actively involved with the child. Heidi expressed scepticism that this would happen. She told him that if he was going to be involved with A.P. that he would need to see her according to a fixed schedule. She also told him that he should pay her $400 per month support for the child. He agreed to this.

[7] Kevin told Heidi that he wanted to be in the birthing room when the child was born. Heidi was opposed to his being in the birthing room because he refused to make a commitment to her. Kevin was in the birthing room when A.P. was born. Heidi said that she was too tired to argue with him.

[8] After A.P.’s birth, Kevin frequently visited Heidi and A.P. at Heidi's apartment. However, he did not do so according to a schedule. He also gave Heidi some, but not much support, both during her pregnancy and in caring for A.P. after she was born. Kevin testified that he did not want to come around too much out of concern that he would give Heidi the wrong “vibes” that he could be interested in a long term relationship. Heidi breast fed A.P. for about seven months. After this, on occasion, Kevin began taking A.P. to his residence.

[9] In the fall of 2006, Kevin and Heidi arrived at a verbal agreement that Kevin would have access to A.P. on Wednesday from 6:00 p.m. to 8:00 p.m. and on every other weekend from Friday at 6:00 p.m. to Sunday at 6:00 p.m. Kevin did not begin to comply with this arrangement until the fall of 2007. The days have remained the same. The return time has been advanced, at least on Sunday, until closer to 8:00 p.m.

[10] Kevin sent Heidi a 2 ½ page single spaced typed letter dated September 10, 2010. He advanced a case that they should have an arrangement that results in their having equal time with A.P. This would mean that she would alternate her residence between their homes. Themes of the letter are that he has been an outstanding father to A.P., that Heidi is also an outstanding mother, that A.P. will wish to spend less time with her parents when she gets into her teenage years, that given the involvement that he has had with A.P. that he deserves equal time, that A.P. should have his surname as well as Heidi’s surname and that being away from A.P. is very painful to him.

[11] Kevin commenced an application against Heidi on January 5, 2011. Kevin brought a motion in which he sought essentially the same relief that he seeks at trial. Justice Sloan made an order dated July 12, 2011 which is silent as to custody and the residence of the child. He ordered that Kevin have summer access to A.P. for one week at the end of July and one week at the end of August. He ordered that Kevin pay guideline child support in the amount of $707 per month based on his annual income of $78,400. He also ordered that the parties submit intake forms to the Office of the Children's Lawyer.

[12] Ms. Kirk endorsed Kevin's position. She recommended joint custody and equal time-sharing of A.P. by Kevin and Heidi on alternate weeks during the school year and an equal division of the holidays both during the school year and over the summer. Heidi gave evidence of what Ms. Kirk said at a meeting with the parties and their lawyers on December 20, 2011 which was for the purpose of disclosing her recommendations. Heidi testified as follows:

Q. Okay. What was the initial thing that was said when Ms. Kirk started this disclosure meeting?

A. The first thing she said at the meeting, and it really stood out in my mind, was, this case is actually a cake-walk; I’m surprised that the Ontario children’s lawyer even accepted this case. (June 23 transcript, p. 23)

[13] This evidence is hearsay. However, it is admissible as evidence of the truth of the state of mind of the declarant (see the Law of Evidence in Canada, Sopinka, Lederman and Bryant, second edition, page 256). Ms. Kirk was not cross-examined as to whether she made this statement and if she did whether it reflected that she had predetermined the issues of custody or joint custody before she had done an investigation and before she had understood Heidi's position.

[14] Ms. Kirk stated in her report that Dr. Szozda had told her that Heidi "has presented with anxiety issues over the years" and that she was "let go from her place of employment" because of her anxiety and that "her supervisor urged her to seek counselling support and consider medication in August of 2011". Heidi filed a dispute to the OCL report dated January 19, 2012. Attached to the report is a letter from Dr. Szozda in which he confirms that this information is false. Heidi's father, A.P.’s grandfather, suffered from Parkinson's disease. He experienced a choking incident over the Thanksgiving weekend at a cottage which is owned jointly by Heidi's mother, Heidi and Heidi's sister. He was in hospital following this incident until he died on November 2, 2011. A.P. was very close to her grandfather as was all of Heidi's extended family. No mention is made in the report of the impact of the death of Heidi’s grandfather on A.P. and on Heidi's family.

[15] Before she commenced her investigation, Ms. Kirk wrote to the parties’ lawyers requesting that they send to her what they regarded as important documents which reflected the position of their clients. She received from Kevin's lawyer the notice of motion that he brought which resulted in Justice Sloan's order dated July 21, 2011, his affidavit in support of that motion and his case conference brief. Heidi was in the process of changing lawyers. The lawyer whom she had recently retained was required to refuse to accept the retainer because Kevin's lawyer pointed out to her that Kevin had sought advice from her. This was the lawyer to whom Ms. Kirk wrote. She never responded to Ms. Kirk's correspondence. Ms. Kirk never received any of Heidi's documents that she had filed. The most important of these documents would have been Heidi's affidavit, which she filed in response to Kevin's affidavit in relation to the motion. What he sought on the motion was essentially what he seeks at trial and failing that substantially increased access. It must be noted that Justice Sloan rejected these submissions. His order confirmed the status quo, in that apart from ordering summer access it is silent on the issues of custody and access.

[16] Heidi testified that her then lawyer advised her not to say anything negative about Kevin to Ms. Kirk. Better advice would have been to tell Ms. Kirk her true feelings and concerns. Heidi, on her intake form, checked off a box in which she stated that she could not communicate at all with Kevin. Under that heading she wrote the following:

Kevin has tendency to have angry controlling demeanor with me. If he does not like my reply – he will argue/yell at me in front of daughter. I believe he has anger issues with me.

There is no mention of this in the report. Apart from ordering police occurrence reports, Ms. Kirk did not investigate this allegation. She asked no questions of Heidi as to what she meant by this. Ms. Kirk's methodology in this case is flawed. Her recommendation that the parties should have joint custody of A.P. must be given no weight.

[17] Ms. Kirk interviewed A.P. at her school and observed her interact with Kevin and Heidi in their homes. Her report is useful for her comments on A.P.’s present circumstances and the relationships that she appears to have with her parents. Ms. Kirk found that A.P. was “flourishing”. She stated the following:

Both Ms. Pfister and Mr. Misch were observed to be loving, gentle, patient and child-focused not only in their interactions with A.P. but also in their daily lives with her. They both provide a plethora of activities and experiences for A.P.. The values and expectations in the respective households appeared to be very similar. The routines for A.P. appeared to be very consistent between households. It was evident that both parents, as well as Mr. Misch’s common-law partner, experience considerable pleasure and joy in raising A.P..

[18] Kevin testified that Heidi named A.P. without consultation with him. This is clearly false. The statement of live birth for A.P. was entered as an exhibit. Heidi testified that they had had a brief discussion prior to the birth of A.P. that her name would be A.P.. Kevin did not object to her surname being Pfister. Heidi received the form in the hospital. She completed it. Kevin came to her residence and signed it without discussion. Kevin and Heidi signed the statement on January 11, 2006. On the form is a "CERTIFICATION OF INFORMANT”. It includes the following statements:

20. I(we) agreed the foregoing to be true and correct to the best of my (our) knowledge and belief.

20a. We have agreed that the child's last name will be as shown in item 1, above.

Heidi and Kevin both signed their names beside these statements.

Kevin signed on the wrong line. He scratched out his signature and then signed on the correct line. Clearly he knew what he was signing.

[19] A.P. has many friends close to the house where she resides with Heidi. She attends Bridgeport Public School. She is in Grade 1. She is doing very well in school. She has previously attended this school in junior kindergarten and senior kindergarten. Kevin states that if she resides with him she will continue to attend the same school and he will ensure that she is delivered to school in the morning and picked up in the afternoon.

Letters, Emails and Recorded Conversations of the Parties

[20] The parties have exchanged letters and emails in which they have stated their strongly held views. They both deeply love A.P. They are both good parents, which each acknowledges. Kevin and Heidi are intelligent and articulate. Their correspondence is poignant and expresses their respective positions better than can I. I will summarize and quote from them.

1. Kevin wrote a letter to Heidi dated July 15, 2005 in which he stated the following:

Heidi

I just want to let you know I will be at the hospital to see MY child born… That is not even an option okay. Secondly, as a “supporting” father I expect to be involved with the important milestone of babies life. I want to be clear on that. This is our baby … Not mine and not yours. Ours. You chose this path for you and me and now we have to make the best of it. (emphasis added)

Heidi testified that she understood him to mean by this that the pregnancy was her fault - both by not taking appropriate measures to prevent the pregnancy and by not aborting it.

2. In the fall of 2005 Heidi sent Kevin a handwritten note in which she predicted that she was 98% sure that he would not be involved with her and the child after the child was born. She suggested that he should pay her $400 per month for the care of the child. He agreed to this. She expressed being hurt by the cavalier way that he was treating her. They did go out together but he was invariably late in coming after the time that he gave to her. She wrote “I’ve said it many times, but the odd hug may work for you the odd time but it does not work for me.” She said that she would agree to Kevin coming to see the baby 3 times per week on a set schedule. She would not agree to his taking the baby out of town until she saw responsible driving habits. She stated “when I tell you my feelings, you come back at me angry like I want to pick a fight and call me insecure. According to the verbal abuse book I read abusers do that!"

And:

You have purposely hurt me for 30 weeks, since news of my pregnancy. More and more each day I'm not sure how I'll break the news when baby comes. I'm scared, alone, and you don't give a shit and proven time and time again you can't be counted on/me … Ron, Newt… Yes, not me."

3. Heidi sent Kevin an email dated January 30, 2006 in which she stated the following:

Hi Kevin, how was the show? Did you sell lots?

I just want to say, I know I’m being used by you to see your daughter. I want you to know that I had a very stressed out pregnancy w/o your support, and now I don’t need to be used by you to see her. I produced a healthy beautiful daughter and I am a good decent person, and don’t need to be used as a means to see her.

Her and I are the TOTAL package. Remember the first doctor’s appointment with me? Just remember that, and be greatful and thankful for me making the decision to go through with it. I am up every 2 hours while you socialize, eat for an hour- where’s the respect? Again, we are the total package! Not her, and not by using me to see her. Stop toying with my feelings!

I am going out soon with the girls, and I am going to start dating soon. You will have to get used to just us being in a structured environment as friends, but respect me please and my feelings. Stop treating me like a mat, you can walk all over!

Thanks for listening

4. Heidi copied Kevin in an email dated February 10, 2006 which she sent to a friend telling her of the birth of A.P.. She did not mention Kevin. Kevin was hurt that no mention was made of him and sent Heidi an e-mail to this effect. She responded as follows:

Hi Kevin...I am so sorry about that, I assumed she knows its you, I didn’t mean it to be negative-REALLY!

I feel pain knowing you were out alot while I was pregnant at parties, Oktoberfest and such while I was sick with morning sickness, sometimes carless while you were at Concordia, you at Newts housewarming parties, pigroasts and now you are blessed with a beautiful daughter- while it killed me inside. Sometimes I wish you would just show some kind of remorse and regret for that. You are a good father now she’s here and I couldn’t ask for better support than that I get from you. you are great with her, and over time I will get over this painful memory of something that should of been cherished- my pregnancy.

Every time I’m at your house I’m sad. I feel you just use me to see her, and I understand your point of view. But you do have a great life, benefits, baby on demand and no commitment. Hell, I can’t make you love me or be attracted to me. Time will heal I’m sure. I know someday I’ll meet someone and you will too if you haven’t already and it’ll be different. I’m actually going to Stampede for the first time single, non-pregnant next week for the first time in 4 years!!!!, who knows.... Please bear with me....you are so good with A.P.. I’m sorry again if I stirred some pot or put my foot in my mouth, I just copied you in to show you Janina’s letter and send picture....sorry (I just need to feel love too, I’m human) have goof aft Kev.

5. Heidi sent Kevin an email dated March 7, 2006 in which she suggested that Kevin’s access be structured. She wrote the following:

Perhaps this is a good time to wean her off seeing both of us and arranging a schedule of every other Saturday and a day during the week as needed to give me a break?

Kevin responded with an email dated March 7, 2006 in which he stated the following:

The schedule is fine with my (sic) however the wording and implications of this line is very very troubling for me and I am sure that it was an oversight however if this is truly your mindset, then you will need to adjust that very quickly Heidi.... seriously!

“and a day during the week as needed to give me a break?”

The day during the week will not be for the purpose of giving you a break as you state but will be for me wholeheartedly to fairly see my Daughter that I love so dearly and for no other reason than that although your purpose will be served of course notwithstanding.

The entire email is attached hereto as Appendix A.

6. Heidi sent Kevin an email dated April 8, 2006 in which she stated:

A.P. needs consistency in her life. She needs a schedule to see you on a consistent basis. I have repeatedly asked you to volunteer to see her. But it seems to be on your convenience. That is why there are visitation laws and if (you) do not wish to abide by them, we will need to seek a mediator. You cannot, go into her life whenever you have free time and your young club/party friends will have to deal with it.

7. Heidi sent Kevin an email dated July 22, 2006 in which she lamented the infrequency of Kevin's visits. She pointed out that A.P. had been sick for three days and he did not know.

8. Kevin sent Heidi an email dated October 19, 2006 in which he set out his approach to visiting A.P. He stated the following:

Heidi

I just got back from the Candidates Question Period meeting at LBP school.

I was going to have you to supper on Wed. night but that was canceled after our conversation (if you could call it that). I did say to let me know if you had any plans with A.P. or not and I would pick her up but you never commented on that.

Was at the VSC Voter forum tonight for our Ward and I feel it was necessary to be there especially with a person like Vince wanting to come in and affect my way and many others way of living to satisfy some squeeky wheels.

If you are around Sat . and I would be able to see A.P. for a moment or more, Gator would probably like to see her as well. I will be discussing the Baptism with him this Sat.

I can wrap some soup up for you if you wish. It is very good.

I am sorry to hear that A.P. is being very needy for you. I will attempt to alleviate you next week for a day or maybe two?

It would work conveniently that i take her on a day if you find yourself up this way one evening otherwise I can come down to get her.

9. Heidi sent Kevin an email dated May 5, 2007 which reveals Kevin’s attitude to paying child support. She stated the following:

Hi Kevin, how are you?

I know the last month you gave me a cheque you had asked if any money left over is being saved for A.P. I thought about it later and wanted you to know that $200 of that goes to daycare each month.

I bought her a raincoat this week as well. I do three loads of laundry each week which leads me to say...my electric/heat bill this month due on the 10th of may is $354.00.

I would appreciate your support payment Tuesday (or at least $300 and a $100 post dated for a couple weeks later.

I buy her 3-litres of milk, juice, babyfood.....your support payments are necessary.

Thanks for your understanding, have a great weekend!

10. Kevin’s letter to Heidi dated September10, 2010 is summarized above. Significant passages are as follows:

What I am saying here is that, I from the very beginning was given a predetermined schedule and rules that you have put in place without discussion or input from me and I have basically followed those rules and schedules grudgingly for 3.5 years now. The first year pretty much had to be what it was due to A.P. breast feeding etc. After that and with you witnessing how great a Dad I was and continue to be, you could have allowed our daughter to be with both her parents on a more equal and fair basis.

I have on many occasions asked, begged, argued and tried to communicate and reason with you for more time with our daughter who is everything to me and more and has been since the day I laid eyes on her.

With exception of me extending with great persuasive difficulty I might add, the time you wanted A.P. returned back to you, from a unreasonable 6PM to 9PM Wed. Midweek and 9PM on Sunday nights.

I have never received any more time I so desperately want and need with A.P., our daughter. You refused and fought back every time the issue arose.

…the fact is, that me not being allowed to be an equal parent to our little girl always does create deep resentment in me and that shows when you are in my presence.

These are the most precious and valuable years of A.P.’s life and I need and want to be much more a part of it. (emphasis added)

You gave A.P. your surname without consulting me once even though I am her Dad. (emphasis added)

The entire letter is attached hereto as Appendix B.

11. Heidi replied in an email dated September 20, 2010 “A.P.’s schedule is working great. She is a well-adjusted, happy, bright girl. Therefore I see no reason why it should be altered."

12. In March 2011 Heidi took A.P. to the dentist. A.P. was not covered by Heidi’s insurance. Kevin phoned Heidi to inquire about the outcome of the dental appointment. Heidi taped the latter part of the conversation on her blackberry. She said that it was typical of a conversation between her and Kevin on an issue on which they could not agree about A.P.. Heidi asked Kevin if he would contribute half of the dental bill of $350 for the appointment. Kevin became angry. He said that he would only pay half if he had A.P. half the time in order that he could monitor her dental hygiene. He drew an analogy between her asking him to pay half of the cost of repair of a floor that she had damaged, or a friend asking her to pay half the cost of the repair of a car engine that had broken down because she happened to be in the car when it broke down. A portion of the conversation as edited by Kevin is as follows:

Heidi: Well I don’t think you are right on....I don’t think you are right on this issue. I mean you re the one sitting here....You just called me tonight to ask how her dental appointment was, and I’m just telling you the truth and I’m just saying you know what, I wondered if you could go half with me on it.

I don’t know how we got into a conversation about my mothering. And again, how ridiculing me and how bad I am.

If you don’t feel, if you don’t feel comfortable...

Kevin: I don’t mind going half on anything when I have half of the, half of the control to make sure that what may go wrong doesn’t go wrong

Heidi: Kevin, it’s not about the money...

(Time Stamp: 4:21)

Kevin: You cover half ... we sent our half the company’s debt here ? no you won’t, because you haven’t got a goddamn bit of, of involvement in this.

How can you be asked to go half on something that you did don’t even have involvement in? (emphasis added)

Heidi: Ok you know what Kevin, don’t take half. I will, You know what, that is not...you know what, money is not important to me.

Kevin: It’s not just, but that’s not what I’m talking about here. I’m talking about, can you imagine, if, if Tau (sp?) called you, and said uh, my car motor broke down...

Heidi: Ok

Kevin: ....when we went down to Niagara Falls. I’d like you pay half the engine repair...

Heidi: You know what Kevin. Kevin, this is not about money, this is...

Kevin:....who’s in that car most often? Not me. I was only in for like one fraction of the time you drive it. You want me to pay half your engine bill? Give me a break. You would look at Tau (Monika’s friend as example) and say “Are you on the right planet here?”

(Time Stamp: 5:08)

Heidi: Kevin, I will do everything in my power to, umm, not have stress in my life and if that means to you that, uh, asking you for half of anything is an issue then, you know what, I won’t ask any more, ok? Because it seems like it’s a big deal. All I was saying was you know what, if you could please go splits with me, you know, $350, but you know what obviously it... this has rolled into something....

Kevin: but that’s fine, I’ll let you off that. Anyway, you know what....Uh....

Heidi: Alright, I’ve gotta go, Yup. Bye

13. Kevin returned A.P. to Heidi on Monday, December 27. He normally picked her up on Wednesday at 4:00 p.m. He had made plans for Wednesday earlier in the day to be with A.P.. Heidi told him that he could not have A.P. until the normal time of 4:00 p.m. because she had made plans to be with A.P. Kevin was angry and swore at Heidi possibly within A.P.’s hearing. Heidi recorded the conversation.

14. In a recording made by Kevin in his car while he is returning A.P. to Heidi after an access visit he states the following:

Remember, if your mommy says to you again that its better you stay with her for a longer time than just [me] two days you tell her well no I think it’s better I stay with both of you guys even if she does only get mad cause I keep thinking every time I bring you home I get sad honey that I have to bring you home. Because I don’t see you for such a very long time. ... (emphasis added)

Conduct of Kevin

[21] Wendy Kirk received six occurrence reports concerning Kevin's conduct from police records pursuant to consents that the parties had signed. Two of these reports disclosed prior common-law relationships of Kevin which ended badly. In one, the police advised Kevin that the woman with whom he had been living wanted no further contact with him and that if he contacted her criminal harassment charges could be laid against him. He was described as being “quite distraught” at this information. The police observed him get into his car and race out of the parking lot. Two others concerned assaults in bars in Kitchener in which Kevin was the victim. In one he was described as being “extremely intoxicated”. On December 20, 1999, at about 2:00 a.m., while he was drunk, Kevin was refused service at the Burger King on Victoria Street in Kitchener. He was abusive of staff. He ripped out the interact debit machine in the drive-through. The Burger King staff was fearful of their safety. They called police. The police located Kevin walking down the on ramp onto number seven highway. The police arrested Kevin on a charge of mischief. He was handcuffed and taken to the police station and released on an undertaking. He testified that the charge was withdrawn when he paid for the damage that he had caused.

[22] On March 11, 2000, police located Kevin’s vehicle parked on a dead-end street. A tire was flat and the keys were found under the driver’s seat in the vehicle. The following morning the police located Kevin at his residence. Kevin told them that at 4:00 a.m., he received a telephone call from friends at a bar. They were drunk and asked him to pick them up. He did this. After dropping them off, on the way back to his home while he was rounding a curve, he hit a patch of ice. He said that he went up over the curb, across two lawns and then back down onto the road. A tire was flat. He left the car parked on the street. The police did not lay charges against him. The story is, of course, highly suggestive of driving while he was under the influence of alcohol and leaving the scene without calling the police to avoid being charged. The police did not lay charges.

[23] In August 2005, Kevin was driving Heidi to Formosa to visit with his parents. Heidi was pregnant with A.P.. He was drinking a bottle of beer which Heidi said was common for him to do. The police stopped him for speeding. He gave Heidi the bottle of beer to hide while he was speaking to the police. He blamed Heidi for the incident because she was talking too much.

The Law

[24] The legislation which applies to the issues of custody and access in this case is the Children's Law Reform Act sections 20(4) and 24. Also relevant, although not directly applicable because the parties were never married, is the Divorce Act, section 16. As Justice Chappel noted in V.K. V. T.S. 2011 ONSC 4305, [2011] O.J. No. 4046 at para. 67, the courts refer to provincial legislation for guidance in interpreting what is in the best interest of the child in cases concerning custody and access when deciding cases under the Divorce Act. There is no reason why the converse should not apply. The maximum contact principle which is codified in the Divorce Act section 16(10) is absent from the Children's Law Reform Act. Notwithstanding this, in my view it is a principle with which must be considered in this case. Attached hereto and marked Appendix C are the relevant sections from the two acts.

Case Law

[25] In Young v. Young 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3 the parties had three daughters. The father was a Jehovah’s Witness. The trial judge awarded custody to the mother. The father was granted access, but he was restricted from discussing his religious beliefs with the children and from taking them to religious services. The British Columbia Court of Appeal removed the restrictions on the father's access. The majority of the Supreme Court of Canada upheld the decision of the Court of Appeal. Justice L’Heureux Dube wrote a lengthy dissent. She would have upheld the trial judge. She canvassed a number of the principles that a trial judge ought to apply in deciding the issue of custody. As Gray J. noted in Warcop v. Warcop 2009 CanLII 6423 (ON SC), [2009] O.J. NO. 638 at para. 50 none of the other judges disagreed with her expression of the relevant principles. I find the principles expressed both in the majority judgment of Justice McLachlan and in the dissenting reasons of Justice L’Heureux Dube of assistance in this case. The paragraphs that follow, in my view, have direct application to this case. Other paragraphs from the two judgments which expand upon these paragraphs are included with these paragraphs in Appendix D which is attached hereto.

Justice L’Heureux Dube

Custody

33 … Courts are not in a position, nor do they presume to be able, to make the necessary day-to-day decisions which affect the best interests of the child. That task must rest with the custodial parent, as he or she is the person best placed to assess the needs of the child in all its dimensions. In my view, this was eloquently expressed by Weatherston J. (later J.A.) in McCahill v. Robertson (1974), 1974 CanLII 2225 (ON SC), 17 R.F.L. 23 (Ont. S.C), at pp. 23-24:

A child must know where its home is and to whom it must look for guidance and admonition and the person having custody and having that responsibility must have the opportunity to exercise it without any feeling by the infant that it can look elsewhere. It may be an unfortunate thing for the spouse who does not have custody that he or she does lose a great deal of the authority and indeed to some extent the love and affection of the child that might otherwise be gained, but this is one of the things which is inherent in separation and divorce. The parents cannot have it both ways. As I say, in my view, it is vitally necessary that the child know where its home is, to whom it is responsible and that there be no doubt in the mind of the child as to that. Within those limits, the parent who does not have custody should, of course, have access to the child under terms which are as reasonably generous as possible, but without interfering with that basic responsibility on the parent having custody.

Maximum Contact

36 …. Subsection 16(10) of the Act contains the "friendly parent" rule which directs courts when granting custody to take into account the willingness of the parent seeking custody to maximize the contact of the other parent with the child of the marriage. It is clear, then, that the Act envisages contact between the child and each of its parents as a worthy goal which should be, all other things being equal, in the best interests of the child. This is a value which courts have always recognized in generally granting generous access to the non-custodial parent.

40 … While the Act specifies that access is a value to be preserved, the objective in s. 16(10) that a child have "as much contact with each spouse" is immediately qualified by the proviso "as is consistent with the best interests of the child" (emphasis added). Thus, it is clear that maximum contact is not an unbridled objective, and that it must be curtailed wherever the welfare of the child requires it. The best interests of the child remain the prism through which all other considerations are refracted.

Access

41 Professor Payne, in Payne on Divorce, supra, at p. 144, shares the view that the access provisions in the Act do not confer any authority on the non-custodial parent to participate in the major decisions of a child's life. … Payne states at pp. 145-46:

the non-custodial spouse with access privileges is a passive bystander who is excluded from the decision-making process in matters relating to the child's welfare, growth and development. This remains true notwithstanding that subsection 16(10) of the Divorce Act, 1985 provides that the court shall promote "maximum contact" between the child and the non-custodial parent to the extent that this is consistent with the best interests of the child.

I could not agree more, given the wording of the Act itself and the generally accepted view of custody both before and since its enactment. The Act neither suggests nor requires the division of parental responsibilities between the custodial and access parent. If Parliament had intended such a result, it would have used much clearer and less ambiguous language.

56 …

Thus, the role of the access parent is "that of a very interested observer, giving love and support to [the child] in the background" (citations omitted)

Right of Access Parent to be Consulted

38 …

The "right to know" is, of course, embodied in the Act, but the "right to be consulted" and to have disagreements aired in Court is not. The only ground set out in the Act on which to contest a decision of the custodial parent is to show that the decision is contrary to the best interests of the child. Courts in Canada have never adopted the view that the custodial parent's decisions are subject to the approval of the non-custodial parent, and that such disagreements must be resolved in court.

No Presumption of Joint Custody

43 The arguments in favour of increased authority over the child by the access parent are closely related to those which support a presumption in favour of joint custody … They rest on the premise that the relationship of authority and obligation that existed between each of the parents and the child during the marriage should and can continue, despite the fact that the parents may no longer be willing or able to cooperate on its exercise. While joint custody may remain an ideal solution in proper cases, particularly when parents are willing and able to cooperate, such premises are often based on illusion rather than reality and may, in the words of Thorson J.A., amount to "a triumph of optimism over prudence" (Kruger v. Kruger, supra, at p. 681).

Custodial Parent

48 Support for the decisions of the custodial parent in the discharge of his or her responsibilities remains crucial if the child is to flourish. The conferral of decision-making authority on the custodial parent acknowledges and reflects the actual day-to-day reality of this task….

117 … The custodial parent normally has the best vantage point from which to assess the interests of the child, and thus will often provide the most reliable and complete source of information to the judge on the needs and interests of that child.

Justice McLachlin

Best Interests and Maximum Contact

202 … the "best interests of the child" test is the only test. The express wording of s. 16(8) of the Divorce Act requires the court to look only at the best interests of the child in making orders of custody and access. This means that parental preferences and "rights" play no role.

204 … The modifying phrase "as is consistent with the best interests of the child" means that the goal of maximum contact of each parent with the child is not absolute. To the extent that contact conflicts with the best interests of the child, it may be restricted. But only to that extent.

206 I would summarize the effect of the provisions of the Divorce Act on matters of access as follows. The ultimate test in all cases is the best interests of the child. This is a positive test, encompassing a wide variety of factors. One of the factors which the judge seeking to determine what is in the best interests of the child must have regard to is the desirability of maximizing contact between the child and each parent. But in the final analysis, decisions on access must reflect what is in the best interests of the child.

Position of the Court of Appeal Post Young on Joint Custody v. Sole Custody

[26] In Kaplanis v. Kaplanis 2005 CanLII 1625 (ON CA), [2005] O.J. No. 275, the trial judge awarded joint custody to parents of a 2 year old girl. The parents separated three months after the child was born. They attempted marriage counselling. The marriage counsellor asked them to leave his office because of “ the ‘uncontrollable invective being exchanged by them’” (para. 4). The Court of Appeal, in the judgment of Justice Weiler, awarded custody to the mother. She stated the following:

2 For the reasons that follow, I would agree with the mother that the order of joint custody should be set aside on the grounds that the trial judge erred in principle in awarding joint custody (a) where there was no evidence of historical co-operation and appropriate communication between the parents, and (b) in the hope that it would improve the parenting skills of the parties.

9 Family law cases are, by their nature, fact-based and discretionary. It is unnecessary to address this court's prior jurisprudence regarding the issue of joint custody to resolve the issue of custody in this appeal.

10 As in any custody case, the sole issue before the trial judge was the best interests of the child. The fact that both parents acknowledged the other to be "fit" did not mean that it was in the best interests of the child for a joint custody order to be made.

11 The fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered. On the other hand, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody. There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another. No matter how detailed the custody order that is made, gaps will inevitably occur, unexpected situations arise, and the changing developmental needs of a child must be addressed on an ongoing basis.

[27] Ladisa v. Ladisa 2005 CanLII 1627 (ON CA), [2005] O.J. No. 276 was released by the Court of Appeal at the same time that it released Kaplanis. The parties were married and lived together for 16 years. They had three children, Alana age16, Jordan, age 13 and Jessica, age 9. When the parties separated, all three children remained in the matrimonial home with the mother. The father was disabled. The parties had a history of being able to work together in the care of the children in times of crisis. The children wanted joint custody and an assessor recommended it. The trial judge granted joint custody. The mother appealed. When the case was heard in the Court of Appeal, Alana was almost 17. She was described as being out of control. The Court of Appeal, in the judgment of Justice Weiler, upheld the award of joint custody regarding the two younger children but made no order regarding the older child. Justice Weiler stated the following:

12 The trial judge found:

Despite the intense conflict between these parents, in emergencies and when the parents have had an opportunity to consider the real interests of their children, they have behaved appropriately, even in each other's presence…

16 In my opinion, it was within the trial judge's discretion to make the order she did respecting Jordan and Jessica. The trial judge's conclusion took into consideration the history of co-parenting by the parties while they were married and the ties that the children had to both their parents.

[28] In Habel v. Habeborn, 2005 ONCJ 242, [2005] O.J. No. 3556 (affirmed [2007] O.J. No. 2143 (Sp. Ct); followed 2010 ONSC 4325 (Sp. Ct.)) at issue was the custody of a 3 year old boy. The mother sought custody. The father sought joint custody. The parties had lived together intermittently before the child was born. When the child was conceived they were not living together. The pregnancy was not planned. The father urged the mother to have an abortion, which she refused to do. They lived together in circumstances of tension for four months after the child was born. There was much conflict between the parties over the care of the child. Justice McSorley summarized the guidelines to be taken from Kaplanis and Ladisa as follows:

4 Although the Court of Appeal reached different conclusions on whether the trial judge erred in ordering joint custody and shared parenting in Kaplanis v. Kaplanis and Ladisa v. Ladisa, the court applied the same legal analysis. Several important guidelines can be taken from Appeals Justices Karen M. Weiler's reasons in Kaplanis v. Kaplanis and Ladisa v. Ladisa. They are as follows:

(a) there is no default position in favour of joint custody in Ontario;

(b) each case is fact-based and discretion-driven;

(c) past parenting experience, both during cohabitation and after separation, is of critical importance to a court's decision whether to order shared parenting in any form;

(d) the fact that one parent professes an inability to communicate with the other parent does not in and of itself mean that a joint custody order cannot be considered, but hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order for joint custody;

(e) where there is no evidence of historical co-operation and appropriate communication between the parents, joint custody may be inappropriate.

And:

7 According to the principles in Kaplanis v. Kaplanis and Ladisa v. Ladisa, joint custody may be appropriate in three main types of cases:

• An order for joint custody works best when the parents agree to it, although such agreement is not a prerequisite to ordering joint custody.

• Joint custody may also be appropriate where neither parent has disentitled himself or herself to custody and where there is a positive history of co-operative parenting and effective, appropriate communication between the parents with respect to their child or children.

• Finally, joint custody may also be ordered to preserve a parent's relationship with the child or children in cases where the parent who is the primary caregiver objects to joint custody without just cause, particularly where there is a risk that the objecting parent will try to marginalize and limit the other parent's involvement with the child.

She made the following observation on the case law:

16 There was also no history of co-parenting by these parents while they resided together. It is important to note that, in most of the cases cited by the father where joint custody was awarded, there was some history of co-parenting either while the parties lived together or following their separation. In many cases, the children had been in the care of both parents for many years before separation and thus had become accustomed to parenting from both parents. This is not such a case.

She awarded custody to the mother. She made the following order:

40 The following order will issue:

1. The applicant Jennifer Habel will have sole custody of the child Jonathan Lucas Attila Hagedorn, born on […]2002.

2. The respondent Jonathan Hagedorn will have access to the child as follows:

(a) On an alternating weekly schedule as follows:

(i) Week One: Sunday at 10 a.m. to Monday at 4:30 p.m. and Friday from 9:00 a.m. to 4:30 p.m.;

(ii) Week Two: On Monday and Friday from 9:00 a.m. to 4:30 p.m. each day;

(b) When the child commences school, the access in paragraph (a)(i) and

(ii) shall be terminated and the father shall be entitled to access on alternating weekends from Friday at 4:30 p.m. to Sunday at 6:00 p.m. to be extended to Monday at 6:00 p.m. if such weekend access falls on a long holiday weekend.

Other terms divided holiday time.

[29] In Roy v. Roy, 2006 CanLII 15619 (ON CA), [2006] O.J. No. 1872, the Court of Appeal reversed an award of joint custody by the trial judge in a case where there was much conflict between the parents. The Court stated the following:

4 The Supreme Court of Canada and this court have consistently held that joint or parallel custody should only be ordered where the parents can co-operate and communicate effectively: see, for example, Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3 at para. 44; Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), [2005] O.J. No. 275 at 4 (C.A.).

5 The basis for the trial judge's order of shared parenting was the recommendation of Mary Satterfield, a mediator who worked long and hard, but ultimately unsuccessfully, to resolve the parties' disagreements after being appointed by the trial judge following 12 days of evidence.

6 Unfortunately, virtually the entire record - interim proceedings before another judge, the mediator's own description of the parties' relationship, the trial judge's own comments during the trial and his observations in the judgment, and the fresh evidence filed by both parties - establishes that a foundation for a joint or parallel custody order set out in the case law, namely co-operation and effective communication, has been and continues to be entirely missing from this case.

Discussion

[30] Kevin has an overwhelming emotional need to have A.P. with him half the time and to be a custodial parent. The issue that must concern the court is not whether this is in Kevin’s best interests. Rather the issue is whether it is in A.P.’s best interests.

[31] I fail to see how A.P. living with Kevin half the time is in her best interests. She will be 7 on January 6, 2013. She has lived with her mother and has been in her de facto custody all her life. She and Heidi have lived at their current address for over 4 years. The home has adequate room, is well furnished, A.P. has a beautiful room and the home is in a good neighbourhood. A.P. has what are now long term friends there. She walks to school with them. She plays with them after school. She is in activities with them. If she is living there only half the time these bonds may not be severed. However, they will be altered and weakened. Continuity of her relationships and her environment is in her interest. Uprooting her on a weekly basis is not in her interest. As Justice Weatherston put it “A child must know where its home is and to whom it must look for guidance and admonition…” (see Young, para. 33 )

[32] The level of communication between Kevin and Heidi is poor. As Justice Weiler put it so succinctly and eloquently in Kapalanis at para. 11:

No matter how detailed the custody order that is made, gaps will inevitably occur, unexpected situations arise, and the changing developmental needs of a child must be addressed on an ongoing basis.

Given the hostility between Kevin and Heidi, I am of the opinion that they will be unable to do so. Kevin has shown little respect for Heidi. In his evidence in court and in some of his emails, he says that he respects her. The facts show otherwise. As Justice L’Heureux Dube put it in the passage quoted above “Support for the decisions of the custodial parent in the discharge of his or her responsibilities remains crucial if the child is to flourish”. Ms. Kirk stated in her report that in the current circumstances A.P. is flourishing. By supporting, the de facto custodial parent, the court is attempting to ensure that she will continue to flourish.

[33] Kevin toyed with Heidi’s feelings. This is at the root of their inability to communicate. After A.P. was born he wanted to see A.P.. She was living with Heidi and being cared for by Heidi. The only way that he could see A.P. was to go to Heidi’s residence. When he was there he and Heidi would frequently have sexual relations. They would have intimacy as it was delicately put in the evidence. Heidi said that she associated sex with love. Obviously Kevin did not. If he did not want a permanent relationship with her he ought not to have sought sexual gratification from her when she was the mother of their child and he knew that she wanted a permanent relationship. He ought to have looked elsewhere. I must emphasize that there is no suggestion that this did not occur with the complete consent of Heidi. Kevin would phone Heidi in the early morning hours and get her to come and pick him up at a location where he was socializing. Undoubtedly this was so he could get home without driving while he was under the influence of alchol. When he met Sally in the summer of 2007 and established a relationship with her he soon abandoned Heidi. As Sally posted on face book for all the world to see “I am looking forward to a new life with Kev”. She said that she would be staying half the time with her mother and “half the week at Kevs until we can find the perfect house”. By his actions Kevin led Heidi to believe that he could be interested in establishing a family with her. He never was.

[34] There is instability in Kevin’s life and in his personality. He has been engaged in acting out behaviour which has attracted the attention of the police on six occasions. Before Heidi, Kevin had two prior relationships with women of some permanence. Heidi was the third. Sally is the fourth. Both Kevin and Sally state that their relationship is permanent. History is often the best indication of the future. Twice he became involved in altercations in a bar. Once he had to abandon his motor vehicle, when in the early morning hours he lost control of it on a patch of ice and it became disabled. The police contacted him in relation to a complaint that had been made against him by a woman who was separating from him. He reacted emotionally. He has been previously convicted of the impaired driving. He was driving with Heidi in his vehicle, when Heidi was pregnant, while he was drinking a bottle of beer. The police stopped the vehicle for speeding. On his instructions Heidi hid the bottle of beer. His prior conduct, although not directly involving the care of the child, does not support the court granting him the heavy responsibility of a custodial parent.

Result

[35] In all the circumstances, I am of the opinion that it is in the best interests of A.P. that Heidi be given sole custody of her. Certainly it is also in A.P.’s best interests that Kevin have substantial access to her. He loves the child and the child enjoys being with him. Heidi does not disagree with this. With the status quo confirmed I expect that A.P. will continue to flourish.

[36] The following order will issue:

1. Heidi shall have sole custody of A.P., born on […], 2006.

2. Kevin shall have access to A.P. as follows:

(a) alternating weekends from Friday after school or if A.P. is not attending school at 4:00 p.m. to Sunday at 6:00 p.m. to be extended to Monday at 6:00 p.m. if such weekend access falls on a long holiday weekend.

(b) two non consecutive weeks during the summer months with notice to Heidi by May 1st of each year;

(c) in even numbered years commencing in 2012, from 9:00 a.m. on 21 December to 6:00 p.m. on 24 December; and in odd numbered years commencing in 2013, from 6:00 p.m. on 24 December to 6:00 p.m. on 28 December and alternating thereafter;

(d) A.P. shall be with Kevin on Father's day and with Heidi on Mother's day, regardless of the weekend access schedule;

(e) alternating March breaks commencing in 2013;

(f) with Kevin on the Easter weekend if Easter falls on a normal access weekend, otherwise A.P. shall be with Heidi;

(g) in addition, if Heidi is unable to parent the child for periods in excess of 24 hours, Kevin shall be offered the opportunity to parent the child;

(h) such further and other times as the parties may agree.

[37] Heidi may make submissions on child support within 10 days and Kevin shall have 10 days to respond from the date of his receipt of Heidi’s submissions. In my judgment on child support I will set a timetable for submissions on costs.

P.B. Hambly J.

Released: September 20, 2012

COURT FILE NO.: FS-1-11

DATE: 2012-09-20

ONTARIO

SUPERIOR COURT OF JUSTICE

Kevin Leode Misch

Applicant

– and –

Heidi Pfister

Respondent

REASONS FOR JUDGMENT

P.B. Hambly J.

Released: September 20, 2012

/lr