ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 411-2012
DATE: 2012/10/10

BETWEEN:

CARL LEFEBVRE Applicant – and – CHERYL McCULLOUGH Respondent

Marc Gauthier, for the Applicant
Robert Coulombe, for the Respondent

HEARD: October 5, 2012 (L’Orignal)

REASONS FOR DECISION

Beaudoin J.

[ 1 ] The father brings this motion seeking joint custody of the children Kayden McCullough-Lefebvre, born […], 2006 and Christopher McCullough-Lefebvre, born […], 2009 on a week on, week off basis commencing on Fridays at 5:30 p.m. The mother opposes the motion and has brought her own cross‑motion seeking the payment of child support. The child support issue has been adjourned.

Background

[ 2 ] The parties commenced cohabiting in March of 2002. They separated in August of 2010. In May 2011, they signed an interim separation agreement with respect to their property. Custody and access were to be negotiated. From October 2010, if not earlier, the parents have had a shared parenting regime. For the first 18 months; the scheme worked this way:

Week one: the children were with their mother, although the father had them between 1:00 p.m. and 5:30 p.m. Monday through Friday as the father finished work at 1:00 p.m. and the mother did not finish work until 5:00 p.m.

Week two: the children were with the father after 1:00 p.m. and after school but they were returned to their mother at 7:30 p.m. to be put to bed.

[ 3 ] The parents had the children on alternate weekends.

[ 4 ] In March 2012, the mother cancelled the father’s time with the boys during the week they were to be with her. The father says she made this decision once she learned the father wanted to put in place the regime that he is now seeking. The mother says that the change came about because she now works only part‑time. This Application was commenced on May 22, 2012.

[ 5 ] The father says the current regime is unworkable and not in the best interests of the children. During his week, he has to pick up Christopher from the babysitter and then pick up Kayden from school. He then makes dinner for the boys, helps Kayden with his homework, gives the boys their bath and puts them in their pyjamas and then drives them to their mother’s place to be put to bed.

[ 6 ] The father has a new partner and he currently lives in the home he formerly shared with the mother. The boys are comfortable there and he points out that there are no apparent issues with his parenting. He proposes that his new partner’s mother, Josee Gauthier, would look after the boys in the morning and would look after Christopher during the day. The children know her. The father works from 6:00 a.m. until 1:00 p.m. but his counsel advises the court that he can delay his starting time in order to put Kayden on the school bus in the morning. The school bus would drop Kayden off at his residence after school. The children would no longer have to be rushed. The father’s place of employment is close to home and his hours of employment are flexible. The father says he has been involved in the children’s care including the November 2011 appointment with Dr. Anton Baksh, a consultant with the Ontario Child and Youth Telepsychiatry Program at the Children’s Hospital of Eastern Ontario, who has assessed Kayden for a number of behavioural problems.

[ 7 ] The mother opposes the plan and argues that the parenting arrangements equate to the children being with her 70% of the time. She says that most of the time the children are with her or with her mother. She says the current arrangements have taken on a permanent character to which the children have become accustomed and any further adjustment would not be in their best interests. She particularly relies on Dr. Baksh’s report with regard to Kayden. She diminishes the father’s role in looking after the boys and claims she was always the primary caregiver.

[ 8 ] The mother says she has tailored her work schedule to meet the boys’ needs. Her mother has been the babysitter since Christopher was one year old. She submits that there is no good reason to change the status quo. A request has been made to an have assessment completed by the Office of the Children’s Lawyer and the mother argues that no change should be made until such time as that Office can provide a report. She claims that the current parenting arrangements have only become an issue when she asked the father to pay child support.

Analysis

[ 9 ] I am concerned with the mother’s attempt to minimize the father’s role describing the situation as the children being with her for 70% of the time since separation. In fact, the boys spent at least four hours every day with their dad with the exception of two weekends a month. This continued until March of this year when the mother changed those arrangements. Whether or not she had a change in her employment, that was the status quo for most of the separation and represents a situation where the father played a more significant role than the mother suggests.

[ 10 ] I have read Dr. Baksh’s report with interest. He concluded:

I reviewed with the parents that I think this child has multiple layers contributing to this current clinical picture, and these include: probably some adjustment to the break up and separation of mom and dad, as well as adjusting residing in dual households, difficulties coping with dual language French immersion classroom setting (given that his behaviour has improved being placed in a primarily Anglophone classroom setting) as well as having symptoms that suspiciously sound like a learning disability to me.

[ 11 ] He was reluctant to make a diagnosis of ADHD at that time and that he maintained a strong clinical suspicion of Kayden having a learning disability along with adjustment issues. He noted that children with learning disabilities can often mimic the symptoms of ADHD.

[ 12 ] In terms of recommendations for Kayden, Dr. Baksh, concludes:

I believe that psychoeducational testing as soon as he turns 6 is critical to identify any possible learning disability, developmental issues, as well as additional scales and scores could be used to clarify whether there are symptoms consistent with ADHD. I have reviewed with the parents that should Kayden have a learning disability, medications are not going to help with this. This primary treatment for LD is identification and appropriate accommodation.

As such, if possible I would prefer to hold out until Kayden gets this appropriate psychoeducational testing done to clarify possible diagnoses before resorting to meds. I did preview with the parents, however, as an absolute last resort, should Kayden’s behaviour deteriorate in the classroom setting, that he is starting to be out of control, unmanageable, or posing a safety risk, one could consider a short term trial of low psychostimulant in him to see if there would be any beneficial effect.

[ 13 ] In her affidavit the mother says that Kayden had some difficulty at school the first week so she decided to give him Ritalin prescribed by the family physician. Nowhere in her affidavit does she describe this difficulty, and certainly not in the terms used by Dr. Baksh. The notes from school indicate that on the first day, Kayden pulled down his pants in the boys’ washroom and threatened to urinate in the presence of some grade three boys. The school notes do show improved behaviour the next day. Nevertheless, it appears that the mother has ignored Dr. Baksh’s advice that medication be used as a last resort and this lends some credence to the father’s contention that the mother wants to have control over all the decision‑making for the children.

[ 14 ] Kayden has been identified as a young child who has a number of challenges, one of which is a problem making adjustments. Not surprisingly, these resurfaced on the first day of school. The mother appears to have voluntarily reduced her work hours to eliminate the weekday afternoons he spent every week with his father for 18 months. She now insists on a schedule that requires Kayden to make multiple transitions in a single day. First from her care, then to her mother who will put him on a bus; then Kayden gets picked up by his father and adjusts to the father’s house. He then has to adjust one more time as he is brought home to be put to bed.

[ 15 ] Her counsel suggests that any further change in the parenting routine be deferred until the Office of the Children’s Lawyer has an opportunity to conduct an assessment. It is still unknown if that Office will become involved. They had originally declined to get involved because the mother’s intake form was not received on time. I am advised by her counsel that this was corrected.

[ 16 ] As for the status quo, it is difficult to establish one other than to conclude that for 18 months post‑separation, the children saw their father practically every day for no less than 4 hours in Kayden’s case and more so in the case of Christopher. The mother’s affidavit is incorrect where she describes the current situation as being in place for 16 months. The current scheme has been in place for 6 months and for only 2 months when the father commenced this application. I suspect that the mother hopes to establish a new status quo before trial by reducing the father’s time significantly.

[ 17 ] I am reminded by her counsel that my decision is one that must be made in the best interests of the children. I am concerned that the mother has made a decision to medicate her son when the expert opinion the parents obtained advised against that course. The mother wishes to put the children through a stressful schedule that has the father rushing them to her home to get them to bed. The fall and winter season has begun complete with the driving hazards with that time of year. Rushing children around at that hour of the evening appears to be addressing the mother’s needs rather than those of her children. I agree that the father’s plan presents more stability and that the week on, week off schedule will restore the contact the boys had with their father and reduce the number of transitions they now have to face during their week with him. I therefore make the joint custody order requested by the father on the proviso that he remains at home to see Kayden get on the bus during those weeks when the boys are with him. He says he has the flexible work arrangements that will allow this to take place.

[ 18 ] As this is an interim order and I am satisfied that both parents have presented their opposing plans out of a genuine concern for their children, I make no order as to costs but leave these in the discretion of the trial judge if the matter is not resolved before that time.

Mr. Justice Robert N. Beaudoin

Released: October 10, 2012

COURT FILE NO.: 411-2012
DATE: 2012/10/10

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: CARL LEFEBVRE Applicant – and – CHERYL McCULLOUGH Respondent REASONS FOR DECISION Beaudoin J.

Released: October 10, 2012