Court File and Parties

COURT FILE NO.: 05-FL-1735

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Nicole Giroux – Applicant v. Vincent Giroux - Respondent

BEFORE: Mr. Justice Robert L. Maranger

COUNSEL: Sandra Jones, for the Applicant Nigel Macleod, for the Respondent Chantel Carvallo, for the Children’s Lawyer

HEARD: December 11, 2012

Reasons for Decision

[1] On December 12, 2012 I granted an order varying the custody provisions contained in the order of Justice De Sousa dated March 4, 2008. As a consequence, the moving party Vincent Giroux was granted sole custody of the two children, Erika Shakell and Nolan Giroux.

[2] The order also fixed arrears of child support in the amount of $3000, and ongoing child support at $511 per month payable by the mother to the father. The payment of the arrears of support was to be made at $200 a month until paid in full.

[3] The matter was presented to the court as a one-hour motion. It included factums, as well as detailed representations by the children's lawyer's office. The consequences of the decision could displace a joint custody order that had been in existence for over four years. In the interest of time and in the best interest of the children, a preliminary endorsement was provided, the endorsement also indicated that more fulsome reasons would be given in writing by the court within 60 days.

[4] What follows are those reasons.

Factual background and findings of fact:

[5] I have reviewed all of the material in the continuing record of this case. This includes the affidavits of the parties as well as the pleadings. I have taken into consideration the able and comprehensive representations of the children's lawyer, Ms. Carvallo. I also considered the factums and the able submissions of counsel representing both sides. Based upon the evidence presented in this case, and the representations of all counsel; I make the following findings of fact and come to the following conclusions:

• The parties were married on September 28, 2002 and separated on August 26, 2007. The parties are the parents of two children Erika Marion Shakell, d.o.b. September 13, 1995 and Nolan Marcus Giroux, d.o.b. March 30, 2001.
• The parties consented to a court order on March 4, 2008, which comprehensively concluded all issues under the Family Law Act and a divorce order subsequently issued. The order provided for joint custody of the two children with shared residence.
• The residential history for Erika Marion Shakell was as follows: a) May 29, 2009 to March 5, 2010 full-time with her mother; b) March 5, 2010, until August 6, 2010, resumed alternating week about schedule; c) August 6, 2010 to present time, full-time with her father.
• The residential history for Nolan Marcus Giroux is as follows: a) May 13, 2011 to September 16, 2011 resided primarily with his father, b) September 16, 2011 to December 24, 2011 week about custody continued, c) Difficulties arose from December 24 through to October 26, 2012 involving: an incident where the mother prevented Nolan from leaving, and several regarding the drop off and pick up arrangements between the parties. d) October 26, 2012 to present day, Nolan has resided with his father.
• Some of the specific disputes between the parents included the following problems: on January 1, 2012 Nolan was not at Pinecrest public school at 1800 hrs. for pickup. The mother attempted to change the drop off location, then refused access by refusing to let Nolan go. He was distressed. On January 13, 2012, the mother did not pick up Nolan after school he went to the father’s home. Week about continued from March until October 2012 with chronic drop off and pick up issues occurring. This has caused Nolan stress.
• Erika has become estranged from her mother. Nolan wishes time away from his mother. These express wishes of the two children have nothing to do with any action on the part of the father. There is no evidence of parental alienation on his part. The preponderance of evidence far more supports the proposition that the current relationship between the children and the mother is unfortunate, but that she is the author of her own misfortune. By her own actions she has driven a wedge between her and her daughter. Her more recent behaviour has put in danger a meaningful relationship with her son. The representations of the children's lawyer as to the children's views and preferences are unequivocal in this regard.
• The mother is employed and has a gross annual income of $38,863.
• I further find as a fact the arrears of child support based upon the custodial arrangements that have been in existence since October 26, 2012 should be fixed at $3,000 payable at $200 a month until it is paid in full.
• The guideline child support payment should be $511 per month.

Legal principles apply to findings of fact:

[6] Section 24 (1) and (2) of the Children's Law Reform Act stipulates that:

(1) "the merits of an application in respect of custody or access to a child shall be determined on the basis of the best interest of the child in accordance with subsections (2) (3) and (4).

(2) The court shall consider all of the child's needs and circumstances including,

(a) the love, affection and emotional ties between the child and each person entitled to or claiming custody of or access to the child.

(b) the child's views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child guidance and education, the necessaries of life and any specialties of the child;…

(g) the ability of each person applying for custody of or access to the child to act as a parent.

[7] In a case such as this one, where the children's views and preferences have been articulated in clear and unequivocal terms, and where there has been a history of erratic behaviour on the part of one of the parents, it seems to me to be in the best interest of the children to place them with the parent they expressly want to live with and who can best meet their needs.

[8] The views and preferences of a 17-year-old and 11-year-old described as mature, coupled with a parent who has been primarily responsible for situations of stress and anxiety constitutes a material change in circumstances which allows for the variation of a joint custody order however long-standing.

[9] Joint custody arrangements work when the parties can communicate and where they can operate without friction and disagreement. Regrettably, that situation has never really existed in this case. See Baker v. Baker (1979), 23 OR (2nd) 391 (CA).

[10] Therefore the order is varied in accordance with the preliminary endorsement delivered on December 12, 2012.

[11] With respect to the issue of costs, if the parties cannot resolve the issue of costs I will accept one page written submissions from counsel representing the father within 15 days of the release of this decision and will accept one page written submissions from counsel representing the mother seven days thereafter.

Maranger J.

Date: January 25, 2013

COURT FILE NO.: 05-FL-1735

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Nicole Giroux – Applicant v. Vincent Giroux - Respondent

BEFORE: Mr. Justice Robert L. Maranger

COUNSEL: Sandra Jones, for the Applicant Nigel Macleod, for the Respondent Chantel Carvallo, for the Children’s Lawyer

REASONS FOR DECISION

Maranger J.

Released: January 25, 2013