ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 4671/09 (St. Thomas)
DATE: 20120327
BETWEEN:
John Wainwright Applicant – and – Terrie Wainwright Respondent
Malcolm Bennett, for the Applicant
Mark A. Shields, for the Respondent
HEARD: September 26 & 27, 2011 Further Information November 3, 2011
PART ONE - PARTIAL JUDGMENT
Nolan J.:
Introduction
[ 1 ] This matter involved a little girl named Ellie who was not yet four years old at the time that this trial started. Her parents have been separated since she was just over a year old. Ellie will have no memory of living together with both of her parents. Much of her life to date has been directed by court orders, many of them finally made on consent between two parents who have not spoken to each other since separation, and have found no other effective way of communicating with each other.
[ 2 ] The evidence in this case was completed in two days and the issues narrowed by the parties by way of Minutes of Settlement filed at the beginning of the trial, leaving only two issues for me to determine. However, this trial raised other issues which relate to part of the Minutes of Settlement dealing with future dispute resolution that are anything but simple. It is for that reason that I have divided this judgment into two parts: the first entitled “Partial Judgment” deals with the two issues that were to be determined at trial:
The location for the exchanges of Ellie by her parents; and
How and by whom decisions about education are to be made in the future by Ellie’s parents.
[ 3 ] The second part of the judgment, “Draft Partial Judgment” deals with issues raised by certain paragraphs of the Minutes of Settlement and is being provided to counsel in draft form to permit them to make written submissions to me, if they wish, about my conclusions and order. If I do not receive any submissions within 30 days or, if I receive submissions which do not persuade me that I should change my conclusions, the Draft Partial Judgment will become a final Partial Judgment and the two parts will be merged into a final document entitled “Final Judgment”.
Background and History of the Litigation
[ 4 ] Mr. and Mrs. Wainwright started living together in 2002 or 2003. They married on October 8, 2007, just a few months before the birth of their child Elizabeth Ruth Christine Wainwright (Ellie) who was born on January 9, 2008.
[ 5 ] Mr. Wainwright is currently a full-time student at Fanshawe College where he is in the Programmer Analyst program. He is not employed, even on a part-time basis, and is financing his education and child support for Ellie by cashing in his pre-marriage RRSPs and by receiving financial assistance from his mother. When he completes his program in June 2013, Mr. Wainwright will be qualified to obtain work as a Programmer Analyst, a position which involves developing applications for computers.
[ 6 ] Mr. Wainwright’s course began in January 2011. He had worked for a tool and die company for five or six years but was laid off near the end of 2010. He had started working there as a machinist, but moved into the engineering department where he began doing programming of the company’s proprietary software. After Mr. Wainwright was laid off, it was unclear from his evidence whether he attempted to get another job or decided to go back to school instead. It was his evidence that, although he was doing programming at the tool and die company, his formal education in programming was 14 years earlier and that he needed to update those skills to obtain another position in that field of work.
[ 7 ] Mrs. Wainwright is a pharmacy technician and has been employed in that capacity for some time at a Rexall pharmacy in London. She worked in London while she and Mr. Wainwright were living together. They moved to St. Thomas in 2005 or 2006 so that Mr. Wainwright would be closer to his work in Aylmer, Ontario. She continued to work in London.
[ 8 ] In October 2008, after Ellie was born and near the end of her maternity leave, Mrs. Wainwright went back to school part-time to become qualified as a Registered Pharmacy Technician. These studies consisted of four courses, each lasting for three months, with classes taking place one evening per week.
[ 9 ] Mrs. Wainwright completed her courses to become a Registered Pharmacy Technician in December 2010 and wrote the qualification examination on September 10 and 11, 2011, just before the commencement of the trial. She testified that she was expecting the results of the exam on December 9, 2011, and was optimistic that she had been successful. Being registered will permit her to dispense medication and will provide Mrs. Wainwright with an increase in pay, job security and additional opportunities to obtain more lucrative employment. One of those opportunities could be in a hospital pharmacy where the pay and benefits would exceed that of her current employment. She said, however, that she enjoys the job she currently holds and expects that her pay will increase once she receives her new qualification.
[ 10 ] The parties separated on March 23, 2009, after an incident at the matrimonial home in St. Thomas which resulted in Mr. Wainwright being charged with assault. He pleaded guilty, and was sentenced to probation for 15 months with a provision that there be no contact between him and Mrs. Wainwright except through counsel. A further provision of his probation order required Mr. Wainwright to attend a number of programs including “Changing Ways”, a program for persons who have been perpetrators of domestic violence, the “Caring Dads” program which works with fathers who have exposed their children to abuse and programs for the treatment of substance abuse problems.
[ 11 ] Following the separation, Mr. Wainwright moved to London where he lives with his mother. Mrs. Wainwright continues to live in St. Thomas. Mr. Wainwright commenced this application in which he sought among other things, an order for custody of Ellie or in the alternative, an order for specific access to Ellie. He also sought child and spousal support, an equalization payment, and a division of household contents. All of these issues were resolved either by agreement or court order prior to trial. Mrs. Wainwright filed an answer in which she sought custody of Ellie as well as other financial and property relief.
... (case continues exactly as in source text) ...
Original signed “Justice Nolan”
Mary Jo M. Nolan
Justice
Released: March 27, 2012
ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: John Wainwright Applicant – and – Terrie Wainwright Respondent REASONS FOR JUDGMENT Nolan J.
Released: March 27, 2012