Court File and Parties

COURT FILE NO.: FC-12-2338

DATE: 2013/04/09

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MARC LABRANCHE, Applicant

AND

LINE FOURNIER, Respondent

BEFORE: M. Linhares de Sousa J.

COUNSEL: Michele D. Blais, counsel for the Applicant

Katherine A. Cooligan, counsel for the Respondent

HEARD: March 26, 2013

ENDORSEMENT

[1] There are two motions before the court brought by the parents of the child, Tye Jordon Labranche, born on September 2, 2011, and who is now some 18 months old. By all accounts Tye is a happy, normal child without any special needs. Both parents are seeking to have themselves declared the primary caregiver of the child based on the status quo.

[2] The father of the child, the Applicant, Marc Labranche, specifically seeks an order granting him the primary care of Tye with access to the mother at such times when she is not working and is personally available to care for the child.

[3] In the alternative, Mr. Labranche seeks an interim order for the continuation of the existing shared parenting schedule of Tye but with a delineation of specific times for the exchange of the care of Tye between the parents.

[4] Mr. Labranche also seeks an order for child support in accordance with the Federal Child Support Guidelines, S.O.R./97-175, as am. [“Guidelines”] and in accordance with the parenting arrangement

[5] Mr. Labranche also sought the leave of the court to amend his Application in this matter to include a claim for custody and primary care of Tye. Unopposed, this request was granted at the commencement of the motion.

[6] The mother of the child, the Respondent, Line Fournier, seeks an order for temporary sole custody of the child, according to the status quo, with access to the father on a gradual increasing basis. She also seeks an order that the father communicate with her through an access communication book, which shall be exchanged at the beginning and end of each access visit.

[7] Ms. Fournier also seeks an order for child support for Tye in accordance with the Guidelines, including s. 7 expenses.

[8] Both parties seek their costs.

[9] Ms. Fournier has also raised in her motion material the issue of the sale of the jointly owned family home. This request is contested by Mr. Labranche who wishes the opportunity to purchase Ms. Fournier’s interest in the home, once all of the property issues between them in the main litigation can be resolved.

[10] The issue of the sale of the family home is not urgent. The issue was not pressed. The parties are still in the process of completing their financial and asset disclosure as required by the Family Law Rules, O. Reg. 114/99. The disposition of the family home should be dealt with on its merits, not in isolation but along with all of the other financial and property issues between the spouses. Property issues should be dealt with now only as they might pertain to the question of parenting.

[11] After examining all of the evidence, including the transcripts of the Questioning of both parties filed with the court, relating to the parenting of this young child for the duration of her short life, I was not persuaded that either parent could successfully claim to be declared Tye’s primary parent. The parties are two parents who do not work the day time hours of what one might call a “regular job” and who, fortunately for Tye, have been able to share, in a substantial way, the care of Tye between them according to their work schedule. When neither one of them has been able to care for Tye, they by agreement and purposely turned to their respective mothers to be a substitute caregiver for the child. This is the way they have organized the care of Tye since her birth.

[12] The father is employed as a firefighter with the City of Ottawa with work flexibility. He works six and seven 24-hour shifts every four weeks. He is and has been available to care for Tye many days of the week, but unavailable for the days and overnight during his 24-hour firefighter shifts.

[13] At the time Tye was born, Mr. Labranche had an additional job as a paramedic working some two to three 12-hour shifts for an additional 24 to 36 hours added to his work time. Mr. Labranche gave up this additional job in March of 2012 when Tye was 6 months old, according to Mr. Labranche, in order to be able to spend more time with Tye.

[14] Commencing in July of 2012 Mr. Labranche took a paternity leave from his firefighting work and became available to care for Tye on a full-time basis. When he had care of Tye during this period he would care for Tye while her mother worked in Ottawa, in Deep River or Pembroke and would travel with Tye to be with the mother to those more distant locations. His paternity leave ended in mid-September of 2012 and by that time the marriage had begun to unravel. In fact, there is evidence to indicate that Mr. Labranche informed Ms. Fournier as early as June of 2012 that a separation was likely. According to him one of the reasons for the marriage breakup was because the mother was working so much at her three dentistry practices.

[15] The mother is a self-employed dentist who owns and operates three dental practices, one in Deep River (for the past four years); one in Pembroke (for the past three years) and one in Ottawa (for the past two years). She worked as a dentist at these three locations and was responsible for the management and administration of all three practices. Ms. Fournier’s long term goal, once Tye was in school, is to centralize her dental practice in Ottawa. However, the separation of the couple preceded this happening.

[16] Ms. Fournier denies that she worked as intensely and frequently, taking her away from the care of Tye, as alleged by Mr. Labranche. A substantial amount of evidence concentrated on the parties’ respective work calendars which evidence conflicted.

[17] When Tye was born in September of 2011, the mother took an eight-week maternity leave during which, according to Ms. Fournier, she cared for Tye full-time. According to Ms. Fournier she did some work during this period but very little and not an amount that could not be accommodated around her care for Tye. She did not dispute that Mr. Labranche was also available, according to his work schedule, to care for the child during this period.

[18] When Ms. Fournier returned to work after her maternity leave she recommenced her work in the three locations of her three practices. In January of 2012, Ms. Fournier’s mother purchased a residence and moved to Deep River in order to assist her daughter in the dentistry practice there and to care for Tye while Ms. Fournier worked in her Pembroke and Deep River practices and when Mr. Labranche could not care for Tye.

[19] The evidence also showed that prior to the separation, the parties would also go on a few brief vacations alone during which time either the maternal or paternal grandmother would care for Tye. Ms. Fournier also went a few times out of town on conference. Tye would stay in the care of her father who during his paternity leave and when he cared for Tye would also take Tye to be with her mother when she was freed from her conference obligations. Both parents were involved in attending Tye’s doctor’s appointments.

[20] It is fair and accurate to conclude, that prior to the separation, care of the child between the parents was comfortably shared and assisted by the two grandmothers when neither parent was available to care for the child. There is no evidence that during that period either parent had a concern about the quality of parenting provided by the other parent to Tye. Nor were the parents, at that time, keeping a running log of who was caring for Tye and for how long.

[21] Matters changed after the separation of the parties became a reality for them. They continued to live in the same home and still do. Mr. Labranche moved his bedroom downstairs in the home and Ms. Fournier continued to occupy the Master bedroom across from Tye’s bedroom. Some jostling for the care of Tye, as between the parents began to take place and disputes between the parties began to surface relating to Ms. Fournier taking Tye with her when she had to work in Pembroke and Deep River to be cared for by her mother even though Mr. Labranche was available to care for his daughter.

[22] One month after the separation, in October of 2012, the parties finally agreed to the current parenting arrangement which is that on Mondays and Tuesdays Tye would be in her father’s care; Wednesday and Thursday Tye would be in her mother’s care; the rest of the week, Friday, Saturday and Sunday would alternate between the mother’s care and the father’s care. The parties also agreed that if a parent could not care for Tye during his or her parenting time then the other parent would have the first right of refusal to care for the child. According to Mr. Labranche this part of the agreement was not respected by Ms. Fournier who continued to use her mother as a caregiver even though he was available to care for Tye. Daytime care is the only thing the parties could agree on.

[23] Since this arrangement was put into place both parents have continued to occupy their separate bedrooms in the former matrimonial home. Tye has remained in her own bedroom with both her parents sleeping in the same house. Even for the days Tye is cared for by her father, Ms. Fournier has remained sleeping in the home. According to Ms. Fournier since the separation she has limited her out of town work hours and she is home every evening and every night.

[24] On the evidence this living and parenting arrangement has been problematic. According to Mr. Labranche, whose evidence on this I accept, the stress, tension and conflict between the parties has been and continues to be palpable and he worries what effect it might be having on Tye. There have been arguments and shouting during which grandparents have had to intervene. There have been reprimands about not letting a parent say good-bye to Tye when the other parent is leaving. There have been struggles over the child in her bath accompanied by accusations by one parent against the other of trying to deprive that parent of spending some evening time with the child.

[25] Mr. Labranche has taken Tye out of the home, usually to his mother’s home, during his parenting time in order to minimize the conflict between the parents in the home. Against his own wishes he has, however, respected Ms. Fournier’s request that he not take Tye to sleep anywhere else at night, but in the former matrimonial home, during his parenting time.

[26] In contrast to this Ms. Fournier, presumably also to avoid the conflict in the home, has continued to take Tye to Deep River when she works in that area where her mother will care for Tye even though Mr. Labranche may be available to care for her. Since separation Ms. Fournier also frequently takes Tye to the former family cottage, from which Mr. Labranche has been locked out, for the five-day period during which she cares for Tye. Mr. Labranche’s evidence was that when Ms. Fournier takes Tye for the five-day period he is not made aware of where she will be specifically nor who is caring for Tye. According to Mr. Labranche, Ms. Fournier is also not informing him in a timely manner of Tye’s doctor’s appointments so that he is not able to attend them.

[27] I am persuaded on the evidence that having the parents continue to live under the same roof as is now happening is not in this child’s best interests. A more defined parenting time is required to avoid the parental conflict that has been going on in the house.

[28] At the same time, since her birth, Tye has enjoyed the substantial care of both parents as their work schedules permitted and that should continue. The flexible work schedules of both parents permit that to continue. The evidence showed that both parents have other places to live while they do not have the care of Tye.

[29] Based on the above, I order on a temporary basis and until this matter can be heard on its merits at trial as follows:

(1) There will be an order for joint custody of Tye by both her parents.

(2) The parenting arrangement, effective immediately, shall be that Mr. Labranche shall have care of Tye from Monday morning at 8 a.m. until Wednesday morning at 8 a.m. Ms. Fournier shall have care of Tye from Wednesday morning 8 a.m. until Friday morning 8 a.m. The weekends, commencing Friday morning 8 a.m. and running until Monday morning 8 a.m. shall be alternated weekly between both parents.

(3) The parent who has care of Tye shall have exclusive possession of the former matrimonial home and the other parent shall vacate the former matrimonial home until the commencement of their care of Tye. Both parties shall share equally the capital and running expenses of the former matrimonial home until further order of the Court.

(4) In the event that a parent is unable to care for Tye for work reasons the other parent shall have the first right of refusal to care for the child unless they can otherwise agree that a third person may care for Tye.

(5) The parents shall communicate with each other about Tye through a communication book which shall be exchanged at the beginning and end of each care period. The parents shall inform the other parent as soon as it is known to them when Tye shall have any medical appointments. Both parents will keep the other parent informed about the general wellbeing of their daughter.

(6) There will be an order for child support for Tye to be determined by a set-off approach of each parents’ obligation to pay child support based on their declared income and in accordance with the Guidelines. I will leave it to counsel to make this calculation. If there is any difficulty arising from this part of the order, counsel can bring the matter before me. The parents will also share in proportion to their incomes Tye’s s. 7 expenses. Child support shall commence to be paid on April 1, 2013.

[30] The last issue to be dealt with is costs. If the parties cannot resolve this issue between them then Mr. Labranche shall have two weeks from the date of this endorsement to serve and file his written submissions on costs. Ms. Fournier shall then have two weeks from that date to serve and file her written submissions on costs. Mr. Labranche shall then have one week to reply if he deems it necessary.

M. Linhares de Sousa J.

Released: April 9, 2013

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: MARC LABRANCHE, Applicant

AND

LINE FOURNIER, Respondent,

BEFORE: M. Linhares de Sousa J.

COUNSEL: Michele D. Blais, counsel for the Applicant

Katherine A. Cooligan, counsel for the Respondent

ENDORSEMENT

M. Linhares de Sousa J.

Released: April 9, 2013