ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: F 1614/11

DATE: 2013/01/18

BETWEEN:

Erin Kerr
Applicant

– and –

Kyle Pickering
Respondent

Jennifer Vandenberg, for the Applicant

HEARD: December 17 and 20, 2012

The Honourable Madam Justice Deborah L. Chappel

JUDGMENT

I. INTRODUCTION

[1] The Applicant Erin Kerr (“the Applicant”) and the Respondent Kyle Pickering (“the Respondent”) are the parents of Grace Elizabeth Pickering, born August 23, 2010 (“Grace”). They separated in approximately late July 2011. On June 15, 2012, I heard Motions brought by the Applicant and Respondent to address the issues of timesharing and child care arrangements respecting Grace. This matter came before me again on December 17 and 20, 2012, for a hearing of a Motion brought by the Respondent and a responding Cross Motion brought by the Applicant.

[2] In his Motion, the Respondent seeks the following:

a. He requests that the timesharing arrangements set out in my previous temporary order dated June 21, 2012 be varied on a temporary basis pending the outcome of trial. In his Notice of Motion, the Respondent requested an increase of only one additional overnight visit over a two week period. However, at the hearing of the Motion, he requested that the timesharing arrangements be changed to provide that he and the Applicant each have Grace in their care 50% of the time.

b. At the hearing of his Motion, he requested an order requiring the Applicant to cooperate as required in order for him to obtain a United Kingdom passport for Grace.

c. He requests an order that the child’s health card travel with her between the parties’ respective residences.

d. He seeks an order requiring the Applicant to maintain life insurance and designate Grace as the beneficiary of this life insurance, and that she name him as the trustee of any such life insurance policy.

e. He seeks an order for child support from the Applicant pursuant to section 9 of the Child Support Guidelines (Ontario)[^1] on a set-off basis, and argues that his income for the purposes of the child support calculation should be imputed at $22,000.00. He claims that he has Grace in his care 46% of the time, that the Applicant has the child in her care 41% of the time, and that the child is with the daycare provider for 13% of the time.

f. He seeks to change paragraph 6 of the June 21, 2012 order to require that both parties contribute to all of the child’s section 7 expenses on a proportionate to income basis.

[3] In her Cross Motion, the Applicant requests that this case be referred to the Office of the Children’s Lawyer pursuant to section 112(2) of the Courts of Justice Act[^2] with a request that that office investigate, report and make recommendations to the court on matters relating to custody of or access to Grace. In the alternative, she requests an order that a custody and access assessment be carried out pursuant to section 30 of the Children’s Law Reform Act,[^3] and that the Respondent be required to pay the initial costs of this assessment. The Respondent does not believe that an investigation by the Office of the Children’s Lawyer or a custody and access assessment are necessary, and expressed serious concerns that any such assessment process would result in further delay in the resolution of this matter.

II. TIMESHARING ARRANGEMENTS

A. Background and Positions of the Parties

[4] As indicated above, I addressed the issue of timesharing respecting Grace in the context of Motions brought by the Applicant and the Respondent which I heard on June 15, 2012. The background respecting the parties’ relationship and the timesharing arrangements respecting Grace following the separation are outlined in my Reasons for Judgment dated June 21, 2012.

[5] On June 21, 2012, I made an order that had the effect of increasing the Respondent’s time with Grace considerably. The order included the following terms regarding Grace’s residence and child care arrangements:

Regular Time-Sharing Arrangements

1. Subject to the more specific terms respecting time-sharing during holiday periods set out in paragraph 5 herein, the regular time-sharing arrangements for the child Grace Elizabeth Pickering, born August 23, 2010 (“the child”) shall be in accordance with the following rotating two week schedule:

Week One:

a. The child shall be with the Respondent from Tuesday at 3:30 p.m. until Wednesday at 6:30 p.m. The Respondent shall pick the child up from day-care on Tuesday, and the Applicant shall pick the child up from the Respondent’s home on Wednesday. The Respondent shall provide daytime care for the child on Wednesday.

b. The child shall be with the Applicant from Wednesday at 6:30 p.m. until Friday at 9:00 a.m. The Applicant shall drop the child off at the Respondent’s home on Friday.

c. The child shall be with the Respondent from Friday at 9:00 a.m. until Monday at 9:30 a.m. The Respondent shall drop the child off at day-care on Monday, unless the Monday is an official holiday in which case he shall drop the child off at the Applicant’s home on Monday. The Respondent shall provide daytime care for the child on Friday.

d. The child shall be with the Applicant from Monday after work, or from 9:30 a.m. in the event that the Monday is an official holiday, until Tuesday morning. The Applicant shall pick the child up from daycare on Monday after work if the Monday is not a holiday, and shall drop the child off at day-care on Tuesday morning.

Week Two:

e. The child shall be with the Respondent from Tuesday at 3:30 p.m. until Wednesday at 6:30 p.m. The Respondent shall pick the child up from daycare on Tuesday, and the Applicant shall pick the child up from the Respondent’s home on Wednesday.

f. The child shall be with the Applicant from Wednesday at 6:30 p.m. until Thursday morning. The Applicant shall drop the child off at day-care on Thursday morning.

g. The child shall be with the Respondent from Thursday at 3:30 p.m. until Friday at 6:30 p.m. The Respondent shall pick the child up from day-care on Thursday, and the Applicant shall pick the child up from the Respondent’s home on Friday. The Respondent shall provide daytime care for the child on Friday.

h. The child shall be with the Applicant from Friday at 6:30 p.m. until Tuesday morning. She shall drop the child off at daycare on Tuesday morning.

i. The two week schedule shall resume again with Week One on Tuesday at 3:30 p.m.

Time-Sharing Arrangements During Holiday Periods

5. Unless otherwise agreed upon between the parties in writing, the time-sharing arrangements for the child during holiday periods shall be as follows, which arrangements shall supersede the regular residence schedule set out in paragraph 1 herein:

j. On Thanksgiving weekend, the child shall remain with the Respondent from Friday until Sunday at 12:00 p.m., and shall be with the Applicant from Sunday at 12:00 p.m. until Tuesday morning, when the Applicant shall drop the child off at day-care. In the event that the Thanksgiving weekend falls on a weekend that would be the Respondent’s weekend according to the regular time-sharing schedule, the regular schedule shall resume after Thanksgiving weekend with Week One, as per paragraph 2(a) above, on Tuesday at 3:30 p.m. Otherwise, the regular schedule shall resume after Thanksgiving weekend with Week Two, as per paragraph 2(e) above, on Tuesday at 3:30 p.m.

k. Over the Christmas holiday period:

i. The child shall be with the Respondent from December 20, 2012 at 3:30 p.m. until December 23, 2012 at 6:30 p.m.

ii. The child shall be with the Applicant from December 23, 2012 at 6:30 p.m. until December 25, 2012 at 12:00 p.m.

iii. The child shall be with the Respondent from December 25, 2012 at 12:00 p.m. until December 28, 2012 at 6:30 pm.

iv. The child shall be with the Applicant from December 28, 2012 at 6:30 p.m. until January 1, 2012 at 3:30 p.m., when the regular time-sharing schedule shall resume with Week One, as per paragraph 2(a) above.

l. On Easter weekend, the child shall remain with the Respondent from Friday until Sunday at noon, and shall be with the Applicant from Sunday at noon until Tuesday morning, when the Applicant shall drop the child off at the day-care. In the event that the Easter weekend falls on a weekend that would be the Respondent’s weekend according to the regular time-sharing schedule, the regular schedule shall resume after Easter weekend with Week One, as per paragraph 2(a) above, on Tuesday at 3:30 p.m. Otherwise, the regular schedule shall resume after Easter weekend with Week Two, as per paragraph 2(e) above, on Tuesday at 3:30 p.m.

[6] Based on the evidence which I heard during the previous Motions, I concluded that it was in Grace’s best interests to spend more time with her father. However, I found that Grace had been doing very well under the existing arrangements, and determined that it would be in her best interests for any increase in her time with the Respondent to occur as much as possible within the general framework of those arrangements. The June 21, 2012 order was carefully crafted to allow the Respondent meaningful, daytime periods with Grace so as to maximize the quality of his time with his daughter, while at the same time minimizing as much as possible the disruption of the existing residential arrangements which had been working well for the child. Prior to the order being made, Grace was being cared for daily by a daycare provider.

[7] At the hearing of the current Motions, the Respondent requested an order providing for Grace to reside with the parties on an equal basis. His proposal is that Grace be with one of the parties each Monday and Tuesday, with the other party each Wednesday and Thursday, and that the parties alternate weekends from Friday until Monday. In support of this position, he states that Grace has adjusted well to the arrangements that were implemented on June 21, 2012, and that he has been able to meet all of Grace’s needs. He argues that it is in Grace’s best interests to equalize her time between both parties prior to trial. The Respondent has not raised any concerns regarding the Applicant’s care of the child or the child’s well-being during periods when she is in the Applicant’s care.

[8] The Applicant does not feel that the changes implemented by my order dated June 21, 2012 have been in Grace’s best interests. She feels that Grace has had difficulties adjusting to these changes. Specifically, she states that since the order was made, she has observed that Grace has become extremely clingy and afraid to let the Applicant out of her sight. In addition, she alleges that Grace has been waking up much more frequently during the night than she used to prior to the order being made. She notes that she is working on a full time basis from Monday to Friday until 6:00 p.m. each night, and that any increase in the Respondent’s time with Grace would therefore have a significant impact on the amount of her quality time with Grace. As noted above, the Applicant is not seeking a change to the timesharing terms of the June 21, 2012 order pending trial, but she intends to request sole custody, primary residence of the child and more limited access for the Respondent at trial. She continues to maintain that she has always been Grace’s primary caregiver.

(continues with the remaining judgment text exactly as in the source…)