SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FC-08-474-2
RE: William Charpentier – Applicant v. Charity Damiano - Respondent
BEFORE: The Honourable Mr. Justice Robert L. Maranger
COUNSEL:
Susan Arlitt, for the Applicant
Debora Scholey, for the Respondent
HEARD: September 4, 2013
ENDORSEMENT
[1] This was a motion and a cross-motion dealing with the issue of the custody of Henry Charpentier, d.o.b. January 16, 2008.
[2] The factual background to the motion can be summarized as follows:
• The father and mother started dating in November 2006 and living together in April 2007. They had one child of the relationship Henry, now five years old, they separated in October 2009. The mother has two children from previous relationships Ethan Littleton d.o.b. January 11, 2003 and Harmony Maracle d.o.b. February 27, 2006. The father’s only child is Henry.
• The matter of custody over Henry has been in litigation much of his life. The parents have had joint custody of Henry from the start. The last order on the matter is dated August 25, 2011 whereby Justice Annis granted a final order of joint custody in accordance with minutes of settlement, the parties agreed that each would have the responsibility of parenting Henry on a week about basis.
• The parties have always lived several kilometers from each other with the father primarily residing in Ottawa and the mother having lived in: Applehill, Gatineau, Casselman and now Plantagenet. The mother has remarried and together with her husband has the responsibility of caring for four children including Henry. The applicant father resides with his parents in Ottawa.
• The fact that Henry now must attend school has made the week about joint custody arrangement unworkable. Consequently, one of the parents must assume primary responsibility in terms of where Henry will live. The parents do not get along at all in terms of making decisions about the parenting of Henry.
• Children’s aid societies have been involved with the family, several pages of records were containing information regarding the mother and her care of the children, the records also contain information relating to the behavior of the father and his family in terms of their dealings with Henry and the mother.
[3] This is an unfortunate case especially for little Henry, because from his perspective all he is familiar with is the concept of equal time with his mother and father, and from this day forward that way of life will come to an end. The courts only concern is what is in the best interests of Henry in all circumstances. The principles that guide the court and that are to be applied here are taken from the Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 24(2) :
The court shall consider all the child’s needs and circumstances including,
a) the love affection and emotional ties between the child and
i. each person entitled to or claiming custody of or access to the child ,
ii. other members of the child’s family who reside with the child, and
iii. persons involved in the child’s care and up bringing;
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, necessities of life and any special needs for the child;
e) any plans proposed for the child’s care and upbringing;
f) the permanence and stability of the family unit with which it is proposed that the child lives;
g) the ability of each person apply for custody of or access to the child to act as a parent; and
h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.
[4] In deciding this matter I have read the affidavit material filed, as well as the children’s aid society records, and other documents attached to the affidavits, and while each parent has positive and negative attributes, it is fair to say that they each love and care very much about their son. In terms of primary residence when all things are considered I come to the conclusion that the mother should have that responsibility over Henry. The parents will continue to have “joint custody”, and the father will be granted time with Henry that will exceed conventional access. I come to this conclusion based upon the following analysis:
• The evidence supports the proposition that although the father had Henry ½ of the time, it was the mother who took on the primary role of seeing to his health and welfare. The medical records filed lead to no other reasonable conclusion.
• The father does have a troublesome past including drug and alcohol addiction and a criminal history. He has taken great strides in terms of improving his situation and while his past is not directly connected to his parenting ability it is nonetheless of some concern.
• Henry has siblings and a relationship with his siblings. While there have been incidents between the children none have resulted in any real protection concerns. A relationship with brothers and sisters can become very important throughout Henry’s life, it is a factor that tips the scales in favour of the mother.
• While the children’s aid records disclose that the mother has had some difficulties from time to time with all of the children in her care, the bottom line is she has done a reasonably good parenting job. Any concerns were always addressed. The report cards indicate the children are doing reasonably well in school, the evidence supports the proposition that she has created a nurturing and a structured environment for all of her children, including Henry.
• The behavior of the father and his family towards the mother has been antagonistic, the best evidence of this comes from neutral third-party witnesses. The doctor’s notes and the Children’s aid records show a pattern that is difficult to ignore. The father’s failure to properly recognise the mother’s role in Henry’s life is problematic.
• In terms of the choice of school both plans are reasonable. However, the mother is more experienced in dealing with schools and teachers as is evidenced by her work with the other children in her care.
• The father and mother both seem to be well meaning in terms of loving Henry and wanting what is best for him. The mother on a preponderance of the evidence is better suited at this stage in Henry’s life to see his needs in terms of education and health care.
[5] Therefore, the order of Justice Annis dated August 25, 2011 is varied and replaced with the following order respecting the custody of Henry Charpentier:
a. The father and mother shall have joint custody of Henry Charpentier dob January 16, 2008.
b. The child’s primary residence will be with his mother Charity Damanio (Orser).
c. The parents shall otherwise divide their time with Henry as follows:
Summer vacation: when the summer break from school begins Henry will reside with each parent on an alternate week schedule, except that each parent will be allowed two consecutive weeks during this time period. Henry will spend the first two weeks of the summer holidays with the father commencing after school on the last day of school and will spend the last two weeks of the summer holiday with the mother. The parents will follow a week about schedule in between. The exchange will occur on Fridays at 7 PM.
Weekend access: Henry shall reside with his father every second weekend from Friday at 5 PM to Sunday at 5 PM. And in November, February, and April he shall have access three weekends a month from Friday at 5 PM to Sunday at 5 PM, in the event his weekend falls upon a long weekend he will have Henry from Friday at 5 PM to Monday at 5 PM.
School spring break: Henry will reside with his father every school spring break.
Mother’s Day Henry shall spend Mother’s Day with his mother. Regardless of any other provision in this order.
Father’s Day Henry will spend Father’s Day with his father. Regardless of any other provision in this order.
Thanksgiving On thanksgiving weekends on odd-numbered years Henry will reside with his father and on even numbered years he will reside with his mother.
Christmas break: the father and the mother will share this period of time with Henry equally. On odd numbered years Henry will reside with his father from Christmas eve at 1 PM to Christmas day at 1 PM and on even numbered years he will reside with his mother during this time. On even numbered years Henry will reside with his father from Christmas day at 1 PM until Boxing day at 1 PM. On odd-numbered years he will reside with his mother from Christmas day at 1 PM until Boxing Day. The remainder of the Christmas break will be divided equally between the parties.
[6] In my view this is not an appropriate case for an award of costs. Any change at all was precipitated by the child’s going to school otherwise the status quo would have remained in effect. For all intents and purposes success was divided. However, if counsel feels compelled to try and convince me otherwise I will accept one page of written argument in support of a cost award.
Maranger J.
Date: September 12, 2013
COURT FILE NO.: FC-08-474-2
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: William Charpentier - Respondent
AND
Charity Damiano, Respondent
BEFORE: The Honourable Mr. Justice Robert L. Maranger
COUNSEL: Susan B. Arlitt, for the Applicant
Debora Scholey, for the Respondent
ENDORSEMENT
Maranger J.
Released: September 12, 2013