Court File and Parties
Court File No.: FC-13-1861
Date: 20130920
Superior Court of Justice - Ontario
Re: Dianne Pearl Douglas, Applicant
AND
Rene Faucher, Respondent
Before: The Honourable Mr. Justice Martin James
Counsel:
Cecil Lyon, for the Applicant
Jack E. Pantalone, for the Respondent
Heard: September 18, 2013
Endorsement
[1]
Background
The Respondent father brings this motion for an order respecting temporary custody and access in relation to the parties’ three children, ages 8, 7 and 5.
2The father is 43 years old and the mother is 40. They were married in 2002 and lived together for several years before marrying. The father has an MBA; the mother has a Masters degree in Education. The mother stayed at home when they started having children; the father worked as a business executive and entrepreneur.
3In 2009 the mother accepted full time employment with her current employer.
4In 2010, while unemployed, the father incurred a catastrophic spinal injury playing recreational hockey and is now a quadriplegic. He has made significant progress in the subsequent rehabilitation process. He says he now has considerable upper body movement but will remain confined to a wheelchair and requires assistance with many basic tasks.
5The mother moved out of the family home in May 2013. The parties agreed to an initial 2 day about child care routine. The father remains in the family home which has been substantially modified to accommodate his disability. He has full time employment as a manager at a Crown Corporation.
[6]
The Parties' Positions and Concerns
The mother’s concerns respecting the father’s ability to provide appropriate child care (with assistance), coupled with her perception that the children, particularly the eldest, were not doing well in the shared custody agreement prompted her to terminate the rotational child care in August 2013. Hence the father’s motion, which was brought on an urgent basis as authorized by Master Roger on August 22, 2013.
7The mother’s concerns include:
a) the inability of the father to care for the children without substantial assistance;
b) the eldest child was showing signs of stress from the 2 days about arrangement;
c) the risk of parentification of the children;
d) child safely concerns due to the father’s physical disabilities.
8The father contends that he has the ability and motivation to make shared parenting work. He filed affidavits from Karen Lalonde, a registered nurse and personal support worker who describes her role in the daily routines in the father’s home and deposes that from her observations the father is able to provide good care, again with assistance. An affidavit from Calvin Beguin, another personal support worker engaged by the father, describes the Applicant’s role in the daily routines of the household and refers to the video and intercom enhancements to the matrimonial home.
9The parties agree that an assessor ought to be retained to provide a custody and access report. The mother secured new accommodation in close proximity to the father. The father reports difficulties in exercising access since the mother assumed primary care of the children. Both lawyers report their clients are experiencing communication difficulties and a lack of cooperation for which they blame the opposing party.
[10]
Analysis
In my view the relevant considerations for the appropriate disposition of this motion include the following:
a. as a general principle, custody and access arrangements ought to maximize contact with both parents;
b. this is a temporary motion. The parties are at a fairly early stage of the separation process. An assessment will assist in providing insight into an appropriate long term arrangement if the parties are unable to agree;
c. both parents should have opportunity to demonstrate parenting capacity. The father has been diligent in endeavouring to construct a system of supports, but it is too early to tell whether it is sustainable on a long term basis;
d. the mother’s parentification concerns are understandable;
e. the current level of stress in their interpersonal dealings may be reduced once temporary custody/access arrangements are solidified. These parents do not have the luxury of not getting along and should be aware that the final outcome will be highly dependent on which parent (hopefully both) can demonstrate co-operation, accommodation and flexibility which is focussed on the best interests of the children;
f. these children are experiencing a multi-layered sense of loss. Their best interests may not be a package deal and the parties need to be vigilant in addressing their individual needs;
[11]
Order
A temporary order shall issue as follows:
a. The parties shall have joint custody;
b. Parenting time shall be approximately 60% for the mother and 40% for the father;
c. The parents shall consult for the purpose of achieving a schedule that suits the children’s needs. It may be that rotation every 2 or 3 days is too frequent and every week or so is too infrequent. If the parents can’t agree on a schedule, then each party shall submit their proposal in writing through their counsel and I will select one or the other. This is to be done within 15 days of this order;
d. The parties shall commission a report by a mutually agreeable custody and access assessor with the cost to be shared equally.
12The individual needs of the children may require individual consideration. For example, Edward may benefit from spending more time with his mother. This would lessen the parenting load for the father. Flexibility is important.
13The recommendation of the assessor may constitute a material change in circumstances warranting a review of the present temporary arrangement.
[14]
Costs
My preliminary view is that there should be no costs. If, however, either party seeks costs, a written submission may be made within 7 days with 3 days to respond.
The Honourable Mr. Justice Martin James
Date: September 20, 2013
COURT FILE NO.: FC-13-1861
DATE: 20130920
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Dianne Pearl Douglas, Applicant
AND
Rene Faucher, Respondent
BEFORE: Justice James
COUNSEL: Cecil Lyon, for the Applicant
Jack E. Pantalone, for the Respondent
ENDORSEMENT
The Honourable Mr. Justice Martin James
Released: September 20, 2013