COURT FILE NO.: FD 1191/13 (London FC)
DATE: 2013-10-28
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CHRISTOPHER MICHAEL McNALLY
Applicant
– and –
JENNIFER NICOLE WARD
Respondent
Iain D.D. Sneddon, Counsel for the Applicant
Robert A. Haas, Counsel for the Respondent
HEARD: October 23, 2011
DESOTTI, J.
A. Facts
[1] The parties began cohabiting in 2005 and were married on August 28th, 2010. They separated in April of 2011. There is one child of this union, Ewan McNally, born February 20th, 2008 and who is now 5 years of age.
[2] Initially after separation the parties agreed to a 50-50 parenting arrangement with their son Ewan and exchanged their child each Friday at 6:00 PM. The matrimonial home, where the applicant resided, was sold in May of 2013, which caused the applicant to move out and for a time the applicant resided with a friend on Commissioner’s Road.
[3] The respondent purchased a home in Dorchester with her fiancé and brought a motion to have her son change his school to Dorchester. This motion was heard by Justice Vogelsang and the move was allowed and the child’s new school is River Heights Public School in Dorchester where he attends Senior Kindergarten.
B. Issues and Analysis
[4] Initially, the parties brought different motions with the applicant seeking to maintain joint custody and the 50% sharing of access, while the respondent sought sole custody, a change of schools for her son along with child support and section 7 extraordinary expenses.
[5] Justice Vogelsang dealt with only the change of schools for the child Ewan although he did comment about his views with respect to the continued sharing model.
[6] Importantly and significantly, Justice Vogelsang endorsement indicated that for a period of almost four months prior to the motion to change schools and the week about routine, the circumstances of the parties had, as he stated:
Changed dramatically around April of that year and, for at least four months, Ewen spent most of the time with Ms. Ward to accommodate Mr. McNally’s residence problems. Mr. McNally tries to minimize the importance of this change but, in my view, it represented a fundamental change.
[7] Justice Vogelsang then went on to state three other reasons why the change of schools was in the best interest of Ewan. He stated as follows:
b) There is nothing of a substantial and cogent nature to persuade me that there is anything about Bryon Southward School that is or would be so important to Ewan that he would be harmed by not attending there. After all, Mr. McNally himself contemplated the boy attending a different school in London (Ex. H. to the August 28th, 2013 affidavit)
(I make this observation about that reference. Although paragraph 17 of the applicant’s factum before me seems to indicate that Justice Vogelsang was in error about this proposed new school contemplated by the applicant, and I fully appreciate that the applicant actually moved into a residence that would accommodate Ewan attending Byron Southwood Public School, nevertheless, the July 29th Exhibit H e-mail note to Ms. Ward, referred to by Justice Vogelsang, does contemplate a move that would result in Ewan attending a new school namely, Sherwood Fox School)
[8] Justice Vogelsang continues:
c) The urgency of this matter was created by Mr. McNally who, I think, delayed in finding himself new accommodations for Ewan and feigned - to some extent – surprise that Ms. Ward was moving out of London.
d) While the parties were likely to be able to share Ewan’s care because of their proximity before, that has changed and new arrangements will have to be made. For a substantial time, Ms. Ward has assumed more of a care-giving role and Ewan, in my view, should be mainly in her care and attending the school which she says is a two minute walk from her home.
[9] Justice Vogelsang contemplated that further arrangements should be made with the parties to establish a custody plan for Ewan. Unfortunately, the matter is now formally before me to change the week about as an unreasonable reality given the two moves by the parties along with the joint versus sole custody issue.
[10] At the outset, I would emphasize and indicate that the new school, that has become a reality in Ewan’s life, means that any continued week about would mean that the applicant would have to transport Ewan to this new school while he resides with the applicant during his proposed week about. I am urged by counsel for the applicant that I must not change the status quo pending a formal trial and a hearing of all of the evidence.
[11] Of course the status quo has changed as is reflected in the order of Justice Vogelsang with respect to the change of schools and the extensive time that the respondent, mother spent with her son while the applicant father was in ‘accommodation transition mode’. In addition, the respondent, mother is now no longer working full-time but is a stay at home mother, expecting her second child and of course is residing now in Dorchester.
[12] What I am to decide is whether joint custody can continue and whether the week about regime is feasible. I can quickly answer those concerns before me, in the affirmative and in the negative.
[13] I believe a joint custody regime can work in these circumstances and has worked for a number of years until the reality of the changes of residences, fiancés and schools altered this ‘neat’ arrangement. Thus, on the first issue, I would order, on an interim basis, joint custody of the child Ewan McNally, born February 20th, 2008, to the parties with primary residence to the respondent mother, Jennifer Nicole Ward.
[14] With respect to access, the week about is, in light of the schools and residence changes, too onerous a routine for Ewan. The applicant father should have generous, liberal and frequent access to his son, which would include, alternate weekends from Friday at 6:00 PM until Sunday at 6:00 PM.
[15] This access should also include extended overnights for any school P.D. days that fall on the applicant’s weekend, a weekly overnight attendance with his son Ewan, with both the day of the week and a time to be arranged by counsel for the parties. The applicant, father, would then return his son back to school in Dorchester on the following morning.
[16] Furthermore, the applicant father would be provided with Ewan’s schedule of activities and be allowed to attend and assist in the transportation of Ewan to these activities. I expect the respondent mother through e-mails can and shall keep the applicant abreast of these activities of Ewan. Both parties are to discuss any activities that they think Ewan might enjoy in the future and then intelligently, respectfully and politely agree to share both the expense associated with these activities, in accordance with section 7 of the Child Support Guidelines.
[17] Finally, all holidays, birthdays, Father’s and Mother’s Day, and of course summer holidays should be discussed with a view to appropriately apportioning time reasonably between the parties, with a particular accommodation to the applicant father’s work schedule. If this cannot be worked out amongst counsel and the parties then should counsel so desire, I would be pleased to provide any input that is required to finalize this matter.
[18] The Child Support Guidelines mandate ongoing child support and the formula for section 7 extraordinary expenses, and I would expect counsel, on consent, to draft an order effective November 1st, 2013 to reflect this obvious reality.
[19] Finally, this is merely an interim order. Should the parties desire a trial on the issue of joint custody or the terms of access, they are of course free to engage in further litigation.
[20] The parties have met with divided success. In these circumstances, I am not inclined to award any costs.
“Justice J.A. Desotti”
The Honourable Mr. Justice John A. Desotti
Released: October 28, 2013
COURT FILE NO.: FD 1191/13 (London)
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CHRISTOPHER MICHAEL McNALLY
Applicant
– and –
JENNIFER NICOLE WARD
Respondent
REASONS FOR JUDGMENT
DESOTTI, J.
Released: October 28, 2013