BARRIE

COURT FILE NO.: FC-12-447-01

DATE: 20131029

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MICHELLE COMEAU

Applicant

– and –

ROCK COMEAU

Respondent

J. Herron, for the Applicant

Rock Comeau, Self-represented

HEARD: August 15, 2013, and by written submissions

MULLIGAN J.:

[1] This matter proceeded before me by way of a motion on August 15, 2013. The applicant mother was represented by counsel. The respondent father was assisted by duty counsel. At the motion, the issue of support was adjourned to a settlement conference, January 17, 2014. The issue that was argued focused on a consideration of the change of the access schedule, centred around the child’s hockey schedule. At that time, the hockey schedule was not published, so I reserved my decision for written submissions when the child’s hockey schedule was published. The parties now have that schedule and have made written submissions with respect to access arrangements and whether or not they should be varied in accordance with the hockey schedule.

BACKGROUND

[2] The parties entered into a comprehensive separation agreement, which was executed March 30, 2010. Both parties had legal advice. The child of the marriage, Ayden Robert Emond Comeau, date of birth January 15, 2004, was six at the time of the agreement. The parties agreed to shared/joint custody, with primary residence with the mother. The father was to enjoy alternate weekends from Friday at 6:00 p.m. until Sunday at 6:00 p.m., and other access as set out therein. The father resides in the Hamilton area and the mother resides in Penetang. In the agreement, the parties agreed to a mutual drop-off/pick-up location at King Road and Highway 400 in King City, in connection with the alternate weekend visits.

[3] The agreement does not contemplate or address Ayden’s involvement with minor hockey. However, para. 4.5 of the agreement provides:

Rock and Michelle will at all times maintain a reasonable and flexible position respecting the residency arrangements for Ayden, and at all times, the best interests of Ayden shall prevail. Accordingly, at special occasions, extracurricular activities, holidays, excursions, or other opportunities become available to the children, or to Rock and Michelle, neither of them shall insist that the residency arrangement set out herein shall be adhered to without exception.

[4] Michelle brought a motion to change, dated December 19, 2012 seeking, among other relief, that she have the sole custody with father having access in accordance with the schedule in the separation agreement, subject to a variation regarding the child’s hockey schedule. It was the mother’s position that the father’s access be varied to accommodate the child’s hockey schedule.

[5] At the motion, the parties entered into a consent order, which provided the father with additional parenting time during the summer and on certain PD days.

THE HOCKEY SCHEDULE

[6] Ayden is now 10 years old and plays hockey for the Penetang Flames in the Atom Local Hockey League. The schedule indicates he has twenty games during the season, which runs from November 19 to February 1, plus an additional tournament weekend on the weekend of February 15, 2014. Some of these games are mid-week; some are on the weekends. There are four weekends during the season when he has a game on both Saturday and Sunday.

POSITION OF MICHELLE

[7] Michelle submits that on any weekends where Ayden has two hockey games, then Rock’s parenting time with his son would not proceed and that time would be made up. She further submits that on access weekends, if there is a game on Sunday, Rock would be required to return the child to Penetang on Sunday, one-half hour before game time.

POSITION OF ROCK

[8] Rock acknowledges that his son enjoys hockey, but when hockey games are scheduled on his access weekend, he has been denied access unilaterally, notwithstanding the joint custody agreement the parties entered into. He further notes that the request that he bring the child to Penetang on certain Sundays instead of the halfway pick-up time at King City would add to his travel time. In his submissions, Rock states:

There has always been a conflict between the child’s scheduled games and his time with the respondent. The respondent was always asked to pick up the child later in Midland and to bring him back early again in Midland on a regular basis, without having make-up time. The respondent only has the child for four days a month and the little amount of time the respondent has with the child is considered to be extremely valuable, both for the child and the respondent.

[9] The child’s wishes have not been made known to the court. The office of the Children’s Lawyer has not been engaged in this file. In a sealed envelope with his submissions, Rock submitted a letter from his son. In my view, it is inappropriate to receive the child’s wishes in submissions from the father. Consequently, I have not opened or reviewed this letter.

CONCLUSION

[10] The parties entered into a comprehensive separation agreement in 2010, with the benefit of legal counsel. That agreement provided access to the father every other weekend. Because of the geographical distance between the parties, the father was not in a position to enjoy any form of mid-week access. In the result, he only had four or five days a month with his son.

[11] I acknowledge the importance of extracurricular activities, and the agreement for the parties provided some flexibility. In my view, however, it did not enable Michelle unilaterally to deny weekend access to Rock so that their son could play house league hockey. There is no evidence before me that Ayden would not be able to play hockey if he misses those weekend games involving access with his father. In the result, I am satisfied that weekend access should continue as contemplated by the separation agreement, regardless of the child’s hockey schedule. I make one exception, and that is for the weekend of February 15/16, 2014, the Winterama Tournament, which would presumably be the end of the hockey season for Ayden. If that weekend falls on father’s access weekend, then that access visit would be suspended and made up at a later weekend to be arranged between the parties.

[12] It may be that hockey will become a significant factor in Ayden’s life in the future, and the parties may wish to consider involving the Office of the Children’s Lawyer to obtain his wishes and preferences. This issue can be discussed at the upcoming settlement conference.

[13] Rock has also requested that the holiday access schedule be extended to include every other March Break, starting in 2014. I am satisfied that Ayden spend every other March Break with his father, starting in 2014. If the parties cannot agree on the specific pick-up/drop-off dates for the holiday, they can discuss this issue at the next settlement conference.

COSTS

[14] Rock Comeau has enjoyed success on this motion. He is self-represented. If costs are sought by him, he may make a submission not exceeding two pages within fifteen days of the receipt of this endorsement, to be sent in care of my judicial secretary. Michelle will then have ten days to respond. If no submissions are received within the time period indicated, I will assume that no costs are sought.

MULLIGAN J.

Released: October 29, 2013