ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-08-3792
DATE: 2014-02-14
B E T W E E N:
DAVID OLIVER SKURA
In Person
Applicant
- and -
ANGELA NADINE FIBINGR
In Person
Respondent
HEARD: February 12, 2014,
at Brampton, Ontario
Price J.
Reasons For Order
NATURE OF MOTION
[1] When Ms. Fibingr, who teaches at St. Lucy Catholic Elementary School in Brampton, saw that her daughter, Julianne Skura, was having social problems at school and that her youngest son, Calvin Skura, was having academic difficulties, she unilaterally transferred them from Our Lady of Mercy Elementary School in Mississauga, which they had attended since 2006, to St. Lucy. She says that she tried to discuss the proposed transfer a week earlier by telephone with Mr. Skura, from whom she had separated in 2005, but that he became angry and hung up the phone. Mr. Skura had recently re-located his home to be closer to the children’s home and Our Lady of Mercy School, in order to reduce the time he and the children needed to travel when he exercised access to them.
[2] The Order of Rowsell J. dated September 11, 2007, requires the parties to bring any dispute regarding custody or access to the court for resolution if it cannot be resolved through mediation. Mr. Skura moves to have Ms. Fibingr found in contempt of the order of Rowsell J., as varied by the order of Kruzick J., dated July 12, 2010. He asserts that the transfer of the children to a new school without his consent or the leave of the court was an unjustified interference with his joint custody of the children and his access to them.
Procedural History
[3] The motion was first heard by me on January 28, 2014 and was adjourned on that date to February 12, 2014 to enable the parties to produce further evidence regarding the impact of the change of schools on the children and as to St. Mark’s Elementary School, which is closer to both their homes. An order was also made on January 28, 2014 requesting involvement of the Office of the Children’s Lawyer.
[4] The motion resumed on February 12 and the parties’ further affidavits were filed and their submissions considered. Judgment was reserved until today.
The Order of Rowsell J.
[5] The order of Rowsell J. dated September 11, 2007, gives the parties joint custody of the children and provides that they are to make decisions jointly regarding the children’s education, the parties having determined that the children would attend Catholic English-speaking school. The order further provides:
If there is a dispute, the parties may engage a mediator to assist them in resolving the dispute or return to a court of competent jurisdiction.
The Change of Schools
[6] The parties’ eldest son, Benjamin, who is about to turn 15 years of age (born February 18, 1999) attends grade 9 at Cawthra Park Secondary School in a drama specialty program. Both Mr. Skura and Ms. Fibingr agree that it is in Benjamin’s best interests that he continue attending that program.
[7] Ms. Fibingr acknowledges that the younger two children, Julianne, who is 12 (born July 25, 2001) and Calvin, who is 10 (born June 16, 2003), attended Our Lady of Mercy School in Mississauga since 2006 (in the case of Julianne). She does not dispute that on November 12, 2013, she unilaterally transferred Julianne and Calvin to St. Lucy Elementary School in Brampton, where she is employed as a full-time grade 8 teacher.
Finding of Contempt
[8] I find that, by unilaterally transferring Julianne and Calvin without the consent of Mr. Skura, who shares custody of the children with her, and without leave of the court, Ms. Fibingr willfully breached the order of Rowsell J., which required her to return any dispute regarding custody or access, including the children’s education, to court.
[9] Mr. Fibingr seeks to justify her decision by reference to the following:
(a) Julianne was struggling with social issues at Our Lady of Mercy School and asked her mother to change her school.
(b) Calvin had been having academic difficulties since the fall, his test results had declined by a letter grade, and notes that came home suggested that he was not getting along with his peers.
(a) She tried to discuss her intention with Mr. Skura by telephone on November 4, 2013, but he became angry and hung up the phone.
[10] These factors explain why Ms. Fibingr wanted to transfer Julianne and Calvin and why she was unable to negotiate a resolution on the issue with Mr. Skura. However, they do not justify her unilaterally transferring the children without obtaining permission from the court.
[11] Ms. Fibingr does not detail Julianne’s social problems or the other strategies she and Julianne had tried for dealing with them. She also does not produce the notes she says described Calvin’s problems with his peers, or his teacher’s comments on his academic difficulties.
[12] The limited evidence does not permit the court to assess whether the transfer of the children to a new school was necessary or appropriate. The transfer offered greater convenience to Ms. Fibingr and may have benefited the children. However, it added to the distance Mr. Skura and the children are required to travel when he exercises access to them and it deprived Mr. Skura of the opportunity to challenge Ms. Fibingr’s decision that a transfer of schools was in the children’s best interests.
The Legislation and Jurisprudence
[8] Once a finding of contempt has been made, the Court turns to the imposition of a sanction. The Court has a wide discretion in fashioning an appropriate disposition or sentence. This is evident from Rule 31(5) of the Family Law Rules, which provides:
- (5) If the court finds a person in contempt of the court, it may order that the person,
(a) be imprisoned for any period and on any conditions that are just;
(b) pay a fine in any amount that is appropriate;
(c) pay an amount to a party as a penalty;
(d) do anything else that the court decides is appropriate;
(e) not do what the court forbids;
(f) pay costs in an amount decided by the court; and
(g) obey any other order
[13] Mr. Skura additionally seeks an interim variation of the final order of Rowsell J. to give him sole custody of the children and primary residence of the children with him.
[14] In Crawford v. Dixon, in 2001, Granger J. dealt with the issue of an interim variation of a final custody order pursuant to the Children’s Law Reform Act.[^1] He reviewed the jurisprudence against and in favour of a discretion to make an interim variation of a final order for custody or access and concluded that the court has such a discretion, to be exercised in clear cases:
On balance, although the court should not make it a practice to vary final orders on an interim basis, if the moving party makes out a clear case for relief and proves that the need for the variation is urgent, there seems to be little reason to deny the power to vary. Such a denial might encourage the other side to delay.[^2]
The Impact of the Change on the Children
[15] I adjourned the motion from January 28 to February 12, 2014, to give Ms. Fibingr an opportunity to produce the report cards from St. Lucy School, which were about to be issued, which might offer insight as to whether the children had benefitted from the transfer, and to give Mr. Skura an opportunity to obtain information from St. Mark’s Elementary School, which is within walking distance from the parties’ homes in Mississauga, as to whether a further move was possible or desirable.
[16] Ms. Fibingr produced the children’s report cards from St. Lucy. They disclose that the children’s performance is satisfactory but do not demonstrate that the children are thriving at their new school.
[17] Julianne’s report card, in a section entitled “Strengths/Next Steps for Improvement”, notes: “She sometimes completes and submits class work, homework, and assignments on time and with care. Julianne, with teacher assistance, uses class time appropriately to complete tasks and sometimes puts forth a consistent effort into her work.” Calvin’s report card, in the same section, notes: “Calvin often needs reminders to stay focused on work, follow routines and instructions.”
[18] There are gaps in the information given for both children, owing to their recent transfer. Julianne’s report card, under “Mathematics,” notes, “Due to late registration, there is insufficient data to report for Number Sense and Numeration…” and later, “Due to late registration, there is insufficient data to report for Data Management and Probability.” Calvin’s report card, under “Mathematics”, notes: “Due to Calvin’s late arrival at St. Lucy this term, there was inadequate evidence to assess him in Patterning and Algebra this term.” Under Science and Technology, it notes: “Due to Calvin’s late arrival to St. Lucy this term, there was inadequate evidence to assess him in Science and Technology at this time.”
[19] In August 2013, Mr. Skura moved his residence closer to Ms. Fibingr’s residence and Our Lady of Mercy School, and on an express bus route to Benjamin’s new school, Cawthra Park Secondary School, in order to reduce the time required when transporting the children back and forth while exercising access to them. The transfer of the two younger children from Mississauga to Brampton, 34 kms from Mr. Skura’s new home, and twice the distance from their previous school, has increased the distance Mr. Skura and the children must travel when he exercises access to them.
[20] In spite of these problems and, in part, because of them, I am reluctant to impose a further change of schools on the children so soon after the one that Ms. Fibingr brought about in November 2013. While Mr. Skura has offered some information about St. Mark’s School, which indicates that it is a semester school and can accommodate the children, the information is not sufficient to permit a comparison of St. Mark with St. Lucy or enable the court to assess the impact that a further transfer is likely to have on the children. I have concluded that it is better to await the assessment by The Office of the Children’s Lawyer, and the completion of the children’s present term, before making this determination.
[21] I am troubled by Ms. Fibingr’s resistance to involving the Office of the Children’s Lawyer. Her argument that the children should be spared further inquiries in order to enhance their sense of security and stability is not, in the circumstances, convincing.
Changes to the Parenting Schedule
[22] Because Ms. Fibingr is unable to drive Benjamin to his school in the morning in time to get to her place of employment at St. Lucy, her father is currently driving Benjamin to Cawthra Park S.S. in the morning and Ms. Fibingr picks him up in the evening if Benjamin has after-school activities. Otherwise, her father also drives him home, or Benjamin must ride the bus, a journey that takes him an hour and 15 minutes. The bus ride to Mr. Skura’s residence is a half hour less.
[23] Ms. Fibingr states that her father may not be willing to continue driving Benjamin next year. Mr. Skura asserts that Benjamin would prefer to reside with him. While the court is wary of assertions by one parent that his child wishes to spend more time with him or to reside with him, the logistical challenge that Benjamin faces with transportation to and from school, together with Benjamin’s age, lends some weight to the assertion in the present circumstances.
[24] The evidence demonstrates that the children have a close relationship with their father and that they benefit from their contact with both parents. There is some evidence that Ms. Fibingr’s move of the two younger children to school in Brampton, together with the heavy schedule of activities in which she has registered them, risks marginalizing Mr. Skura from their lives.
[25] Ms. Fibingr’s unilateral transfer of Julianne and Calvin to a new school, in violation of Rowsell J.’s order and with a negative impact on Mr. Skura’s access to the children, is clearly a material change of circumstances that requires a fresh consideration of what arrangements for the children’s residence and the parenting schedule are in the children’s best interests. It is appropriate, in these circumstances, for the court to make an interim variation of the final order of Rowsell J.
[26] Pending an assessment by the OCL, it is in the children’s interest that the negative impact of the transfer on Mr. Skura’s access be remedied by an interim variation of Benjamin’s residence and of the parenting schedule. Changing Benjamin’s primary residence to Mr. Skura’s home and extending the duration of Mr. Skura’s weekend access to Julianne and Calvin will maximize the children’s contact with both parents which, in the present case, is in their best interests.
CONCLUSION AND ORDER
[27] Based on the foregoing, it is ordered that:
- The order of The Honourable Justice Rowsell dated September 11, 2007, is varied, on a temporary and without prejudice basis, as follows:
CUSTODY
a. The Applicant, David Oliver Skura, (“Mr. Skura”) and the Respondent, Angela Nadine Fibingr (“Ms. Fibingr”) shall continue to have joint custody of their children, namely:
(i) Benjamin Michael Skura, born February 18, 1999 (“Benjamin”)
(ii) Julianne Elizabeth Skura, born July 25, 2001 (“Julianne”), and
(iii) Calvin Joseph Skura, born June 16, 2003. (“Calvin”),
collectively referred to as “the children”.
b. The parent having care of any of the children in accordance with this Order shall be responsible for day to day decisions and everyday day to day expenses arising from that child’s residence with him/her.
c. The parties shall confer with each other on all plans and arrangements relating to access and custody of the children and, generally, on all important matters relating to children’s health, residence, welfare, education, recreational activities, religious training and upbringing, including but not limited to the following:
(i) Non-emergency health care;
(ii) Choice of the child’s school, or any change thereto;
(iii) Choice of the child’s religious worship and instruction, or any change thereafter.
d. In the event the parties cannot agree on the matters set out in the paragraph above, they may apply to the court for directions.
e. Neither party shall change the children’s residence to one further than 10 kms. from his/her current address. If a party intends to move, he/she shall give the other party 60 days prior written notice of his/her intention and details of the proposed move and address. The parties shall also provide each other with the new telephone number within 24 hours. The above-noted restriction on moving the children’s permanent residence is not intended to limit the parents’ ability to take the children out of the jurisdiction for the purpose of travel on a reasonable vacation with that parent.
RESIDENCE
f. Julianne and Calvin shall continue to reside primarily with Ms. Fibingr.
g. Beginning February 14, 2014, Benjamin shall reside primarily with Mr. Skura.
REGULAR ACCESS
h. Mr. Skura and Ms. Fibingr shall henceforth observe the following regular access schedule:
(i) Beginning Thursday, February 13, 2014, and on alternate weeks thereafter, Ms. Fibingr shall have access to Benjamin from Thursday after school (or at 4:30 p.m. on days when there is no school) until Monday at the commencement of school (or at 9:30 a.m. on days when there is no school).
(ii) Beginning Thursday, February 20, 2014, and on alternate weeks thereafter:
(a) Ms. Fibingr shall have access to Benjamin from Thursday after school (or at 4:30 p.m. on days when there is no school) until Friday at the commencement of school (or at 9:30 a.m. on days when there is no school).
(b) Mr. Skura shall have access to Julianne and Calvin from Thursday after school (or at 4:30 p.m. on days when there is no school) until Monday at the commencement of school (or at 9:30 a.m. on days when there is no school).
(iii) Beginning Thursday, February 27, 2014, and on alternate weeks thereafter, Mr. Skura shall have access to Julianne and Calvin from Thursday after school (or at 4:30 p.m. on days when there is no school) until Friday at the commencement of school (or at 9:30 a.m. on days when there is no school).
SPECIAL ACCESS
i. The parties shall observe the following special access days, during which the regular access schedule set out in paragraph (h), above, shall be temporarily suspended:
(i) Father’s Day – If the children are not otherwise with Mr. Skura on this weekend, they shall reside with him on Father’s Day, from Sunday at 9:30 a.m. until their return to school on Monday.
(ii) Mother’s Day – If the children are not otherwise with Ms. Fibingr on this weekend, they shall reside with her on Mother’s Day from 9:30 a.m. until their return to school on Monday.
(iii) Valentine’s Day – the children shall spend Valentine’s Day with the parent with whom they normally spend that day of the week based on the terms of this order dealing with regular (non-vacation) access.
(iv) March break – Beginning in 2014, and in even-numbered years thereafter, from the close of school to the resumption of school, the children shall spend March break with Ms. Fibingr. Beginning in 2015, and in odd-numbered years thereafter, from the close of school to the resumption of school, the children shall spend March break with Mr. Skura.
(v) Easter
(a) In even-numbered years beginning in 2014, the children shall reside with Mr. Skura from the Thursday prior to the Easter weekend at 6:30 p.m. to Saturday at 10:00 a.m. and with Ms. Fibingr from Saturday at 10:00 a.m. to the resumption of school.
(b) In odd-numbered years beginning in 2015, the children shall reside with Ms. Fibingr from the Thursday prior to the Easter weekend at 6:30 p.m. to Saturday at 10:00 a.m. and with the father from Saturday at 10:00 a.m. to the resumption of school.
(vi) Summer Vacation – Each of Mr. Skura and Ms. Fibingr shall have an uninterrupted vacation time of two weeks’ duration with the children, during which the other parent’s regular access, set out in paragraph (h), above, shall be suspended, resuming upon the end of the two-week vacation period. The parent having first choice of the vacation period shall advise the other parent by May 15th of the chosen vacation weeks with the children. The other parent shall advise the first by May 31st of the chosen weeks. Ms. Fibingr shall have first choice in even-numbered years, beginning in 2014, and Mr. Skura shall have first choice in odd-numbered years, beginning in 2015.
(vii) Canada Day – The children shall spend Canada day with the parent with whom they normally spend that day of the week based on the above-mentioned provisions of this order, unless the day falls on the vacation access of a parent, in which case they shall spend Canada day with the parent with whom they are scheduled to spend vacation at that time based on the provisions of this order.
(viii) Thanksgiving weekend – In even-numbered years, beginning in 2014, the children shall spend this holiday with Mr. Skura and in odd-numbered years, beginning in 2015, they shall spend it with Ms. Fibingr.
(ix) Christmas – Beginning in 2014, and in even-numbered years thereafter, the children shall reside with Ms. Fibingr from the beginning of the school holiday until December 25th at 12:00 noon and with Mr. Skura from December 25th at 12:00 noon until the December 29th at noon and with Ms. Fibingr from December 29th at noon until the resumption of school. Beginning in 2015, and in odd-numbered years thereafter, the schedule shall be reversed, and the children shall reside with Mr. Skura from the beginning of the school holiday until December 25th at 12:00 noon, etc.
(x) Parties’ birthdays – The children shall spend at least two hours with each parent on their parents’ respective birthdays. The scheduling of this birthday time will be left to the discretion and availability of the parties.
(xi) When the children are in the care of one of their parents, and that parent is unable to care for them directly, it shall be the responsibility of that parent to make arrangements for the children’s care. That parent may ask the other parent to assume care, but shall be under no obligation to do so before engaging other family members, unpaid volunteers, or commercial care-givers to care for the children.
(xii) Either parent shall be entitled to travel with the children outside of Canada during periods when they are in that parent’s care, provided that parent shall provide an itinerary, with flight numbers and the places of lodging and telephone numbers where he/she and the children may be contacted during any absence from Canada at least 30 days in advance. When one parent proposes to travel, the other shall provide the necessary travel consents to facilitate this.
(xiii) Ms. Fibingr shall hold the children’s birth certificate, Social Insurance card, and travel documents but shall release them to Mr. Skura when he requires them for travel in accordance with this Order. She shall also release these documents, upon Mr. Skura’s request, for periods not to exceed 72 hours.
(xiv) The children’s OHIP cards shall travel with them when the children’s residence changes from the home of one parent to that of the other.
(xv) Each of the parties shall have the right to communicate with the children at any reasonable time by telephone and e-mail, and each parent shall keep the other informed of the children’s e-mail address and telephone number, as well as their residential address, whenever any one of these change.
(xvi) Each party shall be responsible for transporting the children to and from school and activities that fall on days when the children are in that parent’s care. When special opportunities for the children arise, such as a school trip or athletic tournament scheduled by a third party service provider, or when unusual problems for the parties occur in relation to access, neither party will unreasonably insist on strict adherence to the foregoing arrangements. Instead, each party shall co-operate in making reasonable alternative arrangements so that the interests of the children prevail, and each party shall give his/her own needs and convenience only secondary importance.
(xvii) Both Mr. Skura and Ms. Fibingr shall have the right to information regarding the children’s school progress, as well as to the release of information pursuant to the Personal Health Information Protection Act, 2004 (“PHIPA”) regarding the children’s health and general well-being. Each of the parties may prepare a direction and a “Consent to Disclose Personal Health Information” pursuant to the PHIPA, authorizing him/herself to contact teachers, school officials, doctors and dentists and authorizing them to provide information directly to that party. The other party shall sign and return this authorization within ten days of receipt.
(xviii) Beginning on a child’s tenth birthday, each of the parents shall have the right to communicate with the child and the child shall have the right to communicate with either parent in private by e-mail or Skype at any reasonable time when they are residing with the other parent, and each parent shall, by the child’s tenth birthday, equip the room which the child occupies when residing with that parent with a computer and internet access for this purpose. Each parent shall ensure that the other is kept informed of the children’s e-mail address and telephone numbers whenever they change.
(xix) This Order shall be enforced by the Peel Regional Police and any other police service with jurisdiction in the area where the children are believed to be. This enforcement shall continue until February 14, 2015.
(xx) There shall be no further change in the children’s schools without the advance written consent of both parents or order of the court.
(xxi) Each of the parents shall, within 10 days of the date of this Order, provide the other with a valid email address where the parent can receive communications and it shall be the responsibility of that parent to check his/her e-mail on a daily basis.
TRANSPORTATION
- It shall be Mr. Skura’s responsibility to pick up the child/children whose care he is about to assume in accordance with this Order from their school or, if there is no school, from Ms. Fibingr’s residence, and to deliver them to their school or, if there is no school, to Ms. Fibingr’s residence, when his care of the child/children is ending.
CHILD SUPPORT
- Mr. Skura’s obligations to pay child support and to contribute to s.7 expenses of the children are unchanged and shall continue in accordance with the Order of The Honourable Justice Kruzick dated July 12, 2010.
OFFICE OF THE CHILDREN’S LAWYER
- A request shall be made to the Office of the Children’s Lawyer for their involvement,
a. To cause an investigation to be made pursuant to s. 112 of the Courts of Justice Act and to report and make recommendations to the court on all matters concerning custody of or access to the following children and the said children’s support and education:
(i) Benjamin Michael Skura, born February 18, 1999,
(ii) Julianne Elizabeth Skura, born July 25, 2001, and
(iii) Calvin Joseph Skura, born June 16, 2003.
And to act as the legal representative of the said minors pursuant to s. 89 of the Courts of Justice Act.
- Both parties shall co-operate fully in the assessment of the children by the Office of the Children’s Lawyer. In the event that either party fails to comply with this paragraph, the other party of the Children’s Lawyer may apply to the court for a finding of contempt and remedy for the non-compliance.
DISPUTE RESOLUTION
- In the event that a dispute arises in the implementation of this order, either party may apply to the court for directions, by motion on notice to the other, to be heard by me between 9 and 10 a.m. on a date when I am presiding, to be arranged in advance with the Trial Office, in consultation with my judicial secretary.
COSTS
- If the parties are unable to agree on the costs of this motion, they may provide written submissions, not to exceed four pages, with a Costs Outline, by February 28, 2014.
CASE CONFERENCE
- The application to vary the order of Rowsell J. shall be returned to court for a Case Conference on May 28, 2014, at 10 a.m.
Price J.
Released: February 14, 2014
COURT FILE NO.: FS-08-3792
DATE: 2014-02-14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
DAVID OLIVER SKURA
Applicant
- and -
ANGELA NADINE FIBINGR
Respondent
REASONS FOR ORDER
Price J.
Released: February 14, 2014
[^1]: Children’s Law Reform Act, R.S.O. 1990, c. C. 12
[^2]: Crawford v. Dixon, 2001 28121 (ON SC), [2001] O.J. No. 466, para. 14