SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: FS-1274519-00

DATE: 2014-02-28

RE: H.W.

Applicant/ Mother

AND:

T.T.

Respondent/Father

BEFORE: Ricchetti, J.

COUNSEL:
M. Trenholme, for the Applicant
D. Frenkel, for the Respondent

HEARD: February 25 and 26, 2014

JUDGMENT

THE CLAIMS

[1] This was a two day trial.

[2] H.W. (the “Mother”) sought:

i. sole custody of the child of the marriage A.T. (“AT”);

ii. continuation of the parenting time order in accordance with the schedule established by Justice Bielby on April 19, 2013; and

iii. prospective child support.

[3] T.T. (the “Father”) sought:

i. joint custody of AT;

ii. equal parenting time; and

iii. child support commensurate with his income.

THE EVIDENCE

[4] At the trial, viva voce evidence was heard from the Mother, the Father and M.A. (“MA”), the Father's new partner.

THE FACTS

[5] AT was born in 2008. He is now 5 1/2 years old.

[6] The parties were married on January 16, 2006.

[7] The exact date of separation is disputed. What is not disputed is that in March 2011, the parties separated. The Mother and AT left the apartment they were living in at the time. The Father remained in the apartment. The parties were separated for approximately 4 months.

[8] Sometime in June or July 2011, the parties attempted to reconcile. The parties and AT moved into a new apartment.

[9] The Father wanted to get his Canadian license as a pharmacist. He decided he could receive his license faster in British Columbia. The Father left for Vancouver in August 2011. The Mother and AT remained in Ontario.

[10] After qualifying for his pharmacist license in British Columbia, the Father was unsuccessful in getting a job in Ontario. In December 2011, he returned to Ontario for 19 days. The parties and AT resided together. At the end of the 19 days, the Father returned to British Columbia. Again, the Mother and AT remained in Ontario.

[11] During these periods when the parties were separated and when the Father was in British Columbia, the Mother provided the primary care for AT.

[12] In March 2012, the Mother commenced this application seeking sole custody of AT, child support and reasonable access for the Father.

[13] On May 8, 2012 the Father served an Answer wherein he sought joint custody of AT and that the "Applicant have primary care and custody of the child..." Further, the Father stated in his Answer: "The Applicant has a warm loving relationship with the child"..."the Respondent understands the child has been situated with his mother in Mississauga and does not want to upset his current residential arrangements, however, he believes that it is in the child's best interests that he remains involved in making decisions about his son's care, education, health and religious upbringing." In other words, the Father appeared to agree that the Mother have primary care of AT.

[14] The Father returned to Ontario on May 28, 2012. He retained counsel. What was worked out was an alternating weekend arrangement for the Father's parenting time. This parenting arrangement was put into place with the Mother as primary caregiver for AT.

[15] The Father met his current partner, MA, in June 2012.

[16] At the case conference, the Father consented to an order for the alternating weekend parenting time and an order of Justice Snowie was issued on August 31, 2012 (alternating Fridays after school until Sunday evening and one dinner time alternating weeks). The Mother continued as the primary caregiver of AT.

[17] In January 2013, the Father and MA commenced living in a common law relationship.

[18] On March 27, 2013 the Father brought a motion for increased access. He sought to extend his alternating weekend access from Wednesday after school until Sunday evening. The Father advised the court he was in the process of starting his own pharmacy and could structure his available time to parent more easily. The motion was heard by Justice Bielby on April 19, 2013. Justice Bielby ordered that the Father have parenting time alternating weekends but from Thursday after school until Sunday evening. In addition there was an after school and dinnertime with AT one day each week. As a result of this order, the primary care and residence of AT continued to be with the Mother.

[19] In August 2013, MA and the Father were married. They purchased a new home.

[20] In October 2013 the Father started his own pharmacy, of which he is a 51% shareholder. Clearly, this new business venture is still at a start up phase. As the owner, the Father testified he is able to arrange his schedule to coincide with his parenting time. The Father expects that his income for 2014 from his pharmacy will be between $40,000 and $50,000. There is simply no evidentiary basis upon which to determine whether this is a reasonable amount at this time.

[21] This trial commenced on February 25, 2014.

[22] It was only during the cross-examination of the Mother that it became apparent the Father was now seeking equal parenting time with AT. The inconsistency of this position with the Answer was drawn to the Father's counsel's attention. An amendment was sought by Father's counsel. It was granted, permitting the Father to claim equal parenting time.

[23] During the course of the evidence the following was not in issue:

i. the Mother says the Father is a good father;

ii. the Father says the Mother is a good mother;

iii. both parents love AT. AT loves both parents and is comfortable with both parents;

iv. AT continues to do very well in the present parenting arrangement. There have been no issues with the parenting arrangement such as AT not wanting to go to spend time with the other parent or missing the other parent;

v. MA appears to have a reasonable relationship with AT but acknowledges that it is the Father who disciplines and is the primary caregiver when AT spends parenting time with his father; and

vi. the parties are able to communicate in writing to discuss, consider and agree on what is in AT's best interests. The communications were respectful and civil towards each other. I asked counsel whether there was any child care issue that the parties had not been able to agree upon in the past two years - the answer was none. None was suggested by either party.

[24] The above undisputed facts are unfortunately rare in family cases. As I indicated to the parties during the trial, they are to be commended for their conduct and putting AT's interests ahead of their own and communicating civilly and effectively for the ultimate benefit of AT.

THE LAW REGARDING CUSTODY & ACCESS

[25] The relevant subsections of 16 of the Divorce Act, R.S.C. 1985, c 3 (2nd Supp.) provides as follows:

16. (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.

(4) The court may make an order under this section granting custody of, or access to, any or all children of the marriage to any one or more persons.

(5) Unless the court orders otherwise, a spouse who is granted access to a child of the marriage has the right to make inquiries, and to be given information, as to the health, education and welfare of the child.

(6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.

(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

(emphasis added)

[26] The best interests of the child is the only consideration in making custody and access orders.

[27] Section 24 of The Children's Law Reform Act, R.S.O. 1990, c C.12 (CLRA) sets out a number of factors which are to be considered in determining the child's best interests when the governing legislation is provincial, however, these factors assist and also provide some guidance when exercising this court's jurisdiction under the Divorce Act. See: Allen v. Wu, [2011] O.J. No. 5414 (Sup.Ct.). Section 24 of the CLRA provides as follows:

24. (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).

(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 upbringing;

(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 with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying 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.

[28] Determining what is in a child’s best interests is not an easy task. It requires the court to objectively consider all of the evidence and determine what the court believes to be the best order that will meet the child’s needs, care and attention going forward.

[29] In Patterson v. Patterson, 2006 53701 (ON SC), [2006] O.J. No. 5454 (Ont. Sup. Ct.), Justice McLaren set out some principles where custody is disputed:

In Habel v. Hagedorn, Justice Margaret A. McSorley of the Ontario Court of Justice gave a helpful summary of the principles set out by Justice Weiler. Justice McSorley wrote:

[4] . . . Several important guidelines can be taken from Appeals Justices Karen M. Weiler’s reasons in Kaplanis v. Kaplanis and Ladisa v. Ladisa. They are as follows:

(a)

there is no default position in favour of joint custody in Ontario;

(b)

each case is fact-based and discretion-driven;

(c)

past parenting experience, both during cohabitation and after separation, is of critical importance to a court’s decision whether to order shared parenting in any form;

(d)

the fact that one parent professes an inability to communication with the other parent does not in and of itself mean that a joint custody order cannot be considered, but hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order for joint custody;

(e)

where there is no evidence of historical co-operation and appropriate communication between the parents, joint custody may be inappropriate.

[7] According to the principles in Kaplanis v. Kaplanis and Ladisa v. Ladisa, joint custody may be appropriate in three main types of cases:

An order for joint custody works best when the parents agree to it, although such agreement is not a prerequisite to ordering joint custody.

Joint custody may also be appropriate where neither parent has disentitled himself or herself to custody and where there is a positive history of co-operative parenting and effective, appropriate communication between the parents with respect to their child or children.

Finally, joint custody may also be ordered to preserve a parent’s relationship with the child or children in cases where the parent who is the primary caregiver objects to joint custody without just cause, particularly where there is a risk that the objecting parent will try to marginalize and limit the other parent’s involvement with the child.

[30] Judicial decisions regarding access, or as I prefer-parenting time, must also be based solely on what the court determines is in the best interests of the child. See: Young v. Young, 1993 34 (SCC), [1993] S.C.J. No. 112 (S.C.C.).

[31] Bonding between the parents and the child and stability are just two of the factors the court must consider. See: Barnes v. Parks, 2001 24146 (ON CA), [2001] O. J. No. 643 (Ont. C. A.).

THE ANALYSIS

SOLE OR JOINT CUSTODY?

[32] Custody grants parental control over and ultimate parental responsibility for the care, upbringing and education of the child. In other words, to have custody of a child is to have decision-making responsibilities in relation to the child’s care and upbringing. Two options available to the court are sole custody to one of the parents or joint custody to the parents. The distinction between sole and joint custody was described in Kruger v. Kruger, 1979 1663 (ON CA), [1979] O.J. No. 4343 (Ont. C.A.) as follows:

To appreciate more fully what this kind of joint custody means, I think it is useful to seek some common understanding of what is involved in an "ordinary" award of exclusive custody to one or another parent, and then to proceed to a consideration of what is involved in an award of joint custody.

In my view, to award one parent the exclusive custody of a child is to clothe that parent, for whatever period he or she is awarded the custody, with full parental control over, and ultimate parental responsibility for, the care, upbringing and education of the child, generally to the exclusion of the right of the other parent to interfere in the decisions that are made in exercising that control or in carrying out that responsibility. The foregoing, of course, does not address the matter of the respective obligations of the custodial parent and the other parent to contribute to the support of the child, nor the right, if any, of the other parent to access to the child.

By contrast, to award to both parents the joint custody of a child on the basis already described is to clothe both parents with equal parental control over, and equal ultimate parental responsibility for, the care, upbringing and education of the child, but to name one of the parents as the parent with whom the child shall ordinarily reside under that parent's immediate direction and guidance (whether indefinitely or as otherwise stipulated), with the other parent to enjoy such access to the child as does not unreasonably impede the ability of the first to assume his or her immediate direction and guidance of the child, nor unreasonably interfere with the right of the first parent to live his or her own life separate from the other.

[33] To repeat what Justice Weiler said in Kaplanis, each case is fact-based and discretion-driven.

[34] In this case there is no disagreement what the applicable law is. The authorities provided by the Father’s counsel are cases where the factual matrix drove the court to exercise its’ discretion in one manner or another.

[35] What are the facts in this case regarding custody?

i. The parties and AT have a good relationship.

ii. The parties have been involved in jointly making decisions for AT’s care and upbringing since the separation. The parties are able to communicate civilly, with respect, effectively and with a focus on AT’s best interests. The parties have been able to resolve all issues regarding AT’s care and upbringing (except one trip to Egypt which was the result of clear, reasonable and legitimate differences of opinion between the parties);

iii. The Father’s lack of involvement in AT’s care and upbringing prior to the last two years is a factor which weighs against a joint custody order. However, the Father has, during the last year or two, made significant efforts to be involved in AT’s care and upbringing. I am not persuaded that this is a significant factor against a joint custody order; and

iv. When specifically asked why she wanted to be the final arbiter of care and upbringing issues for AT, the Mother expressed vague and speculative reasons which, she is fearful, might arise in the future. This evidence was not compelling or persuasive.

[36] There is no good reason the Father should not be involved in the care and upbringing decisions in AT’s life.

[37] In my view, it is in AT’s best interests that the parties be given joint custody over AT.

[38] There was a submission by the Father’s counsel that where the parties are unable to agree of decisions involving AT; the last resort should be to a mediator. I have not seen any evidence that such a provision should be put into an order. Until now, the parties have been able to agree on all matters through give and take and a consideration of AT’s best interests. Such a provision requiring mediation may discourage the kind of dialogue and agreement which has been seen in the past.

[39] There are several ancillary provisions which should be included in the order:

a) The parties shall have joint custody of AT. The parties shall consult with each other and shall jointly make important decisions about AT's welfare, care and upbringing, including but not limited to:

i. education;

ii. health care; and

iii. religious activities.

b) The party with whom AT is having parenting time shall have the right to deal with any emergency health or other situations as might arise. The party shall notify the other party as soon as is reasonable and practical in the circumstances;

c) Both parties will provide each other with their e-mail addresses, current addresses or a phone number where they can be reached at all times;

d) The Applicant and Respondent may make inquiries and be given information by AT's teachers, school officials, doctors, dentists, health care providers, summer camp counsellors or others involved with AT. The parties will cooperate and execute any required authorization or direction necessary to enforce the intent of clause; and

e) The Applicant and Respondent will not change AT's name without the other's written consent.

PARENTING TIME

[40] I now turn to parenting time.

[41] It is important to remember the “maximum contact principle” contained in s. 16(10) of the Divorce Act, directing the court to give effect “to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child”. See: Gordon v. Goertz, 1996 191 (SCC), [1996] 2 SCR 27.

[42] There are a number of positive factors to be considered in this case for equal parenting time:

i. The positive relationship AT has with both parents;

ii. The positive home environment AT has with both parents and, when in the Father’s care, with MA; and

iii. Both parties are able and willing to provide for AT’s care and upbringing.

[43] There are several factors which suggest that the status quo be maintained:

i. The Father had little involvement in AT’s upbringing through much of 2011 and early 2012;

ii. The Father did not seek equal parenting time in May 2012. He was content with the Mother having primary care of AT;

iii. The Father was apparently content to have parenting time with AT on an alternating weekend basis for the balance of 2012 and early 2013. In early 2013, after his relationship with his new partner became a common law relationship, he sought increased parenting time but essentially an extended alternate weekend arrangement. He did not seek equal parenting time;

iv. It was only during the trial that the Father formally sought equal parenting time with AT, seeking to amend his Answer to seek this relief;

v. The Father now has a new relationship, new home and a new business to run. I am not persuaded that AT would necessarily get all the attention from the Father as the Father suggests he would give. The 49% owner of the pharmacy is the owner of the building. The weight of the business operation will fall upon the Father’s shoulders. On the other hand, the Mother is at school studying and would likely have more time at home with AT;

vi. The Mother has had primary care of AT for the past 3 years, except for very short periods of time in July 2011 and December 2011;

vii. The Father denies that he seeks equal parenting time to avoid paying child support. However, I am satisfied that this is a factor in the parenting time the Father now seeks (although I do not believe it is the primary factor). I come to this conclusion based on some of the Father’s evidence:

• At one point the Father wanted AT to change schools so that he would attend a full day kindergarten on the basis that it would result in greater education for AT. However, in a subsequent e-mail, the Father said he would agree to not pursue this suggestion if the Mother was able to get a day care subsidy back. This left the impression that the Father was focused on his financial contribution rather than AT’s education;

• During the Father’s evidence, while denying that finances had anything to do with his claim for equal parenting time, the Father expressed that he had AT 37% of the time, leaving the impression that the Father was aware of the 40% provision in s. 9 of the Federal Child Support Guidelines;

• The Father has failed to make full disclosure of his 2013 income. His evidence that the documents were with his accountant was not satisfactory; and

• The Father’s explanation as to why the Mother and AT left the apartment in March 2011 (when the Mother has little family here) while he remained in the apartment appeared to be driven by the Father’s financial interests.

viii. AT has done very well in the past several years where he spends most weeks during school with his Mother. By all accounts, he does well at school. He is well adjusted. There is no evidence that when with the Mother, AT has separation issues from not being with the Father and vice versa. In other words, the existing parenting arrangement has worked extremely well for AT. The Father’s counsel suggests that there is no evidence he would not continue to do well in an equal parenting time arrangement. However, there is no evidence that this change would not have some significant impact on AT. He has friends and a social life with the Mother. While he has friends when residing with the Father, my impression of his evidence was that it was not as many as AT has with the Mother; and

ix. AT will be going to grade one in September. The continued stability and routine during the school year with the Mother is important and likely to continue to AT’s benefit.

[44] Balancing all of the above factors and attempting to maximize contact between AT and both parents, the following parenting time shall be ordered, subject to any variation by agreement of both parties confirmed in writing, including by e-mail or text messaging:

Primary residence

a) AT’s primary residence shall be with the Mother. The Father shall have parenting time as set out below.

School Year Parenting Time Schedule

a) Subject to the Holiday Parenting Time Schedule set out below, Justice Bielby's parenting time schedule set out in his order of April 19, 2013 shall continue until further order of the court or the written executed agreement of the parties, which order provides:

• Week One - Monday after school until 8:00 p.m. and Thursday after school until Sunday at 8:00 p.m.;

• Week Two – every Thursday until 8:00 p.m.;

b) If the Friday or Monday is a long weekend, Professional Development day or a day when the school is not open, the pick-up or drop-off will continue to be on the same day and at the times as set out in Bielby J's order (on the basis school ends at 3:30 p.m. and school starts at 9:00 a.m.). In such an event, the transfer will take place at the party's home.

Holiday Parenting Time Schedule

c) This holiday parenting time schedule is in addition to the School Year Parenting Time Schedule above, and overrides the School Year Parenting Time Schedule. If a holiday is not specified below, the parties will continue with the School Year Parenting Time schedule.

Eid-ul-Fitr and Eid-ul-Adaha

d) On even numbered years:

a. the Applicant shall have parenting time with AT on Eid-ul-Fitr (August 19 to August 21); and,

b. the Respondent shall have parenting time with AT on Eid-ul-Adaha (October 26 to October 29).

e) On odd numbered years:

a. the Respondent shall have parenting time with AT on Eid-ul-Fitr (August 19 to August 21); and,

b. the Applicant shall have parenting time with AT on Eid-ul-Adaha (October 26 to October 29).

School Spring Break

f) In odd-numbered years, AT will have parenting time with the Applicant from his leaving school as the Break starts until the following Tuesday 7:00 p.m. AT will then have parenting time with the Respondent from Tuesday 7:00 p.m. until his return to school following the Break.

g) In even-numbered years, AT will have parenting time with the Respondent from his leaving school as the Break starts until the following Tuesday 7:00 p.m. AT will then have parenting time with the Applicant from Tuesday 7:00 p.m. until his return to school following the Break.

Mother's and Father’s Day

h) AT will have parenting time with the Applicant on Mother's Day from 10:00 a.m. until 8:00 p.m.

i) AT will have parenting time with the Respondent on Father's Day from 10:00 am until 8:00 p.m.

Mother’s and Father’s Birthdays

j) If it is not a school day, AT will have parenting time with the Applicant on her birthday from 10:00 a.m. until 8:00 p.m. and with the Respondent on his birthday from 10:00 a.m. until 8:00 p.m. If it is a school day the parenting time will be from after school until 8:00 p.m.

Summer Vacation

k) The parties are to equally divide AT's Summer Vacation (being the last day of school until the first day of the return to school).

l) each party will have parenting time with AT as follows:

a. Applicant will have at least two (2) full and consecutive weeks, during which time the School Parenting Time Schedule will be suspended.

b. Respondent will have at least two (2) full and consecutive weeks, during which time the School Parenting Time Schedule will be suspended.

c. The Respondent will have first choice of the two week vacation time in odd-numbered years and the Applicant will have first choice of two week vacation time in even-numbered years. The party with first choice will advise the other, in writing, by April 1st of the chosen weeks, and the party with second choice will advise the other, in writing, by May 1st of the chosen weeks.

d. the parties shall divide the remainder of the summer equally.

e. In making plans, each party will take into account AT's camp and other scheduled activities and shall not schedule any plans or activities during the other party's parenting time during the summer without the consent of the other party.

Christmas Break

m) The parties will share equally AT's school Christmas Break. AT will stay with the Respondent for the first half of the Christmas Break in odd-numbered years and the last half of the Christmas Break in even-numbered years and with the Applicant for the first half of the Christmas Break in even-numbered years and the last half of the Christmas Break in odd-numbered years.

n) The first half will start after school on AT's last day of school in December and end at noon on the date that is the half-way point of the Christmas Break. The second half will start at noon on the date that is the half-way point of the Christmas Break and end on the morning AT returns to school in January.

[45] Both parties shall have the right of reasonable telephone or internet contact with AT while AT has parenting time with the other. AT may telephone or e-mail the Applicant or the Respondent when he wishes.

[46] Neither party shall remove AT from the jurisdiction without the written consent of the other party.

[47] Both parties shall cooperate on obtaining a passport and other government documentation as may be needed for AT from time to time.

[48] AT’s medical card shall be held by the parent having parenting time.

CHILD SUPPORT

[49] The Mother only seeks prospective child support for AT. The Mother has no income at the present time.

[50] The Father is content to impute an income of $45,000 for 2014 for child support purposes. The Mother has no real information or basis to suggest another amount be used for determining the Father's child support obligation.

[51] I will accept $45,000 as the Father’s 2013 income for the Father's child support obligations. The applicable amount from the Guidelines is $406 per month. This amount is payable for the support of AT (d.o.b. October 28, 2008) based on the Father's imputed income of $45,000 commencing March 1, 2014 and payable on the first day of each month until further order of the court or written executed agreement of the parties.

[52] The Father shall provide copies of the financial records of the corporation which owns the pharmacy, as well as another other corporation(s) between this corporation and him personally (such as any holding corporations) within 45 days of the year end. The Father shall also provide copies of any ledgers or other detailed statement of income and expenses as may be reasonably required by the Mother to ascertain gross income and what deductions and expenses were claimed against the gross income of the pharmacy business.

[53] The Father shall also provide a copy of his complete Income Tax returns as filed and Notice of Assessment when filed and received each year.

[54] Child support obligations will vary in accordance with any further order of this court or as may be agreed upon by the parties. Unless agreed to otherwise, the child support will be reviewed on March 1st of each year based on the prior year’s income.

[55] The parties shall continue their respective contributions to s. 7 expenses.

[56] Starting September 1, 2014, for s. 7 expenses, the parties must discuss and agree on any matter which will generate an extraordinary expense prior to their being incurred and agree upon a division of the costs of the extraordinary expenses. This start date will permit the Mother to complete her education and hopefully enter the workforce. The Mother shall immediately advise the Father of her obtaining or changing employment and provide a copy of any payslip, employment agreement or other proof of income. As a general rule, absent agreement between the parties, where the parties have agreed upon an activity or expense which is an extraordinary expense under the Guidelines, the parties shall contribute to the expense in pro-rata to their respective incomes.

CONCLUSION

[57] The parties shall have joint custody of AT in accordance on the terms set out above.

[58] The parties shall share parenting time with AT in accordance on the terms set out above.

[59] All other claims in the Application and Answer are dismissed.

COSTS

[60] Any party seeking costs shall serve and file written submission on entitlement and quantum within two weeks of the release of these reasons. Written submissions shall be limited to 3 pages, with attached Costs Outline and any authorities.

[61] Any responding party shall have one week thereafter to serve and file responding submissions. Written submissions shall be limited to 3 pages with any authorities relied on attached.

[62] There shall be no reply submissions without leave.

Ricchetti, J.

Date: February 28, 2014