COURT FILE NO.: FC-10-188
DATE: 2014/01/08
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
EDITH ROBERTS
Applicant
– and –
SYLVAIN BURELLE
Respondent
Sonya Notturno, for the Applicant
Self-represented
HEARD: November 25 and 26, 2013 at Ottawa
REASONS FOR DECISION
beaudOIN J.
[1] The Applicant mother commenced this application on January 22, 2010, seeking support only for her daughter, Madeleine Burelle (born January 19, 2009). In his defence, the Respondent father sought joint custody with Madeleine spending equal time with each parent as well as child support. The Applicant then delivered an amended application where she made a claim for sole custody. Initially, the father was represented by counsel and again at a later date, but was unrepresented at trial.
History of Proceedings
[2] There appears to have been no formal order for custody since the commencement of these proceedings. At a case conference in April 2010, the parties agreed that the Respondent would have access to Madeleine on Tuesdays and Thursdays of each week between 4:30 and 6:30 p.m. and from 9:30 a.m. to 6:00 p.m. on Saturdays. The agreement followed the recommendations of a child psychologist, Dr. Janet Harrison, whom the parties had consulted shortly after their separation. The first formal order is that of Justice Minnema dated April 26, 2012 following a settlement conference. At that time, the Respondent was represented by Ian C. Vallance. The order directed the parties to retain a parenting coordinator to present a parenting plan that was in the child’s best interests. There was a specific direction that the parenting coordinator attempt to set up a decision‑making process for the child. The court further ordered that the parenting coordinator could, on the request of either party, issue a letter confirming the issues in dispute and any recommendations made with respect to a particular matter. The order increased the Respondent’s access as follows (commencing May 2, 2012):
WEEK 1:
a. Wednesday from after daycare overnight with the child to be returned to daycare at 9:00 a.m. on Thursday morning;
b. Friday from after daycare overnight until Monday morning with the child to be returned to daycare at 9:00 a.m.;
WEEK 2:
c. Wednesday from after daycare overnight until Thursday with the child to be returned to daycare at 9:00 a.m.;
d. Thursday from after daycare until 7:00 p.m. with the child to be returned to the Applicant’s home located at 97 Holitman Drive.
[3] The matter was adjourned from the trial sittings of November 2012 and on November 15, 2012 the parties attended before Master Roger. By this time, the Respondent was not represented. On consent, the parties agreed to the following on a final basis:
Based on the Respondent Father’s annual income of $99,528.00, he shall pay child support in the amount of $873.00 per month in accordance with the Federal Child Support Guidelines, payable the first of each month commencing December 1, 2012.
The Respondent Father shall pay arrears in child support owing to date to be in the amount of $4,999.00, which includes all arrears until November 30, 2012. This amount shall be paid at a rate of no less than $100.00 per month. The Father shall make all efforts to pay this amount off as quickly as possible.
In an effort to resolve this issue without trial, the Applicant Mother waives all arrears of extraordinary expenses as they relate to the daycare until November 30, 2012.
The parties shall share in proportion to income all appropriate section 7 expenses of the child. At this time, based on the income of the parties, the Respondent Father shall pay 60% of the costs including the daycare costs. …
[4] The order provided for the annual exchange of income tax statements and notices of assessment, so that child support could be adjusted annually. In the same fashion, section 7 expenses were to be reconciled on an annual basis. The parties were to continue to provide medical and dental insurance coverage for Madeleine for so long as the coverage was available through their respective employers.
[5] The remaining issues, namely custody access and related matters, were adjourned to the fall trial sittings to provide the parties the chance to retain and attend a parenting coordinator. The order specifically provided at para. 9:
The parties will retain the services of Janet Claridge prior to December 31, 2012. The Applicant Mother shall pay 40% of the costs and the Respondent Father shall pay 60% of the costs of the coordinator. The parties shall attend with the coordinator for the months of January and February and any further dates as deemed necessary by Ms. Claridge.
The parenting coordinator shall assist the parties in coordinating a parenting plan that is in the child’s best interests. In doing so, the parenting coordinator shall:
a. Review the current parenting regime;
b. Make recommendations for changes to be implemented, if necessary;
c. Assist the parties in establishing a holiday schedule for the child, Madeleine Burelle, born January 19, 2009.
- If a consent agreement/court order cannot be reached after meeting with Janet Claridge, she shall provide counsel with a written report suggesting her proposed parenting plan for the child as soon as possible but no later than June 2013 in the hopes of implementing any changes, if necessary, by July 2013.
On a temporary basis, the following consent has been reached:
The child will continue to have her primary residence with the Applicant Mother.
The Respondent Father shall have access as follows:
a. Week 1:
i. Wednesday from after daycare overnight with the child to be returned to daycare at 9:00 a.m. on Thursday morning;
ii. Friday from after daycare overnight until Monday morning with the child to be returned to daycare at 9:00 a.m.;
b. Week 2:
i. Wednesday from after daycare overnight with the child to be returned to daycare at 9:00 a.m. on Thursday morning;
ii. Thursday from after daycare overnight with the child to be returned to daycare at 9:00 a.m. on Friday morning.
[6] The mother testified that she agreed to the extra Thursday overnight access in week 2 in the hopes of reaching a final resolution with the Respondent. Janet Claridge did provide a report as directed by Master Roger and at page 2 of her letter, she writes:
Ms. Roberts and Mr. Burelle have worked on finding solutions to day-to-day issues, as well as vacation schedules, and involvement with collaterals. The parties have worked on a Parenting Plan, which is attached. This Parenting Plan is a supplement to the Court Order of November 15, 2012. Even though Mr. Burelle and Ms. Roberts have not signed this Parenting Plan, they are following it, along with the November 15, 2012, Court Order. I believe having a clear schedule in place has reduced some of the conflict and has increased trust between the parties.
The one area not addressed in the Court Order and that was not agreed to in the Parenting Plan was Mr. Burelle’s request for every Thursday overnights. Presently Mr. Burelle has every Wednesday overnight and alternate Thursdays. After discussions with both parents and understanding that Ms. Roberts lives in Barrhaven, Mr. Burelle lives in [Orleans], and their 4 year old Madeleine attends daycare and school in Barrhaven, I stated, at this point, that the extra Thursday overnights, requiring back and forth from Barrhaven to Orleans, would be taxing on Madeleine and I would not recommend the extra Thursday overnights.
The parties have not signed the proposed Parenting Plan. However, they both understand that I am required to provide the Courts with a proposed Parenting Plan by the end of July 2013.
[7] The mother testified that she has two children from a prior marriage, Noland Roberts, born September 12, 2002, and Evelyn‑May Roberts, born March 2, 2004. Their father lives in Buffalo, New York and the children see him for one weekend each month. The mother testified that she met Mr. Burelle in December 2007 and they discovered that she was pregnant in March 2008. Madeleine was born in January 2009. The parties never lived together and their relationship ended in the fall of 2009. Issues with respect to custody and access developed soon after.
[8] The parties attempted to resolve their disagreements by consulting Dr. Janet Harrison, a psychologist who was selected by Mr. Burelle. According to the mother, Dr. Harrison recommended two weekday evening visits and one Saturday visit but the Respondent father would not sign the agreement and he had not yet paid any child support. She felt she had no choice but to commence her application, which she did in January 2010. Ultimately, the father agreed to the access proposed by Dr. Harrison at the case conference in April 2010.
[9] The parties continued to have difficulties in communication and in coming to an acceptable arrangement with respect to access. As a result of this, they accepted their respective counsel’s recommendation that they engage the services of a parenting coordinator. The father would not accept the mother’s suggestions and as a result, Master Roger appointed Janet Claridge in November 2012. The mother says that she is prepared to accept Ms. Claridge’s recommendations. She raises a few concerns. The first relates to the father’s two overnight access periods in the week 2 schedule. She says that these two visits result in Madeleine appearing at school overly tired. She refers to Janet Claridge’s comments cited above. She reported incidents of Madeleine falling asleep by suppertime because she is so tired. She indicated she only agreed to an extra Thursday night overnight visit in the hopes of trying to get a final settlement, but no longer believes that this is in Madeleine’s best interests.
[10] The second concern relates to summer camp. The parties also complied with the Parenting Plan of week‑on, week‑off visits for Madeleine during the summer months. The mother would like to see that changed so that Madeleine could participate in summer camp, an activity that she says the father is opposed to. She also expressed some concern about the child being in the care of the father’s parents on weekends but admitted that she has no significant concerns about their care. Joint decision‑making with the Respondent continues to be a problem; this is why they engaged the services of Dr. Harrison and Janet Claridge. The Applicant has avoided seeking an order for custody to date because she recognizes that this is a trigger point for the Respondent. She describes Madeleine as a happy child who is well adjusted. She gets along well with her siblings and is enrolled in a French language school in Barrhaven along with her brother and sister. Madeleine has been in her care since birth and she proposes that that arrangement continue as agreed to by the parties in November 2012.
[11] The Respondent testified and provided a parenting plan document which he produced for the first time at trial. The document was created by using a U.S.‑based Custody Exchange Software that he obtained on‑line. In short, the father proposes that he have sole custody and he presents a parenting plan that would essentially have the mother seeing the child only every other weekend. In cross‑examination, he did allow that he would accept a plan that would have the mother spending equal time. With the holiday schedule set out in his current plan, there are periods of time where Madeleine would not see her mother for as long as 19 days. At another point, he indicated that he would be prepared to have Madeleine reside with her mother every weekend so long as the child was with him during the week.
[12] Paragraph 1 of his plan specifies that he is to have sole legal custody of Madeleine and, paragraph 3 provides that he would be the only person responsible for making decisions on matters concerning health, education and welfare of the child, and that he may do so without consulting the other parent, so long as such decisions do not conflict with any orders of the court. In cross‑examination, he admitted that this was an error and that he is prepared to engage in joint decision‑making with the mother. He also identified a number of areas for which mutual consent would be required, namely, the selection of or changing of a doctor, dentist or health professional and out-of-country or out-of-state travel.
[13] One unusual provision of his proposed plan is found at para. 26 entitled “Significant Others”. It provides:
- SIGNIFICANT OTHERS
a. Both parents agree that it is not in the best interests of the child for either parent to live with a romantic significant other or to allow a romantic interest to spend the night out of wedlock at the parent’s residence while the children are in that parent’s physical care.
b. Unless married, each parent’s romantic relationships are to be kept discrete with respect to the children at all times.
[14] In cross‑examination he was questioned whether or not that paragraph was also a mistake since he himself would have spent the night with the Applicant mother and her two children from her previous marriage. He replied that it was not a mistake and that this was not a problem because those other children were not his own.
[15] In cross‑examination he was evasive on a number of points. The mother’s first language is English. The father’s language is French. Madeleine is enrolled in a French language school. It was suggested to the father that he had unilaterally moved Madeleine’s placement in Junior Kindergarten without consulting the mother. She was moved from a group of students whose parents are primarily English‑speaking to one that was more advanced. It was apparent from the evidence that this is exactly what he had done.
[16] He also disputed the suggestion that he had blocked the mother’s request to have tubes placed in Madeleine’s ears because of chronic ear infections. He finally admitted that he accepted to do so after repeated requests. Another area of difficulty involved dental care. Madeleine had a number of cavities and he denied the suggestion that he and the mother had conflicts over this issue and that he was insisting that Madeleine’s cavities be repaired under general anaesthetic. Although he denied that this was an issue that had been discussed with Janet Claridge, paragraph 10 of her Parenting Agreement specifically provides that: “The parents agree that Madeleine will see [a] dentist, Dr. Robertson, for treatment of her cavities [on] June 14, 2013.” This clearly contradicts the father’s evidence that this really was not a matter of concern.
[17] The father claimed that there were problems getting reimbursed for dental and prescription expenses that could be avoided if Madeleine were in his primary care. In cross‑examination he admitted that the benefits available through the mother’s employment provide primary coverage for these expenses and that neither parent is out of pocket for these expenditures. There have been issues with Madeleine’s passport. The father does not see the need for Madeleine to travel outside of the country and this lack of cooperation on his part has interfered with Madeleine’s ability to travel to Buffalo with her siblings when they visit their father once a month.
[18] Surprisingly, the father saw no impact on Madeleine if she were to now reside with him full‑time without seeing her mother or siblings for up to 14 or 19 days at a time. He felt that he could compensate for this because he has flexible work hours, that he could be there with Madeleine before and after school, and that she would not need daycare. He added that he had a neighbour who had a little girl, approximately the same age as Madeleine, who could be a playmate for her. He also indicated that there would be no problem driving Madeleine to school because he would enrol her in a different French language school near his home. There would be no difficulty for the mother driving Madeleine to school since she would not have any overnight access during the week. He did not address the commuting issue in the event of a shared custody arrangement that he reluctantly agreed might be possible.
[19] The Respondent’s mother and his brother testified and they both described him as a loving parent.
Analysis and Conclusion
[20] In this trial, there is no doubt that both parties love their daughter, Madeleine. Each parent appears to be capable of looking after her needs. Subsections 19(a) and 24(1) of the Children’s Law Reform Act direct that an application for custody or access be determined on the basis of the best interests of the child. Subsection 24(2) is of particular relevance here. It provides:
Best interests of child
(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.
[21] In this case, the child, Madeleine Burelle, has been residing with her mother along with an older brother and sister in Barrhaven since her birth. She also attends the same school as her siblings. She has a stable routine and that living arrangement has been in place for all of her young life. The mother is prepared to accept the Parenting Plan proposed by the parenting coordinator appointed by the court. The parties recognized that there were difficulties with respect to their communication and decision‑making and that they needed help.
[22] The father’s plan demonstrates that he is primarily concerned with his own best interests over those of his daughter, Madeleine. It is a radical departure from the current regime that is in place and does not even permit a period of transition. The father saw absolutely no problem in disrupting her current stable arrangement where she has resided with her mother, brother and sister for almost five years, and moving her to live alone with him in another part of town, with a new school and having a neighbourhood child as an occasional playmate. He minimized any impact that this might have on Madeleine, stating that there was no psychological report to demonstrate that there would be any harm to Madeleine. While the father was prepared to accept that his plan contains some errors and that he would be prepared to accept a form of joint parenting, that plan clearly demonstrates that he places his own needs first and Madeleine’s needs second.
[23] I accept the mother’s evidence that there have been conflicts with the mother over schooling and health care issues to such an extent that Janet Claridge had to make a provision in the Parenting Plan for Madeleine’s cavities to be treated by her dentist. They have tried counselling, mediation and have engaged the services of a parenting coordinator and decision‑making problems persist.
[24] The father is focused on the amount of time that Madeleine spends with him and I agree with the suggestion made by mother’s counsel that this may be more reflective of financial concerns rather than spending quality time with this daughter. He was not familiar with the extra‑curricular activities that she is engaged in. Even though he claimed to have a more flexible work schedule, he attended only one of Madeleine’s baseball games.
[25] In this case, both parents acknowledge the other to be a fit parent and to have genuine affection for their daughter, Madeleine. The mother has tried to work with the father and has avoided using terms such as “sole custody” in these proceedings or at trial. The leading decision on joint custody is Kaplanis v. Kaplanis, 2005 1625 (ON CA), 10 R.F.L. (6th) 373, [2005] O.J. No. 275. In that case, both parents were considered to be fit but were unable to communicate effectively and the Court of Appeal concluded an order of joint custody was not appropriate. In Paterson v. Paterson, 2006 53701 (ON SC), 36 R.F.L. (6th) 268, [2006] O.J. No. 5454, the trial judge cited para. 7 of the decision of Habel v. Hagedorn, 2005 ONCJ 242, where that court held that joint custody was appropriate in three types of case:
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.
[26] In this case, I accept that there has been a genuine attempt by the mother to co‑parent with the Respondent father and, in fact, that the parties have been able to achieve significant success over time. Despite that success, their attempts at joint parenting fall apart when final decisions need to be made. This is apparent from the father’s refusal to accept the recommendations made by Dr. Harrison and to sign the joint Parenting Plan that they agreed to with Janet Claridge. It is equally apparent that the father holds strong views on some issues and that he is unwilling to make necessary compromises. In the final analysis, I am satisfied that the father is unable to make decisions that are ultimately in the best interests of Madeleine where that decision might conflict with his own particular views and preferences. In these circumstances, continued conflict is unavoidable.
[27] I agree with the recommendations of Ms. Claridge and with the evidence of the mother that two overnight access periods in week 2 are not in the best interests of Madeleine. The father has tried to minimize the challenges of driving Madeleine from his house in Orleans to a school in Barrhaven during rush hour on Ottawa’s construction‑delayed roads. His evidence that this commute takes no more than 30 minutes is simply not credible. In his own plan, he seems to recognize this by limiting the mother’s time with Madeleine to weekends. This commute is not only tiring for a very young child, it can be potentially dangerous. The Applicant mother has resided in Barrhaven since 2005. I have not been provided with any evidence why the father could not attempt to find a new home close by that would avoid this problematic commute. If that were the case, weekday overnight visits could increase. I also accept the mother’s evidence that she agreed to the extra overnight visit in week 2 solely in an attempt to try to reach a final resolution of this matter. As it was, that order did not present many significant difficulties until September 2013 when Madeleine started attending Kindergarten.
[28] For these reasons, I make an order that the mother shall have sole custody of Madeleine Burelle, born January 19, 2009 and on the following terms as recommended by Janet Claridge except where those terms have been otherwise dealt with in the order of Master Roger or as modified by me.
• Access will continue in accordance with the order of Justice Minnema dated April 26, 2012 with no overnight access on Thursday nights in Week 2.
• Madeleine will be registered with the Conseil des écoles catholiques du Centre‑Est, specifically the École élémentaire catholique Pierre‑Elliott‑Trudeau in Barrhaven. She will attend the daycare program located at the school over the summer and school year. The father may contact the daycare.
• The father is entitled to attend at the school and to participate in any activities where parents are invited. He is allowed to have contact with Madeleine’s teachers and to receive copies of her report cards and all communications from the school.
• Any change in Madeleine’s schooling will be discussed between the parties but in the event of any disagreement, the mother will have final decision‑making authority.
• Mother will have final decision‑making with respect to health care and dental care. The mother will make all doctors/dentist appointments and will notify the father as soon as possible and he will have the option of attending all such appointments. The father is entitled to contact Madeleine’s dentist and treating physicians and to receive all information relating to her health.
• In case of a medical emergency, the caregiving parent can make decisions and shall immediately notify the other parent of this decision.
• Madeleine will reside alternate weeks with each parent during the school summer vacation period. The first week will be with the mother. The parties shall encourage Madeleine to call the absent parent mid‑way through the week.
• The custody and access schedule is modified as to ensure that the child spends Mother’s Day and Father’s Day with that parent from 9:00 a.m. until daycare on Monday.
• The mother will have Madeleine during the Easter weekend on even numbered years and the father will have access on odd‑numbered years. If the mother’s access otherwise disrupts the father’s regular access schedule, the father fill be entitled to a compensating weekend access.
• The father will have the child on Thanksgiving weekend on odd‑numbered years and The mother will have the child on even numbered years. If the mother’s access otherwise disrupts the father’s regular access schedule, the father fill be entitled to a compensating weekend access.
• All other long weekends: Family Day, Canada Day, August Civic Holiday and Labour Day, will be extended as part of that parent’s weekend.
• The parents will alternate March break each year. The father will have the child on even numbered years and the mother will have the child on odd‑numbered years.
• On odd‑numbered years, the father will have Madeleine from the end of school in December until Boxing Day at 9:00 a.m. The mother will pick her up. The child will spend the balance of the school break with the mother. The schedule will alternate on even numbered years.
• On professional development days, the parents have the option of picking up Madeleine early to start their weekend if that is their weekend with Madeleine.
• The mother will be responsible for Madeleine’s haircuts.
• The mother may obtain a passport for Madeleine without the father’s consent.
• With the exception of possible trips to Buffalo to visit Madeleine’s siblings’ father, neither parent will travel outside of the country without the other parent’s consent, which consent will not be unreasonably withheld.
[29] The mother has requested that Madeleine be allowed to attend summer camp and this might somehow affect the summer schedule. By granting her sole custody, she will have ultimate decision‑making with respect to activities such as summer camp provided that it does not interfere with the week‑on, week‑off summer schedule I have ordered.
[30] The Applicant mother is to provide me with her brief written submissions as to costs within 20 days of the release of this decision. The Respondent father is to provide me with his reply within a further 20 days.
Mr. Justice Robert N. Beaudoin
Released: January 8, 2014
COURT FILE NO.: FC-10-188
DATE: 2014/01/08
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
EDITH ROBERTS
Applicant
– and –
SYLVAIN BURELLE
Respondent
REASONS FOR DECISION
Beaudoin J.
Released: January 8, 2014