ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FC-09-1166-2
DATE: 2014/03/27

BETWEEN:

Sara Dana Dunn
Applicant

– and –

James David Shaw
Respondent

Mary Cybulski, for the Applicant

Stephen M. Pender, for the Respondent

HEARD: January 8, 9, and 10, 2014
(Ottawa)

AMENDED REASONS FOR JUDGMENT

Amended decision: The text of the original judgment was corrected on May 13, 2014 and the description of the amendment is appended.

MINNEMA J.

[1] This was an amended Motion to Change dated April 23, 2012 brought by the Respondent Father James Shaw and heard on oral evidence. Mr. Shaw was seeking a variation of the consent order of Master Roger dated January 13, 2011. That order provides for joint custody of the child Aedan Shaw, born April 16, 2006, currently seven years old; primary residence of the child with Mr. Shaw; access to the Applicant Mother, Sara Dunn, every weekend; as well as child support and special expenses. The order is silent regarding holiday access.

[2] The change Mr. Shaw was seeking was sole custody to him with liberal specified access to Ms. Dunn. Ms. Dunn was seeking equal time with Aedan on an alternating weekly schedule, and a continuation of the joint custody. The parties agreed that adjustments to the child support, pursuant to the Child Support Guidelines (Ontario) (“Guidelines”), O. Reg. 391/97, as amended, would be required.

Issues

[3] The main issue for trial then was what custody and access arrangement is in Aedan’s best interest.

Summary of the Facts

[4] Mr. Shaw was born on January 3, 1981 and is 33 years old. Ms. Dunn was born on March 8, 1984 and is 30 years old. The parties met online, quickly moved in together and soon after that, Ms. Dunn became pregnant.

[5] As noted, Aedan was born on April 16, 2006. Ms. Dunn took maternity leave and Mr. Shaw was working. During this time, in late December of 2006, there was a domestic incident, and Mr. Shaw was charged with uttering threats and assault. Mr. Shaw conceded in evidence that he pushed Ms. Dunn and made a verbal threat to break her nose. Ms. Dunn in evidence confirmed the push, although she described additional violence. Despite the admissions in this trial, many months later Ms. Dunn recanted her statement to the police. Mr. Shaw had left the home at the time of the incident, as a result of bail conditions requiring no contact and did not return until September of 2007, approximately nine months later, when the charges were withdrawn.

[6] After that time, the parties had two different accounts of their relationship until the final separation. Mr. Shaw maintained that there was a further separation and reconciliation. In evidence, he said that Ms. Dunn left at the end of 2008 or the beginning of 2009 (he used both dates) and remained away for approximately one year. However, in his account to the Office of the Children’s Lawyer (“OCL”) clinical investigator, Valerie Morinville, he indicated a different sequence: that the parties separated in December of 2007 and reunited in the Spring of 2009. Mr. Shaw did confess having some difficulty with dates, but said that during the separation Ms. Dunn stayed at her Mother’s and came back to live in their home on the weekends. He said she still contributed to the household expenses. However, it was not entirely clear from his evidence whether he considered this to be an actual separation; he said that during this time they were “still a couple.” To that point, Ms. Dunn indicated that there were only two separations: the one in December of 2006 and the final one, which both parties agreed occurred in July of 2010 when Aedan was four years old.

[7] The parties disagreed as to who had primary care of Aedan in the years before the separation. Initially, Ms. Dunn had the greater role. She took maternity leave while Mr. Shaw worked; she breastfed Aedan and then, as noted, Mr. Shaw was away from the home until September of 2007 as a result of the criminal charges. The evidence established that afterwards, between periods of school and work, Mr. Shaw took on the greater parenting role. Overall there seemed to be some trade-offs in the relationship depending on a number of considerations, particularly work schedules and school for Mr. Shaw. It is clear that both parties contributed to Aedan’s care in his early years. The child was in a subsidized Andrew Fleck daycare since early 2007.

[8] For the final separation, Ms. Dunn announced that they were separating but that she intended to stay in the home for a period of time. Mr. Shaw’s response was to give her one hour to leave and he proceeded to remove her personal belongings from the home.

[9] The parties made scant reference to their e-mail exchanges during the trial, although they both put a number of e-mail conversations into evidence as exhibits on consent and asked me to review them in making my decision, which I have. I refer to some of them in the following summary.

[10] The only evidence of communication between the parties from the separation to January 13, 2011, which was the date they entered into their consent order a half year later, was an e-mail exchange on Sunday, August 15, 2010. The parties agreed to a pick-up time for Aedan by Mr. Shaw from Ms. Dunn and they discussed dividing their chattels, as Mr. Shaw was preparing to change residences. Tensions between them appeared to be high, not all that surprising given that it was only weeks since the separation and although it appears from the exchange that they accomplished what they needed to do, they were both less than polite.

[11] This is a 2009 court file suggesting that, at some point that year, litigation was started although there was little evidence of previous proceedings. That litigation either resumed or there was a new application under this same file number and, as noted, the parties entered into a final consent order on January 13, 2011, the one that they seek to vary. This consent order reflects their positions and intentions at that time. Regarding custody and access, it indicates as follows:

b. The parties are to have joint custody of their son, Aedan Shaw, born April 16, 2006. As such, they shall jointly make important decisions involving their son and if they cannot agree shall resort to the court.

c. Primary residence of Aedan is to be with the Father. The other parent is to have generous access. At the moment, the Father will have Aedan from Sunday evening at about 18:00 until Friday evening at about 18:00 and the Mother will have Aedan from Friday evening at about 18:00 until Sunday evening at about 18:00. The exchange is to occur at Billings Bridge on Friday and at the Mother’s residence on Sunday, or, at any other location that the parties agree. The parties may revisit access from time to time. It is agreed that a change in their respective work schedule will constitute a material change in circumstance allowing either one to then revisit primary residence and custody as the Father presently works weekends and the Mother works weeks.

[12] The parties gave evidence about the conflict prior to this order and the order itself did not end it. On August 15, 2011, about seven months later, Mr. Shaw sent Ms. Dunn an e-mail advising that he was unilaterally changing the pick-up and drop-off arrangements and that “it was always your responsibility to arrange for visitations”. I note that this is not what the court order states. The tone was condescending, including comments such as “… be thankful for the generous access I have provided until now.” Mr. Shaw sends that e-mail but advises Ms. Dunn that their discussions are not to be by e-mail. The e-mail gets an angry response from Ms. Dunn. She notes “… you took it upon yourself to change the drop off schedule and the judge said it cannot be changed unless both parties agree and I never agreed … you just make it so I don’t have a choice.” His reply includes the statement “This is not an open forum for discussion.” When asked about cooperation after the final order, Ms. Dunn in her evidence at trial replied that it was very bad and that, despite the court order, for a long time she had to bus to Mr. Shaw’s home on Fridays and Sundays to get and return Aedan for access.

[13] The next e-mail exchange in evidence was Friday, December 23, 2011, over four months later. Ms. Dunn wrote Mr. Shaw saying she was on her way to pick up Aedan at “billings”, being Billings Bridge per the order. Billings Bridge is a location in Ottawa very roughly half way between the parties’ residences at the time. Mr. Shaw was living in Orléans, east of Ottawa, and Ms. Dunn was living in Gatineau, Quebec, northwest of Orléans. Ms. Dunn in her e-mail indicates that she is waiting until 6:15, and then asks whether after that she should she attend Mr. Shaw’s house and get Aedan or whether Mr. Shaw is not giving her Aedan for the weekend. Mr. Shaw indicated that Aedan had plans that night and that she is “welcome to visit tomorrow between 9am-12pm”, as she could not decide. The next day December 24, he indicated that Aedan, still age four, had “plans well in advance that you wanted to pull him away from.” He also said “I’m not sure why you continue to push the issue of Billings when we have other arrangements.” I note that Ms. Dunn was losing Christmas Eve and Christmas Day with Aedan although these days fell on her weekend. There was no evidence of any agreement to change the Friday exchange from Billings Bridge as set out in the order or of Ms. Dunn willingly relinquishing her court ordered access for that weekend.

[14] At the end of the above exchange, although two days later, on December 26, 2011, Mr. Shaw wrote an e-mail “letter” which, although sent to Ms. Dunn and he asks her to reply, is styled more as a statement of his position. Regarding the court order and his decisions around it, he states, “I have informed Sara that she is to provide 48 hours’ notice (preferably a week in advance) towards visitation.” Regarding the Friday access exchanges at Billings Bridge, he notes “we have new arrangements to meet at Aedan’s home”, namely, his home, although, again, there is no indication that Ms. Dunn agreed to that. By making this unilateral pronouncement, Mr. Shaw was imposing new terms not contained in the court order and purported to effectively eliminate any need for him to travel for access. He also recounted in that e-mail that no one is allowed to drive Aedan to or from access other than family without his consent, and that he had told an “individual” that he would be charged criminally if it continues.

[15] The “individual” reference by Mr. Shaw in the December 26, 2011 e-mail was Ms. Dunn’s current partner, Tony Morin, whom she met online in September of 2011. They were dating at the time and began a common-law relationship later in February of 2012. He was otherwise available to help Ms. Dunn with her transportation issues which arose, in part at least, from Mr. Shaw’s imposing arrangements contrary to the court order.

[16] At some point around this time, Mr. Morin who is an auto mechanic, allowed Aedan in the front seat of his vehicle without a car seat while he drove down the short length of a private driveway in a fenced-in yard, not on a road. Aedan disclosed this to Mr. Shaw, who addressed it with Ms. Dunn. It was acknowledged by her and Mr. Morin tried to call Mr. Shaw to explain the circumstances, apologize, and promise not to do it again. Mr. Shaw refused to speak with him. He decided to suspend weekend access, telling Ms. Dunn that if she wanted to see Aedan, she could come to his home.

[17] Ms. Dunn brought a motion for contempt against Mr. Shaw for failing to follow the court order. On January 24, 2012, a finding of contempt was made by Sheffield J. and Mr. Shaw was given one month to purge his contempt by complying with the January 13, 2011 order. The order also indicated that Ms. Dunn had agreed to ensure that transportation for access was safe and that the parties should attend mediation.

[18] In the evening of January 24, 2012, the same day that he was found in contempt, Mr. Shaw sent an e-mail to Ms. Dunn, confirming that the next Friday’s access pick-up would occur at Billings Bridge but said that Ms. Dunn was to return Aedan to his home on the Sunday. He also said that he expected Ms. Dunn and Aedan would be taking the bus both ways unless family was involved, thereby purporting to exclude Mr. Morin’s assistance. He said he informed Aedan as to why this is happening. Aedan was four years old. He added that “Any further issues before hand will prompt me to suspend visitation again…” and later he noted “[i]t would be pleasant to have a less formal discussion on these issues and end your hostility towards my plan of care” [Emphasis added by Mr. Shaw].

[19] This triggered a long e-mail exchange the next day, Wednesday, January 25, 2012. In response to discussions at a court appearance, Ms. Dunn said that she had agreed to provide a safety check for Mr. Morin’s car and to allow Mr. Shaw to inspect it. Ms. Dunn also asserted that she was not agreeing to the Sunday access exchange taking place at Mr. Shaw’s house as it was too far on the bus. She said she would only agree to that change to the order if Mr. Shaw would agree that Mr. Morin’s car was safe so that she could be driven, otherwise she wanted the order followed. Mr. Shaw, again somewhat condescending, said: “I summarized the issues for you. Please read them carefully and ask questions.” However, his summary indicates a clear misunderstanding of the basic issues. He suggested that Ms. Dunn would only regain her court ordered access if the safety issues were observed, which is not what the order of Sheffield J. states and he incorrectly re-stated Ms. Dunn’s position as being that she will not comply with the order unless allowed to drive. Mr. Shaw indicated that he was so confident he was right that he had filed a police report. He suggested that her proposal to “change” the Sunday exchange to her home was “blackmail” and asserted that the child was to be returned to his home. He said to her that he had suspended visitation again, but she could earn it back by agreeing with what he wanted and said that Ms. Shaw was hostile in her responses. As the exchange goes on, Ms. Dunn insisted on her access per the court order but conceded that she will take the bus for the Friday exchange. Mr. Shaw insisted she take the bus both ways, meaning that she return the child to him on the Sunday, contrary to the order. Still on that Wednesday, near the end of the exchange, Mr. Shaw said:

Damn Sara, I already called the police to suspend visitation.

Everything is on record, for god’s sake stop.

If you don’t want me to reverse the decision, I don’t care.

Bring me back on contempt. We’ll deal with it at mediation still.

This is dumb.

[20] Despite Mr. Shaw’s anticipatory breach of the order in purporting to suspend access for the upcoming weekend, Ms. Dunn indicated in the final exchange of that day that she was intending on coming to get Aedan for access and taking the bus.

[21] The next day, January 26, 2012, Mr. Shaw wrote another e-mail. He says he offered Billings Bridge for the pick-up and that Aedan be returned home and said that his alternative is pick-up and drop-off to remain at his place. He said that arrangement had been working fine since August 15, 2011. He then indicated that he wanted a criminal record check from the driver, an accident report on the car, a valid safety check on the car to be performed by a “third party mechanic not involved in our legal matters”, and that “[u]ntil