COURT FILE NO.: FC-01-2713-1
DATE: 20140623
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Michelle Huynh, Applicant
AND
David Wang, Respondent
BEFORE: Mr. Justice Marc R. Labrosse
COUNSEL:
Michelle Huynh, Self-Represented
David Wang, Self-Represented
HEARD IN OTTAWA: June 16, 2014
ENDORSEMENT
[1] The Respondent brings this Motion to Change the Order of Justice Hackland dated December 13, 2004 (the “Final Order”) as a result of his daughter, Isabelle Wang (born March 14, 2000), having chosen to reside with him on a full-time basis. Specifically, the Respondent is seeking sole custody, to be solely responsible for scheduling Isabelle’s medical and dental appointments, the termination of the existing child support order, an order that the Applicant pay child support and a reimbursement for the overpayment of child support dating back to December 2005. The Respondent further seeks for Isabelle to have sole decision making on access with both the Respondent and the Applicant.
[2] The Applicant brings a cross-motion to confirm the terms of the Final Order, for an order that Isabelle return to her school in Kanata, that she be provided with information about Isabelle’s health, education and welfare and that she not be required to pay child support. The Applicant also requests an order appointing the Office of the Children’s Lawyer to represent Isabelle.
Background
[3] Pursuant to the terms of the Final Order, the Applicant had sole custody of Isabelle. From a parenting perspective, she was to spend equal time with each parent however the Applicant retained decision-making authority on all significant decisions after consultation with the Respondent. The Final Order was reached on consent and is quite comprehensive in attempting to establish how the parenting for Isabelle would be done.
[4] The shared time arrangement for Isabelle continued until October 2013 when Isabelle took the position that she would no longer return to live with the Applicant. Since that date, Isabelle has terminated all communication with the Applicant. They have briefly seen each other on two occasions with a school guidance counsellor but otherwise Isabelle has completely cut the Applicant out of her life. Through the Motion to Vary, the Respondent seeks to do the same to give effect to what the Respondent says are Isabelle’s wishes.
[5] There is a lack of evidence about how the joint parenting schedule has gone over the first nine years. There are a few general allegations about the other party’s parenting capabilities but otherwise, little detail about Isabelle’s development under the shared parenting regime. The record focuses on the parental conflict and financial issues. I note that there is very little evidence to explain the nature of the conflict between Isabelle and her mother. There is no indication of a significant event or evidence of the development of conflict between Isabelle and her mother which would justify the termination of Isabelle’s relationship with her mother. The absence of such clear evidence suggests that there is a need to probe further into the relationships between the parties and Isabelle. Isabelle’s wishes need to be expressed by an independent party.
Position of the Parties
[6] It is apparent from the affidavits and arguments of the parties that neither has followed the spirit of co-parenting which is provided for in the Final Order. Each parent criticizes the other’s parenting of Isabelle. The Applicant is very forceful in accusing the Respondent of parental alienation. Such accusations are supported by some of the Respondent’s actions as he unilaterally changed Isabelle’s school and has taken her to medical appointments without consultation with the Applicant notwithstanding the objectives of the Final Order that both parents be involved in parenting decisions.
[7] At the motion, the Respondent seemed more interested in obtaining financial compensation from the Applicant rather than dealing with Isabelle’s best interests. The Respondent is using the current conflict between Isabelle and the Applicant to establish the status quo into the future. Although he has indicated in his affidavits that he has encouraged Isabelle to communicate with the Applicant, his submissions at the Motion suggest otherwise. He dismisses any consideration of joint custody with or without decision-making ability and opposes the appointment of the Office of the Children’s Lawyer. His opposition to the appointment of the Children’s Lawyer is particularly troublesome. The Respondent relies upon Isabelle’s stated preferences to the Police and her family doctor as set out in his affidavit as support for the fact that the Applicant should be removed from having a parenting role in Isabelle’s life.
[8] The Applicant is adamant that the Final Order should be confirmed as there has been no material change of circumstance. The Applicant is proposing an access schedule which would see Isabelle spend every second weekend with her. She does not feel that a more gradual access schedule would be more appropriate. While the Applicant states that she supports that Isabelle have a positive relationship with both parents, some of her actions in the past suggest otherwise. The events surrounding Isabelle’s grandmother’s funeral are a clear example.
Analysis
[9] It is premature at this stage to make any long-term decisions about Isabelle’s care. Isabelle’s decision to reside solely with the Respondent is clearly a material change in circumstance which requires a determination of Isabelle’s best interests. There is an obvious need for the appointment of the Office of the Children’s Lawyer to express what is at the heart of Isabelle’s conflict with the Applicant and to set out her wishes. This cannot be done by the parents through their affidavits. Isabelle needs to be distanced from the parental conflict and be allowed to discuss with a third party.
[10] The failure of any access to have taken place following the March 24, 2014 Order of Master MacLeod suggests that this decision cannot be left with Isabelle while she resides with the Respondent. There is a presumption in our Courts that the best interests of the child will be promoted by a child having a relationship with both parents. The record before me does not suggest that there has been a significant event which would prevent limited access with the Applicant. I expect Isabelle to follow the terms of this Order and for the Respondent to make sure the access happens. I will therefore order weekday access, at least one weekday per week from 5:00 p.m. to 8:00 p.m. on a day to be agreed upon between Isabelle and the Applicant. In addition, on alternating weekends, there will be weekend access from 12:00 p.m. to 7:00 p.m. on either Saturday or Sunday as agreed upon between Isabelle and the Applicant. Isabelle and the Applicant will communicate directly either by phone or e-mail to schedule the access times. In addition, the Applicant will have reasonable telephone and e-mail access at any time. Until the Office of the Children’s Lawyer can report on the matters between Isabelle and the Applicant, I am not prepared to order overnight access. However, if Isabelle does agree, it should happen. If the parties are unable to agree on the progression for access, either party may bring a motion.
[11] With respect to custody, it is premature to make any order which would vary custody. The Respondent’s affidavit has not identified any pressing issue which prevents him from caring for Isabelle while she resides with him. He has managed to care for her, change her schooling and attend medical appointments with her. The issues surrounding granting the Respondent’s request for sole custody require more investigation and the input of the Children’s Lawyer. They may also require a trial.
[12] Although there is no apparent need to change the current custody arrangements, it is appropriate to confirm that for so long as Isabelle prefers to reside with the Respondent, her principal residence shall remain with him. This is not meant to prevent a return to the shared living arrangements or some other variation as per Isabelle’s wishes.
[13] Both parents shall be ordered to consult and share information on all significant decisions concerning Isabelle. The provisions of paragraphs 1 and 2 of the Final Order shall continue to apply however the roles shall be reversed while Isabelle has her principal residence with the Respondent. Specifically, the Applicant will have access to and be provided with information concerning all major decisions which relate to Isabelle’s health, education and extra-curricular activities. The Applicant will be consulted on all such decisions but the Respondent will have final decision-making authority.
[14] As for child support, there is no reason that the Applicant should not pay child support in accordance with the Child Support Guidelines as a result of Isabelle residing with the Respondent on a full-time basis. The issue of retroactive support back to October 2013 is reserved to the trial judge along with the Respondent’s claim for overpayment of child support dating back to 2005. More detailed evidence is required on both these issues.
[15] The parties shall share the cost of all section 7 expenses in proportion to their income. For the purpose of section 7 expenses, each party will consult with the other prior to making such an expense. If an expense is incurred without consent, that party will bear the onus of demonstrating that it is a proper section 7 expense. Each party’s contribution should be calculated in accordance with their 2013 Notice of Assessment.
[16] Finally, with respect to disclosure, the provisions of Master MacLeod’s Order dated March 24, 2014 shall be complied with within 30 days, regardless of the parties having previously provided copies of some or all documents.
Conclusion
[17] On a temporary basis, I hereby order the following:
a. Isabelle’s primary residence shall be with the Respondent until such time as she may decide to return to the shared parenting regime which was in place prior October 2013 or such other arrangement satisfactory to Isabelle.
b. The Office of the Children’s Lawyer shall be appointed to represent Isabelle’s interests in this matter.
c. The Applicant shall pay monthly child support commencing on July 1, 2014, in the amount of $621.00 to be adjusted based on her 2013 Notice of Assessment. The Respondent’s child support obligations as set out in the Final Order are suspended while Isabelle resides solely with the Respondent.
d. The parties shall share section 7 expenses in proportion to their respective income as set out on each party’s 2013 Notice of Assessment.
e. The provisions of paragraphs 1 and 2 of the Final Order shall continue to apply however the roles shall be reversed while Isabelle has her principal residence with the Respondent. Specifically, the Applicant will have access to and be provided with information concerning all major decisions which relate to Isabelle’s health, education and extra-curricular activities. The Applicant will be consulted on all such decisions but the Respondent will have final decision-making authority where the parties are not able to reach consensus.
f. The Applicant shall have weekday access, at least one weekday per week from 5:00 p.m. to 8:00 p.m. on a day to be agreed upon between Isabelle and the Applicant commencing the week of June 30, 2014. In addition, on alternating weekends, there will be weekend access from 12:00 p.m. to 7:00 p.m. on either Saturday or Sunday as agreed upon between Isabelle and the Applicant commencing on July 5, 2014. Isabelle and the Applicant will communicate directly either by phone or e‑mail to schedule the access times. In addition, the Applicant will have reasonable telephone and e-mail access at any time. Access should progress as the relationship between the Applicant and Isabelle is re-established. If the parties cannot agree on the progression for access, the matter can be brought back to Court for a further access order.
g. Within 30 days of this endorsement, the parties shall exchange correspondence which provides copies of all documentary disclosure ordered by Master MacLeod on March 24, 2014.
h. Upon all disclosure issues being completed and the Children’s Lawyer having completed its recommendation, either party may request a Settlement Conference with the objective of setting the matter down for trial. Should the Children’s Lawyer decline the appointment, the settlement conference may be requested after disclosure is completed.
[18] Except as otherwise amended by this endorsement, the Final Order shall remain in effect.
[19] As success on this Motion was divided, each party will bear their own costs.
Mr. Justice Marc R. Labrosse
Date: June 23, 2014
COURT FILE NO.: FC-01-2713-1
DATE: 20140623
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Michelle Huynh, Applicant
AND
David Wang, Respondent
BEFORE: Mr. Justice Marc R. Labrosse
COUNSEL:
Michelle Huynh, Self-Represented
David Wang, Self-Represented
ENDORSEMENT
Mr. Justice Marc R. Labrosse
Released: June 23, 2014