ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: F753/13

DATE: 2014-06-23

BETWEEN:

ADAM JAMES POIRIER
Applicant

– and –

TAMMY LYNN DECKER
Respondent

Self-Represented

Ms. M. Graham – Counsel for the Respondent

HEARD: June 19and 20, 2014

the honourable mr. justice pazaratz

1. This was a one day custody/access trial in which the only witnesses were the parents.

2. The background:

a. The Applicant father and the Respondent mother are both 36.

b. They lived together on an unmarried basis, separating when their only child Addison was seven months old. Addison is now two years old.

c. Since separation Addison has remained with the Respondent and her older children ages 18 and 11.

d. The Applicant does not dispute that the Respondent has always been the child’s primary caregiver.

e. The Applicant does not dispute that Addison should continue to reside primarily with the Respondent.

f. The Applicant wants joint custody. The Respondent wants sole custody.

g. Beyond that, timesharing is in dispute. Since separation the Applicant has been having slowly expanding access, but there have been many conflicts. Since May 2014 the Applicant has had Addison with him on alternate weekends. He now wants two out of three weekends. The Respondent wants weekends shared equally.

h. Transportation is also an issue. The parties lived together in Hamilton. The Respondent and Addison still live here. Upon separation the Applicant moved back to his parents’ home in St. Catharines. But he works in Hamilton. So far he has done all of the driving to facilitate access. The Applicant wants the Respondent to share transportation responsibilities. The Respondent disagrees.

i. Child support is unresolved. The Applicant also has a child of another relationship, not in his care. He wants to reduce support for Addison to reflect his overall responsibilities for both of his children. The mother seeks full guideline support for Addison.

CUSTODY

3. The Applicant’s claim for joint custody is highly problematic:

a. On February 5, 2014, the Applicant was charged with sexually assaulting the Respondent. Pending resolution of this charge he is bound by criminal court terms which prevent him from having any direct or indirect communication with the Respondent (or two other named persons). A preliminary hearing is set for October 25, 2014. It is unclear how long the interim release restrictions will continue. It is unknown whether other restrictions may follow.

b. Both parties testified that they have had a conflictual relationship. The Respondent says there was lots of arguing in the presence of the children in their home. Each blames the other.

c. For his part, the Applicant has complained the Respondent has engaged in stalking behaviour.

d. Since separation there have been disagreements with the parties invoking assistance from the Children’s Aid Society and police.

e. I have seen no evidence of any ability by the parties to communicate effectively for the sake of the child.

f. There is no meaningful history of co-parenting.

g. Quite simply, the parties cannot communicate with one another in a civil or productive way. Channels of communication are severely limited by virtue of the existing criminal court restrictions.

h. It is unrealistic to presume that the relationship between the parties will improve after this trial is completed, particularly given the ongoing conflictual interaction the parties are likely to experience in relation to the outstanding criminal charge.

i. There is no suggestion that the Respondent mother lacks the ability to make appropriate decisions in relation to the child. To the contrary, the evidence suggests she has been acting as a defacto custodial parent, and she has been doing a good job.

j. While I have some concerns that the Respondent has at times been too restrictive with respect to access by the Applicant, this relatively minor concern can be addressed through comprehensive timesharing provisions.

4. It is in the best interests of the child Addison that the Respondent mother have sole custody – but that safeguards be included in an order to entrench and protect the Applicant’s ongoing involvement in the child’s life.

TIMESHARING

5. As stated, the Applicant’s access has recently been expanded to alternate weekends from Friday 6 p.m. to Sunday 6 p.m.

a. The Applicant wants a further expansion to allow him to have two out of three weekends.

b. The Respondent proposes an alternate weekend access regime. She says weekend interaction is precious time for her and her three children to interact.

c. She proposes that the Applicant can have one or two brief mid-week visits after work. The Applicant says this is not a realistic option as he cannot control or predict when he will finish work on any given day.

6. Alternate weekends frequently comprise the backbone of comprehensive timesharing arrangements – and for good reason:

a. Weekends offer precious time, particularly if parents and children have weekday commitments.

b. Weekends offer not only an opportunity for relaxed, spontaneous, enjoyable interaction. Weekends are also often the only time when certain activities or people are available.

7. An alternate weekend regime will make sense for this family – eventually.

8. But for the moment, more creative options are available and need to be considered:

a. The Applicant’s schedule is fixed. He works Monday to Friday, with weekends off.

b. Two year old Addison has no fixed schedule.

c. Similarly the Respondent mother has no fixed schedule because she is currently unemployed. She testified that she is seeking employment. If she finds a job she’ll likely have to arrange daycare for Addison. It is unclear when she might find any employment.

d. Until Addison starts full-time school, or the Respondent starts regular employment, mother and child will have ample – and important – time to be with one another every weekday. In that context, the primacy of weekends for the mother is somewhat diminished (although some weekends will still be important for family interaction involving her older, school-aged children).

e. In the meantime, with Addison being so young (and the Applicant’s schedule of access thus far having been somewhat stilted), frequency of interaction between father and daughter is vitally important.

f. Briefly, we have an opportunity to give the father more time with Addison, without significantly undermining the stay-at-home mother’s time with the child.

g. Until the Respondent and/or Addison acquire significant weekday commitments, it is in the best interests of the child that the Applicant have two out of three weekends.

9. Beyond that, the parties were generally in agreement concerning expanded timesharing.

TRANSPORTATION

10. As stated, during cohabitation the parties were living in Hamilton. Upon separation, the Applicant moved to St. Catharines to stay with his parents. The Respondent remains in Hamilton with Addison and her older two children.

11. The Applicant wants the Respondent to share driving responsibilities to facilitate access. The Respondent objects, noting that the Applicant created the distance; the Applicant travels to Hamilton anyway for his daily job; and the Respondent has commitments toward three children which are time consuming.

12. I agree with the Respondent. The Applicant elected to create the distance between the two households. As a non-custodial parent he should not be allowed to impose transportation responsibilities on the custodial parent.

EXCHANGES

13. As a result of the “no contact” provisions relating to the outstanding criminal charge against the Applicant, the parties have been using the Applicant’s friend Ryan Bridges as an intermediary.

14. I agree with the Applicant that his father should be allowed to act as an alternate intermediary.

15. I disagreed with both parties that exchanges should continue to take place at the East End Police Station in Hamilton. Even if exchanges are taking place in the police parking lot, this still needlessly exposes the child to a provocative and distracting environment. Police should be kept out of access arrangements, except in emergencies. Children should not perceive that police officers need to be present to protect anyone from either parent.

16. After discussion on this topic both parties agreed to a less conspicuous location – a Tim Hortons parking lot.

NAME CHANGE

17. The child’s full name is currently “Addison Jade Decker”. The child has the Respondent’s surname.

18. The Applicant wants to change the child’s surname to include his name hyphenated with the Respondent’s name. He has no preference as to whether it would be “Poirier-Decker” or “Decker-Poirier”.

19. The Respondent opposes any change in the child’s name. The Applicant acknowledged at trial that he had acquiesced when the Respondent selected the child’s surname at birth. The Respondent’s two older children all share her surname, and she feels it is beneficial for Addison to have the same surname as everyone else in the family unit.

20. The issue of determining or changing a child’s name must be decided based upon the best interests of the child. Among the considerations:

(a) The welfare of the child is the paramount consideration.

(b) The short and long term effects of any change in the child's surname.

(c) Any embarrassment likely to be experienced by the child if its name is different from that of the parent with custody or care and control.

(d) Any confusion of identity which may arise for the child if his or her name is changed or is not changed.

(e) The effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the relationship.

(f) The effect of frequent or random changes of name.

21. At Addison’s age, the direct impact of a name change on the child is limited. A hyphenated surname would somewhat distinguish her from her siblings whose surnames are not hyphenated. But as between the siblings, I am confident their bond will remain strong despite the historical context that they all have different fathers. Within the community, hyphenated surnames are so common, Addison would likely experience no embarrassment or confusion.

22. I had no hesitation in awarding the Respondent mother sole custody because she has been doing an excellent job as a defacto custodial parent, and the evidence clearly indicated the parties are not able to co-parent, communicate or problem solve together. But having said that, I note that there were several instances in which the Respondent took unilateral action to change or suspend the Applicant’s access, without justification.

23. The conflict and animosity between these parties is mutual. While I hope this will improve, I cannot presume this will be the case. In the absence of any indication by the Respondent that she is inclined to promote the Applicant father’s role and place in this child’s life, the need to safeguard Addison’s connection to both parents becomes heightened. Including both the father’s and the mother’s names as part of the child’s formal identity will promote that important psychological bond on an ongoing basis.

CHILD SUPPORT

24. I accept the Applicant’s evidence that his income in his relatively new position is $36,400.00. The Respondent had proposed $37,856.00, which did not take into account the Applicant’s evidence that he is only paid for 50 weeks per year.

25. The Child Support Guideline table amount for one child at $36,400.00 is $319.00. However, the Applicant proposed that because he has two children of two different mothers, he should pay each mother one-half of the guideline amount for two children. This would result in a monthly payment of $263.00 for Addison.

26. I agree with the Respondent that the Applicant should pay the full guideline amount for this child:

a. He did not plead undue hardship.

b. On the facts of this case, he would not have been successful in obtaining a reduction of child support pursuant to an analysis under s. 10 of the Guidelines.

27. There are currently no section 7 or extraordinary expenses claimed by the Respondent. Daycare expenses will likely arise as soon as she obtains employment.

THE ORDER

28. The Respondent shall have sole custody of the child Addison.

29. The Respondent shall keep the Applicant advised of any major decisions or developments in the child’s life, as soon as those issues arise.

30. The child’s name shall be changed to “Addison Jade Decker-Poirier” Thereafter the name shall not be changed without the consent of all parties or further court order. The hyphenated surname shall be used by both parties at all times, and shall not be abbreviated.

31. The Applicant shall have weekend access from Friday 6 p.m. until Sunday 6 p.m., with weekends to be expanded by 24 hours to incorporate statutory holiday Mondays or professional development days falling adjacent to his weekend.

32. The scheduling of the Applicant’s weekends shall be determined as follows:

a. Currently, with the Applicant having weekday employment commitments, and with neither the Respondent nor the child having any weekday scheduling commitments, the Applicant shall have two consecutive weekends followed by the Respondent having a weekend.

b. No later than when the child commences full-time attendance in school (to be determined by the Respondent as custodial parent), the Applicant’s weekends shall be permanently converted to an alternating weekend format.

c. Prior to the date when Addison commences full-time school, if the Respondent acquires employment commitments which significantly reduce the amount of time mother and child are currently able to spend with one another on weekdays (ie, reducing the Respondent’s weekday opportunities to be with the child by at least 20 hours per week), the Applicant’s weekends shall be on an alternating weekend basis, so long as the Respondent has such employment commitments.

33. In addition to the aforementioned weekend regime, the Applicant shall have expanded access on the following terms:

a. One mid-week after-work visit for up to two hours, provided that the child’s bedtime routine is maintained; and provided that the Applicant gives the Respondent at least 48 hours written notice of his intention to exercise such access. Midweek access shall be subject to the Respondent’s availability, but if she has scheduling limitations, alternate time shall be offered on an adjacent weekday.

b. At Easter, in even numbered years the Applicant shall have Addison from Thursday 6 p.m. to Saturday 6 p.m., and the Respondent shall have the child from Saturday 6 p.m. to Monday 6 p.m. In odd numbered years, the opposite times shall apply. The provisions for Easter weekend shall not disrupt any ongoing pattern of weekend access.

c. At Christmas 2014 the Applicant shall have Friday December 26 at 7 p.m. to Sunday December 28 at 7 p.m. If that would have been his ordinary weekend based upon the then-existing weekend schedule, his time shall be extended to December 30 at 7 p.m.

d. Commencing Christmas 2015, the overall number of days associated with the school holiday shall be divided equally between the parties (even if Addison is not yet in school). Subject to any other agreement between the parties, as part of this equal division of the school holiday time, in even numbered years the Applicant shall have the child December 24 at 7 p.m. to December 25 at 7 p.m., and the Respondent shall have the child from December 25 at 7 p.m. to December 26 at 7 p.m. Whichever parent did not have the child overnight Christmas Eve shall have the child overnight on New Year’s Eve.

34. In the event that illness on the part of the child raises an issue as to whether the child is well enough for access to take place, the Respondent shall provide the Applicant with full particulars of the illness and, if more than one overnight visit is missed, medical verification of the illness shall be provided if requested. In any event, there shall be a presumption that the Applicant shall be entitled to an equivalent make-up visit within 30 days.

35. The following time-sharing provisions shall apply to both parties:

a. Irrespective of the weekend schedule, the child shall always be in the care of the Applicant on Father’s Day from 9 a.m. to 6 p.m.; and always in the care of the Respondent on Mother’s Day from 9 a.m. to 6 p.m.

b. In 2014 each party shall be entitled to one week of summer vacation with the child. The week shall consist of seven days to include a weekend the party would otherwise have had with the child.

c. In 2015 and subsequent years each party shall be entitled to two weeks of summer vacation with the child. Those weeks shall be non-consecutive, but may be consecutive after 2016 if the party requires consecutive weeks to facilitate travel.

d. Each party shall advise the other party in advance of any intention to travel outside of Ontario on an overnight basis.

e. Commencing in 2015 each party shall provide the other with written notice by February 1st of their intended vacation weeks. Requests for vacation weeks conveyed after February 1st shall be subject to the other party’s plans.

f. If either party is proposing travel with the child entailing more than two overnights away from their ordinary residence, the travelling party shall provide the other party with full particulars of the trip as soon as details are known, and in any event not less than 30 days prior to departure. Particulars of travel shall include proof of transportation arrangements; destination details; accommodation details; and contact information (which may include a cell phone which is to remain activated during the entire vacation).

g. Each party shall be entitled to travel across the Ontario-New York State border for day trips with the child.

h. The parties shall jointly apply for a passport for the child. The passport shall remain in the possession of the Respondent, but she shall make it available to the Applicant for any travel in accordance with this order.

i. The parties shall execute any “consent to travel” documents which are reasonably proposed and consistent with the provisions of this order.

j. Each parent shall be entitled to telephone access to the child whenever Addison is away from them for more than 48 hours.

k. Both parents shall encourage the child to maintain regular contact electronically (through the internet, Skype, etc).

36. The Applicant shall not leave the child in the care of any other person during his access, without prior agreement in writing by the Respondent. This applies to extended periods of access. The Applicant shall notify the Respondent prior to the commencement of access if he reasonably anticipates that he will be unavailable to be with the child (by virtue of employment commitments, for example). This restriction is intended to reflect current dynamics in the Applicant’s life and the age of the child. The restriction as to not leaving the child in the care of another person may be reviewed as the child gets older, if the Applicant is able to establish that the proposal for alternate care of the child would involve a brief period of the child being placed with a responsible person with whom she has a secure relationship.

37. The Applicant shall be responsible for all transportation to facilitate access.

38. Access exchanges shall occur at a mutually agreed upon parking lot of a fast-food restaurant. In the absence of any other advance agreement in writing, the location shall be the Tim Hortons restaurant at King Street East and Greenhill in Hamilton.

39. The Applicant shall not personally attend within 500 metres of exchange locations. He shall send an intermediary to facilitate exchanges. This may be Ryan Bridges; the Applicant’s father; or another person mutually agreeable to the parties. The requirement that the Applicant have no direct contact with the Respondent shall continue beyond the expiry of any criminal court restriction, subject to review no sooner than 12 months after the termination of any criminal court restriction on the Applicant having contact with the Respondent.

40. Neither party shall allow the child to be exposed to any negative commentary about the other party, or the other party’s friends or family.

41. Subject to any criminal court restriction, the parties shall communicate in writing; through e-mail; with communications to be brief, civil and limited to information which needs to be conveyed. If direct e-mail communication is prohibited by a criminal court restriction, then each party shall designate an alternate person to send or receive such e-mail communications on their behalf.

42. Both parties shall be equally entitled to communicate with all third party service providers in the child’s life, including schools, medical personnel, and social and recreational agencies. The Respondent shall keep the Applicant informed as to the particulars of any such professionals or agencies as they come to be involved in Addison’s life.

43. The parties shall notify one another immediately if they come to be aware of any medical issues arising in the child’s life. If either party has to arrange emergency medical care for the child, the other party shall be notified immediately (ie, in time to attend the emergency care facility). The Respondent shall advise the Applicant of all medical and dental appointments for the child in advance, but the Applicant shall not attend those appointments unless the Respondent provides written consent in advance. The Applicant may attend with third party service providers at times when he could not reasonably anticipate that neither the Respondent nor the child will be present.

44. The Respondent shall be named as the first contact person at the child’s school and in any other registration. The Applicant shall be named as the second contact person.

45. The parties shall keep one another informed as to their residential address and contact information (subject to any criminal court restrictions relating to contact with one another).

46. The Respondent shall provide the Applicant with 60 days notice of any intention to relocate the ordinary residence of the child Addison outside of the City of Hamilton.

47. The Applicant shall pay to the Respondent support for the child in the sum of $319.00 per month commencing January 1, 2014 based upon his reported 2014 income of $36,400.00. He shall receive credit for payments made since that date. Arrears owing at this time are fixed at $514.00 and shall be repayable at the rate of $100.00 per month.

48. The parties shall share section 7 and extraordinary expenses in relation to the child pursuant to the provisions of the Child Support Guidelines.

49. The parties shall exchange copies of their tax returns and notices of assessment on an annual basis, no later than June 30th.

50. The Respondent shall provide the Applicant with copies of the child’s health care card and birth certificate.

51. The Applicant shall maintain for the benefit of the child such health care coverage as he may obtain through employment or otherwise, for so long as the child Addison is entitled to support. If coverage is available, the Applicant shall execute such documentation as may be available to allow the Respondent to deal directly with any health care plan. If this option is not available, the Applicant shall process claims forms and reimbursement cheques within 48 hours of receipt.

52. The Applicant shall name the child Addison as a 50% beneficiary of any insurance on his life (including future insurance obtained through employment) for so long as he is required to pay child support.

53. The Applicant shall provide the Respondent with written confirmation of compliance with the health care and insurance provisions herein, within 60 days, and thereafter annually by June 30, including complete particulars of any such coverage.

54. Support Deduction Order to Issue.

Pazaratz, J.

Released: June 23, 2014

COURT FILE NO.: F753/13

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

ADAM ROBERT POIRIER

AND

TAMMY LYNN DECKER

REASONS FOR JUDGMENT

The Honourable Mr. Justice Pazaratz

Released: June 23, 2014