ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 739/11
DATE: 2014/09/03

BETWEEN:

Kimberley Elizabeth Hamilton
Applicant

– and –

Richard Charles Stratten
Respondent

Elizabeth T. French, for the Applicant

Self-represented

HEARD: July 21 and 22, 2014

REASONS FOR JUDGMENT

Minnema j.

[1] This was an application by Kimberley Hamilton seeking sole custody and principal residence of the children Victor Wade Stratton, born November 4, 2007, and Sydney Rae Stratton, born February 26, 2010, and child support. The respondent Mr. Stratton was seeking ‘joint shared custody’, which to him meant joint custody and “roughly 50%” residence sharing for the children. The parties agreed on child support arrears up to the start of trial, and there was no dispute about their incomes.

Issues

[2] The main issue for determination then, is what parenting arrangement is in the children’s best interests.

Background Facts

[3] Mr. Stratton has a university degree in computers and is currently employed full-time in the registrar’s department at Queen’s University. Ms. Hamilton has a college diploma in animal care technology and is currently working full-time as a medical receptionist. They both have a history of marijuana use, but it is not presently a factor related to their child care.

[4] They began living together in Victoria, British Columbia, in March of 2003. They moved to Vancouver, British Columbia in July of 2005, where Victor was born, and then relocated to Montreal, Quebec, in August of 2008, where Sydney was born. They last moved to Kingston, Ontario, in August of 2010.

[5] The parties separated in May of 2011. Mr. Stratton took a boarding room that was not a good place for access, so he had access in the community for two or three weeks. He then rented a bachelor apartment and had regular access including overnights. The parties discussed equal time, but his living conditions were not ideal.

[6] There were no concerns with Mr. Stratton’s access other than Ms. Hamilton indicating that even though Victor was toilet trained Mr. Stratton was still diapering him. She stated that continued up until December of 2011, when Victor was four. However, other than a vague hearsay reference that “Victor spoke of being diapered at daddy’s” she provided no other evidence. Mr. Stratton explained that following two overnight accidents he used pull up diapers just a few times and only for bed. He then obtained rubber sheets. However, there were no more problems. He pinpointed that time as around September of 2011. There was no evidence to contradict this.

[7] In September of 2011, Mr. Stratton obtained a larger apartment, and on October 5, 2011, the parties agreed between them to a “50/50” access arrangement. This was reflected in a brief handwritten ‘kitchen table agreement’ that did not involve lawyers. Although the agreement said “[t]his is based on an alternate week schedule”, the time was not a straight week on/week off but rather it was arranged around the father’s band practices, he is a musician, and around the mother’s roller derby practices, she is an athlete.

[8] Mr. Stratton had met a woman named Alison Budarick who had a child. They had started doing ‘play dates’ with the children. When Mr. Stratton mentioned to Ms. Hamilton in August of 2011 that Ms. Budarick was involved with the Children’s Aid Society (“CAS”) and only had her child in her care part-time, Ms. Hamilton told him that Ms. Budarick was not to be around their children. Mr. Stratton agreed, indicating that at the time he still harboured hopes for reconciliation with Ms. Hamilton and believed she was open to that as well. He interpreted her insistence that Ms. Budarick not be around as jealousy. However, when Ms. Hamilton subsequently began dating others, he said he abandoned those hopes. Believing Ms. Hamilton would no longer be jealous, he invited Ms. Budarick over again with her child for a play date in early November 2011. Ms. Hamilton saw Ms. Budarick in Mr. Stratton’s home with the children and was upset. She told Mr. Stratton that she was going to restrict access. Mr. Stratton said that they then agreed, this time in writing, that Ms. Budarick would not be around the children and that the 50/50 arrangement would continue. Ms. Hamilton said she did not agree, as he had made that promise before. While no agreement or document was produced, Ms. Hamilton did acknowledge that Mr. Stratton gave her something in writing.

[9] Ms. Hamilton did not end the 50/50 arrangement right away. It continued for about a month until early December of 2011. She then decided to restrict Mr. Stratton’s contact with the children to liberal supervised access in her home.

[10] Ms. Hamilton said she decided to end the 50/50 arrangement because she had three concerns. The first one was that Mr. Stratton had allowed the children to be in the presence of a person involved with the CAS, and was untruthful about it. I note this was a month after she saw Ms. Budarick, and that there was no allegation or evidence that Mr. Stratton had ever left the children alone with her. The second concern was what she called the diapering of Victor, referred to above. However, I find on the evidence that it was resolved several months earlier. The third concern she identified was Mr. Hamilton’s lack of interest in informing himself or accepting her accounts of concerns that the teachers had with Victor. While I accept her evidence that Mr. Stratton at that point was not proactive with the school and less than completely receptive to the information she tried to provide, it was not clear to me why Ms. Hamilton thought that was a reason to change the father’s time with the children or how it related to a need for supervision. The imposition of supervised access seemed to me to be an overreaction.

[11] For a short period of time access occurred as directed by Ms. Hamilton, although Mr. Stratton insisted on a third party being present in her home. He seemed to want this for his own protection. In early February 2012, he had an access visit out in the community supervised by Ms. Hamilton’s sister, after which he insisted on taking the children to his home. The police were called, and, noting that there was no court order, they brokered a resolution where Mr. Stratton had the children in his home unsupervised for two hours before returning them.

[12] While it is clear that Mr. Stratton breached their understanding about access that day, I found it curious that Ms. Hamilton said she was “terrified” he would do something “horrendous” without third party supervision. There was nothing in the evidence to support that. She subsequently discouraged his attending a doctor’s appointment with her and the children, and said to him in an email of February 13, 2012 (her emphasis):

I will ask that IF you choose to be at the children’s apt tomorrow you do so ONLY to observe. We should arrive and leave staggered and you can only be with me and the children in the direct presence of a doctor, nurse or other health care professional.

You are to leave at the end of the apt before me and the children and are NOT to approach us without court appointed third party supervision while in public.

You are not to discuss this case or any matter unrelated to the children’s vaccination appt. You are there to observe only as I have extended this courtesy to you.

[13] Ms. Hamilton had already brought her court application and the parties were scheduled for a case conference on February 22, 2012. Despite Ms. Hamilton telling Mr. Stratton that there would be no more access unless court ordered, she did allow one more visit in her home and some communication through computer video conferencing (Skype) before court.

[14] At the case conference Mr. Stratton was ordered on consent not to allow the children to be in the presence of Ms. Budarick, and the involvement of the Office of the Children’s Lawyer (“OCL”) was requested. The parties also agreed to the following further orders an “interim interim without prejudice” basis. The children were to be in Ms. Hamilton’s primary care and to be with Mr. Stratton every other weekend from Friday at 6 p.m. to Monday at 8 a.m., and every Tuesday and Thursday from 5:15 to 7:15 p.m. Despite the order being agreed to shortly after the above noted events, notably there was no requirement for supervision. It also allowed for further access as agreed to between the parties. Mr. Stratton was to do the transportation. Ms. Hamilton was to provide directions to the school and health care providers to allow communication with Mr. Stratton, and she was to provide copies to Mr. Stratton of all documentation she received regarding the children “so that he may keep actively involved in the children’s lives and in decisions affecting them”.

[15] The interim consent order has been followed with only minor consent adjustments and a few concerns as noted below.

[16] There were still some problems with communication. Mr. Stratton had told Victor he was going to see him start his first day at school. He didn’t tell Ms. Hamilton. Although she took the view that his contact with the child was to be limited to what was in the order, she was more upset that Mr. Stratton attended at the school without clearing it with her first.

[17] While not required by the consent order, Ms. Hamilton was upset that Mr. Stratton did not comply with her demand that he provide her with the names of non-family persons that he allowed to care for the children and obtain her prior approval. Such babysitting only happened four times.

[18] The biggest adjustment made by the parties to the interim order had to do with the 8 a.m. return of the children every second Monday. Ms. Hamilton indicated that the majority of the time Mr. Stratton either came late, had not fed the kids breakfast, and/or brought them in their pajamas. About six or seven months later Mr. Stratton agreed that he would return the children on Sunday evenings instead.

[19] Mr. Stratton said that he had been very involved with almost all the children’s medical appointments since birth, but that ended in April of 2012 after the first appointment with the paediatrician. He said that the paediatrician raised an issue with Victor’s speech and he agreed but Ms. Hamilton did not and she was upset. A follow-up appointment was booked and he thought she was keeping track of it, it was missed, and nothing more came of the speech concerns. In her version, Ms. Hamilton said that Mr. Stratton had attended only one appointment with the family doctor and one with the paediatrician since separation. She claimed that at the paediatrician appointment it was Mr. Stratton who raised the speech issue and the paediatrician accommodated him by making a referral, however Mr. Stratton did not follow-up. She confirmed his evidence that since then she no longer tells him of appointments beforehand, but she does give him reports afterwards. When it is a written report she says he thanks her, but when it is a verbal report she says he accuses her of over informing. There was no independent evidence, such as from medical records, about how often Mr. Stratton attended on medical appointments, or about what happened on that attendance with the paediatrician. While Ms. Hamilton’s response of shutting Mr. Stratton out of subsequent appointments was in my view an overreaction, it was not disputed that she has been taking the lead regarding the children’s healthcare for at least the past two years with little opposition from him.

[20] The Report of the Children’s Lawyer by Clinical Investigator Trish Crowe is dated January 4, 2013. The parties were content with it being admitted into evidence without calling or cross-examining her. The report recommended custody to Ms. Hamilton with access to Mr. Stratton from Thursday after school to Monday morning every other weekend, every Thursday evening, and overnights on the weekdays Ms. Hamilton had her roller derby practices. Those recommendations were the main points of contention between the parties. There was no dispute regarding the other recommendations which were for equal holiday times, change of residence restrictions, counselling, a right of first refusal for childcare, and that each parent inform the other on outside child care providers. I include these in the final order.

[21] While Ms. Hamilton indicated in her examination in chief that she had roller derby practices on Tuesdays and Thursdays a couple of months per year, when cross examined by Mr. Stratton she conceded that the season ran from March to October. She indicated that the children had a child care provider on those Tuesday evenings and on roughly half of the Thursday evenings. Mr. Stratton drops the children off to the child care provider who puts them to bed.

[22] Mr. Stratton has asked for additional access along the lines that the OCL recommended, noting that the consent order provided for “such other times as may be agreed to between the parties.” While Ms. Hamilton did allow for some variations, generally they were exchanges, time for time, and there were no substantial increases.

[23] In October 2013, Mr. Stratton obtained his present job. His schedule is 8:30 a.m. to 4:30 p.m. He said in his submissions that he had a flexible schedule and this was reflected in his proposed access times, although he gave few details in his evidence.

[24] I did not hear direct evidence on the actual school hours, but understood they will be from 9 a.m. to 3:30 p.m. for both children, with some lee-way for an earlier drop off time in the mornings. There was no specific evidence about after school care, but again I understood it was in place given that Mr. Stratton works to 4:30 p.m. and Ms. Hamilton to 5:00 p.m. Sydney will be starting junior kindergarten full-time this fall.

[25] In late 2013 to early 2014, the parties were having trouble communicating and were being very inappropriate. Ms. Hamilton wanted information from Mr. Stratton as to whether he had coverage for a psycho-educational assessment on Victor. He frustrated her by taking a long time to give a full reply. Mr. Stratton wanted March break and summer access in 2014 and asked for them well in advance. He was put off by Ms. Hamilton such that they never happened.

[26] Both children were noted to be wonderful kids, loved very much by their parents who both had strong relationships with them. It was noted that Victor is being assessed for possible autism, and that consistency and routines are important to and for him.

Analysis

1. Law

[27] The parties never married. The legal tests for custody are therefore found in the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as amended.

[28] Section 24(1) directs me to determine this proceeding on the basis of the children’s best interest in accordance with ss. 24(2), (3) and (4). The children’s best interest is the overarching consideration: see s. 29.

[29] Subsection 24(2) directs me to consider all the children’s needs and circumstances. Eight items are specifically mentioned, but that list is not exhaustive.

2. The Children’s Needs and Circumstances

a) Plans

[30] Regarding custody, as noted Ms. Hamilton wanted sole custody, Mr. Stratton sought joint custody, and the OCL recommended sole custody to Ms. Hamilton.

[31] Regarding access mid-week, Mr. Stratton sought it from 4:45 p.m. on both Tuesdays and Thursdays until an 8:45 a.m. drop off at school the next day. Ms. Hamilton wanted the status quo of 5:30 p.m. to 7:30 p.m. to continue on those nights, noting that is what they have been doing since March of 2013, and that it is similar to the interim order. The OCL recommendations, by including overnights when Ms. Hamilton had roller derby practices, were closer to Mr. Stratton’s position most of the year.

[32] For the weekend access Mr. Stratton sought to have the children every other Friday from 4:45 p.m. until a Monday morning drop off at school at 8:45 a.m. This would mean that if he were to have the weekday overnight access that he requested, his continuous time would start on the Thursday evening. Ms. Hamilton thought weekends should be every other Friday at 5 or 5:30 p.m. until Sunday at 7:30 p.m. The OCL recommendation was similar to Mr. Stratton’s position.

b) Contact

[33] I do not see where the children were interviewed by the OCL Clinical Investigator. However, as noted, there is no dispute that there are strong emotional ties between the children and each parent. Their relationships are good.

[34] Regarding the desirability of maximizing the contact between the children and both parents, the parties agreed that a shared parenting arrangement, such as week on/week off, is optimal if it works. However, neither party proposed such a schedule. Ms. Hamilton added that even the additional overnight on Sundays had already been tried and it was not successful.

[35] There are no obvious practical impediments to frequent contact, such as domestic violence or significant distances between homes. At the time of the OCL report the parties were living one block away from each other. They have both since moved but are still only less than a kilometer apart.

c) Status Quo and Stability

[36] I have considered the length of time that the children have lived in a stable home environment, the permanence and stability of the arrangement, and the disruption to the children of a change of residence.

[37] No change of residence is really being requested here. In essence Mr. Stratton is only asking for two changes to the existing arrangement. Regarding weekends, the problems he previously had delivering the children to Ms. Hamilton on Monday mornings fed, dressed, and on time were over two years ago, and no further related problems have been noted. His proposal is to return the children to the school, not to Ms. Hamilton. I agree with him that it would not make sense for him to bring the children to her in the mornings only so that she can take them to school.

[38] The other change he sought of Tuesdays and Thursdays overnights would have minimal impact on Ms. Hamilton’s time with the children. As it now stands he returns the children to a caregiver about 75 per cent of the time during the eight months of the year when Ms. Hamilton is at roller derby practices. It would be less disruptive and maximize his time with the children if they would be put to bed by their father rather than by a baby-sitter.

[39] Victor is a child that needs stability and predictability and it would benefit Sydney as well. Both of these weekend and mid-week access propositions by Mr. Stratton would be minimally disruptive and, once established, possibly less disruptive than the status quo over the long haul. I find that the existing arrangements for the children and can be improved on.

[40] Ms. Hamilton in her closing argument noted that Mr. Stratton agreed to the interim order on consent and queries why, if it is not in the children’s best interests, he did not bring a motion to change it. His response, supported by the evidence, was that he has always asked for more access, and I find that his biding his time for settlement or trial cannot be taking as acquiescing to the status quo. Further, the interim order was “without prejudice.”

d) Parenting Ability and Conduct

[41] The ability and willingness of each party to act as a parent and provide the children with guidance, education, and the necessities of life, was examined in this trial.

[42] Neither party raised what I consider to be serious concerns about the other’s parenting ability. As noted by the OCL assessor, they each bring unique strengths to their parenting of Victor and Sydney and “[t]he children have benefitted from the structure and warmth offered by Ms. Hamilton as well as the independence and support offered by Mr. Stratton.” The evidence showed that both parents were active with the children when they were in their care, engaging them both physically and mentally.

[43] As to the source of the difficulties between the parties around parenting, they are best summarized in the OCL report as follows:

The parents indicate that they have different approaches to things which, as is not unusual, often becomes a source of conflict. Ms. Hamilton is very organized and describes herself as having a Type A personality. Mr. Stratton describes himself as having a passive personality.

Consistent with their personalities, Ms. Hamilton tends to over-inform and assume a parental authority while Mr. Stratton under-informs and is passive (and sometimes defensive) in response to requests for information.

[44] There were many examples in support of these observations about personalities. Ms. Hamilton would overreact to situations that did not resolve as she thought they should, and threatened to call the police a number of times. Mr. Stratton would be laid back. This was not just seen in his parenting, such as his reserved approach to interacting with Victor’s school. His tardiness in filing his Income Tax Returns with Revenue Canada and in completing his disclosure was a “sore point” for Ms. Hamilton.

[45] Ms. Hamilton took the view that her more directive and assertive approach was in the children’s best interests. The reasons given by the the OCL Clinical Investigator for recommending custody to Ms. Hamilton had to do with her being assertive, very organized and structured. She was the one who was taking the lead on parenting decisions.

[46] Thankfully there is no evidence that parental conflict has thus far reached a level that it has put the children at risk. However, there is evidence that it has led to poor decisions. For example, neither Mr. Stratton taking his time looking into benefits coverage for an assessment, nor Mr. Hamilton delaying a decision on summer access and effectively denying Mr. Stratton important time with his children, were done in the children’s best interests. I caution the parents that conflict between them can be very damaging to the children.

3. Conclusions

[47] In considering all the above, I am of the view that it is in the best interests of the children that their custody be with Ms. Hamilton. The history has shown that she is the one who can ensure timely attention to their medical and educational needs. On the undisputed evidence she is the one who has been attending to those needs in an organized and efficient way for at least the last two years. However, it would not in the children’s best interests that Mr. Stratton be shut out of all input.

[48] As to access, I find that Mr. Stratton’s propositions make the most sense. His taking the children to their mother’s home most Tuesdays and Thursday evenings only to be put to bed by a non-parent is not maximizing each parent’s time with the children and is in my view unduly disruptive. I also find that weekends ending for Mr. Stratton on Monday mornings are appropriate. They had agreed to it before, the past problems were over two years ago, the OCL endorses it, and it involves less disruption for the children.

[49] Mr. Stratton, in making his proposal, is committing to getting the children to school on time. For after school, it would make sense that he retrieve the children from the third-party care provider as soon as he can.

[50] For access transportation, it makes sense that the school drop-offs and the after school pickups from the care provider be done by Mr. Stratton. Otherwise, when there is no school, I find that the parent who the children are with should bring them to the other parent. This sends the signal to the children that their parents support the arrangements.

Financial Matters

[51] Child support is largely determined by the Child Support Guidelines (Ontario), O.Reg. 391/97, as amended (“Guidelines”). The parties have agreed that the arrears as of the end of July are $4,048. They also agreed that ongoing support be set based on Mr. Stratton’s 2013 income of $47,457. Mr. Stratton was relying on s. 9 of the Guidelines, and asking to have support adjusted using the set-off method against Ms. Hamilton’s income which, per Line 150 of her 2013 Notice of Assessment, was $28,032. However, the parties’ positions on s. 9 were not addressed in argument.

[52] I make the following findings and obligations. Section 9 makes it clear that assessing child support in a shared physical custody situation is a two-step process. First I must determine if Mr. Stratton has the children not less than 40 per cent of the time. If he does, then I must determine the amount of child support taking into account (a) the table amount for each parent, (b) the increased costs of the shared arrangement, and (c) the conditions, means needs, and other circumstances of each spouse and the children.

[53] Regarding the first part of the test, without the benefit of submissions I have quickly reviewed Mr. Stratton’s time on an hourly basis following the principles as set out in L.L. v. M.C., [2013] O.J. No. 1444 (S.C.J.). Mr. Stratton appears to be fractionally, and by that I mean less than 1 per cent, over the 40 per cent threshold looking at the new two week schedule. As section 9 requires that the time be assessed “over the course of a year”, he is likely marginally higher when the shared holiday time is taken into account. Such close figures, however, concern me when I have not heard from the parties.

[54] As to the second part of the test, if I find Mr. Stratton has the children for 40 per cent of the time, I can do the table calculations without further input. However, I have not heard any submissions on the other two aspects I am required to consider, namely increased costs or the circumstances of the parents and children.

[55] What I am going to do, having now directed the parties to the issues, is give them an opportunity to come to an agreement, failing which they can make further submissions.

[56] Lastly, I heard no argument on Guideline section 7 expenses and it was not a trial issue. I simply note that obligation below.

Decision

[57] Following from the above, I make the following orders:

1. Ms. Hamilton shall have custody of the children.

2. Ms. Hamilton shall advise Mr. Stratton in advance of all major decisions and shall consider his input.

3. Mr. Stratton shall have the right to consult with and obtain information, records, and report cards directly from the teachers, doctors, or other professionals involved with the children.

4. Ms. Hamilton shall not move the children to another school nor move the children’s residence outside of City of Kingston without the express written consent of Mr. Stratton, subject to a court order.

5. The children shall reside primarily Ms. Hamilton. Mr. Stratton shall have regular access as follows:

a. Every other weekend from Thursday at 4:45 p.m. to Mondays morning at 8:45 a.m.

b. Every Tuesday overnight from 4:45 p.m. to the following morning 8:45 a.m.

c. Every Thursday overnight from 4:45 p.m. to the following morning at school or 8:45 a.m. when the access does not precede weekend access.

d. Such other times as agreed to by the parties in writing.

6. The parent who has the children in his or her care shall advise the other parent immediately or as soon as possible by telephone of any emergency medical or dental care required for the children.

7. Mr. Stratton shall pick-up the children for access from the after school care provider, and shall drop them off at the school after access. Mr. Stratton is not to be unjustifiably late bringing the children to school. When school is not in session, Ms. Hamilton shall deliver the children to Mr. Stratton for the start of access and Mr. Stratton shall return the children to Ms. Hamilton following access. The parties may make other arrangements as long as they agree in writing.

8. Each parent shall inform the other of who is providing non-family childcare. Each parent shall have an option of first refusal for childcare which extends over four hours.

9. Each parent shall have two uninterrupted weeks with the children during the school summer holiday. The two weeks are not to be taken consecutively until the summer of 2017. The parents shall agree to their weeks in advance in writing by May 1 the previous year. If the parties are unable to agree, then where the time is to be exercised in an even numbered year the mother shall choose her two weeks first, and where the time is to be exercised in an odd numbered year the father shall choose his two weeks first.

10. The school March break shall be split each year with the parent who has the children the preceding weekend keeping the children until 1 p.m. on the Wednesday. The weekday access is suspended for that week. This is subject to agreement between the parties in writing

11. For the full two weeks of the Christmas school holiday, regular access shall be suspended. The mother shall have the first full week of the school closure and the father shall have the second full week. The sequence shall alternate in subsequent years. A full week shall be from Monday morning to Monday morning. The parent who does not have the children on Christmas Day, shall have access to the children for three hours on Christmas Day.

12. Regardless of the access schedule, the children shall spend Mother’s Day with Ms. Hamilton from 10:00 a.m. to 7:00 p.m. each year, and shall spend Father’s Day with Mr. Stratton from 10:00 a.m. to 7:00 p.m. each year.

13. Regardless of who the children are with per the above, the other parent may attend at all school functions and both school and non-school extracurricular activities, such as sports, lessons, etcetera, that a child may be involved in. The communication between the parents shall remain respectful at all times.

14. The total owing by Mr. Stratton to Ms. Hamilton for retroactive child support as of July 31, 2014, is $4,048.

15. Failing an agreement, further submissions to be heard on the amount of monthly child support payable from August 1, 2014 forward. The interim child support order shall continue until final order and be adjusted at that time.

16. The parties shall share section 7 expenses for the children in proportion to their respective incomes.

17. For as long as child support is to be paid, the parties shall provide updated income information disclosure to the other each year within 30 days of the anniversary of this order in accordance with section 24.1 of the Guidelines.

18. On consent, the parties shall meet on a quarterly basis with the assistance of staff from Kingston Community Counseling Centre or Limestone Mediation, regarding decision making and enhancing communication between them.

[58] It is my hope that the parties can agree on both ongoing child support and costs. If not possible, upon request to the trial coordinator made within fifteen days of the date of this decision, a further one hour maximum appearance before me for argument on one or both of those issues shall be set.

Minnema, J.

Released: September 3, 2014

COURT FILE NO.: 739/11

DATE: 2014/09/03

ONTARIO
SUPERIOR COURT OF JUSTICE

RE:

Kimberley Elizabeth Hamilton
Applicant

– and –

Richard Charles Stratten
Respondent

BEFORE: Mr. Justice Timothy Minnema

COUNSEL: Ms. E. French, for the Applicant

Respondent, Self Represented

REASONS FOR JUDGMENT

Mr. Justice Timothy Minnema

Released: September 3, 2014