Marco Guadalaxara v. Ashley Viau, 2014 ONSC 545
COURT FILE NO.: 07-FL-2129-2
DATE: 2014-01-23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Marco Guadalaxara
Applicant
– and –
Ashley Viau
Respondent
Self-represented, for the Applicant
Anne-Marie Roodal, for the Respondent
HEARD: November 25-27, 2013 (Ottawa)
REASONS FOR DECISION
R. Smith J.
Overview
[1] The applicant father, Marco Guadalaxara (“Marco”), seeks to vary the custody and access arrangement ordered by McLean J. on May 5, 2009 from every second weekend to one of joint custody on an alternating week basis.
[2] The respondent mother, Ashley Viau (“Ashley”), seeks to maintain the status quo arrangement for custody and access, where the child Ava May Guadalaxara (“Ava”) resides primarily with her and the father has access every second weekend, and where she is able to make major decisions if they are unable to agree. At the trial, she agreed to extend the father’s weekend access to Monday morning with the father returning the child to her school.
[3] During the trial, the mother and father agreed to have the pick-ups and drop-offs occur at the child’s school and to an equal division of time with the child for the Christmas holidays.
[4] The issue to be decided is whether there has been a material change in circumstances and whether it would be in the best interests of Ava to change the custody and access arrangement with her father from every second weekend to a joint custody week.
Background Facts
[5] The parties lived together for a short period of time in 2006 and separated in May of 2007. The child Ava was born on March 16, 2007 and is now approximately six and a half years of age.
[6] The mother has been living with and is now married to Mr. Filippo Fonzo since 2011. She has three other children with Mr. Fonzo who are living with them: Ashton will be four years old in February, Ethan is two years of age, and Apollo is presently six months of age.
[7] Ava has a good relationship with her three siblings, who live with her in her mother’s home located at 85 Promenade Avenue in Nepean, Ontario. Mr. Fonzo’s parents live next door and Mr. Fonzo’s mother assists with the childcare.
[8] The mother stays at home and looks after the children. Mr. Fonzo is employed. The mother testified she has a good relationship with Mr. Fonzo. They work together as a team, there has been no contact with police, and Mr. Fonzo has no criminal record.
[9] Ava currently shares a large room with her four year old half-brother, Ashton. The child’s routine is to get up in the morning at approximately 6:00 a.m. to play, have breakfast, do homework and get ready for the school bus. Ava is picked up at approximately 8:21 a.m. by the school bus and driven to school which is located approximately a five-minute drive from her home. She arrives home in the afternoon at 3:51 p.m. where her mother meets her.
[10] Ava is doing well in school; however, she has had some difficulty with English writing and reading. She is receiving some extra assistance with these problems and is seeing a speech therapist. Ava is a healthy child and has regular visits with her paediatrician. The mother’s husband’s parents often take her and the children to medical appointments because she does not drive.
[11] The mother testified that Ava was reluctant to go to the access visits with her father and that she often starts crying before leaving. She also often makes herself sick or complains that she is sick before going with her father. The mother testified that she supports the father’s access and desires the father to have a loving relationship with his child.
[12] The parties have had many high conflict confrontations during the access exchanges. The father has insisted on videotaping all access exchanges and has filed the videotapes of these exchanges as evidence. He has continued to videotape the access exchanges even though Dr. Alex Weinberger recommended that he stop doing so. In addition, the father insists that he pick up the child at the mother’s residence. When the father attends to pick up the child from the mother’s residence he remains at the mother’s doorstep for several minutes while he talks with the child. The father testified that he wants to talk to the child on the mother’s doorstep to find out if she really wants to come with him for access.
[13] The mother and her partner perceive the father’s actions of talking with Ava for a period of time on the mother’s doorstep when he picks up Ava as an aggressive action, as asserting control over the situation and establishing that he is permitted to spend as long as he wants on their property talking with the child. I find that both the filming of the access exchanges by the father and his spending several minutes at the mother’s doorstep talking with the child when he picks up the child are not in the best interests of the child and promote conflict and cause distress.
[14] The mother initially consulted Jennifer Williams, a counsellor of the child, concerning problems they were having with access. The father made a complaint against Ms. Williams to her professional governing body. The complaint panel found that Ms. Williams lost her objectivity during the counselling sessions.
[15] The mother testified that when Ava comes home from her access visits with the father, she is aggressive, angry and exhausted and does not want to play with her siblings. The mother initially brought a motion to vary the father’s access to supervised access after the child complained to her that she was showering with her father. The mother referred this matter to the Children’s Aid Society (“CAS”) who ultimately closed their file and reported that the father was showering with the daughter but that he was wearing shorts and was not naked in the shower and, as a result, they did not have child protection concerns.
[16] The social worker with the Office of the Children’s Lawyer (“OCL”) prepared a report dated March 23, 2011. The OCL recommended that final decision-making and primary residence of Ava remain with Ms. Viau, with transportation arrangements remaining the same. Mr. Guadalaxara would continue to pick up Ava from the mother’s home and return the child to the same location.
[17] The father prepared a critique of the OCL report containing some 11 pages. In their letter of May 30, 2011, the OCL reviewed his critique and determined that their report contained no factual errors and that the additional information provided would not cause them to change their recommendations.
[18] A further assessment was prepared by Dr. Weinberger dated October 15, 2013. Dr. Weinberger recommended joint custody with final decision-making authority continuing to reside with the mother in the event that reasonable consultation had failed to yield an agreement. He proposed to extend the current alternate weekend access to a Monday morning drop off at school and after six months, to extend the father’s access further on the second rotation every fourth weekend to a Tuesday morning drop-off at school. After one year he proposed a 3-4-4-3 fully shared residence schedule, cycling every two weeks. Special occasion access would trump the regular schedule with no makeup time and he made recommendations for access during the Christmas break and school break. During the holidays, Dr. Weinberger proposed two weeks’ non-consecutive access with each parent; one week in July for each parent, one week in August for each parent and sharing of other holidays. Dr. Weinberger recommended that access exchanges take place at the school whenever possible and that when school was out, a neutral location be agreed on by the parties.
[19] The father urges me to follow the recommendation of Dr. Weinberger and implement the proposed access custody schedule.
[20] The mother alleges that the father was verbally abusive towards her and has continued to be abusive to her during access exchanges, and for this reason she wants to remove herself from the abuse.
[21] The father has two other children from a second relationship and has those children in his care every second weekend. These children reside primarily with their mother in Orleans. He has returned to reside with his parents at their home on a number of occasions during separation from the respondent in these proceedings and again when his second relationship broke up.
Material Change in Circumstances
[22] Section 29 of the Children’s Law Reform Act, R.S.O. 1990, c. C. 12 (“CLRA”), states that: “A court shall not make an Order under this Part that varies an Order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child”.
[23] Since McLean J.’s Order in 2009, the primary residence of the child has been with the mother. The father has had access every second weekend with a mid-week overnight access visit which he has not exercised.
[24] The mother has also moved from the Orleans area where the father lives, to the west end of the city, a distance of approximately 30 kms. The mother has married Mr. Fonzo and has three other children with him. The father had established a new relationship with Nathalie Axford and has two other children with her. However, the father has separated from Ms. Axford and Ms. Axford and the two children reside permanently with their mother. The father has access every second weekend.
[25] Given the above changes in the family dynamics and living arrangements since the Order of McLean J., I find there has been a material change in circumstances since that time.
Analysis
Should the custody and access be varied to a 3-4-4-3 fully shared schedule over a period of one year or should the father’s access remain every second weekend from Friday after school to Monday at school with a mid-week overnight?
Custody
[26] Section 24 of the CLRA sets out the factors to be considered when making an award of custody and, in particular, section 24(2) sets out a number of factors to be considered when determining the best interests of a child. Section 24 states as follows:
24.(1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).
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.
[27] The child had been exposed to ongoing conflict during access exchanges. Both the OCL report of 2011 and Dr. Weinberger’s assessment of 2013 confirm that there has been high conflict at the access exchanges between the parents and that this has had a negative impact. The child has had problems transitioning from one residence to another from 2009 to date.
[28] I find that the father’s conduct of insisting on filming the access exchanges, as well as his insistence on remaining at the mother’s doorstep to talk with the child for several minutes to let the child choose whether she wishes to come with him or stay with her mother, puts the child in the middle of the conflict and has exacerbated the conflict. This conduct has occurred for an extended period of time and is not in the child’s best interests. I find that the father’s actions demonstrate that he put his own interests before the best interests of the child.
(a) The Love, Affection and Emotional Ties with the Child
[29] The reports of the OCL and Dr. Weinberger confirm that the child is attached to both the mother and the father. In his assessment, Dr. Weinberger states that Ava is particularly closely bonded with her mother and has made negative comments about her father. Dr. Weinberger further concludes that the negative comments made by Ava about her father are not caused by any actions or influence by her mother or other members of her family. Rather, in his report, he states that the child told him that she did not know why she did not want to see her father and was always crying when she went to see him. He concluded that Ava was a bright child and was sensitized to the parental conflict which has too often been played out in front of her.
[30] At page 22 of his report, Dr. Weinberger stated:
…there is also no indication that Ava has been influenced by the mother or members on her side. My view is that the child has come up with her own perceptions and versions, and for whatever may motivate her at the time. A major factor here in my view is that Ava is genuinely quite attached to her mother which is understandable to a degree in that Mrs. Fonzo has been the child’s primary caregiver and since birth, and sensing conflict between the parents Ava has on occasion, waded into the fray and picked her side and it has not been the father. I would add here as well that in that Ava is quite fond of Mr. Fonzo this too may have added to her perception and juggling two fathers psychologically may be too cumbersome at times…
[31] Dr. Weinberger’s observations are very important in that the child has expressed negative remarks about the father without being influenced by her mother or members of her family. The situation is simply that Ava is a young girl who is closely attached and bonded to her mother, who has always been her primary caregiver since birth, and has become sensitized to the conflict between her parents.
[32] As a result, I conclude that there is a stronger bond of love and affection between the child and her mother. However, the father is also a good parent but has a different parenting style and the child has not spent as much time with him as with her mother.
(b) Views of the Child
[33] The child has clearly expressed a preference to be with her mother as she is more closely bonded with her and has made negative comments about her father; however, she is only six years of age.
(c) Length of Time in a Stable Home Environment
[34] In this case, the child has always resided primarily with her mother, since separation in 2007. This arrangement has been followed by the parties from 2009 to the present time and the child is presently 6 ½ years of age. The mother has provided the child with a very stable home environment especially since she has resided with Mr. Fonzo.
[35] McLean J.’s Order stated that the parties were to make important decisions about Ava’s welfare together but in the event the parents could not reach a mutual decision, then the mother would have the final decision. Effectively, the mother has had sole custody of Ava since 2009.
[36] The child had complained to the mother that the father was showering with her and the mother had reported this to the CAS. The father explained that he showered with his daughter but wore shorts while showering. The CAS investigated and concluded that it had no protection concerns.
[37] The father has moved back in his parents’ home on a number of occasions including after the separation with the respondent in 2007 and again in 2012, when he separated from Natalie Axford, the mother of his other two children.
[38] The child has never resided on a fulltime basis with her father and has always resided on a fulltime basis with her mother. I conclude that the child has always had a stable home environment with her mother.
(d) Ability and Willingness to Provide Guidance Education and Necessities of Life
[39] The child does not have any special needs that are not being met in her current arrangement. In fact, she is doing very well and developing very positively in her current environment and at her current school.
[40] Both parents are able to provide guidance, education and necessities of life. The father is employed and is at work during the weekdays while the mother is a stay-at-home mom who cares for three other young children.
[41] I conclude that the mother is better able to meet the child’s necessaries of life due to the fact that she is not working outside the home and her mother-in-law lives next door and assists her with childcare. The father has the financial means and the ability to provide guidance and education and he could meet the child’s necessaries by providing daycare for the child.
(e) Permanence and Stability of Family Unit
[42] The mother has established a permanent and stable family with Mr. Fonzo and their three children. The father has had less stability although he does own the former matrimonial home which he acquired with the assistance of his parents. The father lives in Orleans and in close proximity to his parents’ residence.
[43] The father’s second relationship with Natalie Axford ended and a Separation Agreement was entered between the parties where the mother has the principal residence of the children and the father has access every second weekend.
[44] By residing primarily with the mother, Ava would be able to maintain a strong relationship with her three step-siblings through the mother’s second relationship. Whereas, this would not be the case if she resided half of the time with her father as his two children with Ms. Axford are primarily resident with their mother and would only be with their father every second weekend. Ava would be alone in the home with her father or in a daycare while her father was at work during the majority of the time she resided with her father.
[45] I therefore conclude that, by living primarily with her mother, she would be part of a more stable family unit than if she spent half of her time with her father.
Location of Ava’s School
[46] A major factor in determining the best interests of Ava and the stability of her living arrangements is the fact that her school is located a five-minute drive from the mother’s residence. The father resides in Orleans in the east end of the city, a distance of 30 kms from Nepean which is in the west end of the city. If the father had the child 50% of the time, as proposed by Dr. Weinberger, this would require the child to be driven to school and picked up from school each day she was with her father. As a result, the child and her father would have to spend 45 to 60 minutes driving on the Queensway during rush hour traffic to get to and from school to the father’s residence. I find that spending 1.5 to 2 hours driving every day would not be in the child’s best interests. I further find that it would be in the child’s best interests to be living primarily with her mother in close proximity to her school.
[47] The travel time for the child if living at her mother’s residence during school days would be five to ten minutes on a school bus to the school. This factor does not appear to have been given any weight in Dr. Weinberger’s report dated October 15, 2013.
[48] Dr. Weinberger made no assessment of each parent’s plans of care or how the child would be affected by living alone during the week with her father, who does not have equal residency of the children with Ms. Axford. Nor did he consider the extensive travel time the child would have to spend each day in busy traffic to get to and from school while she was living with her father.
[49] Dr. Weinberger’s report is unclear as to whether he was aware that the applicant father did not have joint custody with his children with Ms. Axford spending 50% of their time with him. Dr. Weinberger did not speak with Ms. Axford. Nor did he review a copy of the Separation Agreement. This factor may also have influenced the recommendations in his report.
[50] I find that Dr. Weinberger’s proposal of a 3-4-4-3 arrangement would not reduce the conflict between the parents and would require Ava to spend a lot of time travelling to attend school when in her father’s care. In addition, Ava would be separated from her siblings from her mother’s family, and would not have the benefit of contact with her sibling on the father’s side during the school week. I find that these factors were not addressed in Dr. Weinberger’s assessment and they create a situation that would not be in the child’s best interests if a 3-4-4-3 schedule was ordered.
[51] The mother has met all medical and educational needs and has obtained support for the child’s reading and writing and speech delays. The child’s school is located in close proximity to the mother’s residence, and the mother stays home to look after the children, is available to get Ava ready for school, and she is there when she returns from school in the afternoon. The child has thrived under this arrangement and I see no reason for changing a situation that is working well. The father has not presented any plans as to how he would manage the child’s care if Ava resided with him 50% of the time given his fulltime employment, or how transportation and pick up from the child’s school would be arranged. The evidence in this regard is completely lacking, whereas the mother’s plan of care is clear and is the routine that has always been followed.
[52] I agree with the mother’s submission that to implement Dr. Weinberger’s recommendations would require the child to travel extended periods of time in busy traffic each day in her father’s care to attend school. The child is closely bonded with her mother prefers to have more contact with her mother. I find the mother’s plan to be safer for the child and it is in her best interests to remain in a stable home and maintain contact with her siblings on the mother’s side during the days she attends school.
[53] The parents are also unable to cooperate, which is generally required in a joint custody 3-4-4-3 schedule. I find that following a 3-4-4-3 schedule would only serve to place the child further in the middle of the conflict and increase the number of transitions on a regular basis. Such a proposal would destabilise and create further conflict rather than reducing conflict between the parents.
[54] Certain aspects of the father’s behaviour is concerning, namely his insistence on continuing to film the access exchanges since 2010, even after becoming aware of Dr. Weinberger’s recommendations not to do so. This indicates to me that he puts his own interests ahead of those of the child. The father puts his own interests first, finds fault with the mother’s proposals and has been difficult and rigid in his approach to the access arrangements.
[55] In his report, Dr. Weinberger does not state or give any reasons why the proposed change in access would be beneficial to Ava or how it would lessen the conflict between the parents.
[56] The uncontested evidence is that the father has elected not to exercise his mid-week access during the past four years, despite having this week available to him, because it was too disruptive, involved too much driving, and would not be in the child’s best interests. I agree with this assessment. The fact that the father did not exercise his mid-week access and overnight access for exactly this reason is also why a daily 30 km drive on the Queensway during rush hour would be too disruptive, involve too much driving, and would not be in Ava’s best interests.
Disposition
[57] For these reasons, I find that it would be in Ava’s best interests to continue with the present arrangement, namely that custody be joint with final decision-making authority to continue with the mother in the event that reasonable consultation has failed to yield agreement. The father’s access is to remain every alternate weekend from Friday after school to Monday drop-off at school.
Special Occasion Access Trumps Regular Access with no Makeup Time
[58] Access during the Christmas school break shall be as ordered on consent. March school break shall be shared equally with the mother on even years and with the father on odd years.
Summer Access
[59] Dr. Weinberger recommended periods of two weeks non-consecutive access with each parent. The mother objects to this recommendation and submits it would be in the best interests of the child to have the summer access limited to one week with each parent as the child is very closely bonded with her mother and is quite young. The mother proposes that the father have two non-consecutive weeks of access in the summer, one week in July and one week in August together with regular access. I agree with the mother’s submission at this time based on evidence that the child is very closely bonded with her mother who has been her principal caregiver since birth, and on the evidence that she is upset upon returning from visits with her father and is always crying and upset before going to visit her father.
[60] The balance of the terms of McLean J.’s Order of May 5, 2009 is to continue.
Mr. Justice Robert J. Smith
Released: January 23, 2014
COURT FILE NO.: 07-FL-2129-2
DATE: 2014-01-23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Marco Guadalaxara
Applicant
– and –
Ashley Viau
Respondent
REASONS FOR DECISION
R. Smith J.
Released: January 23, 2014