OTTAWA
COURT FILE NO.: FC-10-1258
DATE: 2014/12/01
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Scott Dostie
Applicant
– and –
Sarah Poapst
Respondent
Self-Represented
Katherine Cooligan, for the Respondent
HEARD: May 26, 27, 28, 29, 30, October 14, 15, 16, and 17, 2014
REASONS FOR JUDGMENT
MINNEMA J.
[1] The main issue in this case is custody. Child support and special expenses also need to be determined.
Background Facts
[2] The applicant father, Scott Dostie, was born on February 12, 1976. The respondent mother, Sarah Poapst, was born on December 12, 1978. They met in June of 2008, at ages 32 and 29 respectively, and started dating. The relationship was on and off, and they broke-up twice before it finally ended. They had arguments throughout. However, there was a physical attraction and both liked to travel. They went on a number of trips together, each paying their own way. There is no evidence that they ever cohabited.
[3] The mother was surprised to find out at the end of July of 2009 that she was pregnant. She told the father in August. An abortion was discussed, they had counselling, and a date for the procedure was set. However, the night before the appointment the mother decided she would keep the child. She advised the father, and told him that he could be involved as much or as little as he wanted. He was not adverse to her decision. He said that he wanted to be involved, and the parties continued to date during the early pregnancy. However, they continued to have conflict. In the early winter of 2009, prenatal testing raised concerns about ‘neural tube defects’. There was a choice between two follow-up tests, one having a greater risk for a miscarriage. They had an argument over which test. Later, in February of 2010, the father missed an ultra-sound appointment because of confusion over the location. While I find that this was unintentional, he accused the mother at the time of purposely misdirecting him.
[4] In March of 2010, the relationship ended. With a baby coming, the parties still communicated, although it was strained. When the mother was overdue, a time was scheduled for her to be induced. She called the father to let him know, and he picked her up to take her to the hospital.
[5] Aidan David Poapst was born on April 17, 2010. The father, along with the maternal grandmother, attended in the delivery room.
[6] The parties had not agreed on the Aidan’s last name prior to the birth. The father wanted to have his own surname used as Aidan’s surname. The mother did not agree, feeling that as this was not a traditional relationship and she would be the primary caregiver, the child should have her last name. The mother stayed in the hospital for a few days, and the father would stay as well. A name for the child was needed for the Ontario Health Insurance Plan registration documents. An argument ensued in the hospital over the name that had a nurse and hospital social worker involved. In the end the father, unhappy with the discussion with the mother and social worker, left the room. The mother used her last name on Aidan’s documentation.
[7] The father in his evidence claimed that the mother told him on April 20, 2010, the same day she and Aidan came home from the hospital, that he would never see the child again. He said he panicked and called the police right afterwards, but they told him there was nothing they could do for him. The mother denies making that statement, indicating to the contrary that she was accommodating to the father regarding contact. She said she allowed him to come over when he wanted, although with some reasonable boundaries such as providing notice, not interfering with the child’s breast feedings or his nap times, and being respectful of her own need for rest. Given the above and what follows, I accept her version. I find that she did not make the alleged threat, and indeed was open to contact between Aidan and his father.
[8] Despite the father alleging he was told by the mother that he would never see the child again, he had access the very next day. The mother said it was in her home for two hours. Mr. Dostie then had a visit two days after that, on April 21, and then two days later again, on April 23, 2010, all in her home. The following text exchange then occurred when Aidan was a week old.
Applicant: Gonna come by tomorrow morning [April 25, 2010] to see Aidan. I miss him a lot.
Respondent: Ok you can come by tomorrow but we need to work out a suitable time.
Applicant: When? I’m gonna take him out for a couple of hours to bond after he feeds.
Respondent: No you are not. You can come here to visit.
Applicant: Excuse me? I have EVERY right to see my son on my own – you can not prevent that. It’s the LAW.
[9] The mother indicated that following his birth she was breast feeding Aidan about every two hours. The father did not take the visit offered by the mother in her home that day. However, he had access the next Wednesday, Saturday, Monday, Thursday, Wednesday, Thursday, Sunday, and then Thursday the 20th of May. Therefore, notwithstanding the dispute over April 25 and the his alleging that the mother threatened that he would never see the child again, the father had access eleven times in the first month after Aidan left the hospital.
[10] In early May the father retained counsel. The first communication between the lawyers occurred on May 14, 2010, less than a month after Aidan was born. Even with lawyers involved, there was still difficulty in arriving at an access schedule. The father was of the general view that he had a right to equal time with the child. He was therefore quite insistent and demanding when asserting his position regarding access. The following is an exchange of text messages from Saturday, May 15, to Wednesday, May 19, 2010:
(Saturday)
Mr. Dostie: “Schedule I will see Aidan: Sundays 1pm Mondays 4pm Weds 4pm Fridays 4pm. I will hold and play with Aidan awake entire time. Cc’d lawyers.”
Ms. Poapst: “You can come Sunday after 1. Our lawyers will be speaking Monday to discuss a schedule.”
(Tuesday)
Mr. Doastie: “No schedule has been given to my lawyer or I as of yet. You are denying me access to my son. I want to see my son Mon Wed Fri Sun weekly.”
(Wednesday)
Dr. Dostie: “Please be advised I will be over Thursday May 21 4pm to see Aiden. I disagree with your proposed schedule and will continue with my … with what we had before until this is settled. … Correction May 20th Please be advised I will be over Thursday May 20 4pm to see Aidan. I disagree with your proposed schedule.”
[11] Despite being unable to agree, it is clear that by June 1, 2010, a pattern of access was established being Mondays, Wednesdays and Sundays every week, two hours each time. The father was of the view the access schedule was “dictated to me”, but no motion was brought, despite him having already started court proceedings. That pattern of access continued for approximately the next full year.
[12] The father’s court application is dated on May 25, 2010, just over five weeks after Aidan’s birth. In it he states Aidan “is three weeks old at the time this Application is being drafted.” He requested shared custody and pled “At this time the father cannot be with his baby all day during the week because he is working but he can certainly be with the baby during the evenings and all day during the weekends.” At trial he was clear that he wanted equal time right from the start, and it is clear from the evidence that he asserted an entitlement to see the child whenever he wanted when he was free.
[13] About five to six months after Aidan’s birth the mother met Andrew Hircock. He moved in with her shortly afterwards. This has been a stable relationship. They married in the fall of 2012. They have since had a child together, Caleb, born in the spring of 2013. Ms. Poapst was pregnant with their second child, her third, during this trial.
[14] After that first year of access following the above noted pattern, there were a number of changes to the weekly schedule from April to October 2011. Some related to the mother’s return to work. Over-all they progressively expanded the father’s time with Aidan. Despite the father indicating otherwise in his evidence, these increases were not court ordered. As of the last change, on October 23, 2011, Aidan was a year and a half old, and the access was every other weekend from Saturday at 9 a.m. to Sunday at 5:30 p.m. and every Wednesday from 3:30 to 7 p.m. While the father indicates that he always wanted more access – indeed there is no dispute that he pressed for it continuously – he confirmed on January 25, 2012, that it was the “current agreed upon schedule” and it has not changed to date.
[15] Mr. Dostie brought a motion dated June 19, 2012 seeking, among other things, expanded regular access. At the hearing on August 27, 2012, that request was denied. The court ordered that the father’s “interim custody” be in accordance with the “status quo” namely the above schedule.
[16] The parties had previously, in the spring of 2012, agreed on a custody and access assessment by Dr. Arthur Leonoff. When the father changed counsel he indicated he was no longer prepared to proceed. Although there was no formal cross-motion by the mother before the court on August 27, 2012, an order was made on consent for an assessment in keeping with the original agreement.
[17] The expansion of access noted above, being eight adjustments over six months in 2011, did not always go smoothly. For example there was an incident on Aidan’s first access visit in the father’s home, on April 24, 2011, where the mother was expecting to remain for a short period to help Aidan adjust, per a letter sent by her lawyer. It appears the father did not agree, and she was told to leave at the outset which upset her. Later in August of 2011 when Aidan was a year and four months old and the access went to overnights, the mother’s evidence was that it was difficult for Aidan and he took some time to adjust.
[18] The father remained generally unhappy with the amount of his time with Aidan. Again, he was starting from the position that he had a right to equal time, and he therefore believed that anything less was unreasonableness on the part of the mother. In his view that gave him leeway to push for more time, which he did consistently. As a result, there was much conflict. As an example, the mother wanted to have the weekend of November 3, 2012, as it was her family reunion and her grandmother’s 80th birthday celebration. She thought it was important that family see Aidan and she told the father they were coming in “from all over the country”. She wanted Aidan included in what she thought might be a last picture taken with everyone and her grandmother. She asked the father to switch weekends well in advance. He understood how important this was to her. He decided to use this request as leverage to gain more time with Aidan. His initial response included the following:
“… before I give thought to your request to change weekends I want to address the issue of having Aidan Friday overnights on my weekends as well as extending the Wednesdays to 730pm …”
It needs to be noted that the father had just been refused additional access by the court only two months earlier. The parties exchanged further emails, in which the mother pointed out the accommodations she had made for him previously. Lawyers got involved. The father, however, refused to relent, saying “I have already made plans for Aidan up until the New Year” and concluding “Everything stays status quo for now.” Aidan did not attend this event, and the mother’s grandmother passed away three months later.
[19] Most adjustments to the access schedule sought by the mother (Christmas, vacations, other holidays, etc.) seemed to involve some conflict, and for the most part had to go through lawyers. When the father’s many requests for extra time were rebuffed, he would often threaten court, although he did not follow up. Further, conflict found its way into almost every normal activity imaginable. They had disputes about feedings, naps, and the father’s car seat for the child. Mr. Dostie often criticized Ms. Poapst’s care of Aidan, for example her dressing of him, cleanliness, and the length of his hair. Sometimes in these communications he accused the mother of making Aidan suffer. On June 29, 2011, Mr. Dostie sent Ms. Poapst the following text:
You are very abusive with Aidan. No respect at all for him. Yes poor Aidan. He has tartar on teeth already cuz u don’t brush them enough. Plus cuts an bruises. Plus you not teaching him to walk or talk. Under developed. Horrible.
This is not the only “poor Aidan” communication. It needs to be noted that there is no evidence or suggestion from anyone other than the father that Aidan has been in any way neglected by Ms. Poapst. Specifically regarding the above, I make no finding of any dental neglect. Indeed, all the credible evidence supports that the child has been very well cared for by the mother and is developing normally.
[20] A sore spot for the father was that he believed that his request to have Aidan tested for allergies had been vetoed by the mother. He felt this was clear evidence he was not being heard. He relied on a referral letter in the medical file from the family physician to the allergist dated December 30, 3011, which said “please assess re possible allergies. Dad is concerned re possible allergies including dogs.” The father pointed to a subsequent handwritten notation on that same letter dated March 13, 2012 “mom feels not necessary”. However, what he ignored was a subsequent handwritten note on that same referral letter “Thurs July 19/12 @ 4:15 pm”. The mother testified, and this is corroborated by the allergy specialist’s own reporting letter dated July 19, 2012, that she did in fact take Aidan to that appointment as arranged. There was no evidence of a cancellation. Contrary to the father’s strongly held belief, his request for a referral was in fact accommodated by the mother despite her observations that Aidan did not have allergies, a view that the specialist ultimately confirmed.
[21] Dr. Leonoff’s custody and access assessment is dated September 3, 2013. It is thorough, detailed (thirty-eight helpful pages), and very insightful. His background narrative is consistent with the evidence heard in this trial, summarized briefly above. As will be noted below, the parties have agreed to the bulk of the recommendations. Indeed there is already a final order in place regarding changing the child’s name, and as such I have purposively steered clear of that issue other than to note the dispute at the hospital above. I would only add for completeness that Mr. Dostie sought a hyphenated last name in his Application, Ms. Poapst offered to add the Dostie name non-hyphenated in her Answer, Dr. Leonoff recommended the latter, and a court order requiring the Dostie name be added, non-hyphenated, was made on consent earlier this year. The processing of the paperwork had not been completed by the relevant authorities at the time of this trial.
[22] As to the main issue here of custody, Dr. Leonoff in his report noted that the parties have been unable to function as a couple in all respects. Mr. Dostie completely mistrusts Ms. Poapst and is convinced that her motives are nefarious and that she will take every opportunity to marginalize him. He added that Mr. Dostie’s “paranoia is infectious and eventually he manages to foster the precise situation he fears the most”. Ms. Poapst in turn “is prone to anxiety and her stress tolerance can be poor”, meaning that she does not manage and respond well faced with Mr. Dostie’s “reactive and conflict-prone mindset.” Dr. Leonoff indicated that the way the two interact “is a formula for chronic misunderstanding and a vicious cycle.” He wrestled with a resolution framework as follows:
Because there is no history of conflict resolution at any level between the parties, I am concerned that recommending joint custody without any modification or adjustments could ask too much of them as a parenting couple. Although there can be latitude with respect to what qualifies a couple to share legal care and control, there has to be at least a minimum of a ‘live and let live’ mentality to make it work. Unfortunately collaborative joint custody in this case would almost certainly amount to no-custody and the result would be chronic impasse.
On the other hand, sole custody to Ms. Poapst would likely fuel the fire by making Mr. Dostie continue to feel completely disenfranchised and unrepresented. … To be sure, Mr. Dostie needs to be recognized as a legitimate parent to assist Aidan.
[23] To try to resolve the dilemma, Dr. Leonoff made the following recommendations regarding custody:
Mr. Dostie and Ms. Poapst should share legal custody of their son, Aidan, although Ms. Poaspt should have the final say with regard to decisions pertaining to his health, education and general welfare. Her home should be designated primary residence for legal purposes.
Ms. Poapst should consult Mr. Dostie and seek his views before making a final decision regarding Aidan. In the case, however, where there is disagreement about a major or consequential decision in respect of Aidan, Mr. Dostie should have the right to bring the matter before a parent coordinator, mutually selected by the parties and named in the Final Agreement. It would be the first task of the parent coordinator to verify that this was indeed a major or consequential issue worthy of adjudication. The parent coordinator would then receive the views of the parties and make a decision on their behalf that would be binding. Costs would be borne by Mr. Dostie unless the parent coordinator determined otherwise. I would recommend Sally Bleeker, MSW, Nadine Crowley, M.Ed., or Lena Jones, MA.
Alternative dispute resolution such as engaging a parent coordinator requires mutual consent. The parties should be aware that I view the suggestion for joint custody (recommendation one) and dispute resolution (recommendation two) as a package. It represents a system for making decisions and handling major disagreements that I believe will assist the parties in raising Aidan. In this regard, I cannot guarantee that my recommendation for custody would remain the same if the alternative dispute resolution dimension were not accepted.
... (continues verbatim in the same structure and wording as the source decision through paragraph [93], including all analysis, statutory discussion, tables, and final orders)
Mr. Justice Timothy Minnema
Released: December 1, 2014
OTTAWA COURT FILE NO.: FC-10-1258
DATE: 2014/12/01
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Scott Dostie
Applicant
- and -
Sarah Poapst
Respondent
REASONS FOR JUDGMENT
Justice T.P. Minnema
Released: December 1, 2014