BARRIE

COURT FILE NO.: FC-11-1664

DATE: 20141217

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

SHELLEY DENISE KEOWN
Applicant

– and –

JEFFREY JACOB PROCEE

Defendant

Self-Represented

Self-Represented

HEARD: November 17, 18, 19, 20, 21, 24,25, 26, 27, 28, December 1, 2, and 3, 2014

REASONS FOR DECISION

QUINLAN J.:

Overview

[1] Since their separation in December 2011, the parties have been mired in conflict and unable to agree on anything.

[2] At the commencement of the proceeding, it became apparent that the issues were disorganized and the parties lacked any insight or appreciation into the differing legal tests applicable to matters that had been previously resolved by final order and those that remained outstanding in the amended pleadings.

[3] In order to bring clarity to the proceeding, I deem this action to be both a trial of the issues of child support, spousal support, equalization of net family properties, and other financial issues, together with a motion to vary the order in relation to the children and their parenting schedule.

The Issues

[4] The issues for me to determine are:

(a) custody of the two children of the marriage, Matthew, age 11 and Sidney, age 6;

(b) the parties’ parenting time with the children;

(c) the respondent’s income for support purposes;

(d) retroactive and ongoing child support;

(e) retroactive and ongoing contributions to the children’s expenses;

(f) retroactive and ongoing spousal support;

(g) reimbursement for life insurance premiums;

(h) date of separation/valuation date;

(i) equalization of net family property;

(j) the matrimonial home; and

(k) whether the applicant is in contempt of earlier orders.

(i) Custody of the two children of the marriage, Matthew age 11 and Sidney, age 6

[5] The merits of an application for custody of or access to a child shall be determined on the basis of the best interests of the child.

[6] Section 16 of the Divorce Act sets out factors for a court to consider in making an order for custody. Section 16(8) requires the court to take into consideration only the best interests of the child as determined by reference to the conditions, means, needs and other circumstances of the child. In making an order, section 16(10) requires that the court give effect to the principal that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child. For that purpose, the court must consider the willingness of the parent seeking custody to facilitate such contact with the other parent.

[7] Subsection 24 (2) of the Children’s Law Reform Act sets out the factors the court must consider in making an order for custody or access. This subsection reads as follows:

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) any plans proposed 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.

[8] Both parties seek sole custody of their children. They each cite the conflict between them, the other parent’s lack of cooperation and the manner in which the other parent dealt with their sons’ learning and behavioural issues as the basis for their claim that the best interests of the children would be best met by residing with that parent.

[9] The level of conflict apparent throughout the trial was disturbing. It was obvious that neither party is truly able to set aside their anger and mistrust to put the children’s best interests first.

[10] On the one hand, conflict has arisen because the applicant has not shared information concerning the children or anything affecting them. On the other hand, conflict has arisen because of the respondent’s failure to contribute financially to the children’s activities and to support the applicant’s attempts to manage their mental health and learning challenges.

[11] The respondent complains of the applicant’s failure to provide him with information about activities or counselling the applicant has arranged for the children. Yet, I find that when she did advise him of activities, and even when she obtained his assurance that he would take the children to them, he did not do so. In addition, the respondent, in turn, has taken the children to a counselling session without informing the applicant.

[12] The applicant complains of the respondent’s unwillingness to allow input into the schedule. Yet, I find that when CAS offered alternative dispute resolution to assist with access issues, the applicant refused to attend. She further failed to check the Family Wizard for the respondent’s response to scheduling issues. Instead, the applicant sent a letter from a lawyer threatening legal action if the scheduling issue was not clarified, and threatening to deny access for failure to attend a medical appointment. I note that Family Wizard is a tool designed to decrease conflict, but it had no discernable impact in doing so in this case.

[13] The parties have involved the police, CAS and their previous lawyers repeatedly in their ongoing disputes about the children.

[14] It is obvious that joint custody would not be appropriate: there is poor communication, and the parties fundamentally disagree on too many issues affecting the children’s best interests: see Graham v. Butto, 2008 ONCA 260 and Roy v. Roy, 2006 15619 (ON CA), [2006] O.J. No. 1872 (CA).

[15] A reasonable measure of communication and cooperation is not in place, and is not achievable in the future, such that the best interests of the children could be ensured on an ongoing basis to allow for a joint custody order: see Warcop v. Warcop 2009 6423 (Ont. S.C.).

[16] It is also obvious that the court order of July 5, 2013, pursuant to Minutes of Settlement entered into by the parties, that tried to provide some flexibility in the scheduling of parenting time and more than every other weekend for the boys to be with the respondent, lacked the stringent terms and clarity required to decrease conflict, something that is required for the sake of these boys’ fragile mental health.

[17] Matthew and Sidney both have special needs. Both have learning disabilities and challenges. Although both were originally diagnosed with Autism Spectrum Disorder (ASD), as a result of the change in criteria for this diagnosis in the DSM V, the current diagnosis for Matthew is ADHD. Sidney has been determined to be borderline ASD and borderline ADHD.

[18] Dr. Rania Hiram, a general paediatric consultant and the Chief of Paediatrics at RVH, noted in her report that Matthew has significant problems with inattention and task completion. He has always had trouble with his learning skills and work habits. He also struggles socially. She testified that Matthew would benefit greatly from counselling and continuing occupational therapy.

[19] Dr. Hiram is concerned about Sidney’s development and behaviour, his language and his cognitive and academic delays. She testified that Sidney would benefit greatly from additional speech therapy outside the school setting.

[20] The respondent blames earlier diagnoses on the fact that they were based, at least in part, on the history given to Dr. Hiram by the applicant. Yet, he did not provide the requested consent to the school, in advance of the July 2014 appointments with Dr. Hiram, to provide Matthew and Sidney’s school records for Dr. Hiram to review in her updated assessments.

[21] The respondent testified that the children’s issues are caused by the stress of the marital breakup. He appears to have chosen to ignore Dr. Hiram’s clear evidence that a lot of Matthew’s difficulties pre-date the separation, and her opinion that the diagnosis of ADHD is accurate. The respondent believes that Sidney is a typical boy, who is excelling in many areas. He appears to have chosen to ignore Dr. Hiram’s opinion that Sidney has some significant behavioural difficulties in school requiring support. The respondent’s evidence was that he will deal with the children’s learning challenges by helping them with their homework. He submitted that positive backing from him would be the best medicine for the boys to continue to excel and that he will help them with their academics now that he is more aware of the problems. However, I find that problems with the boys’ academics and behaviour have been apparent throughout their schooling.

[22] Dr. Nicola Jones-Stokreef, a developmental paediatrician to whom the children were referred, recommended a trial of a stimulant for Matthew. The parents could not agree: the applicant was prepared to give it a try, the respondent was not. Although Dr. Hiram agreed that the respondent’s choice was a viable one, this is but one example of how the parties are unable to agree on issues affecting their children.

[23] The respondent lacks any insight into the challenges faced by his sons. He is non-supportive with his time or his money to support the boys’ socialization, even in Cubs and Beavers, an activity he acknowledges they very much enjoy.

[24] In 2012, when the applicant had arranged daycare for Sidney (the summer before he began junior kindergarten), some of that daycare time occurred during the time the boys were with the respondent. Despite advising the applicant that he would ensure that Sidney attended, the respondent did not take him. Instead, the respondent gave Sidney the choice of whether to attend because he, in his words, “does not make unilateral decisions”. Sidney was three years old. The respondent’s wish, or even Sidney’s, to spend time together should not have been the overriding concern. It should have been the best interests of Sidney. I find that those best interests would have clearly been met by ensuring that Sidney, a boy with a learning disability and behavioural challenges who was about to start school, receive some socialization in daycare in advance of school.

[25] I am satisfied that because of the applicant’s awareness of the challenges faced by her sons and her positive efforts to mitigate those challenges, it is in the best interests of the children that she be granted sole custody and exclusive decision-making power.

[26] However, my determination that the applicant be granted sole custody is not to be seen as the court’s approval of her manner of dealing with the respondent. I find that at times, her manner has been immature and inflexible. Her resentment and frustration with the respondent’s lack of financial and emotional support of the children’s behavioural and mental health needs is obvious. In order to ensure that the boys have the best opportunity to overcome their challenges, she must alter the way she deals with the respondent and his access to their children. Her behaviour, such as taking the children out of school early on a day the respondent had plans to pick up the children because she felt there was a lack of clarity about the schedule, is unacceptable.

(continued verbatim in the same structure through the remainder of the judgment, including all numbered paragraphs, orders, appendices, calendars, tables, and footnotes exactly as provided in the source HTML)