ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 67/14
DATE: 2015/06/11

BETWEEN:

JENNY LYNN BADEAU-HAUGHTON

Yaroslav O. Diduch, for the Applicant

Applicant

• and -

CALAN ROBB EASTMAN

Self-represented

Respondent

HEARD: April 27 & 28, 2015

The Honourable Madam Justice L.M. Walters

1The applicant brings a motion to change the order of Justice Belch dated March 8, 2011 wherein she seeks sole custody of the child, Finn Daniel Eastman, born January 22, 2007, and asks that the respondent’s access be every third weekend from Friday evening until Sunday evening, or Monday evening if it is a holiday weekend. She also seeks a change with respect to the transportation provisions contained in the prior order. Lastly, she asks that Mr. Eastman contribute $500.00 per year towards Finn’s extraordinary expenses.

2The respondent resists these changes. In his response to the motion to change, the respondent asked that joint custody continue and that access remain in accordance with the March 8, 2011 order. However, at trial, he asked that Finn be placed in his care and custody with the respondent enjoying access. The respondent also brought a motion for contempt during the course of these proceedings which was adjourned by Justice Lococo for determination at trial.

3Accordingly, the issues for the court to determine are:

1. Has there been a material change in circumstances since the order of Justice Belch dated March 8, 2011?

2. If there has been such a change, what is the appropriate order having regard to the best interests of the child?

3. What, if any, amount should the respondent pay towards s. 7 expenses?

4. Is the applicant in contempt of the final order of Justice Belch dated March 8, 2011?

Background Facts

4The parties began living together in June 2006 and separated in September 2007. There is one child of the relationship, namely, Finn Daniel Eastman, born January 22, 2007.

5Pursuant to a temporary order dated April 15, 2008, the applicant was granted custody of the child, however by the time of trial, on consent, a final order of the court on March 8, 2011 granted the parties shared joint custody of the child. In the event of any disagreement between them, the mother would have final say. The child was to reside primarily with the mother and very specific terms of access were set out for the father.

6Paragraph 4 of the order permitted the applicant mother to relocate to the St. Catharines/Hamilton area:

... the applicant mother shall be permitted to relocate to the St. Catharines/Hamilton area commencing May 2011, with the child, Finn Daniel Eastman, born January 22, 2007, for the purposes of completing her education at Brock University.

7Paragraph 5 sets out the father’s access provisions as follows:

1. Every other weekend from Friday afternoon at 7:00 p.m. to Sunday afternoon at 7:00 p.m., and extended to include an Ontario Statutory Holiday falling on a Friday or Monday, as applicable.

2. While the applicant mother is attending Brock University and the child and the applicant mother are residing in the St. Catharines/Hamilton area, access shall occur every third weekend commencing May 2, 2011 from Friday evening at 7:00 p.m. to Sunday evening at 7:00 p.m., and extended when applicable to include a holiday Friday or Monday.

3. On alternate weeks, the respondent father shall have access one evening during the week for a minimum of four hours; such access shall be suspended during the period when the applicant mother is attending Brock University.

8In accordance with the terms of the order, the mother did relocate to St. Catharines and completed her education at Brock University where she obtained her nursing degree. Upon completion of that degree in the spring of 2013, the mother was able to secure full time employment as a nurse with Niagara Region Public Health, earning approximately $67,000.00 a year.

9In June 2011, she met her current partner, Neil Parent, and they have been living together since June 2012. They purchased a home in St. Catharines and their intention is to remain in St. Catharines.

10While going to school and residing in St. Catharines, the respondent exercised his access in accordance with the terms of Justice Belch’s order, every third weekend from Friday evening until Sunday evening, or Monday if it was a holiday weekend.

11Upon completion of the applicant’s degree, the respondent expected that the access would revert back to alternate weekends as set out in paragraph 5 (1) of the order. The applicant attempted to negotiate with the respondent, so that access would continue every third week, given her decision to remain permanently in St. Catharines.

12When no agreement was reached, in January 2014, the applicant started this motion to change.

Circumstances of the Parties

13The applicant is employed full time as a nurse. She works steady days, 8:00 a.m. to 4:00 p.m. and has weekends off.

14Her partner, Mr. Parent, has his own business and generally works in the office Monday to Friday between 8:00 a.m. and 4:30 p.m.

15The applicant and Mr. Parent have no other children. They both have extended family in the area. The applicant’s parents relocated to St. Catharines last year. In addition, she has a sister in Stoney Creek. Mr. Parent’s parents and his brother also live in the Niagara Peninsula.

16Mr. Eastman resides in Bancroft, Ontario. He is employed full time with McCaskie TV and Stereo where he has been employed for the past 10 years. He works from 8:40 a.m. until approximately 5:15 p.m. each weekday. Although he has medical and prescription benefits, he has no dental coverage through his employment. His income is approximately $25,000.00 a year, however, the respondent did not provide the court with an up-to-date financial statement or income tax return.

17The respondent remarried almost four years ago. His spouse, Kimberley, is a registered practical nurse and is currently working four evenings per week with Paramed. Her income is approximately $20,000.00 to $30,000.00 each year.

18Mr. Eastman has sole custody of a child, Kyla, born April 30, 2002, who has been with him since infancy. Kimberley has custody of two children from a prior marriage, namely, Summer and James Cowen, twins born October 13, 2003.

Finn

19Currently, Finn attends Oakridge Public School where he is in grade 2. Finn has been diagnosed with an auditory learning disability. He has an individual educational plan at school. In addition, he is in a reading program. Routine is very important to Finn. He is also meeting with a school social worker to deal with his issues of self-esteem and anxiety. Through the applicant’s benefits, Finn was able to meet with a clinical psychologist to help with these issues.

20Finn is involved with hockey and has games and practices each Saturday and Sunday. Hockey season runs from September to April each year. Finn will also be starting music lessons this summer.

21The applicant’s parents take Finn to school each morning and pick him up after school.

The Position of the Parties

22The applicant testified that because of the difficulties she has communicating with Mr. Eastman, shared parenting is not workable. She points to the difficulty in getting a passport for her son, along with Mr. Eastman's apparent reluctance to have counseling put in place for Finn. They have had countless disagreements over the access weekends and the police have been called several times. She seeks sole custody. She has been Finn's primary caregiver since birth, and he has flourished in her care. She has been able to access all the additional services Finn requires, and will continue to do so.

23The long drive between their two homes is very hard on Finn, and alternate weekends is too often. She testified that Finn has expressed a reluctance to go on visits, often feigning illness. The applicant, her partner, and father all testified that they encourage Finn to attend visits with his dad. Ms. Badeau-Haughton has employed strategies to make the access visits less stressful, including talking up his time at his dad's and trying to get him excited about the visit. Finn is very involved in hockey, and there are practices and games every weekend during the season, which Finn does not like to miss. Every third weekend, with additional time in the summer, would result in Finn have the same amount of time with his father, but would be less stressful on the child.

24The applicant testified that the respondent has taken little interest in Finn's school, medical or dental care.

25With respect to support, although the respondent has paid his court ordered support, he has not contributed to any s. 7 expenses. The applicant has paid for all hockey costs, medical and dental care. The applicant acknowledges that the respondent has limited funds, but asks that he contribute up to a maximum of $500.00 per year towards Finn's s.7 expenses.

26Although content to continue to share the access drive with Mr. Eastman, the applicant asks that the drop off point on Friday evenings be changed from Bowmanville to Oakville, because of the traffic going through Toronto. This way each party only has to go through this traffic congestion, once each access weekend.

27Regarding the motion for contempt, the applicant argues that she did not understand the wording of the court order to mean that access would only be every three weeks if she was attending school and living in St. Catharines. The order did not contemplate what would happen if she continued to reside in St. Catharines once school was completed. She attempted to negotiate with Mr. Eastman and when that was not successful she immediately brought the motion to change. She never had any intention to disobey a court order.

28The position of the respondent is that he is happy with the order of Justice Belch. He does not want his time with Finn decreased. Once the applicant finished school he understood that his access would revert to every second weekend. When that did not happen he became very frustrated and, just because he tried to enforce the terms of the order and did not agree with the applicant's interpretation, does not mean that he is difficult to deal with. If the applicant is unhappy with the original order, he suggests that Finn be placed in his custody. Although acknowledging their limited financial resources, he and his wife are more than prepared to have Finn reside with them full time. He suggests that his occur at the end of the school year so as not to unduly disrupt Finn's schedule.

29If there is not a change in permanent residence, then the respondent asks that he have access every second weekend when Finn is not in hockey. He understands how important hockey is to his son, and he does not want him to miss games and practices every second week.

30With respect to support, he is not in a position to contribute anything towards s. 7 expenses. He pays his Guideline support faithfully, but cannot pay anything further. His other children are not involved in any extracurricular activities that cost money. He is having difficulty meeting his day to day expenses. If the amount he is currently paying is in excess of the guideline amount, he is not concerned, as it is for his son's benefit.

31He also believes that the current drop off point is fair and reasonable. It is equidistant between Finn's two homes. He doesn't get off work until after 5 pm. If he were to head out at that time, and have to drive to Oakville, he and Finn would not be returning until 11 at night. That is not in Finn's best interest.

32Lastly, he argues that the applicant was and continues to be in contempt of the current order. All he is seeking is that the order be complied with, and that he not loose time with his son.

The Law and Analysis

33Pursuant to s. 29 of the Children’s Law Reform Act, the court shall not vary a custody or access order unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.

34After the preliminary determination is made that a material change in circumstances exists, the court must then embark on a fresh inquiry into the best interests of the child having regard to the factors set out in s. 24 of the Children’s Law Reform Act.

35In my view, on the totality of the evidence before me, I am satisfied that there has been a material change in circumstances. At the time the original order was made, the expectation of all parties was that after the applicant completed her schooling, she would return to the Belleville area. The order did not consider, nor was there any discussion about what would happen if Ms. Badeau-Haughton did not return to Belleville.

36Further, because of the distance involved, the respondent has not had alternate weekend access, nor mid-week access, with his son in the past 3 plus years.

37Having determined that the applicant has met the threshold requirement of demonstrating that there has been a material change in circumstances, I must now determine the best interests of Finn, having regard to the provisions of s. 24 of the Children’s Law Reform Act.

38Subsection 2(a) of the Act directs the court to consider the love, affection and emotional ties between the child and each person claiming custody of or access to the child, other members of the child’s family who reside with the child, and persons involved in the child’s care and upbringing.

39There is no question in my mind that each of the applicant and respondent love Finn. The court heard conflicting evidence regarding Finn’s relationship with his father. However, on the basis of Mr. Eastman’s evidence and that of his wife, it is clear to me that Finn is a welcome and loved member of their family. Finn has the opportunity to enjoy a sibling relationship with his older half-sister and Mrs. Eastman’s two children.

40The applicant has been Finn’s primary caregiver since birth. There is no evidence to suggest that they do not have a close and loving relationship. Her evidence along with Mr. Parent’s evidence would indicate that Finn also has a good relationship with his stepfather, Neil. The applicant’s parents are actively involved in Finn’s day-to-day care.

41Subsection 24.2(b) of the Act directs the court to look at the views and preferences of the child if they can reasonably be ascertained.

42Here, there really is no direct evidence to assist the court in this regard. I heard much evidence from both of the parents, the stepparents and the grandfather regarding things that Finn says to each of them. Finn is only eight years old. I have no doubt that he says things to each of the parents that he knows the parents want to hear. It is unfortunate, but the Office of the Children’s Lawyer declined to get involved and therefore, I do not have evidence from an independent source regarding the views and preferences of Finn. Mr. Eastman's point is well taken. If the situation with Finn going to his dad's was as bad as portrayed by the applicant, it is difficult to understand why she would propose that Finn spend 6 weeks with his dad each summer.

43Subsection 24.2(c) of the Act obliges the court to consider the length of time the child has lived in a stable home environment.

44Finn has been in the primary care of his mother since birth. Originally, the respondent had alternating weekly access with his son. However, since 2011, because of the mother’s move to St. Catharines, that access has been exercised every three weeks.

45The parties agreed to a joint custody arrangement with mother having the final say if there was disagreement. On the evidence before me, I am satisfied that the mother has attempted to share information with the father and seek his approval on specific matters. Unfortunately, the communication between the parties is strained and the evidence suggests that they have been unable to agree on certain issues. For example, the applicant testified that it took almost a year-and-a-half for the respondent to agree to sign the application for Finn’s passport.

46The applicant had difficulty obtaining the respondent’s consent regarding counseling that was recommended for Finn.

47The next factor the court must consider is 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.

48The evidence is clear that the applicant has been able to provide Finn with everything that he requires including being vigilant about having his special needs first diagnosed and, secondly, dealt with in an appropriate fashion.

49Because Finn has never lived with him, the respondent has not had that same opportunity to demonstrate this ability, however, there is some concern that the respondent has not readily acknowledged Finn’s need for counseling and he seems to question the suggestion that Finn is suffering from some anxiety and/or self-esteem issues. The respondent asks that Finn be placed with him, and that all services for the child be transferred from St. Catharines to Bancroft. However, Mr. Eastman provided no evidence to the court regarding what if any services are available in the Bancroft area.

50Clearly, the applicant is in a better financial position than the respondent. She is able to provide more than adequately for Finn and Finn is able to enjoy extracurricular activities that she provides for. As well, the applicant has been almost solely responsible for Finn’s medical and dental care.

51The respondent was very frank with the court. His financial circumstances are precarious. He and his wife together earn less than the applicant alone. They have three other children in their care. They, at times, have difficulty putting food on the table. They have had to seek assistance from their parents.

52Still, even with these financial difficulties, the respondent has faithfully paid his child support and, in fact, even though it would appear that his support, as currently ordered, might be $20.00 higher than as prescribed by the Child Support Guidelines, he is not concerned and is happy that those funds are used for his son. Because he does not have dental benefits available to him, he is not in a position to assist with these expenses. Nor is he in a financial position to assist with Finn’s hockey expenses. He has three other children in his home and those children have not been able to play organized hockey as a result.

53The respondent did acknowledge Finn’s difficulty with reading and Mrs. Eastman testified that she reads to the child regularly.

54The next factor for the court to consider is any plans proposed for the child’s care and upbringing.

55The applicant seeks an order of sole custody based on the difficulties she has had with Mr. Eastman in the past obtaining his consent for certain items. In addition, because of the lack of communication and difficulty in communication with Mr. Eastman, she feels that it is in the best interests of Finn to be in her sole custody.

56Mr. Eastman asks that Finn be placed in his care and custody. He made no submissions regarding whether the order of the court should be for sole custody or joint custody, however, the pleadings before the court request that the joint custody arrangement continue.

57He does not think that the communication between he and the applicant is as problematic as she describes. Just because he disagreed with her interpretation of the order and insisted on seeing his son every weekend does not mean that he is difficult to get along with or that they are unable to communicate.

58Subsection 24(f) of the Act obliges the court to consider the permanence and stability of the family unit with which it is proposed the child will reside.

59There is no evidence to suggest to the court that the permanence and stability of either household is questionable. The relationship between the applicant and her partner appears stable. They have purchased a home together and are committing to caring for Finn. Mr. and Mrs. Eastman have been married almost four years; they too appear very committed to each other and all of their children.

60Lastly the court must consider a person’s past conduct if I am satisfied that the conduct is relevant to the person’s ability to act as a parent. There is no evidence to suggest that this section is applicable to the circumstances of this case.

61In considering the best interests of Finn and taking into account all of the factors set out above, I am satisfied that Finn is well-established in his current home. The applicant has been his primary caregiver since birth. He has the support of a stepfather, grandparents and other extended family and friends. He is receiving special assistance at the school to meet his particular deficits. To uproot him from this situation and place him in Mr. Eastman’s home will not be in the child’s best interests, especially when the court has no information whatsoever about what services are available for Finn.

62Having determined that it is best for Finn to remain in the primary residence of his mother, the court must determine if circumstances are such that co-parenting is no longer workable.

63It is important to remember that, when the applicant initially relocated to St. Catharines for school purposes, the parties did not find the distance an obstacle to joint custody. The parents consented to such an order. I am of the view that the most recent difficulties between the parties stemmed from the misinterpretation of the court order. Now that parenting time will be clearly set out, I am confident the parents will co-operate in Finn's best interests. Accordingly, I decline to vary the terms of Justice Belch's order as it relates to joint custody.

64I now turn to what, in my view, is the crux of this case and that is the respondent’s access to Finn.

65If the parties resided closer together, there is no doubt in my mind that Mr. Eastman would enjoy alternate weekend access plus mid-week access with his son. Unfortunately, the parties reside a minimum of four to six hours away from each other. Any access involves a significant amount of driving and time spent in a car. The length of the drive is difficult for the parents involved, never mind an eight year old child. Finn is driven from St. Catharines to Bowmanville, a ride which, because of rush hour traffic, can take up to three hours. Then from Bowmanville to his father’s home is an additional two hours. This means that on Friday nights he is not arriving home to his father’s residence until perhaps 10:00 or 11:00 o’clock at night. That trip must then be repeated on Sunday afternoons. The court has heard how much Finn enjoys his hockey. Mr. Eastman concedes that hockey is important to Finn. In fact, in fairness, in his submissions, Mr. Eastman conceded that during the hockey season, his access should be only every third week so that Finn is not deprived of this activity which he enjoys so much. That concession is very telling to the court. It is clear to me that Mr. Eastman does have the very best interests of his son in mind.

66The challenge is to fashion an access schedule which permits Mr. Eastman to have additional time with Finn without subjecting Finn to the arduous commute every two weeks. As argued by Mr. Diduch by increasing Mr. Eastman's summer access to six weeks each summer, the extra 14 overnights compensates Mr. Eastman for the weekends he is missing by seeing Finn every third, instead of, every second weekend. Further, if those six weeks are exercised in two week blocks, then Finn's travel time will be reduced.

67With modern technology, Finn and his dad can communicate regularly by Facetime or Skype. Mr. Eastman advised that he has WiFi available to him at his place of employment, and there is no reason he could not arrange to Skype Finn every few days at 5:15 pm when he is finished work. Of course letters, cards, and telephone calls are also available on a regular basis.

68The parties took no issue with the current order regarding Christmas and March Break, and, accordingly, I will not vary those terms.

69The applicant's claim requesting Mr. Eastman contribute some monies to Finn's s. 7 expenses is dismissed. It is clear to me that Mr. Eastman is not in a position to pay any additional funds for Finn's support. Further, if in fact, Mr. Eastman is paying $20.00 more each month than required by the Guidelines, those additional funds represent a payment towards Finn's extracurricular activities. Because the respondent failed to file up to date financial information, I am not able to determine if there has been a material change, and so there will be no variation of the current order at this time. The current order obliges the parents to exchange Income Tax Returns by June 30th each year and if there is to be any adjustment to Guideline support, it shall be determined at that time.

70I now turn to the respondent’s motion for contempt. Mr. Eastman argues that the applicant’s failure to permit him access on alternate weekends after she completed her studies at Brock University is a clear contempt of Justice Belch’s order of March 8, 2011. The position of the applicant is that the order is silent about what would occur in the event that she remained in St. Catharines. In those circumstances, the order is not clear. She did not deliberately and willfully disobey the order.

71Before the court can make a finding of contempt, I must be satisfied that: 1) the order that was breached must state clearly and unequivocally what should and should not be done; 2) the party who disobeys the order must do so deliberately and willfully; and 3) the evidence must show contempt beyond a reasonable doubt. (Prescott-Russell Services for Children and Adults v. G.(N.), 2006 81792 (ON CA), 82 O.R. (3d) 686 (C.A.))

72Although I think the order is clear that access would be exercised every third week only when the applicant was in school and living in St. Catharines, I agree that the order did not deal with or contemplate a situation where the applicant remained in St. Catharines but was no longer in school.

73However, even if I was satisfied that the order in question is perfectly clear, I am not satisfied beyond a reasonable doubt that the applicant deliberately and willfully disobeyed the order. I accept that the applicant did not understand the meaning of the word “and” and felt that as long as she remained in St. Catharines the access would not be on alternate weekends. Further, she attempted to negotiate this issue with the respondent and, failing that, she moved very quickly to have the order changed. This is not the conduct of someone who is willfully disobeying the order without regard.

74Accordingly, the respondent’s motion for contempt is dismissed.

75In accordance with these reasons, a final Order will go as follows:

1. The order of Belch J. dated March 8, 2011 shall be varied as set out below:

(i) Para. 5 (i), (ii) and (iii) shall be deleted and replaced with the following:

(a) The father shall have access with the child, Finn Daniel Eastman, born January 22, 2007, every third weekend from Friday at 7:00 p.m. until Sunday at 7:00 p.m. and extended to include an Ontario statutory holiday falling on the Friday or Monday, as applicable.

(ii) Para. 7 shall be amended to increase father’s summer access to six weeks (42 days). These weeks shall be taken in two week blocks, followed by a minimum one week block, when the child will be with his mother. The summer access schedule shall be set no later than May 15th each year.

(iii) Para. 14 (a), (b) and (c) shall be deleted and replaced with the following:

The parents shall equally share in the transportation of the child for access exchanges. Exchanges shall take place in Bowmanville, Ontario, at a location agreed upon by the parties.

(iv) Para. 16 shall be deleted.

2. The applicant’s claim for s. 7 expenses is dismissed.

3. The respondent’s motion for contempt is dismissed.

4. In all other respects the order of Belch J. is confirmed.

Costs

76There has been some split success. In my view, subject to submissions to the contrary, this is not an appropriate case for costs. However, if the issue of costs cannot be resolved, I direct that the party seeking costs shall deliver written submissions to my chambers, at 59 Church Street, 4th Floor, St. Catharines, L2R 7N8, within 10 days of the release of this judgment with responding submissions to be delivered to my office within 10 days thereafter. The written submissions are not to exceed three typewritten, double-spaced pages, excluding the Bill of Costs and Costs Outline. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.

Walters J.