CITATION: H. v. S., 2015 ONSC 3797

COURT FILE NO.: F1856/08

DATE: 2015/06/15

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

D.R.H.

Reagan Humphrey, for the applicant

Applicant

• and -

M.E.D.S.

Carol A. Murphy, for the respondent

Respondent

HEARD: March 4, 9, 10, and 11, 2015

Aston J.:

Introduction

[1] This is a motion to change custody and access orders made January 13, 2009 and October 26, 2010.

[2] The original custody order of January 13, 2009 (tab 5 of the trial record) reflected minutes of settlement at a time when B. was just three years of age. It was premised upon the circumstances in 2008 which had culminated in Mr. D.H. removing B. from her mother’s care because of legitimate concerns over abuse of alcohol and street drugs by Ms. M.S.. Those problems are a thing of the past. For four or five years now, Ms. M.S. has turned her life around; going on a methadone program, returning to school and subsequently finding gainful employment very shortly after graduation. To his credit, Mr. D.H. does not seriously question Ms. M.S.’s ability to look after B. these days.

[3] The order of October 2010 was made in the absence of the mother. She did not think she had to attend court that day because they had settled their custody and access issues at mediation, on the terms reflected in Schedule A attached to her motion to change form. She was not particularly concerned that The Order failed to reflect the mediation agreement, because Mr. D.H. was already following that agreement. Mr. D.H. acknowledges that the parents followed this agreement, with occasional exceptions, for approximately four years, right up until his decision to move to the country in the Spring of 2014. When asked on cross-examination if Schedule A to the mother’s change information form correctly reflected the terms of their mediation agreement, Mr. D.H. admitted that “number 9 [rotating family holidays] is the only one not followed”. All the others were followed, with occasional exceptions, from 2010 until he moved in 2014.

[4] As a result, I find that the order of 2010 was meaningless from the day it was granted in the sense that the parents never followed it before or after it was made. I am also satisfied that there have been material changes in circumstances since each of the orders.

[5] It is clear from the evidence that both parents are very capable of attending to all B.'s needs. B. would thrive in the day-to-day care of either of them. The main issue at trial is how to divide B.'s time between the parents during the school year. The parents agree in principle that B.'s time should be divided more or less evenly between them, but they now live a significant distance away from one another and B.'s school will be different depending on which parent has her care during the school week. There are ancillary issues respecting the transportation arrangements and extra-curricular activities.

[6] B. is nine years of age. By all accounts, she is a healthy, bright, outgoing, kind-hearted, active and well-adjusted child. She excels in school. She has a sense of humour that delights the rest of her family. She has been actively involved in many activities in the past, including karate, dance, gymnastics, drama camp, swimming lessons, skating lessons and the like. She is very socially engaged with her peers. I find that after some period of adjustment last Fall, she has adapted well to her new school and her new home in the country. I would also expect that a move back to the familiar Berkshire neighbourhood in London and to Kensal Park public school, as proposed by the mother, would also be an easy adaptation for B..

[7] Both parents agree that B. should be enrolled in a French immersion public school. From the father’s present home, she takes a 25 minute bus ride to and from school in Strathroy. From her mother’s home it would be about a 12 minute walk or a few short minutes in a car.

[8] The father moved to a rural home just outside of Glencoe in May of 2014. Before that B. had been in her mother’s care from Thursday after school until Sunday evening each week during the school year. Since the father’s move, the only change in that schedule has been that the father’s partner, T.K., brings B. to the mother’s home from school in Strathroy on Thursday afternoons and the father then picks B. up around 8 p.m. that evening so that B. can re-attend school in Strathroy on Friday, after which she is again returned to her mother for the weekend.

[9] Mr. D.H. hedged with counsel on cross-examination about whether he actually purchased the country property before or after April 8, 2014 when he sent a text to Ms. M.S. promising that “everything would stay almost exactly the same in respect to the amount of time she spends with each of us…if we do move out of town”. Whether or not Mr. D.H. had actually signed the agreement of purchase and sale, it is clear that by April 8th there was no more “if” about his planned move. Though Mr. D.H. tried to describe it as a “consultation” with Ms. M.S. when he decided to move to the country in the Spring of 2014, it is absolutely clear from the evidence that there was no real consultation. He made a decision about what was in his best interest and told Ms. M.S. about it after it was a fait accompli.

[10] He tried to shade the truth with her, as he did with the court, on details. He told her it was a 15 minute drive away from London, but in fact it is double or triple that. He told her, and confirmed by text, that “nothing will change” and “you will get to see her just as much” when he knew that this could not be the case. There is no question on the evidence that Ms. M.S. was devastated by his decision, never acquiesced in it, and immediately started this application to address the changes that would have to be made because of his unilateral alteration of their long-standing custodial arrangement.

[11] Mr. D.H. submits that Ms. M.S. has only “lost” about one-and-a-half hours a week as a result of his move to the Glencoe area. By his reckoning, the time B. is sleeping or at school does not really count. From his stated perspective he has only “gained” extra sleep time and school time. So, in his view, the arrangement that was in place before he moved to the country has not been significantly altered. For reasons that follow, I do not accept that position.

[12] The parties each did chart calculations of how much time they have had B. in their respective care, both before and after the father’s move to the country. It is not necessary for me to parse their calculations or determine which is more accurate because the issue to be decided is the future best interests of this nine-year-old girl. It is time to look forward, not backward.

[13] The mother does not have a driver’s licence. Though she has assistance in transportation responsibilities from her own mother and other family members, it is difficult for her to be responsible for transportation between the city and the country. The distance between the mother’s home and the father’s is at least 35 minutes and perhaps closer to 40.

[14] I also find as a fact that there were significant “extra” times that B. spent with her mother or the mother’s extended family members before the father’s move to the country in the Spring of 2014. These “ad hoc” occasions are no longer practicably possible because of the distance involved.

[15] Another significant consequence of the father’s move is that B. is no longer with her mother at bedtime on Thursdays or before school on Fridays. B. also spends an extended time getting to and from school in Strathroy and she has significant commuting time between Strathroy or Glencoe to London and then back to Glencoe at least four to six times a week to travel between her parents or to attend even one extra-curricular activity a week in London.

[16] The problem of the distance between the parents’ home, the frequency and duration of time the child spends in transit and the disruption of school nights is at the heart of this dispute. The fact that both parents work weekends is a complicating factor.

The principle witnesses

[17] M.S. is a 28-year-old hairdresser. B. is her only child. Ms. M.S. is part of a large and extremely close knit family. Both she and B. enjoy close connections to B.'s maternal grandmother, L.S., her uncle J., her aunt B., their respective children, M. and R.1., paternal grandfather P., as well as L.S.’s spouse, R.2., and P.’s wife, C.. With the exception of R.2. and the children, each of these individuals testified at trial and corroborated the close-knit family relationship that includes frequent and regular contact with one another, family game nights, family vacations, family dinners and the like. Mr. D.H. agrees that B.'s time at the trailer/camp of the mother’s family on weekends between May and October is a valuable experience for B. which, to his credit, he encourages.

[18] Ms. M.S. quite obviously enjoys a very engaged relationship with B.. It was quite evident from her testimony that she is in touch with B.'s feelings and needs. She named and described B.'s neighbourhood friends and in some detail the activities and relationships that B. enjoys with her peers. Ms. M.S. emphasizes the importance to B. of the ties to her side of B.'s family.

[19] Ms. M.S. has been in a relationship with N.H. since last summer. He has also has become part of B.'s life. Mr. N.H. has worked in the LCBO warehouse in London for five years. He described how he gets along well with B., giving examples such as her casually throwing a leg over his when they watch TV together. She talks to him about her worries and her feelings, for example her recent decision to stop going to swimming lessons. He has begun to teach B. to play the guitar. If the relationship between Ms. M.S. and Mr. N.H. continues, there is a probability that they will live together. If that happens they have made the commitment to live in the same neighbourhood and school zone as the maternal grandmother, where Ms. M.S. presently resides.

[20] Ms. M.S.’s customary hours of employment as a hairdresser are Fridays 10am to 8pm, Saturdays 9am to 6pm, Sundays 10am to 5pm and Mondays 12pm until 8pm. She is off work Tuesdays, Wednesdays, and Thursdays. It is very difficult for her to gain exceptions to these hours because of the nature of her work. She testified that only the owner of the salon where she works is able to have weekends off on any kind of regular basis. She testified that this is the case at other hair salons. I accept her evidence in that regard. I find that the necessity of the mother working weekends, including Friday evenings, is beyond her control. If B. were in her mother’s care during the school week, Ms. M.S. would be able to get her to school every day and pick her up after school on Tuesday, Wednesday and Thursday. The only assistance required would be for her mother, L.S. (or someone else) to pick B. up after school on Mondays and Fridays and look after her until Ms. M.S. gets home from work, later in the evening.

[21] The maternal grandmother, L.S., has been an integral part of B.'s life since birth, often as a caregiver when the parents have been unavailable and frequently in transporting B. to and from activities and picking her up from school. I was very impressed with L.S.’s contribution and commitment when it comes to B.. She has had a very responsible job with a subsidiary of London Life for many years working Mondays to Fridays but with flexible hours that allow her to be off work by 3:30 pm or 4:00 pm, when necessary, to pick up B. or to be available for B. being dropped off if the mother is tied up at work at the appointed time.

[22] L.S. has lived in the same mortgage-free home for 16 years and has accumulated $17,000 in an RESP for B.. She is also able to name B.'s neighbourhood friends and to confirm the evidence about play dates and sleepovers and other activities. From her perspective, the arrangement that started in 2010 whereby B. was in the home of M.S and L.S. from Thursday to Sunday was a routine that was working well for B.. L.S. confirmed that she would be available to pick up or drop off B. after school on Fridays whenever needed or for that matter, any other weekday.

[23] When L.S. was asked why she thought B. should be primarily in the care of her daughter M.S, L.S. did not answer from the perspective of her daughter’s interests but instead responded by describing how it would benefit B.. L.S. is not just a partisan for her daughter M.S but is able to focus on B.'s best interests. Similarly, I am persuaded that M.S’s sister, B. and her brother J., are able to articulate how their sister’s proposal for B. is in the best interests of their niece, not just their sister.

[24] The father, D.H. is a 32-year-old Fanshawe College graduate with training in automotive, truck and coach technology. He has been employed as a truck technician for approximately 12 years and with his current employer for the last five.

[25] On his examination-in-chief, Mr. D.H. conceded when asked about use of drugs and his criminal record that he “might have” smoked marijuana in high school and that he had a youth court record of driving while intoxicated at the age of 16 and assault at the age of 17. However, he was not entirely forthright in those admissions, as indicated in the attachment to the report of the Office of the Children’s Lawyer. None of this is germane to his present parenting capacity, but it does reflect on his credibility.

[26] Throughout his evidence, Mr. D.H. was determined to cast himself in the best possible light without necessarily telling a lie. For example, in response to Ms. M.S.’s evidence that Mr. D.H.’s infidelity with his present partner, T.K., was the reason they separated in 2008, Mr. D.H. admitted that he had developed a close relationship with T.K., regularly meeting her to drive her to work, but insisted that he “never cheated on” Ms. M.S. before Ms. M.S. left their home. He admitted that he was discovered having a sexual encounter with another woman in a bathroom at a party when he and M.S. were still together, but tried to minimize the episode by drawing the distinction that the sex was not sexual intercourse. Mr. D.H.’s criminal and drug history and his infidelity are ancient history and have nothing whatsoever to do with his present parenting capacity, but his evidence is shaded in a way that leads me to conclude he is not altogether candid and forthright. It is rather astounding that the court only learned from a third-party invited to their wedding that Mr. D.H. and his partner are planning to get married this coming September. Both Mr. D.H. and T.K. had testified before this witness and failed to mention their wedding plan.

[27] Mr. D.H. also works weekends. Ms. M.S. testified that this was not always the case but came about voluntarily on his part. He did not refute her evidence on that point. Mr. D.H. testified that he works from Thursday to Sunday and has had that work schedule for the last five years with Monday, Tuesday and Wednesday off. He was not asked on examination in-chief what steps, if any, he has taken to try to have his work schedule changed so that he could be available on weekends for B., knowing that Ms. M.S. works weekends. On cross-examination, he said that he had “nonchalantly” asked about the possibility of a shift change but was told by some unnamed person that it was not possible. Mr. D.H. also hinted that because he works weekends, he gets paid more through the equivalent of overtime. I strongly suspect that his commitment to weekend work is simply to maximize his income rather than an obligation necessarily imposed on him by his employer.

[28] Mr. D.H. made it plain in his evidence that he is strongly motivated by financial considerations. In his own words, he always likes to have a plan on how to get ahead. Mr. D.H. had cohabited with T.K. for approximately seven years now, but when they bought the house in the country last Spring it was put in his name alone. He explained in his evidence that T.K. was not on title because she had not put any “value” into either the house they had been living in previously or the new house. She has no income as a stay-at-home mother and homemaker.

[29] Mr. D.H. and T.K. have a four-year-old son, A., who has special needs. B. has shown a great interest in developing a relationship with her younger brother A. and also with her younger cousins M. and R.1.. She plays with them extensively and loves to help looking after them; teaching them, feeding them, helping put them to sleep, etcetera. This is particularly the case with her brother A.. Both Mr. D.H. and Ms. T.K. describe the close relationship that B. has with her little brother and the activities they share. They describe the two as “inseparable”. T.K. described in her evidence how she was scared that her son A. might suffer from the decision from the court.

[30] I do accept the evidence of Mr. D.H. and T.K. to the effect that B. has flourished in their home in the country after an adjustment period last Summer and Fall. I also accept the fact that B. benefits significantly from exposure to country life, whether that be through learning to plant a vegetable garden or the various other experiences articulated so well by Mr. D.H. and Ms. T.K..

[31] Mr. D.H. is essentially estranged from his father, but maintains a relationship with his mother and step-father who reside in St. Thomas. He has no siblings. His mother and step-father see B. approximately once a month.

[32] Marsha McHardy is a registered social worker with the Office of the Childrens’ Lawyer who has a long experience preparing reports under s. 112 of the Courts of Justice Act for parents and for the court. Each side was afforded the opportunity at the trial to cross-examine Ms. McHardy on her report. She described her thorough and neutral investigative process. I am satisfied she gave her opinion and recited facts free from bias or misapprehension. She also addressed the proposals and positions of the parents.

[33] The father’s position is that the de facto status quo should be maintained. Ms. McHardy seriously considered that status quo and testified that she is generally reluctant to make recommendations to change a status quo in which a child is thriving but felt that this was one of those exceptional cases in which continuing the residential schedule is not suited to the long term best interests of the child.

Discussion and Decision

[34] These two capable parents, who both acknowledge the value of B. spending time with the other parent, only find themselves in a contest because of three factors which complicate B.'s residential schedule:

1. both parents work from Friday to Sunday each week;

2. since the father’s move to the country last year there is significant travel time involved in getting B. back and forth between them and to her extra-curricular activities in London; and

3. the mother has no car or driver’s licence and must recruit her mother or older family members for any transportation arrangements.

[35] It is a given that B. will attend a French immersion public school from Monday to Friday and that anything less than four overnights during the school week with the parent closest to her school would create too much instability and disruption.

[36] The father’s plan is a continuation of the arrangement that has been in place since his move to the country. While school is in session B. would be with her mother for a few hours after school on Thursdays and from Friday after school until Sunday evening. From the father’s perspective, this is not significantly different from the long-standing arrangement that they had from 2010 until his change of residence last year, reflected in Schedule A of the mother’s pleading, whereby B. was with her mother from Thursday after school until Sunday evenings each week. He calculates that if sleeping time and school hours are not counted, B. would only be with her mother about an hour-and-a-half less each week as a consequence of his move to Glencoe. Superficially, this is the arrangement closest to the status quo before he moved. However, it fails to take into account several things:

1. B. has to travel from Strathroy to London then out to Glencoe, about an hour-and-a-half of travel, every Thursday just to spend three-and-a-half hours with her mother;

2. B. and her mother no longer share her Thursday evening bedtime or a Friday morning routine; quality time for the two of them;

3. B. would only have two overnights each week with her mother, Friday and Saturday and on Fridays Ms. M.S. routinely works right up until B.'s bedtime;

4. B.'s extracurricular activities are all in London and to continue those activities means driving into London from Strathroy or Glencoe (presently Mondays and Tuesdays, and until recently Thursdays as well) a significant amount of additional travel on school days;

5. because Ms. M.S. does not have a driver’s licence her ability to attend any school events in Strathroy is severely curtailed;

6. the “ad hoc” time that B. spent with the mother’s extended family in London essentially has been eliminated; and

7. Ms. M.S. has no time with B. on her days off, Tuesdays and Wednesdays, except perhaps to attend B.'s extra-curricular activities in London.

[37] The mother’s plan is that B. would go to school in London but would be with her father from Monday after school until returning to school Wednesday morning. Mr. D.H. would drive B. to school and pick her up after school on Tuesdays. She proposes that B. be with her father the first weekend each month from Friday at 8pm until Sunday at 8pm. Her proposal would mean some extra driving for Mr. D.H. but not much since he can pick up B. on his way home from work (he still works in London) and he already drives B. to London for Monday and Tuesday activities anyway.

[38] The recommendation of Ms. McHardy is somewhat the same. In her court ordered report to the court under s. 112 of the Courts of Justice Act, Marsha McHardy recommends that for the purposes of school registration, B.'s primary residence should be with her mother in London. She would be with Ms. M.S. from Wednesday at bedtime until school dismissal time on Monday and with Mr. D.H. from Monday after school until Wednesday at 8pm. Ms. McHardy’s recommendation assumes that Mr. D.H. would drive B. to school in London on Tuesdays (his day off) and pick her up again after school. B. would have two overnights a week with her father, Mondays and Tuesdays, days he has off work.

[39] In my view, these plans are problematic. They do not resolve the difficulty of the amount of time B. is spending in transportation each week or the desirability of avoiding disruptions on school nights. These plans would have B. staying overnight at her father’s on Monday and Tuesday each week and then with her mother overnight Wednesdays and Thursdays.

[40] Though I disagree that the recommendation of Ms. McHardy is the best arrangement that can be made, I do agree with her conclusions that:

1. it is desireable to reduce the amount of time B. spends travelling, particularly on Thursdays when on the current arrangement B. spends more than two hours in a bus or in a car. The same is true on other days when she has extra-curricular activities in London;

2. whether B. spends four nights a week in her father’s home or just three or even two is not going to negatively deter or undermine the sibling bond between B. and A.; and

3. B.'s close connection to London, her activities and her friends there, and more importantly her engagement with Ms. M.S.’s extended family, needs to be promoted and re-established.

[41] I would add to those conclusions that there are more opportunities for extra-curricular activities in London. The significance in this case is enhanced by the fact that B. has a history of active participation in such activities. If B. were to reside with her father during the school week, he could ensure the continuation of her participation, but only at the “cost” of spending up to an hour-and-a-half in the car on a school night.

[42] I have therefore concluded that during her school year, B. should be in her mother’s care during the school week, but that the residential schedule should be reversed in the summer to afford her father additional time, and specifically weekday time instead of weekends, when B. is not in school. This will also enable B. to continue to spend weekend time in July and August at the trailer/camp shared by the mother’s extended family.

[43] It is therefore ordered that:

Except as otherwise agreed by the parents,

1. each week during the school year, B. shall be in the care of her mother from Sunday evenings to Friday after school and in the care of her father from Friday after school until Sunday evening;

2. each week during the summer school vacation, commencing with the last Friday of the school year, B. shall be in the care of her mother from Friday afternoon to Sunday evening and in the care of her father from Sunday evening to Friday afternoon.

[44] The order will otherwise reflect the terms recommended by Marsha McHardy in her report, namely:

1. the parents will continue to share joint custody of the child;

2. for the purpose of B.'s school registration her primary residence shall be that of her mother;

3. both parents shall be listed as contact persons for the purpose of any emergency at school;

4. each parent shall have the right to make day-to-day decisions regarding B. while she is in his or her care;

5. neither parent shall register B. for any paid extra-curricular activity that infringe on the other parent’s time with B. without first consulting and obtaining the approval of the other parent, such approval not to be unreasonably withheld. Each parent is free to register B. for any extra-curricular activities scheduled for times that B. is in his or her care and custody. Each parent is free to attend or participate in any extracurricular activities;

6. the parents will share information relating to B.'s schedule and activities in addition to information and documents concerning her health, education and general well-being; and

7. holidays, such as the Christmas school vacation, March school break, birthdays, professional development days at school and other long weekends and special occasions will be shared in a flexible manner as in the past.

[45] If counsel are unable to agree on costs, brief written submissions may be made within the next 15 days.

“Justice D. R. Aston”

Justice D. R. Aston

Released: June 15, 2015

CITATION: H. v. S., 2015 ONSC 3797

COURT FILE NO.: F1856/08

DATE: 2015/06/15

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

D.R.H.

Applicant

• and -

M.E.D.S.

Respondent

REASONS FOR JUDGMENT

Justice D. R. Aston

Released: June 15, 2015