ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 07911-10
DATE: 2015-07-02
BETWEEN:
Daryl Smith
Applicant
– and –
Desiree Smith
Respondent
Sylvano A. Carlesso, for the Applicant
Bernard R. Gosselin, for the Respondent
HEARD: Written Submissions
RULING ON COSTS
GAUTHIER, J.
[1] The parties had a 13 day trial, over the course of four months ending in the fall of 2013. The issue was custody, access, and parenting of the parties’ child, Genevieve, born July 9, 2007.
[2] On June 30, 2014, Riopelle J. made a final order that the parties share custody of Genevieve, with the child having her primary residence with the respondent.
[3] The trial judge went on to set out, in detail, the parenting arrangement for the child, until the year 2023, at which time Genevieve will attain the age of 16 years. I have reproduced the schedule:
2014
November 15th to 23rd
December: see Note 3 below.
2015
January 16th to 25th
February 8th to 17th
March: see Note 1 below.
April 2nd to 11th – see Note 2 below.
May 8th to 19th
June 5th to 13th
July and August: see Note 3 below.
September 11th to 19th
October 2nd to 13th
November 20th to 28th
December: see Note 4 below.
2016
January 15th to January 23rd
February 12th to 20th
March and April: see Note 1 & 2 below.
May 13th to 23rd
June 10th to 18th
July and August: see Note 3 below.
September 16th to 24th
October 1st to 10th
November 18th to 26th
December: see Note 4 below.
2017
January 20th to 28th
February 10th to 20th
March: see Note 1 below.
April 13th to 22nd – see Note 2 below.
May 12th to 22nd
June 9th to 17th
July and August: see Note 3 below.
September 15th to 23rd
October 13th to 21st
November 17th to 25th
December: see Note 3 below.
2018
January 19th to 27th
February 9th to 19th
March and April: see Note 1 & 2 below.
May 11th to 21st
June 8th to 16th
July and August: see Note 3 below.
September 21st to 29th
October 12th to 20th
November 16th to 24th
December: see Note 4 below.
2019
January 18th to 26th
February 8th to 18th
March - see Note 1 below.
April 18th to 27th – see Note 2 below.
May 10th to 20th
June 7th to 15th
July and August: see Note 3 below.
September 20th to 28th
October 11th to 19th
November 15th to 23rd
December: see Note 4 below.
2020
January 17th to 23rd
February 8th to 17th
March and April: see Note 1 & 2 below.
May 8th to 18th
June 5th to 13th
July and August: see Note 3 below.
September 18th to 26th
October 9th to 17th
November 20th to 28th
December: see Note 4 below.
2021
January 15th to 23rd
February 12th to 20th
March – see Note 1 below.
April 1st to 10th – see Note 2 below.
May 14th to 24th
June 11th to 19th
July and August: see Note 3 below.
September 17th to 25th
October 15th to 23rd
November 19th to 27th
December: see Note 4 below.
2022
January 21st to 29th
February 18th to 26th
March and April: see Note 1 & 2 below.
May 13th to 23rd
June 10th to 18th
July and August: see Note 2 below.
September 16th to 24th
October 14th to 22nd
November 18th to 26th
December: see Note 3 below.
2023
January 20th to 28th
February 10th to 20th
March – see Note 1 below.
April 6th to 15th – see Note 2 below.
May 12th to 22nd
June 9th to 17th
July and August: see Note 2 below.
September 15th to 23rd
October 13th to 25th
November 17th to 25th
December: see Note 3 below.
NOTE 1:
March: i) in odd numbered years, no matter what else is provided for in this Order, at his home or where he may determine, from the day after Genevieve’s last scheduled day of school before the March Break to the day before Genevieve is schedule to return to school;
ii) in even-numbered years, in or around Milton, whenever Easter is in March, from after school the Thursday before Easter to the Saturday 10 days later; and
iii) in even-numbered years, in or about Milton, whenever Easter is in April, from the Saturday of the week that Genevieve is scheduled to return to school at the end of the March Break to the Sunday 8 days later.
NOTE 2:
April: Genevieve’s time with her father shall be in or around Milton:
iii) in even numbered years, from the third Saturday of April to the Sunday 8 days after; and
iv) in odd-numbered years, from after school on the Thursday before Easter to the Saturday 10 days later.
NOTE 3:
Summer Vacation:
a) with her father, from the first Saturday after the last day of school, for a period of 14 days;
b) with her mother, at such place as she may determine, from the third Saturday after the last day of school for a period of 7 days;
c) with her father, from the 4th Saturday after the last day of school, for a period of 14 days;
d) with her mother, at such place as she may determine, from the 6th Saturday after the last day of school, for a period of 14 days;
e) with her father, from the 8th Saturday after the last day of school, until the Saturday of the week before the week that Genevieve is schedule to return to school; and
f) with her Mother, at such place as she may determine, from the Saturday of the week before the week Genevieve is scheduled to return to school.
NOTE 4:
Christmas Season:
a) in even numbered years, with her father from the day following Genevieve’s last day of school in December to December 26th; and
b) in odd-numbered years, with her father from December 26th to that day which is 2 days before the day on which Genevieve is scheduled to return to school.
[4] Riopelle J. further provided that the parties have “joint and equal decision-making authority”.
[5] I have been designated to deal with the costs of the proceeding.
[6] The applicant seeks costs in the amount of $150,275.97. The respondent asks that she be awarded costs in the range of $44,401.46 to $80,759.78.
[7] This was a high conflict case. I count 12 temporary orders dealing with access, between December 2010 and trial. Four of those were on consent.
[8] I will not set out in great detail all of the costs submissions that were made by both parties, but I will summarize each party’s position.
Applicant’s Position:
[9] Despite the fact that this was a high conflict case, and notwithstanding the recommendation of the Office of the Children’s Lawyer (“O.C.L.”) that the respondent have the sole decision making power in support of the respondent’s position, the trial judge nonetheless granted joint and equal decision making power to both parties. Save and except for the joint custody recommendation, the trial judge disagreed with every recommendation of the O.C.L. which favoured the respondent.
[10] The applicant submits that “Justice Riopelle’s decision is essentially a road map towards the logical conclusion that Mr. Smith should be awarded costs.”
[11] The respondent was successful in securing a generous parenting schedule. In addition to having the child in his care for a five week period during the summer he will, in odd-numbered years, care for Genevieve for 98 days, including Christmas and March Break. In even-numbered years, that number is reduced to 91 days.
[12] Justice Riopelle’s order essentially provides for a shared-parenting arrangement, which is precisely what the applicant advocated from the outset of the case.
[13] Although he did not accept the applicant’s position that the respondent had engaged in and continued to engage in parental alienation, the trial judge nonetheless found that the respondent was hyper-vigilant, that she was “extremely overprotective”, and that she had to trust that the applicant would do what was in the best interests of Genevieve.
[14] Justice Riopelle found that the respondent’s evidence about an incident in Gogama was not only exaggeration, but fabrication.
[15] Justice Riopelle found that the respondent’s allegation that the applicant’s residence was unsafe to be false. He further concluded that the respondent exaggerated the child’s behaviour following visits with the applicant.
[16] The applicant points out that there were three reports to the Children’s Aid Society about the applicant’s residence, none of which was proven accurate.
[17] The applicant suggests that the trial judge’s reasons reflect the fact that the respondent exaggerates events to support her position, blows minor events out of proportion, and appears unwilling to accept that she is not the only person who can attend to Genevieve’s needs.
[18] Justice Riopelle concluded that acceding to the respondent’s position would result in the applicant being excluded from his daughter’s life.
[19] Offers were exchanged however none attracts the Rule 18(14) cost consequences. It should be noted, however, that the respondent’s offers only provided, at best, for 65 days of visits per year, excluding Christmas and summer vacation. The offers provided for the respondent to have sole decision-making authority.
[20] Although no offer comes within the ambit of Rule 18 for cost consequences, nonetheless the respondent offered and was awarded joint custody, and offered and was awarded joint decision-making authority. He proposed, in the beginning, that he have exclusive possession of the respondent’s residence for access purposes, and it was awarded.
[21] The regime imposed by the final order provides far more contact between the applicant and his daughter than anyone had contemplated.
[22] The respondent must, as a result of the final order, travel to meet the applicant halfway on all occasions when the child will be visiting the applicant in Iroquois Falls.
[23] Overall, Justice Riopelle’s decision is more favourable to the applicant than to the respondent. The central issue was how much quality time the applicant would have with his daughter and what role he would play in her life. The applicant was successful and the respondent’s conduct throughout the proceeding was unreasonable. That is reflected in the reasons of the trial judge.
Respondent’s Position:
[24] The issue for determination by the trial judge was where would Genevieve live, and what ancillary parenting circumstances would flow from the determination of that question. The reality was that the six year old child had lived with the respondent in Milton since shortly before the child’s first birthday. The applicant resided and continues to reside in Iroquois Falls. Central to the issue was the question of whether the child should miss school and travel some 1,400 km to visit the applicant at his home on a regular basis.
[25] The respondent sought the continuation of the status quo, with the child residing with her in Milton. She opposed Genevieve regularly missing school to travel some 1,400 to visit the applicant. She proposed visits in Milton. She was successful in that regard.
[26] Instead of focussing on the child’s best interests, the applicant “mounted a campaign of vitriol and disparagement and he attempted to assassinate Ms. Smith’s character at every opportunity.”
[27] The applicant attempted, without success, to convince the trial judge to place the child in his care in Iroquois Falls, relying on his allegations of parental alienation and obstruction of access. Alternatively, he proposed that if the child continued to reside with the respondent, then the child should miss school to facilitate his access in Iroquois Falls. He was unsuccessful.
[28] The position of the respondent, which was supported by the O.C.L. and the school board representative, was that it was not in Genevieve’s best interests to miss school in order to spend time with her father. The respondent proposed that the applicant occupy her home in Milton to exercise access to Genevieve, thereby eliminating the need for the child to miss school to travel to Iroquois Falls. The trial judge accepted that position.
[29] Although it is conceded that the respondent was found to be “hyper-vigilant”, it is submitted that this overprotectiveness was with the child’s best interests at heart.
[30] Justice Riopelle rejected the applicant’s suggestion that the respondent was attempting to deny access; indeed, he acknowledged that she had gone to great lengths to facilitate access.
[31] The respondent suggests that, given the deterioration in the parties’ relationship by the time of trial, it was not unreasonable for her to request not only a continuation of the status quo, but also primary decision-making authority.
[32] With regard to offers to settle, the respondent points out that the applicant’s proposals consistently contemplated Genevieve missing two or three days of school per month.
[33] Specifically, the offers to settle dated March 19, July 4, and July 19, 2013, together should attract the consequences of Rule 18(14). I will have more to say about this later in this Ruling.
[34] The respondent submits that the trial was unnecessarily complicated as a result of the applicant’s position and strategy. “If he was actually seeking a change in residence, then he was obviously not successful and costs flow to the respondent. If he was using that request in an attempt to gain more access or access in his home according to his schedule, then he acted unreasonably and his actions unnecessarily complicated the proceeding and increased trial time.”
[35] The applicant called five witnesses, in addition to giving his own evidence. The respondent, on the other hand, offered only her own testimony and that of a representative of the Halton District School Board to discuss the Board’s policy on students’ extended/regular absences from school. The respondent had sought an admission from the applicant with regard to this latter evidence, in order to avoid the necessity of calling the witness. The applicant refused.
[36] The applicant is continuing, through his costs submissions, his personal attacks on the respondent, which is inappropriate. He is not entitled to any costs, and costs should be awarded to the respondent.
[37] The respondent should be awarded partial indemnity costs until July 19, 2013 (offer to settle), and full recovery from that date forward. She should be awarded the sum of $80,759.78.
[38] Alternatively, in the event that the court concludes that the costs consequences of Rule 18(14) are inapplicable, then the court should nonetheless consider the reasonableness of the offers and their similarity with the ultimate outcome. The respondent then would be entitled to partial indemnity costs throughout, in the amount of $36,358.31, inclusive of H.S.T., plus disbursements of $8,043.15.
[39] Rule 24 of the Family Law Rules
- (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. O. Reg. 114/99, r. 24 (1).
(4) Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs. O. Reg. 114/99, r. 24 (4).
(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,
(a) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;
(b) the reasonableness of any offer the party made; and
(c) any offer the party withdrew or failed to accept. O. Reg. 114/99, r. 24 (5).
[40] Rule 18(14) of the Family Law Rules
(14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:
If the offer relates to a motion, it is made at least one day before the motion date.
If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
The offer does not expire and is not withdrawn before the hearing starts.
The offer is not accepted.
The party who made the offer obtains an order that is as favourable as or more favourable than the offer. O. Reg. 114/99, r. 18 (14).
[41] The first question to be asked is which party was successful at trial? Answering that question requires me to review the position of each of the parties, from the outset of the litigation, until the conclusion of the trial.
[42] In his application issued on January 29, 2010, the applicant sought an order for joint custody of Genevieve, with the child to spend equal time with each parent.
[43] The respondent’s answer included a claim for sole custody. In the alternative, the respondent sought an order for joint custody, with the applicant to have access to the child on alternate weekends in Milton.
[44] In the course of the O.C.L. involvement, the parties each took the following position: The applicant proposed that he have custody of Genevieve, that the respondent have access to the child one week per month, and that there be a weekly rotating access schedule for the summer vacation. The respondent also sought sole custody, with the applicant having access one extended weekend per month, to be exercised in Milton, and longer access periods during the holiday periods such as Christmas, summer, etc.
[45] At trial, the applicant proposed that Genevieve be in his care in Iroquois Falls. He relied on the respondent’s alleged unwillingness to facilitate access, suggesting that the respondent was using school attendance as a shield to prevent access. He suggested that “she has made every effort to disrupt the relationship between her daughter and her [sic]father.”
[46] The applicant went so far as to say that the existing custodial arrangement should be changed because of the respondent’s attempts to alienate the child from the applicant.
[47] In his closing submissions, the applicant’s counsel characterized the suggestion that the applicant use the respondent’s home to exercise access as being unprecedented as well as “ludicrous”, and “bizarre”.
[48] He went on to submit that the problems experienced by the child when she was to visit (and ultimately did) visit with her father in Iroquois Falls, that is her distress, was directly caused by the respondent’s conduct. The child was experiencing “loyalty anxiety”. This was not a case where the child truly did not want to go with, or was fearful of the other parent.
[49] For her part, the respondent advanced her claim for a final order for sole custody of Genevieve at trial. In his closing submissions, respondent’s counsel submitted that the applicant was being unjustifiably critical of the respondent, and spent more time focusing on his wishes than on the best interests of the child. He again stressed the importance of not causing the child to regularly miss school, and he proposed that the applicant could attend in Milton for access, in addition to the vacation period access.
[50] The respondent proposed that the applicant have free access to all information pertaining to the child directly, and not necessarily through the respondent.
[51] As an alternative, the respondent put forward the proposal that the parties have joint custody, but that the decision-making authority rest with the respondent.
[52] In his closing submissions, counsel for the respondent characterized the central issue as follows:
The issue is, does Mr. Smith go to Toronto (Milton) or does Genevieve continue missing school? She did it in pre-kindergarten. She did it in kindergarten a week a month…So, now she’s in grade one, and clearly the evidence says you can’t continue a week a month. You can’t.
[53] The respondent proposed to make her home available to the applicant, in her absence, for his exercise of access to Genevieve.
[54] The respondent requested the trial judge endorse the recommendations made by the O.C.L. Those recommendations are the following:
That the mother have primary residence of the child.
That the parents have joint custody with the mother having final decision making authority.
That the father have access with the child for one week each month from Saturday at 1PM until Saturday at 1PM until June 2013.
That the father have access during the school year, beginning in September 2013 until June and thereafter, two weekends per month in the Milton area from Thursday after school until Monday morning back at school. The access may be scheduled around the child’s PD Days. If there is no PD Day the father will ensure that the child attend school. The father will also ensure that the child attends any of her regularly scheduled extracurricular activities.
That access during the summer be one week with the father followed by two weeks with the mother repeated over the summer allowing the father four non-consecutive weeks in the summer. The father’s first week of access will begin on the first Saturday following the end of school. The child will return to the mother on the last Saturday prior to the beginning of school.
That the exchange locations be in the Onaping Falls area at a public location as agreed upon.
That holidays be shared on an equal alternating basis as follows
• That the mother have Mother’s Day weekend and the Father have Father’s Day Weekend from Thursday after school until Monday back at school
• That the father have every other March Break on odd years from Saturday at 1PM to Saturday at 1PM
• That the father have one week over Christmas to include December 24 and 25 every other year on even years
That the child attend counselling to help her deal with her feelings related to the exchanges.
That the father have telephone access twice per week on times that will work with the child’s schedule.
That the mother maintain a distraction free environment for the child while on the telephone or Skype.
The Trial Judge’s Findings:
[55] One of the very first observations made by the trial judge was that the parties did not consistently focus on the child’s best interests. At p. 3 of his decision, Riopelle J. says this:
On some occasions I think the parents have lost their focus: it’s not about them. It’s really about what is best for Genevieve, and their needs should be subservient to that, and I don’t think that has happened on all occasions. I also think that they’re lucky that she’s still such a well-adjusted child because they may not have meant to harm her, emotionally…And I’m conscious of the breakdowns in 2012 in April, August in Gogama and September in Onaping. Isolated incidents but incidents of such profound quality. Hopefully there will be some behaviour modifications by the parents and they will protect the child from the unintended harm that these things can cause her.
[56] Riopelle J. found that the original position of the applicant was for joint custody however, by the time of trial, this had morphed into a request for sole custody. He characterized the applicant’s position as shared custody although the applicant referred to it as joint custody. (p. 6, line 8). Then he went on to say that the trial was conducted “on the basis that his request now is for sole custody, access to the mother.” (p. 6, line 9).
[57] Still dealing with the applicant’s position, the trial judge indicated that the application contained a claim for exclusive possession of the respondent’s residence in Milton for the applicant’s access in Milton.
…but later on, when the mother offered that very same generous offer, I suppose, she was ridiculed for doing it and yet, he had asked for that from the get-go.
[58] The trial judge referred to the respondent’s position as seeking sole custody and, in the alternative, joint custody with sole decision-making authority. (p. 6, line 17).
[59] Riopelle J. found that there was no parental alienation as suggested by the applicant, despite the high conflict between the parties. (p. 7, line 7). He actually found that the respondent had, on many occasions, “attempted to facilitate access in difficult situations. She’s travelled to Iroquois Falls, to Onaping, to Gogama, and she’s tried to facilitate access on many occasions.” (p. 7, line 20).
[60] When referring to what I will call the Gogama incident (referred to below), Riopelle J. said the following:
The child was hysterical, but both parents were calm, and at one point, the mother says to the father, “There’s something wrong here with our daughter. Let's take her to the park and try to figure out what’s going on here”. That’s not a mother attempting to obstruct access. That’s a mother trying to facilitate access when she’s extremely worried about her hysterical daughter at that point.
[61] He referred to the incident where the respondent drove north in a snowstorm to check on the child who, by agreement of the parties, was in the care of the applicant. He commented that this behaviour was hyper vigilance, but that the respondent couldn’t help herself. Her intention was not to disrupt access, but simply to check on her child. This was not indicative of parental alienation. (p. 20, line 10).
[62] Still dealing with this incident, Riopelle J. had praise for the manner in which the applicant had handled the situation, not getting angry or losing his temper. (p. 19, line 31).
[63] The trial judge described the respondent as “hyper vigilant”, “extremely overprotective”. (p. 7, line 32).
[64] At p. 8, he went on to say the following:
She needs to control this urge that she has to think that she is the only one who can look after her daughter. She needs to realize that she doesn’t need to be with her daughter all the time or the daughter be with her. She has to trust that her dad will do what is best in the – what is best for his daughter as well.
[65] Riopelle found that there was no objective evidence supporting the respondent’s evidence about changes in Genevieve’s behaviour upon her return from visits with the applicant.
[66] The trial judge also commented on the fact that there was no evidence of inappropriate parenting or behaviour on the part of the applicant, who had been investigated by the Children’s Aid Society on three occasions, who had had contact with police, and with the O.C.L. He, again, said that the respondent would have to “trust, at some point, that he’s going to do what’s best and let go of some of this control.” (p. 9, line2).
[67] Riopelle J. was also critical of the applicant.
The father, on the other hand, he gets so caught up with the mom’s obstinacy that he ends up trying to prove his point at all costs. He loses sight of what is in Genevieve’s best interests from time to time, and that he does [sic] in order to get the best of his wife, but that’s not putting the child’s concern ahead of yours.
[68] Riopelle J. concluded that Genevieve should remain in the primary care of the respondent. He referred to the child naturally having a greater attachment to the respondent than to the applicant, given that she has been living with the respondent since she was one year old. (p. 11, line 1). At p. 32, he said this:
It’s clear that this daughter’s attachment is overwhelmingly in favour of the mother, and even though the mother may be stubborn and there have been issues in granting the father access and he’s had to fight for every little bit of access on occasion, I do believe that her intention is well motivated in the sense that she knows that more access with the father is better for the child than no access or reduced access, but it’s time now, I think, for her to not just talk the talk but walk the walk and follow through. She has to learn, still to control her separation anxiety.
[69] He went further on this point and said this:
I’m happy to have come to that decision because I think the next step after that would have been a serious disruption to the [sic] change of custody, and to me, removing this child from her school, and her mother, and the community and the friends that she’s come to know would have been such a traumatic experience.” (p. 11, line 9) (my emphasis)
[70] Riopelle J. reviewed the evidence of the non-party witnesses, including Mr. Hamilton from the school board who indicated that it would not be desirable for Genevieve to miss one week of school per month and that such a proposition was quite exceptional, in his experience. (p. 11, line 27, and p. 12, line 8). The judge himself concluded that it was not appropriate for the child to miss one week per month of school after senior kindergarten. (p. 31, line 4).
[71] Constable Cecchini’s evidence was referred to. The context was the alleged statement by the police officer that he would follow the applicant’s car, after the exchange in Gogama, to ensure that Genevieve didn’t jump out of the car. At p. 14, the judge said this:
…unfortunately, as many things in this particular file, the mother latched on to that comment and repeated it and used it every opportunity she could because she felt that there might have been some truth to this probably lighthearted comment and that other people looking into Genevieve’s care should be made aware of that kind of risk.
[72] Riopelle J. reviewed the evidence about the respondent driving around hotel parking lots, after midnight, trying to locate the applicant and the child after having received an unusual telephone call, with no person speaking at the other end. She called police and eventually three cruisers and six officers attended at the hotel. The child was observed to be fine and the incident came to an end. However, there is no doubt that the trial judge found this incident to be another instance of the respondent assuming the worst. (p. 21, line 32).
[73] Riopelle J. observed that by 2010, the level of conflict between the parties had escalated. The O.C.L. put it at 8 out of 10. The parties had lost their focus, and the hostilities between them intensified. (p. 22 , line30).
[74] Both parties were criticized (repeatedly) by Riopelle J. He took issue with the respondent’s position about the child “having a voice and a choice”, and he chastised the applicant for getting “to be just as stubborn as her, and it was more about getting his way in 2012, winning arguments that it…He lost focus on what was best for Genevieve.” (p. 23, line 14).
[75] Still dealing with the applicant’s loss of focus, Riopelle commented on the Easter 2012 incident, where the applicant picked up the child in Milton and, without telling the respondent, returned to Iroquois Falls with her. Police were called. Again, at the end of the access, there was a problem with the exchange, and police became involved. All of this was avoidable, and the trial judge commented, once again, that the applicant had lost his focus. (p. 25, line2).
[76] Riopelle J. disagreed with the O.C.L. recommendation that the respondent have sole decision-making authority. He was of the view that (a) there was potential for the parties to be able to cooperate, having done so from time to time in the past, (b) to give sole decision-making authority to one parent might send the wrong message to the child, and (c) the respondent’s hyper vigilance and separation anxiety could affect her judgement.
[77] Riopelle J. commented on what he coined the “road rage” incident, which occurred during the course of the trial. The respondent alleged that the applicant had driven recklessly and dangerously, putting the respondent as well as the child at risk, on highway 144. In the end, the evidence established that the applicant was nowhere near the scene of the event described by the respondent. This incident was one more indication of the respondent’s propensity to ascribe “all kinds of bad things” to the applicant.
[78] In addressing the access that the applicant would have, Riopelle J. agreed with the respondent’s position that most of the access should be in Milton, given Genevieve’s young age and her social nature. He agreed with the O.C.L.’s suggestion that the applicant should “insert himself in the daughter’s life”. (page 41, line 9).
[79] In ordering that the exercise of access in Milton involve the respondent actually moving out of her home to allow the applicant to reside there during the access, Riopelle J. called the respondent’s willingness to do this “super brave”.
[80] It is clear from the judge’s reasons that he felt strongly about the appropriateness of the access order he was making. At p.41, he says this:
…when you are exercising access in Milton,…you will be seeing Genevieve in her daily routines. You’ll be there when she gets up in the morning. You’ll take her to school. You’ll know what she watches on TV. You’ll be able to participate in whatever extracurricular or curricular activities are going on at that time.
[81] Insofar as the issue of missed school days, the trial judge was very clear that Genevieve would no longer be missing any school to visit with the applicant. He said this at p.42:
There will not be any school missed. I’m not going to allow this child to fall behind academically, especially in a French Immersion program. We’ve heard how difficult that is. She’s not going to miss school.
[82] Although Riopelle J. agreed that it was appropriate for some access to occur in Iroquois Falls, he limited same to vacation/holiday periods, in order to minimize the exchanges of the child by the parties.
The Offers to Settle:
[83] The applicant made two written offers to settle: July 16, 2013, and October 21, 2013. Both provided for joint custody and joint decision-making. Both involved a plan whereby Genevieve would be required to miss school.
[84] The respondent made five written offers: March 19, 2013, July 4, 2013, July 19, 2013, October 10, 2013, and October 21, 2013. All of them proposed joint custody, with primary residence and final decision-making authority to be with the respondent. All of the offers proposed a plan which did not necessitate the missing of school.
[85] The two first offers made by the respondent contemplated her giving up her home to the applicant for the exercise of access.
[86] After having gone through all of the above, that is, the position of each party, as the litigation evolved, the outcome of the trial and the detailed reasons of the trial judge, it is my conclusion that there is no clear winner or loser in this case.
[87] Both parties have “custody” of Genevieve.
[88] The applicant was successful in obtaining joint decision making authority.
[89] The applicant was successful in securing a generous access schedule, however, the access proposals by the respondent contemplated Genevieve spending significant periods of time with the respondent. For example, the respondent’s offer to settle of July 4, 2013, provided for some 60 days per year, in addition to one half of all holiday/vacation periods.
[90] The respondent was successful in obtaining the primary residence order. A reading of the judge’s reasons make it abundantly clear that the evidence supporting that position was compelling. I have already referred to the judge’s finding in that regard, but I would add that he used strong language in referring to the prospect of changing custody from the respondent to the applicant, which is what the applicant was proposing at trial: he used the words “traumatic” and “serious disruption”.
[91] The parental alienation argument failed. Therefore there was no justification in taking the child from the person who had been her primary parent since the age of one year.
[92] The respondent was also successful in her position that Genevieve should not miss any school. Once again, Riopelle J. was very clear that it was not appropriate for the child to continue to miss any school.
[93] So, at the end of the day, the success was divided.
[94] As well, it is very clear from the trial judge’s reasons that BOTH parties engaged in unreasonable behaviour, having lost their ability to consistently focus on the needs of their child.
[95] While the respondent’s behaviour was often extreme and unjustified, the judge nonetheless did not ascribe any bad faith or improper motives to her. On the other hand, the applicant was described as stubborn and behaving in a manner designed to get the better of the respondent.
[96] Insofar as