ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Angela Pauline Gordon
Applicant
– and –
Alfred Edward Gordon
Respondent
Norman Lee, for the Applicant
In person
REASONS FOR DECISION
JOHNSTON, J
Introduction
1Involving children in the parents’ battles in high conflict cases is ‘akin to sprinkling poison on the Kids Cornflakes every morning’. While the parents in this case would not think they are harming their children; their conflict is doing just that.
2At the heart of this case are animosity, bitterness, stubbornness, ego, and a fundamental inability by both parents to understand the harm their conflict is causing, or potentially causing, their children.
3This trial is a motion to change commenced by mother and a cross motion by father seeking to change the order of Trousdale J. dated August 16, 2012. Initially, mother sought sole custody of both children, she has now amended to seek only sole custody of Quinten. Father sought and continues to seek sole custody of both children.
4Mr. Alford Edward Gordon and Ms. Angela Pauline Gordon were married August 24, 2002 and separated on or about March 23, 2010, after nine and a half years of marriage. There are two children from their relationship, namely, Patrick, now 12 years of age, born March 10, 2003, and Quinten Raymond Gordon, now eight, born June 13, 2007.
5Pursuant to the final order of Trousdale J., both parents were granted joint custody of the children, primary care of Quinten was awarded to mother and primary care of Patrick was awarded to father. The children spend every weekend together, one weekend with mother, the following weekend with father. Patrick is in mother’s care, every second weekend from Friday after school or Thursday after school, if Friday is a PD day or holiday, until Monday at school or Tuesday at school, if Monday is a holiday or a PD day. Father has Quinten in his care every second weekend from Friday at 6:00 p.m. or Thursday at 6:00 p.m., if Friday is a holiday or a PD day, until Sunday at 6:00 p.m. or Monday at 6:00 p.m., if Monday is a holiday or PD day. The order provided for uninterrupted summer access with each parent. It also specified Christmas and other holidays. The order is very detailed containing a total of 58 paragraphs. Trousdale J. provided a detailed oral decision outlining the reasons for her decision in 88 pages.
6This was a high conflict case as identified by Trousdale J. Unfortunately the conflict has not subsided and I find that the continuation is dramatically affecting the children.
7Trousdale J. commented that notwithstanding the fact that collateral sources reported that both children were doing well while living with the other party (Quinten with mom and Patrick with dad), neither party will accept this.
8Trousdale J. stated:
I find that both parents are stubborn and opinionated. Unfortunately, a continuation of these attitudes puts these children at risk of damaged development, if it has not already happened. (Page 44, Reasons for Decision).
9Trousdale J. stated:
I hope that Mr. Gordon and Ms. Gordon have listened carefully to the evidence of Ms. Kapasky and of the need to stop the fighting between them. I hope that Mr. Gordon and Ms. Gordon will listen to Patrick’s plea to please stop the fighting. (Page 45, Reasons for Decision)
10In granting joint custody, the Justice stated:
In the circumstances of this particular case where acrimony between the parents is very high and each characterizes the other is favouring the child in his or her care, there should be an order that the parties have joint custody of both children.
If the parties each had sole custody of one child, I find that there would be very serious risk on the history of this case that each parent will be marginalized vis-à-vis the child of which they did not have custody, to the point that the parent would be quickly cut out of the child’s life. (Page 51 to 52, Reasons for Decision)
11This matter proceeded before me for a five-day trial, less than three years after a six-day trial. I have reviewed the decision of Trousdale J. and make many of the same findings of fact that she did. These parties continue to argue, disagree, are stubborn and opinionated. Patrick, through the Children’s Lawyer, voiced his plea at the first trial for his parents to stop fighting. Father testified in this trial that Patrick continues this plea, but each parent blames the other for the acrimony. Neither has the insight to recognize that they are both part of the problem. Both parties have the support of their own parents, however I find the grandparents are also embroiled in the fight and are not objective. Instead of providing a moderating influence, the family support from each side only entrenches the animosity. Both grandmothers for the children testified in this trial and both carry bitterness to the other parent and also lack insight.
12Trousdale J. noted that Ms. Kapasky, the OCL investigator in the first trial, testified at that time that both parents were extremely caring parents and love their children. Notwithstanding my comments that these parents fail to understand the impact their conduct is having upon their children, I also find that each is a caring parent and each loves both of the children. None the less, their inability to make joint child focused decisions, together with blatant demonstration of feelings of bitterness towards the other has the effect of spreading poison to the children.
Claims
13Mother claims sole custody of Quinten and argues that the Trousdale J. ‘experiment’ of joint custody simply has failed. Mother accepts that Patrick should remain in his father’s care and this is Patrick’s wish. Mother believes that Quinten is doing well in her care and should remain in her care, but the Order should be varied to provide her with sole care and custody.
14Mother seeks an increase in child support. The Trousdale J. order was based upon father’s income at that time of $46,635.00 (based on his 2011 income). According to father’s 2012 income tax return and assessment, his total 2012 employment income was $63,941.88.
15Mother, therefore, seeks child support increased to reflect father’s actual income retroactive to 2012 and ongoing child support based upon his income.
16Mother also seeks spousal support. She did not claim spousal support at the time of the original trial given the father’s underreported income. However, given that his income appears to be much greater than was disclosed at the time of the first trial, spousal support ought to be ordered retroactively and ongoing.
17Mother seeks to maintain the current residential arrangement in accordance with the order, however, seeks to have Christmas access specified, given that the parties have been unable to agree in the past.
18Father, in his response to the motion to change, disputes mother’s claim and himself seeks the following orders:
That mother’s motion to change be dismissed, given her numerous breaches of the August 16, 2012 final order and on the basis that there is no material change of circumstance.
That father be given the first right of refusal to care for the children if the children for any reason are unable to be with mother.
That mother attends anger management class or counselling to help control her temper and vindictive behaviour.
That the applicant and respondent attend counselling to learn better parenting skills as may be recommended by the Honourable Court.
That the applicant and respondent continue to communicate with each other via email/text messages, but such communication would be child oriented only.
That the applicant mother will not speak negatively, belligerently or put the respondent down in front of the children at any time and for any reason, and vice versa.
That the applicant mother provide written notice to the father of children’s doctor, dental, medical, school, sports and general-wellbeing appointments, 24 hours prior to their occurrence.
That the applicant’s claim for spousal support be dismissed.
Sole custody of the children.
The Law
19Subsection 17(1) and (2) of the Divorce Act provides that a court may vary a custody order, or any provision thereof, on the application of either former spouse. According to subsection 17(3), a variation order may include any provision that, under the Act, could have been included in the original order. However, subsection 17(5) stipulates that before the court varies a custody order, it must be satisfied that there has been a material change in the condition, means and needs or other circumstance of the child since the original order was made.
20Subsection 17(5) also states that the court may only vary a custody order if it is in the best interests of the child to do so, as determined by reference to the condition, means, needs and other circumstance of the child. As in the case with any custody order, subsection 17(6) stipulates that the past conduct of a party will only be relevant where it relates to his or her ability to act as a parent to the child.
21Finally, subsection 17(9) states that the court must respect the principle that children should have as much contact with each parent as it is consistent with their best interest.
Material Change in Circumstance
22In Gordon v. Goertz 1996 191 (SCC), [1996] 2 SCR 27 at paragraphs 10 and 11, the Supreme Court of Canada confirmed that the court must find that there has been a material change in the circumstance of a child before it can consider varying a custody order.
23The Supreme Court stated at paragraph 13 in Gordon v. Goertz, supra, that for a change in circumstance to be considered a material change, the following three criteria must be shown to exist:
(1) A change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child;
(2) Which materially affects the child; and
(3) Which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.
24Mackinnon J. in Greenberg v. Greenberg (2009) unreported OSC, Court File 02-FL-2945 had an opportunity to extensively review the case law in this area, dealing with a similar motion to change. In Greenberg the mother sought to change a joint custody order, to a sole custody order; on the grounds that the parents simply were unable to implement joint decision-making: to the extent that it negatively impacted the best interests of the child.
25Mackinnon J. reviewed the OCA decision of Montgomery v. Montgomery 1992 8642 (ON CA), [1992] 97 DLR (4th) 437 (OCA) wherein the court in that case stated that what may have appeared to be in the child’s best interests at the time of the court order may no longer meet the needs of that child at a later point in the child’s development. The court noted that the requirement of material change is necessary to order to protect children from (unnecessary and trivial adversarial weaponry), however, in this case, it held that the cumulative unrelenting stress to the child and one parent caused by ongoing access visits with the other parent was enough to justify a variation order. The intensity of the stress itself constituted a material change from the circumstance that were before the court when the original order was made.
Best Interests of the Child
26The Supreme Court of Canada in Gordon v. Goertz, supra, stated that once a material change in circumstance has been established, the court should consider the matter afresh, with regard to the present circumstances, instead of defaulting to the original court order. The inquiry cannot be limited to the material change, as all factors bearing on the child’s best interests should be considered. Ultimately, the only issue when it comes to custody and access is the welfare of the child whose future is at stake.
27In Roy v. Roy (2006) 2006 15619 (ON CA), 27 R.F.L. (6th) 44 and Lawson v. Lawson (2006) 2006 26573 (ON CA), 81 O.R. (3d) 321, (both OCA), stated that while one parent cannot deliberately create problems and then claim sole custody, joint or parallel custody will not be appropriate where there is a genuine inability to effectively cooperate and communicate. In Roy v. Roy, supra, the Court of Appeal noted that virtually the entire record “established that a foundation for joint or parallel custody order had been and continued to be entirely missing”. In Lawson v. Lawson, supra, the court held the trial judge was in the best position to evaluate the behaviour of the parties and to decide whether there was a genuine inability to co-parent.
28In Ladisa v. Ladisa (2005) 2005 1627 (ON CA), 11 R.F.L. (6th) 50 (OCA), the court upheld a joint custody order where the trial judge found that the children in need of “the parenting that both parents could give them”. The trial judge was satisfied that despite conflict between the parents, in situations such as emergencies or where the parents were forced to be together in public, they had shown that they were capable of putting the children’s best interests ahead of their own in communicating effectively.
29In Kaplanis v. Kaplanis (2005) 2005 1625 (ON CA), 249 D.L.R. (4th) 620, the Court of Appeal held that joint custody was not appropriate where there was no effective cooperation between the parents. The court set aside an order for joint custody because there was no evidence that the parents were able to put aside their differences and communicate effectively. The court held that one parent professing an inability to communicate with the other parent will not, in and of itself, preclude a joint custody order. On the other hand, joint custody orders cannot be made with the expectation that communication between the parties will improve after the litigation is over.
30In Litman v. Sherman (2008) Docket C46121 ONCA 485, the Court of Appeal found that there was no change in circumstance involving a case of high conflict couple who entered into an agreement for joint custody subsequently on a motion to change a trial judge granting mother sole custody due to the unworkable nature of the relationship between the parents. The Court of Appeal held at paragraph 37:
Since the threshold issue (of material change) was not established, the trial judge had no jurisdiction to vary the custody order, therefore, the order granting custody of Rachel to the mother must be set aside. The court held “it follows that unlike in Griffin, the conflict between the parties did not constitute either a change or a situation that could not have been foreseen by them at the time of Nelson J’s order.
31In Greenberg, supra, Mackinnon J. found the conflict between the parents did constitute a material change in circumstance, such that the original order for joint custody was varied and sole custody was ordered.
32Mackinnon J. stated at paragraph 163:
In my view, the joint decision making prescribed in the final order has proved unworkable. Joint parenting decision making has been shown not to be in Olivia’s best interest, rather to the contrary. The conflict resolution clause in the final order has not worked successfully. The parties were unable to utilize any of the processes set out in it, with the result being commencement of this litigation. This breakdown of joint decision making and conflict resolution process could not reasonably have been contemplated or foreseen when the order was made. In addition, what may have appeared to have been in Olivia’s best interest at the time has been shown not to be meeting her needs at this time, because of the conflict she has been exposed to and the stress she is under because of it. Whatever reasons the parties had in 2005 to believe they could overcome their hostility and co-parent effectively have long since vanished. To paraphrase the Court of Appeal in Wreggitt v. Belanger, these parents do not even agree now on a process for resolving their differences.
Credibility Analysis
33I now turn to consideration of the merits of the respective motions to change. Both parties testified and often times their testimony was in stark contrast, one to the other. Accordingly, it is necessary at this stage to engage in a credibility analysis.
34On all material, areas of disagreement between the evidence of Mr. Gordon and Ms. Gordon, I accept the evidence of Ms. Gordon for the following reason:
- His feeling of conspiracy and that individuals are intimidating and alienating him.
35Mr. Gordon believes that many of the service providers for Quinten, have conspired against him; including the child’s family physician, Dr. Briggs, Dr. Tsai, Quinten’s tutor, two C.A.S. workers and at least one teacher. Mr. Gordon testified that all of these individuals have taken a negative attitude towards him because of Angie Gordon. Father believes that she has pitted these people against him and Ms. Gordon has alienated Quinten from him.
36I find there is no evidence and no foundation for Mr. Gordon’s underlying fear that those around him and those providing services for Quinten are either biased against him, intimidating towards him or alienating him. Mr. Gordon, in his evidence, blamed every service provider that he had a conflict with as being wrong and refuses to consider the possibility that he is the problem. Mr. Gordon suffers the classic syndrome of ‘everyone is wrong and I am right.’
37By way of example, Mr. Gordon testified that, in his view, Dr. Briggs was an incompetent physician. At one time, Dr. Briggs was the family physician for both children and both the parties. Mr. Gordon parted ways with her both personally and with respect to his son, Patrick. Mr. Gordon complained that not only was Dr. Briggs incompetent, but she did not listen to his concerns. I had the benefit of the testimony of Dr. Briggs and I accept her evidence. In my view, she was a neutral witness who at various times attempted to mediate between the parties. Dr. Briggs demonstrated in the witness stand that she was a knowledgeable physician and she appeared as honest and straightforward. Dr. Briggs showed discomfort during her evidence over the fact she is caught in the middle of the parenting conflict between Mr. and Mrs. Gordon. I find as a fact that Dr. Briggs went above and beyond the line of duty in her efforts to educate Mr. Gordon about Quinten’s medical needs; including his asthma and the requirement for medication. Dr. Briggs is unbiased and has no motive to fabricate. Her evidence was balanced and measured, notwithstanding her obvious disagreement with Mr. Gordon’s intransigent positions at times. At one point, in his testimony, Mr. Gordon accused Dr. Briggs of promoting the flu shot for Quinten because she had a vested interest with the drug company. I reject this evidence, Mr. Gordon’s complaints of Dr. Briggs are without merit and made in an effort to discredit the doctor. Mr. Gordon displayed a cavalier attitude and willingness to impugn the professional integrity of Dr. Briggs if it suited his needs. Mr. Gordon’s attitude and testimony underscores the reason why this court must reject his testimony. Mr. Gordon has lost all objectivity with respect to Dr. Briggs. I find that Dr. Briggs spent hours with Mr. Gordon surrounding Quinten’s diagnosis of asthma. The doctor showed remarkable patience and did so because she thought if she spent the extra time with Mr. Gordon, he would come around and recognize Quinten’s medical needs and accept the proposed treatment. Dr. Briggs stated at one point she felt that she had to bargain with Mr. Gordon with respect to Quinten’s healthcare. Mr. Gordon testified that he did not see it this way at all. Mr. Gordon testified that the medical professionals, including Dr. Briggs, would not accept his view that Quinten’s breathing and other difficulties arise from his adenoids. I accept Dr. Briggs testimony that this possibility was considered by her and other professionals and rejected. While she testified there is a small possibility that Quinten’s health difficulties result from his adenoids, it is unlikely. Not only is Mr. Gordon not prepared to accept medical advice as it relates to Quinten’s treatment, he is prepared to cast aspersions upon the professionalism of Dr. Briggs.
38Similarly, Mr. Gordon testified that the allergist, Dr. Tsai, also did not listen to his concerns.
39Mr. Gordon also challenged Quinten’s French tutor. Father questioned why the tutor was tutoring Quinten in English, or the need for it. This is yet another example of manipulation by father in an effort to discredit the mother’s parenting. How can one possibly think that extra help for a child in school is something to be questioned? The attempt by Mr. Gordon to justify the dispute undermines his credibility and judgement.
40The Second ground for rejecting father’s evidence is his testimony that he could not remember whether Ms. Gordon provided Quinten’s soccer schedule to him or not. I find as a fact, based upon reading the communication journal for Quinten, that on June 28, 2013, Ms. Gordon notified father that Quinten was taking soccer and enclosed a copy of the schedule. He was notified at the commencement of the soccer season. This is an example typified how Mr. Gordon refused to admit the obvious and would not admit anything that might undermined his thesis that mother was the root of all problems and mother refused to properly keep him informed of Quinten’s activities. I find that mother did make an effort to advise Mr. Gordon of Quinten’s various activities including his involvement in Sparks, gymnastics and soccer, as well as his various medical appointments.
Mr. Gordon’s income
41I find as a fact that Mr. Gordon was deceptive about his income, in particular, that his 2014 income exceeded $70,000.00 per year.
42Fourth, Mr. Gordon demonstrated during his testimony his inability to accurately recount what was said to him, if the concept conflicts with his view of the world. Dr. Briggs testified that she spent hours with Mr. Gordon explaining Quinten’s health needs surrounding his breathing issues. Dr. Briggs testified that Mr. Gordon would then repeat back to her his conception of what was discussed, but do so inaccurately. Mr. Gordon did this very thing in this trial. Mr. Gordon argued that Ms. Gordon testified that she took Quinten, to counselling at Interval House to prevent him from being involved. He said that Interval House is a women’s support group, and as a male, he would be excluded. In fact, Ms. Gordon testified to the exact opposite. Ms. Gordon testified that she gave Mr. Gordon the name of the outreach worker who was counselling Quinten and provided him with Jackie’s telephone number. Ms. Gordon testified that Jackie, as an outreach worker, was able to speak to Mr. Gordon if he wished to do so. Mr. Gordon hears only what he wishes to hear. In his cross-examination of Ms. Gordon, Mr. Gordon suggested that he would not have been able to speak to the Interval House counsellor, because he was a man. Ms. Gordon categorically rejected this suggestion and provided the evidence I just recounted.
43Next, Mr. Gordon testified that mother always made access proposals at the last minute. This assertion fit with Mr. Gordon’s general thesis that mother was in contempt of the Trousdale J. order and non-compliant.
44I find that this accusation is in large part untrue and is an example of how Mr. Gordon manipulates the truth in the situation to suit his argument. For example, in November, 2014, Ms. Gordon made a proposal to Mr. Gordon in the communication book seeking to resolve the upcoming Christmas access issue. Mr. Gordon rejected the November offer stating that it was “too early” and that he did not know his work schedule. Father then provided Ms. Gordon with three options for Christmas access that he came up with. His position was that mother either had to pick one of the three options without deviance or there would be no access between mother and Patrick. Further, Mr. Gordon put time limit on when Ms. Gordon had to accept one of the three options. This example illustrates a number of things, but I use it to illustrate that Mr. Gordon’s testimony lacks credibility. The truth is Ms. Gordon knew Christmas would be an issue and she tried to resolve it ahead of time. It is outrageous for Mr. Gordon to now allege that mother always makes last minute access proposals.
Mr. Gordon’s allegation that mother is in contempt of the Trousdale J. order on a number of grounds.
45I will deal with Mr. Gordon’s motion for contempt separately; however, it does have bearing in the trial as it relates to Mr. Gordon’s credibility. Take the example of Patrick’s communication book. Mr. Gordon alleges that mother is in contempt of the original order, because she lost Patrick’s communication book. There is a disagreement between the parties as to what happened with the book. However, it is common ground that when the book went missing, Ms. Gordon bought a new one and sent it to father. Mr. Gordon kept the book, he did not use it, nor did he send it back to mother. Yet, in this trial, Mr. Gordon complains that mother is in contempt for losing the book. Father’s point is ridiculous and untenable.
46Further, Mr. Gordon alleges that Ms. Gordon, since the date of the last order, has not kept him fully informed of Quinten’s counsellor and extracurricular activities. It is clear on the evidence that mother gave Mr. Gordon the name of ‘Jackie’, the counsellor through Interval House Outreach and her phone number, advised of Quinten’s soccer and his schedule and his gymnastics and Sparks. Ms. Gordon also in the communication book for Quinten invited Mr. Gordon to attend these events to watch his son. While it is fair to suggest that Ms. Gordon should have given greater details, she certainly did keep father informed of the general activities as they occurred and not after. Similarly, with respect to Quinten’s medical appointments, I find Ms. Gordon kept Mr. Gordon informed, except for the April 9th appointment with the specialist. I find that she did not advise father of this appointment, but, this was after Mr. Gordon had found out that a specialist appointment with Dr. Tsai had been booked in the fall of 2012 and caused it to be cancelled. Mr. Gordon’s allegation of contempt is unfathomable when juxtaposed to his own conduct. For example, approximately a year ago, Mr. Gordon after his dispute with Dr. Briggs, unilaterally moved his son, Patrick, from Dr. Briggs’ care to another physician. Mr. Gordon did not consult Ms. Gordon about this change, or what doctor he was selecting. Mr. Gordon has only advised Ms. Gordon of one medical appointment for Patrick with his new physician in over one year. It would appear on the evidence that Mr. Gordon is doing the very thing that he accused Ms. Gordon of, yet he wants this Court to believe that Ms. Gordon is alienating Quinten from him and that she refused to provide father about information relating to the child.
47Next, I find Mr. Gordon has significant animosity and animus towards Ms. Gordon. This animosity is largely without foundation and colours Mr. Gordon’s perception of events and makes evidence unreliable. For example, Mr. Gordon blames Ms. Gordon for the fact that Patrick gains weight. He accused Ms. Gordon of the child gaining weight on access visits, even though these visits only take place on alternate weekends. Father weighs Patrick every Friday before he goes to his mother’s for an access visit and again weighs him upon return.
48Finally, upon the issue of Mr. Gordon’s credibility and evidence, I find that he was at times non-responsive to questions in cross-examination. By way of example, Mr. Gordon refused to admit the obvious in cross-examination upon notes obtained from the Children’s Aid file. Mr. Gordon would claim to have no memory when a note was not helpful to him. On the other hand, Mr. Gordon sought to file notes obtained from the C.A.S. file that he thought supported his position. On a number of occasions, Mr. Gordon sought to answer a question he wanted to answer and not the question posed.
Has there been a material change in circumstance?
49Mr. Gordon seeks sole custody of both children on the basis that there has been a material change in circumstance since the order of Trousdale J. Mother argues that while there is no material change in circumstance that would justify changing residency of the children, she does argue there is a material change in circumstance justifying a change of custody, such that she should have sole custody of Quinten, to make medical and other decisions.
50I conclude that since the date of Trousdale J.’s order, there has been a complete inability of Mr. Gordon and Ms. Gordon to make joint decisions relating to either child. Ms. Gordon has dealt with issues as it relates to Patrick by not engaging. She has given up trying to have control and influence over decisions affecting Patrick. For example, Mr. Gordon terminated Dr. Briggs’s as Patrick’s physician and obtained a new doctor without consultation. Ms. Gordon resigned herself to the fact that whatever she wants, Mr. Gordon will seek the opposite. Ms. Gordon testified that she hopes that if Mr. Gordon has sole custody of Patrick, he will begin to make decisions in Patrick’s best interests and will not be motivated to make decisions just because they are opposite to what she believes.
51Mother’s position at trial is that the joint custody order has proven unworkable by reason of the high conflict between the parents.
52Mother hopes that if the Court grants her sole custody of Quinten’s and Mr. Gordon sole custody of Patrick, conflict between them would be greatly reduced and in the end this will benefit both children and be in their best interests. Ms. Gordon does not seek to change the residential arrangement, in other words, Quinten would remain in her primary care and Patrick in father’s primary care and that the boys would continue to exercise access with each other every weekend, one weekend at mother’s home, the following weekend at fathers.
53Father’s position is that mother has made poor decisions as it relates to Quinten’s care and she has alienated Quinten from the father and that Patrick is afraid of her and, in the result, sole custody of both children should be vested with him.
54The evidence in this trial demonstrates that there is a significant contention and argument between mother and father on various issues including:
Counselling for Patrick and Quinten;
School issues: initially whether Quinten should be enrolled in French Immersion and then later whether Quinten should have a French tutor;
Extracurricular activities for Quinten. Father believes that Quinten should not be in gymnastics as it is too hard on his body;
Christmas access: in 2014, the issue had to be resolved with the assistance of legal counsel;
How to treat snow days when the school buses are cancelled;
Communication books for both Quinten and Patrick;
Whether mom has any basic ability to parent.
55The case at bar has many parallels to the case of Greenberg v. Greenberg, supra, including many of the same issues and complaints.
56In my view, Ms. Gordon has established a material change in circumstance from the time of the original order. Like in Greenberg, the parents in this case have no track record of being able to make decisions and communicate with one another as it relates to the children. I am satisfied based on the evidence that both children have been exposed and negatively impacted by the conflict between the parents. While I think there is sufficient blame to be apportioned to both parents, I find that Mr. Gordon has an extremely harsh and negative attitude towards Ms. Gordon and her parenting ability and that this prevents effective co-parenting between the parties and it is contrary to the best interests of both children.
57Quinten, in particular, has suffered as a result of the conflict between the parents’ inability to make joint decisions. For example:
Quinten’s medical treatment – Mr. Gordon refuses to accept the medical opinion of several physicians that Quinten suffers from asthma and requires medication and an inhaler. Mr. Gordon stubbornly adheres to his belief that there is nothing wrong with Quinten other than potentially his adenoids. Mr. Gordon relies upon his own anecdotal experience to diagnose his son. It is admitted that Mr. Gordon has no medical training or experience. I completely accept Dr. Briggs’ evidence. Mr. Gordon also opposed Quinten being given the annual flu shot. Dr. Briggs provided her professional advice that the benefits of the flu shot outweighed the risks. Notwithstanding this advice, Mr. Gordon refused to consent to Quinten being given the flu shot. This Court acknowledges that there is some controversy amongst the general public over the issue of the flu shot. However, the flu shot is not an isolated incident and, in fact, is a pattern displayed by Mr. Gordon of failing to accept medical opinion.
Quinten’s schooling – For two years, Ms. Gordon attempted to obtain Mr. Gordon’s consent to enrol Quinten in French Immersion program. The program was recommended by one of Quinten’s teachers. Ms. Gordon testified that she felt it would be a tremendous advantage to the child in his later years to attend French Immersion. Mr. Gordon opposed the enrolment the first year it was proposed and, as a result of the dispute, it did not happen. In the second year, Ms. Gordon again proposed the child be enrolled in French Immersion. Mr. Gordon again would not consent. Ms. Gordon then commenced a motion in court to seek a judge’s order. Mr. Gordon testified that he did not recall the motion and claims he gave instructions to settle the issue before a motion was initiated. I am satisfied that mother brought the motion and the only reason Mr. Gordon agreed to the relief sought was that he was on the eve of a judge having to make a decision on the issue.
Tutor for Quinten – I am satisfied on the evidence that Mr. Gordon opposed Ms. Gordon’s decision to engage a French tutor for Quinten. Like some of Quinten’s other service providers, Mr. Gordon challenged the French tutor face to face. I can find no good explanation for Mr. Gordon opposition to Quinten engaging the services of a tutor to assist him. The fact is I am satisfied Quinten has done well in his schooling. The switch to French Immersion has been successful.
Communication Book – I am satisfied on the evidence that notwithstanding Trousdale J.’s order to use a communication book for issues related to the children, Mr. Gordon did not like this practice. He has stopped using the communication book for Quinten and even before that, the communication book for Patrick had disappeared. Even though mother purchased a new book, father refuses to use it. Father states the reason is that Patrick does not like it and it causes him embarrassment.
I accept the evidence of Dr. Briggs that it has been very difficult for her to provide proper medical treatment for Quinten in circumstances where both parents must agree.
58I am satisfied that mother has attempted to obtain counselling for Quinten as directed by Trousdale J. Mr. Gordon testified that he has attempted to obtain counselling for Patrick. However, it is clear from Mr. Gordon’s evidence that he does not appreciate the need for Patrick to obtain counselling. Given his evidence and demeanor and Dr. Briggs evidence, I question whether Mr. Gordon seriously attempted to obtain counselling: it would be uncharacteristic for him to do something he disagreed with. Mr. Gordon produced evidence at the last minute, before trial, of his attempt to obtain such counselling for Patrick. Mr. Gordon testified that Patrick is very angry at his mother and, in fact, is “afraid of his mother”. This view held by a twelve year old is concerning and needs to be addressed; yet father does not appear to see the need. Father only sees the conflict as a route for him to gain more control.
59It is plain and obvious to any independent observer that these parents are in high conflict. The children either intentionally or unintentionally are put in the middle or forced into choosing sides. Each parent fails to understand the serious ramifications their high parenting conflict creates. The parents fail to recognize that their behaviour impacts negatively on the children, on their development, of their ability to interact with their peers and others and how they view and perceive the world. The parents fail to recognize that these problems now will manifest themselves in the future and may well lead to each child experiencing interpersonal difficulties, relationship difficulties, and potential conflict with authority.
60The threshold issue to be decided is whether there has been a material change in circumstance. On one hand it could be argued there is no ‘material change in circumstance’ because this was a high conflict matter when the original order was made and it remains so. The conflict was foreseeable. However, it is clear from the reading of her Reasons for Judgment that Trousdale J. felt in the end, the parties would be able to make joint decisions as it related to the children’s health and education. I am satisfied that Trousdale J. had no idea, nor anticipation that the parents would be in gridlock on their ability to make decisions for Quinten. The fact is joint decisions cannot be made for either child. Mother has given up trying to make joint decisions for Patrick and father insists on making joint decisions for Quinten. The father, I am satisfied, will oppose any decision proposed by mother. Father simply does not accept that mother has made good decisions, or is able to make proper decisions for Quinten. This will leave father in the future to continually reject and oppose any suggestion she makes. Quinten will be at risk if this Court does not vest decision making with one parent. I am satisfied, based on the record, that these parents have no ability to parent jointly and limited ability to communicate.
61Given the aforesaid findings of fact, I am satisfied that there has been a material change of circumstance that requires a variation of Trousdale J.’s order.
What Order is in the children’s best interests?
62Having found a material change in circumstance has been established, I then go on to consider both Patrick and Quinten’s needs and circumstances. In reviewing the best interests of the boys I consider: the love, affection and emotional ties between the children and each parent, the children’s views, the length of time each child has now spent with their respective primary care giver, the ability of each parent to meet the children’s needs, the plan of each parent, the permanence and stability of the family unit and the bond of each child to each parent.
63Patrick has lived with his father since the separation and Quinten has lived with his mother. This is not a typical Order and often separating siblings is not in the best interests of children. However, given the ages of the boys and the length of time they have been in their current homes, their current routine, their apparent preference to remain each where they are, it is simply not appropriate nor is it in the boys’ best interests to change their residency. Father alleges that there is rough treatment of Patrick in mother’s home and that Quinten is favoured that home. Father also argues that Patrick is never aggressive in his home and only apparently acts out in mother’s home. Father argues this is a reason to change custody and residency in his favour. I reject father’s evidence on this point.
64I am satisfied that given the complete breakdown between the parents in their ability to make decisions, it is not appropriate to continue with joint custody. To continue the status quo is to invite disastrous consequences. Notwithstanding the obvious ongoing parental conflict and everything that is associated with it, the boys are doing fine in their current homes. Despite father’s concerns, I find Ms. Gordon is meeting Quinten’s educational, medical and other needs. Similarly, there is no evidence that Patrick is not doing well in Dad’s care. That is not to say that the boys should not receive professional help to assist them to understand and deal with the conflict their parents are embroiled in.
65Accordingly, I find it is in Patrick’s best interest that he remains primarily resident with father and in father’s sole custody. I find that it is in Quinten’s best interest that he remains primarily resident with mother and in her sole custody. The purpose of the change in custody is to vest final decision making with the sole custodial parent. However, each parent shall keep each other informed of: decisions affecting the children’s education and health, including the name of doctors, teachers, counsellors and contact information. Each parent shall be entitled to speak directly with the child’s teachers and to obtain direct from the school his or her copy of all report cards. Ms. Gordon shall be entitled to speak directly with Patrick’s doctors or other health service providers. Mr. Gordon shall be entitled to submit written requests to Quinten’s doctors and other health care providers (subject to their approval). I have made a distinction between the parents on the manner of contact, given the evidence of disruption by father in the past.
66Christmas access – I am satisfied that the portion of Trousdale J.’s order leaving flexibility for Christmas access has led to inability to make a decision. The only way these parents can move forward is to remove flexibility. This is most unfortunate, however, on the evidence it is necessary. Mr. Gordon was asked for a proposal in the event the Court was to make a change to Christmas access, he put none forward. Ms. Gordon has suggested: splitting the holiday in two equal segments.
67I order that Christmas school holiday for each child be split in half, one parent shall have both children for the first half and the other parent shall have the second half of the school holiday. The schedule shall be reversed for the following year and every year thereafter. In 2015, the children shall be with mother from the last Friday of school, prior to the Christmas holiday to Boxing Day at 3:00 p.m. and the children shall then go to father on Boxing Day at 3:00 p.m. and remain with the father until the Sunday prior to resumption of school, at 6:00 p.m.
68Snow days – In the event that school buses are cancelled as a result of snow or weather conditions, that day shall be treated as a PD day and the child shall be returned by the parent the next day as the child would be on a PD day. This has been an issue in the past. If the weather conditions are such that school buses are not to operate, then neither parent ought to be risking the children on the roadways.
69Pickup and drop-off of Quinten – Currently, the access exchanges are taking place at the O.P.P. police station outside of Smiths Falls. I agree with father, this is sending an inappropriate message to Quinten. Access shall take place in a public place agreed upon in Smiths Falls. In the absence of agreement I will receive the proposals and make a decision. In access exchanges, the person picking up Quinten shall remain in the vehicle and where possible Quinten shall separately move from one vehicle to the other with his belongings. If Quinten needs assistance, the person dropping off Quinten will provide the assistance. There shall be no conversation between the parties picking up or dropping off Quinten.
70I am satisfied that Trousdale J. envisioned that father’s access with Quinten would parallel Patrick’s at some point. Given Quinten’s age, I will continue the existing access order, however, commencing at the beginning of school in September, 2016, Quinten’s access to father shall extend to Monday morning during the school year. Such transfer shall take place as it does with Patrick now, Friday after school from school and the child to be delivered to school Monday morning. During holiday times, the access starting September, 2016, for Quinten shall be the same as Patrick.
71The parties shall reinstitute a communication book. There shall be one communication book for Quinten and Patrick and it shall go back and forth between the parents each weekend. In addition, I encourage the parents to use email related only to events for the children that require faster turnaround than one week. I continue the same rules imposed by the original Order relating to the preservation of the email and books.
72I am concerned about both parents’ inability to recognize the harm they are causing their children. For this reason, I order Mr. And Ms. Gordon shall independently forthwith contact the Children’s Aid Society in their respective jurisdiction and make a voluntary referral to that agency. The purpose of the referral is to obtain their input and advice on how to deal with their high conflict parenting. The onus is upon each parent to make the report and to advise of this decision and to provide a copy of this Order and these Reasons. I order that each party execute the consents with the Children’s Aid Society allowing them contact with service care providers dealing with each child. Further, the parents shall comply with any reasonable requests and advice made by the Society.
73Mr. and Mrs. Gordon shall forthwith each enrol in a parenting program, either the Triple “P” Parenting Program or such other similar counselling program. The focus of counselling shall be to assist the parents in understanding parenting issues and the harm that their behaviour causes to the children with their continued high conflict.
74Each party shall forthwith and within 30 days obtain counselling for the child in her or his care, to deal with issues surrounding the high conflict parenting, the impact upon each child and any other issues that the counsellor may identify. Patrick shall also engage in counselling that deals with issues he has with his mother and fears that he may or may not have towards her. Each party shall forthwith advise the other party in writing of the counselling that they have arranged for each child, Mr. Gordon for Patrick and Ms. Gordon for Quinten.
75My order, as it relates to the best interests of the children in terms of custody and access is predicated upon the parents following through with the counselling order. Accordingly, both parents are directed to reappear in front of me at the end of August, 2015, on a date to be agreed upon at 10:00 a.m. to report what counselling steps they have taken and to confirm their voluntary report to the Children’s Aid Society. My Order will not become final, until this provision has been complied with.
Spousal Support
76Ms. Gordon is seeking an order for spousal support. Spousal support was not argued at the original trial before Trousdale J., on the basis that she did not believe he had sufficient income to justify such an order.
77Pursuant to an order dated April 1, 2014, Ms. Gordon was ordered to produce to Mr. Gordon certain disclosure including “if the applicant continues with her claim for spousal support, the applicant to produce all documentary proof she will be relying upon to support such a claim including an expert medical evaluation and letter confirming that the applicant is unable now and in the near future able to return to the workforce, part time, full time or on a casual basis”. Mother has not complied with this order. Mother simply relies on her assertion that she received CPP disability for her claim that she is unable to work part time, full time or at all as a result of her medical diagnosis. There is no medical evidence, no medical report to support this.
78The fact that mother has not pursued spousal support to this date, the fact that there was an extensive trial dealing with many issues three years ago and the fact that mother has failed to comply with the April 1, 2014 order, I decline now to order spousal support. This Court is not in a position to assess the merits of Ms. Gordon’s claim in the absence of disclosure that was ordered. There is no reasonable explanation for the failure to provide the documentation.
Child Support
79Trousdale J. ordered father to pay child support for Quinten to Ms. Gordon in the amount of $430.00 per month. Trousdale J. found that Mr. Gordon’s gross annual income for 2011 was $46,635.00.
80In calculating Mr. Gordon’s income for child support purposes, Trousdale J. declined to allow any deduction from Mr. Gordon’s income with respect to his farming loss. Mr. Gordon’s support obligation was therefore based upon his Line 150, gross annual income for 2011.
81Trousdale J. addressed Mr. Gordon’s argument that a setoff should be used for calculating child support given that each party has one child in his or her care.
82Trousdale J. exercised her discretion and declined to use a setoff, on the basis that Ms. Gordon’s current income from Canada Pension Plan was less than $10,000.00 per year and the obligation to pay child support would not start until she received a higher income. Even if she was over the threshold, Trousdale J. found that Ms. Gordon’s income and ability to pay was in such disparity to Mr. Gordon’s that setoff was not appropriate.
83Ms. Gordon argues that after the trial, Mr. Gordon’s income significantly increased, including his income by the end of 2012 (the year of the judgment). Further, his income in 2013 and 2014 was significantly higher. Mr. Gordon’s income in 2012 was $63,941.00. His income in 2013 was similar, in the amount of $64,496.00. His income in 2014 is even higher.
84Mr. Gordon argues that in 2015, he has been laid off and he will not return to similar income as he earned in 2012, 2013 and 2014. Mr. Gordon testified that he is physically worn out and unable to continue as a truck driver. Mr. Gordon stated that after the 2012 trial, he worked extra hours to obtain money to pay off his legal bills. The fact is that Mr. Gordon’s income continually rose after the trial.
85Mr. Gordon has been less than forthcoming as to his current employment circumstances. Mr. Gordon, during the course of the trial, provided a letter from his physician indicating his inability to work for the next several months. This letter was not provided previously by Mr. Gordon to Mr. Lee. Mr. Gordon testified that he believed the letter was irrelevant to this action. Mr. Gordon has not commenced a motion seeking to vary child support. Even if he had, I am not satisfied that the current child support ought to be varied. Accordingly, I continue the child support order of Trousdale J. at the existing rate of $430 per month.
Should Mr. Gordon be ordered to pay retroactive child support for 2012, 2013 and 2014?
86Unquestionably, father’s income increased significantly from the $46,000.00 found to be Mr. Gordon’s income by Trousdale J. However, Ms. Gordon, due to her lack of income, is not paying any support as a setoff towards Patrick’s support. Mr. Gordon is solely financially responsible for Patrick. The mother argues that Mr. Gordon should retroactively pay higher support, to reflect the actual income he earned in 2012, 2013 and 2014.
87Given that there was no setoff and Mr. Gordon’s responsibility to support Patrick, I am not satisfied that simply applying the Child Support Guidelines to Mr. Gordon’s Line 150 income would be appropriate. I am however satisfied that there was an increased ability of Mr. Gordon to pay child support in 2013 and 2014. Accordingly, I am ordering that Mr. Gordon’s child support obligation for 2013 and 2014 be increased (for the 24 months). Given the father’s obligation to support Patrick without contribution, I find it is appropriate to attribute and fix Mr. Gordon’s income in the amount of $55,000.00 for purpose of calculating child support that should have been payable for 2013 and 2014. I direct counsel for Mother to prepare a statement of arrears calculations using the Child Support Guidelines for an individual in Ontario earning $55,000.00 per annum. The arrears shall be repayable at the rate of $125.00 per month, commencing September 1st, 2015. Mr. Gordon’s obligation to pay support for Quinten beginning January 1st, 2015 shall recommence at $430.00 per month.
The Honourable Mr. Justice J.M. Johnston
Released: July 9, 2015
