Fraser v. Fraser, 2015 ONSC 4640
Superior Court of Justice - Ontario
Re: Andrew Gregory Kenneth Fraser, Applicant
And: Dawn Marie Fraser, Respondent
Before: The Hon. Mr. Justice J.P.L. McDermot
Counsel: William J. Leslie, for the Applicant Ryan W. Duval, for the Respondent
Heard: July 16, 2015
Endorsement
1This was a motion brought by the Applicant Father, Andrew Fraser, for interim joint and shared custody of the parties’ three children, Gregory, who is 10, Bradley who is 7 and Travis, who is 4.
2The Respondent Mother, Dawn Fraser, wishes an order according to the present status quo, which is that the children continue to live with her, with access to the Applicant Father every second weekend and a weekly evening visit with the children.
3It is common ground that the children have lived with the Respondent Mother, firstly in the matrimonial home until its sale, and now in her residence, since separation on September 1, 2014. Mr. Fraser says, however, that he never agreed with this. He says that the status quo prior to separation was that the parties equally shared parenting and it was only because of Ms. Fraser’s controlling nature that prevented him from having meaningful time sharing after separation. He says that he acted as promptly as possible to obtain shared custody, and this was the earliest possible date that the court was in a position to rule on temporary custody.
4I have also been asked to set child support, including the cost of special expenses for the children. One large expense is the cost of a caregiver that the parties had used during marriage, and that the Respondent Mother continues to use.
5One reason for the use of this caregiver is because the oldest child, Gregory, has Wolf-Hirschorn syndrome. This is a congenital condition that Gregory was born with, and includes a number of features, including a characteristic facial appearance, delayed growth and development, as well as intellectual disability and seizures.
6For the reasons set out below, I have determined that the children should continue to live in the Respondent Mother’s primary care, subject to expanded access to Mr. Fraser. I have also determined that Mr. Fraser shall pay base guideline child support in the amount of $1,262 per month plus a 50% share of section 7 expenses in the amount of $332 for a total of $1,594 per month commencing August 1, 2015.
Custody and Access
7As noted, Mr. Fraser claims joint custody and shared residency of the children. He says that he was deprived of the shared parenting arrangement that he had prior to separation due to the actions of the Respondent Mother. He says that during marriage, he equally shared care of the children with his wife, and considering the difficulties suffered by Gregory, both parties had to be involved in his care, as well as the care of the other two children. He acknowledges that during marriage, he had to travel a lot but that he has been able to minimize this travel now, partly due to the fact that his father owns the company and partly because his company no longer sells product in the United States. He says that it is in the best interests of the children that both parties remain involved in the care of the children, particularly when Gregory has special needs. He says that he is an involved father, and that this should continue through a shared custody arrangement.
8I note, however, that the parties’ affidavits conflict on a number of important points. Ms. Fraser says that she was always the primary caregiver to the children, and in particular, concerning the care of Gregory. Mr. Fraser denies this. He says that the parties cared equally for the children during marriage.
9More importantly, the parties seem to disagree about the level of care required by Gregory. Mr. Fraser says that Gregory has not had a seizure in five years, and no longer requires the special caregiver that Ms. Fraser continues to employ. He says that Gregory skis and is involved in normal activities of a child that age. He says that Gregory “needs only to be with someone who is alert and patient.” The only major acknowledged issue by Mr. Fraser is the feeding of pureed food to Gregory. In short, Mr. Fraser appears to minimize the care that Gregory needs and wishes to discharge the caregiver noted above and says that Gregory has previously been left with teenaged babysitters.
10Ms. Fraser disagrees with this. She denies that Gregory has ever been left with a teenager. She says that the situation concerning Gregory is a lot more serious than that made out than the Applicant Father. She says that “Gregory requires close supervision and multiple daily medications along with a level of expertise and consistency in his caregiving”. She has filed a letter from Gregory’s pediatrician which says that Gregory “is complex and medically fragile.”
11The importance of this is not necessarily the seriousness of Gregory’s condition. It is acknowledged that for a finding that joint custody is in the best interests of the children, there needs to be at least a minimum level of communication between the parties: see Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), [2005] O.J. No. 275 (C.A.) at paras. 10 and 11. According to Weiler J., “There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another.” I do not believe this to be the case with respect to the Frasers.
12I agree with Mr. Leslie that one exchange of text messages as set out in Ms. Fraser’s affidavit does not prove that the parties cannot communicate. But if the parties cannot agree on how to deal with and care for their special needs child, something which has been a primary issue both prior to and after separation, the prognosis is not good for their being able to communicate in the future respecting other matters concerning the children. As such, and without more, I do not find, at this time, that joint custody, even on a temporary basis, is in the best interests of the children.
13That being said, it is also not necessary on a temporary situation, to determine whether a party should have sole or joint custody. No evidence was placed before me of actual or potential major issues about which the parties will have to confer with one another in the near future. As such it is unnecessary for me to determine anything other than where the children are going to live pending trial.
14The refusal to grant joint custody does not necessarily mean that custody should not be shared. To determine this, I need to determine whether it is in the best interests of the children to change the primary residence situation that exists now to a shared week about situation.
15There is no issue that the children’s time with both parents should be maximized as much as possible: see s. 16(10) of the Divorce Act. It is also true that shared custody is becoming increasingly frequent, especially in light of the fact that in today’s world both parents often work and equally share care of the children.
16On the other hand, the case law also tells us that a court should not change a present status quo on a temporary motion absent compelling circumstances: see Grant v. Turgeon, 2000 CanLII 22565 (ON SC), [2000] O.J. No. 970 (S.C.J.) and Perchaluk v. Perchaluk, [2012] O.J. No. 2988 (C.J.). There are a number of reasons for this. Firstly, the evidence at a motion is by affidavit only, and often conflicting. It is often difficult to determine best interests of the children on the basis of conflicting affidavits. Moreover, if I were to order a change in the status quo, there is a real potential that these care arrangements may be changed again at trial; better to avoid a risk of two changes in the children’s lives by avoiding a change in the status quo at the interim motion stage. Finally, the parties presumably agreed when they separated as to the caregiving arrangements prior to court involvement and that has to count for something.
17The latter is exactly what Mr. Fraser says did not happen. He says he never acquiesced to anything, and the present regime was imposed on him. He says it is unfair that this occur.
18Fairness for the respective parties in setting a time sharing arrangement is, of course, extremely important. However, and especially considering an established status quo, the court must primarily focus on the issue from the perspective of the children. Often, all that young children want is to know where they what they may call home. Is it then in the children’s best interests, in the name of fairness, to uproot them and place them in a shared arrangement rather than the primary residential situation they are in now? In the present case, I do not believe that I should do so.
19Firstly, the evidence provided by these parties conflicts on a number of points. It conflicts on who was the primary caregiver prior to separation; were a trial judge to find that Ms. Fraser was, in fact the primary caregiver, this might also result in a finding that it is appropriate that the children remain in her care.
20As well, Mr. Fraser provided very few particulars of his involvement with the children prior to separation. This was in contrast to the evidence of the Respondent Mother; although her evidence admittedly concentrated on Gregory, it was extremely detailed as to what the situation was prior to separation.
21I am therefore not in a position to make a finding, as requested by Mr. Fraser, that the actual status quo prior to separation was that the parties equally cared for the children. That would mean that the status quo follows what is presently in place, which is that the children are in the primary care of the Respondent Mother.
22Moreover, there is a real conflict on whether Gregory’s special needs are sufficiently serious to make a difference to this case. I am hesitant to order a shared regime where it may cause instability to Gregory and result in him being shuttled back and forth which may result in harm to him. Dr. Gordon says that Gregory is, and I repeat, “complex and medically fragile.” That militates against the instability which may result from a change in the status quo, as well as the instability which may be inherent in a shared custody regime where the parties do not communicate well.
23Finally, the Applicant Father does not appear to be settled in a situation where he is able to care for the children on a shared basis. He notes in his own materials that he plans to purchase a home in the school district where the children are, but he has not done this yet. He implies he may have to wait until the proceeds of the sale of the matrimonial home are distributed, which is presently unknown. I was told during argument that the children have not exercised access since May in the home in which the Applicant Father resides. If Mr. Fraser wishes shared custody he should be ready to assume that care now.
24Accordingly, I find that the Applicant Father has not presented compelling circumstances which would result in a change in care on a temporary basis and that present status quo mandates that the mother continue to have care of the children pending trial. Accordingly the children should remain in the care of the Respondent Mother subject to weekend access to the father.
25Restricting the access to every second weekend is too restrictive, however. Accordingly, the access should be three weekends out of four along with midweek time as is the present case.
Child Support
26The Applicant’s income governs regarding base guideline child support. In submissions, Mr Fraser acknowledged income in the amount of $64,896 and this would give rise to guideline child support in the amount of $1,262.
27The Respondent Mother took the position that the father’s income should be grossed up. However, based upon the notices of assessment, it appears that the Applicant’s income is taxable and the Respondent Mother did not provide reasons why the income should be grossed up.
28I agree with the approach of Mr. Fraser in his payment of the caregiver, Dustin, who costs $460 per week. I am concerned with the fact that Dustin is really in charge of taking care of Gregory before and after school. Mr. Fraser has been paying one half of one third of Dustin’s costs; monthly, those costs would be $1,992 per month.1 One third of that amount is $664 per month and one half of that amount is $332 per month.
29Accordingly, child support is set at $1,262 per month plus the Respondent’s share of section 7 expenses in the amount of $332 per month, for a total of $1594 per month. That child support commences August 1, 2015.
Order
30Therefore temporary order to go as follows:
a. The children shall have their primary residence with the Respondent Mother
b. The Applicant Father shall have access with the children three weekends out of four as well as one midweek visit Wednesday evenings from after school, or 3:30 to 8:00 p.m.
c. The Applicant Father shall pay base guideline child support in the amount of $1,262 per month plus a 50% share of section 7 expenses in the amount of $332 for a total of $1,594 per month commencing August 1, 2015;
d. The support is based upon the Applicant Father’s income being $64,896 per annum.
Costs
31The parties may make costs submissions on a seven day turnaround, with the Applicant and then the Respondent making costs submissions. Costs submissions to be no more than three pages in length excluding bills of costs and any offers to settle this motion.
McDERMOT J.
Date: July 17, 2015