Court File and Parties
COURT FILE NO.: 565/09 DATE: 2015/08/14
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Alana Christine Wharton Applicant
– and –
Timothy Mark Prieur Respondent
Counsel: V. Pohani, for the Applicant Self-represented
HEARD: August 10, 11 & 12, 2015
BEFORE: A.J. GOODMAN J.
REASONS FOR JUDGMENT
[1] This is a retrial of a motion brought by the applicant to change the primary residency of the child, Madison Wharton Prieur (“Madison”), born May 26, 2006, from Grimsby to Ajax, Ontario.
[2] In November 2013, the motion to change a final order was heard as a trial before Harper J. The applicant’s request for the change of residency for the child to Ajax and other consequential relief was denied. On December 22, 2014, an appeal to the Divisional Court was successful and the matter returned for a retrial on the merits of the motion to change.
[3] According to the continuing record, Madison was two years old when the original Application for Custody and Support was brought to court. The parties drafted Minutes of Settlement. Those Minutes of Settlement were incorporated into the Order of Quinn J. of November 9, 2009.
[4] Justice Quinn’s Order provided for joint custody of Madison to the applicant mother, Alana Wharton (“Alana”) and respondent father, Tim Prieur (“Tim”). Primary residence was with Alana. Tim was to have extensive access, including two evenings per week and alternating weekends. There were also provisions for access on special occasions.
Issue:
[5] The sole issue in this case is whether Alana, should be allowed to relocate the primary residence of the child, Madison, from Grimsby to Ajax, Ontario.
Background:
[6] Alana and Tim resided in Grimsby prior to and shortly after Madison’s birth on May 26, 2006. Alana and Tim testified that both were active in Madison’s care. Tim was employed as an electrician, and Alana worked part-time.
[7] From May 2007 until their separation in June 2008, Alana and Tim lived together in Grimsby. Alana’s parents had co-signed a loan in order to enable Alana and Tim to purchase a home. There was some testimony about outstanding loan obligations owed by Tim to the maternal grandfather, which has caused some friction between them.
[8] Following their separation, Quinn J.’s order of November 9, 2009 provided for joint custody with primary residence to the applicant. Alana moved into an apartment with Madison. Over the course of time, Madison was with Tim on alternating weekends, and two nights during the week. Alana and Tim jointly continued to make all of the major parenting decisions and both were both extensively involved in the child’s day–to-day care during her infancy and toddler years.
[9] Alana started a relationship with her current common-law partner, Ian Henderson (“Ian”), when Madison was approximately four years old. Ian currently lives in Ajax, Ontario and had roots in that community. He has joint custody of his two children from his first marriage, Morgan is thirteen and Jackson is ten years of age.
[10] As the relationship between Alana and Ian intensified, they bought a property in Grimsby in December 2012. Alana moved from her apartment in Grimsby to the home she bought with Ian. Madison continued to remain at St Joseph’s Catholic School. In addition to her school, Madison was involved in other activities such as soccer, dance, swimming and gymnastics.
[11] Eventually, Alana decided to move to Ajax to be with Ian and his family, in order to have and provide a stable and nurturing family environment for all children. Alana also secured a higher paying job with Meridian Credit Union in the Scarborough or Pickering area.
[12] Madison continues to have numerous friends at her school and in Grimsby. It appears that she is close to her best friends, Sophia and Sabrina. Her paternal and maternal grandparents and extended family members all live in or near Grimsby.
[13] On October 3, 2013, in a brief endorsement of the court, Madison was not permitted to move to Ajax on an interim basis, pending trial. Alana lived in Ajax most nights during the week and every other weekend. Madison stayed with Alana’s mother during the week. However, Tim would take Madison to activities and she was with him on Wednesdays, later changed to Tuesdays and Thursdays. The maternal grandparents were of great support to Alana and Madison during this timeframe.
[14] By the time Alana brought her motion to change, the Grimsby home occupied by Alana and Ian had been sold. Ian claimed that he had to sell as he was Alana’s guarantor on this mortgage, and that tied up his borrowing capacity for his new company in Ajax. Ian was also required to remain in the Durham region due to his custody and access restrictions with his own biological children.
[15] After trial in November 2013, and as a result of Harper J.’s judgment of April 10, 2014, Madison’s primary residence remained in Grimsby. As Alana resided in Ajax, Tim’s home became primary residence and Alana was granted access on Tuesdays and Thursdays after school and every other weekend. Given the traffic and commuting time, Alana often relies on her mother to assist in the pick-up of Madison after school in order to facilitate these visits.
[16] Alana and Ian have a three bedroom house in Ajax. When Madison is in Ajax, she shares a bedroom with her half-sister, Morgan. When she is in Grimsby, Madison has her own bedroom in a rented four-bedroom house.
[17] Tim is married to Rachael Dekryger (“Rachael”). Out of this relationship, they have a two-year old son, Wyatt. Both Tim and Rachael work full time and Rachael is generally the parent who drops off and picks up Madison from school or the after-care program at the YMCA.
Positions of the Parties:
[18] Alana submits that she is the custodial or de facto custodial parent. As such, the Court ought to consider the benefit that ought to accrue to her from the jurisprudence. These are important considerations to be exercised by this Court. Alana has always had custody of Madison and has been her primary caregiver for the first seven years of her young life. She can provide the necessary financial, emotional and familial stability for Madison, something that is currently lacking. She has the support of her parents and family along with Ian, his children and their extended family.
[19] Alana submits that there would be some hardship for Tim and his family as Madison would be living in Ajax, and they would not be able to have some access during the week. However, she adds that she would provide Tim with increased access in the summer months and allow him to have Madison on statutory holidays and PA days. She would make Madison available if she were to be in the Niagara region visiting family or friends.
[20] Alana submits that there have been issues with Madison’s overall care while when residing with Tim and that he does not adequately address her basic hygiene and clothing needs under his watch. Some of these observations raise serious concerns about Madison’s well-being.
[21] Tim submits that Madison is a happy child and is doing extremely well in Grimsby and with his family. She has strong ties to her friends and family members on both sides, the majority if not all who live in Grimsby. Madison’s connection to her school and friends are important and she has roots in the community. Both sets of grandparents live nearby.
[22] Tim submits that it has always been a joint custody arrangement and that Alana has not had sole custody or de facto custody and that it is in Madison’s best interests to remain in Grimsby.
Legal Principles:
[23] This Application falls under s. 24 (1) of the Children’s Law Reform Act.
[24] The Supreme Court of Canada’s decision in Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27 is the leading and seminal authority in mobility cases. At para. 49, the Court held:
The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.
If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.
This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.
The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect.
Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.
The focus is on the best interests of the child, not the interests and rights of the parents.
More particularly the judge should consider, inter alia:
a) the existing custody arrangement and relationship between the child and the custodial parent;
b) the existing access arrangement and the relationship between the child and the access parent;
c) the desirability of maximizing contact between the child and both parents;
d) the views of the child;
e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;
f) disruption to the child of a change in custody;
g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.
Analysis:
[25] There is no dispute between the parties that Alana’s relocation to Ajax raises a material change in circumstances that profoundly affects Madison and warrants a re-consideration of the child’s principal residence.
[26] I have considered the testimony of the witnesses and have heard the submissions. In this trial, the applicant testified along with her common-law partner, Ian, her mother, Mary Wharton, and Sheri Daich. The respondent testified and called his wife, Rachael Dekryger, and his mother, Carolyn Prieur.
[27] Unfortunately, there was no custody or access assessment filed and the Office of the Children’s Lawyer was not requested to intervene. This would have been of benefit to me as I have no independent or objective information with regards to the views or preferences of this nine-year old child or any other evaluation of the parenting abilities of either party. Of course, I will make a determination based on the application of the proper legal principles and the evidence adduced in this hearing. However, as expected, both parties claim that their plan and primary residence is to be preferred and is in the best interests of Madison.
[28] Adopting the Gordon v. Goertz criteria in my assessment I have also considered Madison’s relationship with the new partners of both parents; their employment and security prospects, access to and support of extended family members; any difficulties encountered by either party in achieving access, the effect on Madison’s academic situation, her psychological and emotion well-being (to the extent that I am able to do so); any disruption of Madison’s existing social and community supports or routines, and her relationship with both parents. The motives and conduct of both parents are not factors as they are not relevant to his or her ability to parent.
[29] It is obvious to me that Alana and Madison have a very close and loving relationship. The same can be said about Tim and Madison. There is no quarrel that all of the partners of the principal parties, their step-children and extended family members on both sides love, care and nurture Madison. All are important persons in this young child’s life.
[30] Prior to April 2014, Madison’s primary residence has been with her mother in Grimsby. Since April 10, 2014, Madison has had primary residence with her father in Grimsby.
[31] While it may be seen to be some acknowledgement that the best interests of Madison was to have a residence in Grimsby, evidenced by Ian and Alana purchasing a house in Grimsby, Alana sought a motion to change an order allowing her to move to Ajax and set up a different access scheme to allow for such a relocation of the child.
[32] Alana emphasized that she has been the primary caregiver to Madison all her life and until April 2014 had been primarily resident with her. Applicant’s counsel submits that the jurisprudence supports her client position as Alana has been the custodial or de facto custodial parent.
[33] To that end, Ms. Pohani advanced several cases in support of her position including, but not limited to; Carter v. Brooks, 1990 2623 (Ont. C.A.), MacGyver v. Richards, (1994) 8674 (S.C.) upheld (1995) 8886 (Ont. C.A.). Both of these cases were decided prior to the Supreme Court of Canada’s decision in Gordon v. Goertz. I note that these cases and the majority of cases proffered by applicant’s counsel in support of her position speak to the issue and rights of the custodial parent in matters of relocating a child and principal residence.
[34] Ms. Pohani also proffered the case of N.M. v. C.K., 2012 ABQB 388. Counsel opines that the case is similar to the case at bar in that notwithstanding the joint parenting order stipulating a 50% shared parenting schedule, the mother argued that she had been the primary caregiver for the child. My reading of the case finds it employs some circular reasoning as to the ultimate result and conclusions offered by the trial judge. The judge found that both parents were contributing to the child’s well-being and that the mother’s move to Orangeville was not compelling, albeit the judge felt that she could not order them back to Alberta. In that case, the judge had the benefit of a psychological assessment of parenting provided by an independent clinical psychologist. In my view, the cases proffered by counsel are distinguishable.
[35] With respect, I do not agree with the applicant’s position. On the evidence I do not find that the applicant has had de facto or sole custody of the child. The prior Orders provide for joint custody and I am satisfied that historically, both parents have exercised their rights and have both been actively involved with Madison in the manner provided by agreement or by court order and not to the exclusion of the other. While residency is one factor, I find that there is and has always been a joint custody and shared parenting arrangement. Where joint custody exists, the parent with whom the child resides should not be treated as the de facto custodial parent: Young v. Young, 2003 3320 (ON CA), [2003] O.J. NO. 67 (C.A.) at para. 23.
[36] It is not lost on me that the maternal grandparents have also filled the void where both parents were unable to be present due to work and other life obligations.
[37] Of course, clearly, in the absence of independent evidence or an assessment, I have to consider the reliability and credibility of all witnesses and the totality of circumstances in addressing the question before me.
[38] It is settled law that only in exceptional circumstances will the reasons for a parent’s relocation be considered by the court, and only become relevant if it affects the parenting ability of the parent: Gordon v. Goertz, at para. 48. The test here is not whether it is convenient or not for one parent or the other or whether one parent prefers residency.
[39] Alana testified that her move to Ajax was predicated on forming a strong family unit with Ian and offering a secure and loving environment for Madison and all of the couple’s children. Alana explained that there is a close bond between all of the children. She added that the move also allowed for her to benefit from an enhanced career opportunity with the Meridian Credit Union. However as pointed out in cross-examination, her career opportunity had not yet crystalized prior to her initiating the original interim application for change of residency.
[40] Alana stated that she moved to Ajax because she wanted to combine her family and Ian’s family and get on with her life. She felt that Madison would have a loving home with a dual income. This would allow her to better provide for Madison financially. She felt that Madison should be with her mother as she always was the primary caregiver for her.
[41] Ian testified that he is constrained from moving out of Ajax due to his circumstances involving his natural children. That is understandable and is one of the factors leading to a reasonable explanation as to why the Grimsby house was sold and Ian setting up his business in Ajax. Ian also supported Alana’s contention that Madison has a loving relationship with both of his children. His oldest female child is entering high school.
[42] Mary Wharton testified that she and her husband enjoy a strong bond with Madison and they are actively involved in her life. When Alana moved to Ajax, Madison had lived with her prior to the first trial. She routinely picks up Madison from school when Alana is understandably delayed in arriving from the Toronto area to Grimsby.
[43] Alana proposed that Madison would attend a public school and she provided a favourable EQAO report regarding the proposed school. However, both parents agreed that Madison would be raised as a catholic. Madison was sent to a Catholic school that she has been attending for the past four years.
[44] It seems to me that at times, Alana chose to marginalize Tim’s or Rachael’s parenting skills and embellished her concerns about Madison’s hygiene, turn-out and overall well-being while under their watch. The ripped stockings and no underwear statements was not just a one-time occurrence, but viewed on five to six occasions. Alana did not report this concern to Tim.
[45] In my view, the issues with irritation and discharge from Madison’s private parts or an alleged bladder infection appeared to be made out to be more profound than was actually the case. I do not readily accept Ms. Daich’s evidence, much of it was based on double hearsay and I find her to be biased in favour of the applicant.
[46] I prefer Tim’s explanations for the chafing and the reasons why Madison was sore in her private area due to not having wiped herself properly. He remedied the situation by purchasing appropriate cream and having Rachael assist with personal hygiene. I am persuaded that this does not reflect negatively on their parenting ability. I also accept Carolyn’s evidence that while the Prieur household is clean, it may be messy at times. I don’t see anything untoward about the situation as there are children playing in the home and I chose not to draw any adverse finding.
[47] Further, I reject the inference sought from a variety of suggestions offered by the applicant that Tim and Rachael are otherwise too occupied or unfit to parent Madison. Tim and Rachael are a caring and supportive family unit. They are also busy parents.
[48] I accept that Alana’s relocation to Ajax was not motivated by any desire to limit access to the father. However, in my view, the applicant’s testimony is replete with examples as to her own best interests. It seems that Alana chose to be focused and critical of Tim and Rachael’s parenting abilities in attempting to demonstrate that she is the better parent to serve Madison’s interests. On the other hand, Tim opted not to critique the other parent.
[49] For the most part, Tim’s testimony was focused on Madison and her successes, challenges and opportunities. His entire testimony was centred on the child and did not take an opportunity to lambast the ability of the other parent.
[50] I was impressed with Tim’s testimony in addressing Madison’s best interests. His evidence was balanced and fair. He testified that Madison’s confidence level has been raised, she no longer or rarely says “I can’t” and provided numerous specific experiences and examples. She is reported to be very happy. She is being provided with confidence building experiences. She has just received her best report card ever this past year, although she has always performed well academically. Since having lived with her father, there are absolutely no adjustment issues. Tim responded fairly and reasonably during cross-examination to any suggestion he ought to have considered counselling for Madison when it was clearly not necessary.
[51] Tim testified that Madison is not just plopped in front of the television but there is an active interaction between all of Tim’s and Rachael’s family members. They prefer to spend time outdoors. Madison is being provided with some healthy household chores and responsibilities and is assisting in the care of her young step-brother. I am advised that she is willing to accept these challenges and is benefitting from them.
[52] In my view, the applicant’s submissions around any delay in receiving the internet or Cable TV in the Prieur home has been reasonably explained. Tim and Rachael’s’ parenting style is for full engagement with the children and they had opted not to focus on current technologies. At Madison’s young age I don’t view this as a concern. In any event, Internet and Cable has been established in the Prieur household, albeit its use is limited.
[53] The complaint about Tim and Rachael smoking extensively was not directed at any harm towards Madison, rather the focus was on the financial outlay for this habit in lieu of other expenditures that could be directed towards Madison. In my opinion, the issue is a non-starter.
[54] I was also impressed with Rachael’s evidence. She is soft-spoken but her demeanour suggests a caring warm and engaged individual who advises that she spends much time with both children and actively participates with them in play and activities. Madison has her own bedroom in the Grimsby home and actively shares in the household chores, and is provided with positive confidence-building experiences.
[55] According to Tim and Rachael, Madison is very close to her baby brother. She is the “proud big sister” who dotes on Wyatt and they have a loving and close relationship. Madison is very proud to play the big sister role, and I find that this close and consistent contact should be allowed to foster.
[56] There is no doubt that Madison is also close to her extended paternal family consisting of her grandparents, aunts and uncles. I find that Madison is very connected in a loving way to Rachael, who is acting as a loving step-mother. The evidence also provides that Madison is always talking about Rachael in a very positive manner. Alana acknowledged that Madison is close to Rachael as she is with Ian. Tim also responded in kind.
[57] In reply, I note that counsel took exception to Tim offering his opinion about Madison’s increased confidence and happiness over the past year, as just mere opinion without an assessment. Yet, that comment is somewhat disingenuous as I have received much hearsay and lay opinion evidence about Madison from the applicant and all of the witnesses.
[58] I am mindful that this is not just a credibility contest between the parties. I must consider and focus on Madison’s best interests.
[59] In my opinion, Alana’s plan to relocate Madison to Ajax is not in the best interests of Madison. I find that the commute from Ajax to Grimsby is lengthy, especially during rush hour. At these peak times, the commute is in excess of two hours each way. I reject Alana’s evidence and counsel’s suggestion that the commute is between 90 and 105 minutes. I take judicial notice that at rush hour through Toronto on the roads and highways, a one-way commute from Ajax, Pickering or Scarborough to Grimsby would be at least two hours, and likely of much longer duration. However, the distance or time of travel is but one consideration.
[60] No party has advanced the proposition that Madison would be driven to and from Ajax twice per week for such access to Tim. Indeed, the possibility of placing Madison in the position of driving four to five hours two nights per week is to completely disregard Madison. However, the effect of such a change would all but negate Tim’s access to Madison mid-week as he has no support systems in Ajax. This is entirely dissimilar to the situation in Grimsby with Alana’s parents and family who reside locally.
[61] Alana proposed that if the court decided to allow Madison to live primarily with her in Ajax, Tim would be able to visit with her on all PA days, or statutory holidays. Frankly, those additional days offered by the applicant are not workable. Effectively, without any supports, family or friends in the Ajax community, Tim would be limited to an average of six days a month and to visits that would not be beneficial quality time. To suggest that Tim give up his cigarettes in order to have additional finances to make this plan work is not viable. Moreover, it is not the household finances that are troubling, rather it the real opportunity for Tim or his family to be able to exercise access based on his employment and other obligations.
[62] It can be suggested that not considering possible enrollment for Madison in the Ajax separate system to be a lack of insight. Madison is enrolled in the Catholic system in Grimsby, and that she also attends church, albeit infrequently. It is clear that Madison is also very close to her friends at school and in her neighborhood. While I am not for a moment suggestion that a change can never occur, Madison is rooted in the Grimsby community with positive reinforcement and solid familial relationships.
[63] As mentioned, Madison is doing extremely well in school, all excellent grades and has been making both parents proud. One of the considerations must be any disruption to the child consequent on removal from family, school and the community he or she has come to know: Young v. Young, at para. 28.
[64] Not only am I persuaded that the current after-school program at the YMCA is productive and socially engaging for Madison, the evidence provided here suggests that there are structured programs and activities for her. It is not merely a drop off for the child to languish before and after school. I accept that Madison enjoys the YMCA program with her friends.
[65] No one doubts that Madison is presently flourishing. She is engaged with her family, friends and community. Her grades have never been better. She is described as a happy child. The applicant’s offer for adjustment counselling or other counselling if necessary to facilitate the Madison’s move to Ajax does not enhance the suggestion to me that it is in the best interests of the child to relocate.
[66] My sense of her evidence, is that Alana has made choices that have placed her interests above those of her daughter. Much of her testimony was self-serving and focused on her own situation and why that is in Madison’s best interests. Alana proposed to have Ian assist in the care and transportation for Madison when she is working, yet criticizes Rachael’s involvement in the drop off and pickup of Madison from daycare. That is not to say that she does not love her daughter deeply. Rather, I question her insight into her daughter’s best interests that do not appear to take precedence over her own interests.
[67] I suppose one of the most important considerations if not the most important, is that all of Madison’s maternal and paternal grandparents and extended family members are situated in the Grimsby area. Madison benefits from the continual support of grandparents from both sides. Indeed, her maternal grandparents who reside close to Tim, are particularly important to Madison and they assist Alana with her access. Alana’s extended family is also in the Grimsby or Stoney Creek areas. Both Madison’s family doctor and dentist are in the Niagara region. The paternal grandparents are also minutes away and Tim’s extended family are nearby with the exception of one sibling who resides in London.
[68] It is true that Madison has spent much of her nine years under the care of both parents along with her maternal grandmother. Both Alana and Tim work long hours and have great contributions to make to Madison. Aside from being readily accessible and financial wherewithal, I am not satisfied that Ian’s enhanced availability in running his own business from the home or higher income really adds anything substantial to the best interests of Madison. While I have no qualms about Ian’s willingness to assist in Madison’s development, Alana’s and Ian’s testimony and plan to address the needs and best interests of Madison do not provide the same sense of engagement as that provided by Tim and Rachael.
[69] I need not get into the historical problems with the maternal grandfather’s and Tim’s relationship. While Mary admitted that she also did not have the best relationship with Tim, I am persuaded that this obvious tension can be worked out, and the parties appear to have cooperated in the past year. I am confident the maternal grandparents will actively support and continue to assist both parents with Madison’s healthy upbringing.
[70] While specifically addressing the provisions of the Divorce Act, in Berry v Berry, 2011 ONCA 705, at para. 13, the Court elaborated upon the “maximum contact principle”:
The trial judge erred by failing to give sufficient weight to the maximum contact principle. He stated that maximizing the contact between a young child and both parents “is not the primary goal. It is but one of a number of factors that has to be weighed and considered intelligently in a case where the parties cannot agree.” In [Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27], McLachlin J. pointed out that the maximum contact principle is one of the two statutory factors set out in ss. 16(10) and 17(9) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), and added that “the reviewing judge must bear in mind that Parliament has indicated that maximum contact with both parents is generally in the best interests of the child” (Goertz, at para. 25).
[71] This principle is applicable to an assessment of a child’s best interests under the CLRA: Bjornson v. Creighton, 2002 45125 (ON CA), [2002] O.J. No. 4364 (C.A.) at para 34. It is settled law that a custodial parent’s reasons for moving is not to be considered unless it relates to the needs of the child. I reiterate that I have not concluded that Alana was the custodial or de facto custodial parent. I am not persuaded that Alana will effectively support the maximum contact principle as I am persuaded that her choice to move to Ajax for the purposes of being with Ian and his family, then for a career opportunity, was made without sufficiently considering the impact on the child by removing her from her community, and most importantly her father and both extended families. A permanent relocation to Ajax will undoubtedly disrupt the child’s life and particular her close relationship to the father, Rachael, Wyatt and both sets of grandparents.
[72] According to the evidence, Madison appears to have accepted the current situation. When advised by her parents of this change of residency following the April 2014 judgment, her reaction was one of being somewhat disinterested and requesting to continue to eat her doughnut. Perhaps it might have been a young child’s miscomprehension or lack of awareness of the circumstances or the manner in which it was communicated to her; we don’t know. What is apparent is that no counselling was required, and Madison is happy and has not acted out or exhibited any negative behaviour and has been very well-adjusted over the past 16 months with her residency remaining in Grimsby with her father.
[73] Even if I am in error and Alana has been the de facto custodial parent prior to Harper J.’s order of April 10, 2014, overall, on the evidence, I prefer Tim’s evidence and plan for Madison over that provided by the Applicant. Again, I find that the focus of Alana’s evidence was directed towards her best interests and tended to be parent-centered rather than child-centered.
[74] While Alana and Tim have always made efforts to share in the parenting of Madison, as the time since their separation has grown and their lives taken different paths, this level of cooperation has diminished. Both are responsible for the reduced communication. In order for both parents to be successful at sharing parenting after separation, there needs to be a sufficient level of communication, and the ability to make decisions together in the child’s best interests. Although their communication is strained, joint custody shall continue as long as both Alana and Tim actively continue to demonstrate that they are putting Madison’s best interests first.
Conclusion
[75] For all of these reasons, and considering all of the relevant circumstances, I find that Alana’s request for Madison to relocate to Ajax is not in her best interests.
[76] Alana testified that her relocation to Ajax is now permanent with no intention to return to Grimsby. While it is important not to overemphasize the status quo, I conclude that Madison’s best interests at this time are served by her remaining in the Grimsby area. On the evidence, Tim and his immediate family along with the support of both extended families will best meet young Madison’s needs. Therefore, I find that Madison’s best interests are served by her primarily residing with her father.
[77] I must emphasize that nothing in these reasons takes away from the fact that Alana is a caring, devoted and loving mother. As difficult as my decision will be on the applicant and her immediate family, Alana’s roots in the Grimsby community along with grandparent and family support will soften the impact of this decision. It is crucial that all reasonable steps be taken to continue to promote meaningful access. To that end, I have considered the parenting plans provided by both parties. I have primarily adopted the applicant’s parenting plan, with some enhanced contact to be provided to Alana all the while inserting the necessary modifications to the proposed plan in order that it conform with my ruling.
[78] It is ordered that the parties shall abide by the parenting plan as found in Appendix “A” to this judgment.
[79] Generally, Rule 24 of the Family Law Rules provides for costs to the successful party. While the respondent prevailed in this proceeding, he is self-represented. Moreover, recognizing the additional expense to be incurred by the applicant in order to have continual and meaningful contact with Madison in the exercise of my discretion, no costs are awarded.
A. J. Goodman J.
Date: August 14, 2015
APPENDIX “A”
Wharton v. Prieur
Parenting Plan for Madison Rylin Wharton Prieur
The father, Timothy Mark Prieur, and mother, Alana Christine Wharton, shall continue to have joint custody of Madison Rylin Wharton Prieur (DOB: May 26, 2006).
Madison’s primary residency shall be in Grimsby, Ontario with her father, Timothy, from Monday to Friday throughout the school year, with Alana having the following liberal access:
Alana shall have Madison on a rotational weekend schedule during the school year from Fridays after school until 7:00 p.m. on Sundays.
Unless otherwise specified, Madison shall be picked up from school or at a location in Grimsby after school on the Friday. Madison shall be returned to Timothy on Sunday evening at 7:00 p.m. at a mutually convenient drop-off location in Mississauga, unless Madison is already in the Niagara region or alternate arrangements are discussed and agreed upon by both parents.
Summer holidays: (End of the last day of school in June to Labour Day) are to be split evenly between Alana and Timothy based on a week on, week off rotational schedule or multiple weeks on and off, with Alana having her priority and first choice of weeks. If there are an uneven number of summer weeks between the end of the school term and Labour Day in September, the excess week shall have Madison reside with Alana. Madison will reside with Timothy from Labour Day to the commencement of the school calendar year, unless the parties agree otherwise. The weekly transition shall occur on Monday nights at 7:00 p.m., unless the parties mutually agree otherwise.
Should either parent wish more summer vacation time with Madison, then he or she shall provide the other parent 30 days’ notice in writing of which week(s) he or she is seeking for a maximum of three consecutive weeks. Alana has the first choice of any such weeks. Any response is to be provided in writing within seven days. Any time lost by such an accommodation shall be made up.
Both Timothy and Alana shall provide each other a detailed itinerary of any trips or planned vacations at least seven days before the commencement of travel, including location, travel arrangements and accommodation, as well as telephone numbers Madison can be contacted at during the vacation.
All school PA or PD days shall be spent with Alana, at her sole discretion. If the PA Day falls on a Friday, Madison shall be with Alana from the Thursday night after school until Friday at 7:00 p.m., unless it falls on her scheduled weekend, in that case, Madison will then be returned to Timothy on Sunday by 7:00 p.m., unless the Monday is a holiday, in which case Madison shall be returned to Timothy on Monday by 7:00 p.m.
For the Family Day long weekend and Victoria Day weekend, Madison shall spend with Alana regardless of weekend rotation schedule, from Friday after school until Monday at 7:00 pm.
March Break shall be split evenly between Timothy and Alana. Alana shall have first choice of days; however the parents are encouraged to work out arrangements between them.
Madison’s birthday, May 26th, shall be on a year to year rotation. If Madison’s birthday is on a weekday, arrangements will be made for Alana to have Madison either on the weekend before or after to make up the time, if requested.
Madison shall spend Mother’s Day with Alana from 9:00 a.m. until 7:00 p.m. regardless of weekend rotation schedule, unless the parties otherwise agree.
Madison shall spend Father’s Day with Timothy from 9:00 a.m. until 7:00 p.m. regardless of weekend rotation schedule, unless the parties otherwise agree.
Timothy and Alana are to rotate Thanksgiving and Easter Holidays as follows; Timothy shall have Madison for Easter in odd numbered years and Alana to have Madison in even numbered years. Timothy shall have Madison for Thanksgiving in even numbered years and Alana to have Madison in odd numbered years.
Halloween night shall alternate years between Timothy and Alana starting October 2015 where Madison will be with Alana, unless the parties otherwise mutually agree.
Madison shall spend Christmas on odd numbered years with Alana from December 24th at 3:00 pm until December 25th at 3:00 p.m. On even numbered years Timothy shall have Madison from December 24th at 3:00 p.m. until December 25th at 3:00 p.m., unless the parties otherwise agree.
Christmas school vacation shall be split evenly between Timothy and Alana. If there are an unequal number of days during this period, any excess time shall have Madison residing with Alana.
Timothy and Alana will discuss and decide on Madison’s attendance at any extended family member’s birthday celebrations, weddings and family gatherings etc., taking into consideration Madison’s schedule and the importance of Madison’s contact with extended family members. Any changes in the schedule agreed to by the parties shall be made up by the parents if necessary.
Facetime or Skype is to be facilitated between Madison and her mother whenever the mother and daughter wish as long as it does not cause a disruption to an activity or is not practical. If such is the case, the first reasonable opportunity shall be provided to facilitate internet communication. Tim is to ensure that an internet connection remain active in the home. Contact with other parent shall be encouraged and facilitated by both Timothy and Alana.
Both Timothy and Alana will endeavour to work co-operatively and make every effort to reduce and eliminate conflict between them. Timothy and Alana will ensure that they discuss all parenting issues directly and not in the presence of Madison, and will not use her as a messenger. Timothy and Alana acknowledge that it is in Madison’s best interest to have a close relationship with parents, grandparents and extended family members.
Timothy and Alana shall keep each other informed of any and all substantial issues relating to Madison, including but not limited to, educational, religious, medical, dental, extracurricular activities and issues regarding Madison’s general wellbeing including behavioural issues. Timothy and Alana shall try to work together in making decisions relating to Madison. They agree to confer as often as is necessary to ensure that both parents are fully aware and have input in making all major decisions affecting Madison’s health, education and general welfare. In the event of a disagreement that cannot be resolved between the parties, Alana and Tim may avail themselves to the assistance of a mediator.
COURT FILE NO.: 565/09 DATE: 2015/08/14
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Alana Christine Wharton Applicant
- and -
Timothy Mark Prieur Respondent
REASONS FOR JUDGMENT
A. J. Goodman J.
Released: August 14, 2015