BARRIE COURT FILE NO.: FC 10-609-0001

DATE: 20150821

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

BRADEN NICHOLAS COTE, JOHN EDWARD POLLARI and JANIS ELIZABETH McLEOD

Applicants

– and –

SHAWNA MARIE WHITTY

Respondent

Janis McLeod, for the Applicants on their own behalf

Shawna Marie Whitty on her own behalf

HEARD: August 21, 2015

EBERHARD J.

[1] Shawna Whitty is the mother of Jayla age nine and Bryson age three. The Applicant Father, Braden Cote resides with his mother Janis McLeod and step-father John Pollari.

[2] On June 2, 2015 I released an interim decision on the Motion of the Respondent Mother to assume primary care of Jayla in Orangeville. Jayla has been in the primary care of the Applicants until I heard the Motion on May 28 and imposed a summer schedule that had both children spend similar amounts of time in each household.

[3] The interim decision brought the motion back before me today in the recognition that school placement in one community or the other would begin in September. I set out a very clear parenting schedule, very clear expectations of what the parties needed to do over the summer and made preliminary findings that I intended as indications to the parties of the problems they each should address if they wished to succeed on the motion and be given responsibility to have Jayla in their primary care after August 21, 2015.

[4] Even this is not a final order. The matter is on the November trial list. My purpose in fixing the continued motion date today and the final trial date as I have, is because in 2014 the OCL recommended that the Respondent Mother have primary care. Procedural challenges had resulted in the passage of time. The Respondent Mother exercised access faithfully but could not really demonstrate the steps she could put in place to meet Jayla’s needs unless she had Jayla in her care for more than weekends. The summer was a test to see what she could do and to see whether the attitude of the Applicants could soften.

[5] Emphasizing again that the Applicants, principally the paternal grandmother, have provided good care and been proactive in investigating and facilitating Jayla’s medical, educational and recreational needs, I nevertheless find that there has been inadequate attention to the problems I pointed out in my endorsement to be addressed: they dwell on transportation challenges they experience with no empathy for the similar dilemma faced by the Respondent Mother and simply blame her for moving to Orangeville. They gave me no suggestions, as asked, for improvements on transitions nor any alternative to the driving arrangements to make them more practical – simply that they should not have to drive. They dwell on the short time the children could be at the cottage and have uttered no word of any importance there may be to the children having time with their mother.

[6] The paternal grandmother did comply with notice requirements in paragraph 19 but with no more information about the purpose of the appointment for the mother, rather partial and too close to the date for the mother to arrange to attend. The Applicant Father showed me a text to demonstrate his assertion that she knew and said she was coming, but her actual text was that she would like to see Dr. Rajkhowa and would try to arrange her work schedule. The Respondent Mother tried to book an appointment for herself to see him. Some mix up occurred and I cannot say whether it was the office or the Respondent Mother who caused the confusion but I can certainly find that the confusion started because the Respondent Mother was not one of the contacts in the office records. The Respondent Mother was not informed of the conference call meeting on June 9, when the plans for September were discussed with school officials. I accept that may not have been known in advance, but certainly no thought was given to including the Respondent Mother in the conference call.

[7] I do not doubt that the Applicants have Jayla’s best interests at heart but their attitude of exclusion towards the mother is palpable. Even after my criticism in paragraph 11 of my earlier reasons they have been unable to improve in their capacity to encourage relationship.

[8] Meanwhile, the Respondent Mother has been only somewhat successful in her attempts to demonstrate she can take up the responsibility for Jayla without losing medical, educational or recreational opportunities. She reports a fun summer of activities but few of the structured activities or camps she spoke of in May.

[9] She has laid the groundwork for counselling services by attending at CAS resources. She has made an appointment for a mental health contact in Brampton since there is no child psychiatrist in Orangeville. She has pre-registered Jayla in school.

[10] I am not relying on any of the comments that the parties say Jayla has made about where she wants to live. Even though it is stale, I find the OCL report adequate demonstration of attachment with both parents and households. Her relationship with Bryson is not doubted and even if I were to accept the criticism that she calmed him during an upset recorded on a telephone message or that she changes diapers and cares for him in the mornings I do not go on to conclude that it demonstrates poor care by the mother.

[11] On an interim basis, the Applicant Father and Respondent Mother shall continue to have joint custody of both children with primary care to the Respondent Mother.

[12] The parenting schedule shall continue in the summer week about pattern until September when the Respondent Mother shall have primary care except on alternate weekends from Friday at 6pm to Sunday at 6pm as set out in Schedule A. The start of the fall schedule is delayed so Jayla can attend to medical appointments in Barrie already arranged by the Applicants.

[13] I recognize that disturbing Jayla’s primary care has an element of experimentation in it. As pointed out by the paternal grandmother when my decision was announced, she will lose the immediate benefit of IEP preparations with the current school. Nevertheless, I am certain that the Applicants will never facilitate relationship with the Respondent Mother. OCL investigations found her fit to parent despite some poor conduct and poor decisions. She would never, without court intervention, have opportunity to demonstrate parenting as a more mature person, a person not involved in conflict as when she and the Applicant Father were together, a person who has had the primary care of Bryson, because of the attitude of exclusion

[14] I have indicated to the Respondent Mother that I expect her to do better than the Applicants in promoting relationship between the children and the Applicants. That requires a concerted effort to provide them with information about the health, well-being and activities of the children. The paternal grandmother does not wish to hear from the Respondent Mother so I direct that the Respondent Mother continue to communicate with the Applicant Father by text but ALSO provide an information book to go back and forth in the children’s backpack on access exchanges to record information about the children, appointments and special events, special information that may impact on their care as they go from one household to the other.

[15] The Respondent Mother shall direct the school and any resource provider that the Applicant Father may have all information concerning the children available to a parent.

[16] I require the Respondent Mother to follow the medical advice of Dr. Rajkhowa until it is agreed between the parties or ordered by this court that his care of Jayla shall be transferred to another psychiatrist or mental health professional. To do this the Respondent Mother shall arrange an appointment with Dr. Rajkhowa on a day when the paternal grandfather can also attend. At such appointment she can inform herself as to his reasons for his medical recommendations and give him input as to what she has observed with Jayla. I direct her to maintain a medication diary to demonstrate to him and to the court that she is complying fully with his treatment recommendations.

[17] The Respondent Mother may also seek a second opinion and communicate that opinion to Dr. Rajkhowa to assist in his considerations but until agreed or ordered otherwise, as aforesaid, Dr. Rajkhowa’s treatment plan shall be followed.

[18] No child support is in place. The Respondent Mother shall investigate assistance programs or benefits to pay for medications and notify the Applicant but on an interim basis the Applicants shall continue to pay for the medications. The paternal grandmother protests that the child will not be covered by the paternal grandfather’s benefits if Jayla is not in their primary care. Since child support is not before me today, this order is to continue what has been in place until Child Support Guidelines principles can be applied. I also direct that the Child Tax Benefit be turned over to the Respondent Mother.

[19] Child support may be addressed at the TMC. I suggested to the Applicant Father that the Child Support Guidelines are easy to apply to known income and that voluntary payments would avoid later retroactive orders. Both parents are to bring their 2014 tax returns and a recent paystub to the next appearance.

[20] The on an interim basis the Respondent Mother shall continue Jayla in the care of Barrie health care providers and inform the paternal grandfather so he can also attend. In the event of an child’s illness or emergency where travel to Barrie is not practical the Respondent Mother may attend a healthcare provider or hospital for treatment for the children and advise the Applicant Father she has done so and the treatment given.

[21] The Respondent Mother shall arrange a meeting as soon as possible with the school principal to promote implementation of an IEP based on the input from the Barrie school and such further input and resource information as may be sought by the Orangeville school. The Respondent Mother shall inform the Applicants of the date and inform the principal that their insight may be helpful in planning the best IEP for Jayla.

[22] The Respondent Mother shall be responsible for transportation on Fridays. The Applicant Father shall be responsible for transportation on Sundays.

[23] The terms of my order of June 2, 2015 paragraphs 26-28 shall form part of this order.

[24] The Respondent Mother shall be responsible for transportation to health care appointments in Barrie.

[25] The Respondent Mother shall arrange for swimming lessons for Jayla. Any cost will be split 50/50 between the Respondent Mother and the Applicant Father when the Respondent Mother presents him with a receipt.

[26] The matter is adjourned to Friday October 23, 2015, 3pm (a day when the Respondent Mother has to come to Barrie anyway to deliver the children) for a Trial Management Conference and for an order of child support retroactive to September 2, 2015.

EBERHARD J.

Released: August 21, 2015