ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FC-13-1041-1
DATE: 2015/09/15
BETWEEN:
JOHN STUART BRUCE
Applicant
– and –
LOUISE GIROUX
Respondent
Michael Rappaport, for the Applicant
Caspar van Baal, for the Respondent
HEARD: September 3, 2015 (at Ottawa)
REASONS FOR DECISION
Kane J.
[1] The applicant father by motion seeks:
An order appointing the Office of the Children’s Lawyer under s. 89(3.1) and s. 112 of the Courts of Justice Act, R.S.O. 1990, c. C. 43 as to their daughter who is currently 10 years old (the “Child”);
An order of joint custody and an equal parenting time of the Child;
In the alternative, a judicial interpretation/declaration of paragraph 3.6 (k), of the parties Separation Agreement dated August 8, 2013, to include:
(a) In week 1 of the access schedule, the father to have access on Tuesday from 5:00 p.m. to 9:00 a.m. the next morning and on Friday from 5:00 p.m. to Monday morning at 9:00 a.m.
(b) In week 2 of the access schedule, the father to have access on Wednesday from 5:00 p.m. to 9:00 a.m. the next morning, and Thursday from 5:00 p.m. to 9:00 a.m. the next morning;
- An order for costs on a full indemnity basis.
[2] The respondent mother seeks an order:
Dismissing the applicant’s motion; and
Costs on a full indemnity basis.
Background
[3] The father and mother:
(a) Are 53 and 52 years of age respectively;
(b) Married one another on June 26, 2004;
(c) Are each employed;
(d) Separated on December 31, 2012;
(e) Signed a Separation Agreement following mediation dated August 8, 2013, and were each then represented by counsel;
(f) Were divorced on February 11, 2015; and
(g) Each have a daughter from a previous relationship, who are 22 and 25 years of age respectively.
[4] In May 2013, the mother issued but did not serve an application in which she sought sole custody.
[5] The August 2013 Separation Agreement (the “Agreement”), as to custody and access of the Child, states:
The parties will have joint custody. They will make important decisions about the welfare of the Child together; including decisions about her education, major non-emergency health care, major recreational activities; and religious activities. (s. 3)
The father will spend a generous amount of time with Bridget including but not limited to:
(a) Alternate weekends from Friday at 5:00 p.m. until school on Monday morning;
(b) Alternating Tuesdays overnight in week 1;
(c) Alternating Thursdays for dinner in week 2;
(d) Two non-consecutive weeks during July and August;
(e) One of the two weeks during March break;
(f) One half of Easter and Thanksgiving weekends and the Christmas school break; and
(g) Notwithstanding the above, the parties at all times will maintain a reasonable and flexible position respecting the custody/access arrangements and at all times the Child’s best interests will prevail. (ss. 3.4, 3.5 and 3.6 (k)) (emphasis added)
[6] Without prior notice and while the parties continued to live separated in the matrimonial home, the mother on December 2, 2013, moved herself, the Child and belongings she selected to a new residence. The father was out of town at the time.
[7] That unilateral conduct by the mother breached s. 3.1 of the Agreement which requires the parties as part of joint custody to make important decisions together about the welfare of the Child. The father responded thereto inappropriately by calling the police.
[8] The father’s application filed May 22, 2014, seeks a divorce and an order to amend the Agreement by dividing Canada Day, Victoria Day and Family Day access, being holidays not specified in the Agreement. Those statutory holidays were later negotiated, shared and incorporated into Minutes of Settlement and a consent order dated February 3, 2015.
[9] The mother was successful on her urgent motion in October 2014 to oblige the father to provide written travel consent, which he is required to give pursuant to the Agreement. The father considered this contractual obligation less important than seizing the occasion to obtain his financial objective as to a joint promissory note but in doing so, escalated disharmony in this family unit.
[10] The case conference endorsement of the Master dated January 28, 2015, permits the father on consent to amend his application but rejects his request for the appointment of the Office of the Children’s Lawyer as the Master did not “see any clinical issues to be addressed by the OCL and no order is made on this topic at this case conference without prejudice to any party returning a motion on this topic.”
Amended Application
[11] The father’s amended application seeks: (a) joint custody, (b) equal time with each parent, or (c) each alternate weekend from Friday p.m. to Monday a.m., (d) 1 overnight in week 1, (e) 1 overnight plus 1 evening dinner in week 2 and (f) the appointment of the OCL.
[12] The father alleges:
(a) The mother insists having things her way on all issues and rejects appointing a parenting coordinator;
(b) The mother will not answer her telephone, will not respond to the father’s emails and insists upon communicating via legal counsel;
(c) The father wanted equal parenting time prior to signing the Separation Agreement but the mother threatened to take him to court unless he accepted the current 70%/30% time split in her favour;
(d) The Agreement requires the mother to be “reasonable and flexible” as to access; but she will not grant him more access, controls his time with the Child, has taken some of his time and will not give him makeup time;
(e) The Child states she wants more time with her father;
(f) The mother plans trips and has the Child taking swimming, piano and Spanish lessons and enrolled in Girl Guides, thereby interrupting and controlling the Child’s time with the father and is using such activities to deny the father additional time with his daughter, which she contracted not to do in ss. 3.1(c) and 3.6 (f) of the Agreement;
(g) The father takes the Child to an Anglican church when with him and although baptized Catholic, is not a practising Catholic when with the mother;
(h) The Child’s homework is allotted for two week periods and due to the father’s limited time with the Child, it should be done while with her mother;
(i) The mother refuses to respond to messages from the father requiring that he send her multiple messages;
(j) The father does not intimidate the mother who has threatened to shoot him;
(k) The OCL should be appointed to investigate and recommend a parenting arrangement in the best interests of the Child; and
(l) What he and the parties need is a court ordered fixed parenting schedule that both parents must abide by.
Amended Answer
[13] In her Amended Answer, the mother also seeks to amend the Agreement, namely she seeks sole custody and wants to travel with the Child for two consecutive weeks per year. Her Answer is silent as to access of the father.
[14] The mother’s Amended Answer and affidavits states:
(a) There is no material change of circumstances to support a change of increased access to the father as the Child is doing well, the mother’s employment hours have been set to match the Child’s school schedule and days off resulting in no daycare requirement, the parents live in different neighbourhoods and the Child’s activities, school and friends are in the mother’s district and the father is unwilling to be involved and discourages the Child to remain involved in several of her activities;
(b) The Child is Roman Catholic and attends a Catholic school. The father takes the Child to an Anglican church which is contrary to the Agreement;
(c) By the nature of his employment as a security broker, the father often must work evenings, limiting his time with the Child which does not occur with the mother;
(d) The father has a temper, argues and speaks harshly to the mother which the Child can hear;
(e) The Child attends French school for which only the mother may assist with such homework;
(f) The father constantly raises reasons to not provide his travel consent, despite the Agreement obligation to do so. Providing dates, locations and hotel names are insufficient. Room numbers and confirmation of the mother and Child’s safe destination arrival are also insisted upon;
(g) The father is preventing telephone communication between the mother and the Child;
(h) The Child is doing very well with the existing Agreement’s parenting and access regime. Changing that is not in the Child’s best interests and merely constitutes what the father wants; and
(i) There are no clinical issues requiring the assistance of the OCL. The OCL would be an unnecessary intrusion in the Child’s life.
Analysis
[15] The parties attach letters to their affidavits from friends and family members. In addition to them being unsworn, many of those are unsigned which reduces the weight to be attributed to them.
[16] The applicant and his brother are estranged. That brother’s dislike of this father is palatable. The brother admits being estranged for the last 30 years from his now deceased father and his mother. He states the deceased father was abusive when this brother was 18 years old. The father’s and the brother’s now elderly mother now lives with and is cared for by the applicant father. The brother has had little contact with his mother during the past 30 years.
[17] The brother has lived in other countries for many of the last 10 years, thus limiting his contact with the parties. Despite his absence and limited contact, this brother categorically supports the mother in every respect, including the Child’s need to be protected in her relationship with her 22 year old maternal step-sister who has lived in foreign countries for the last several years rarely seeing the Child and who the father dislikes. The brother’s verbal attack of his brother and his dated attack against his deceased father is greatly undermined by the responding letter of his mother, the paternal grandmother.
[18] This brother makes allegations about the applicant’s conduct on two occasions several years ago, which allegedly occurred in the presence of the respondent mother. The mother makes no mention of such incidents in her several lengthy affidavits.
[19] The mother’s negative interpretation of the supportive letter from the paternal grandmother is inaccurate.
[20] The mother has recorded instances since the separation she alleges demonstrate her flexibility in response to access requests of the father. That correspondence demonstrates many instances of changes in slight, as in 1 day, overnight or pick up/drop off times, some of which each party at times agreed to or not. Many of those changes however were at the mother’s request.
[21] The mother loves and cares for the Child. The mother cannot be faulted for not paying attention to the Child.
[22] The mother’s life is devoted to but also dependent upon the Child. The mother shows that dependency in her need to telephone and speak to the Child during the limited access periods of the father. The mother refers to remotely playing computer games with the Child while at her father’s home.
[23] A 10 year old, two and one-half years after living her parents’ separation, does not need a nightly conversation with her mother while spending alternate weekends or an overnight with the father. The need of such is that of the mother.
[24] The mother has initiated numerous extracurricular programs she has the Child in and insists the father continue those when the Child is with him. The mother is depressing her income in order that she be with the 10 year old Child after school, including sitting in on extracurricular activities and lessons of the Child.
[25] The mother is intelligent and detailed oriented. She feels the need to dictate “home work schedules” to be completed by the Child and supervised by the father over a weekend or a night over, including in extracurricular courses the mother has determined beneficial and enrolled this 8 to 10 year old Child in.
[26] Weekend get togethers of 9 and 10 year olds are presented by the mother as priority commitments the father must accommodate during his limited time with the Child. Such matters are between the father and the Child.
[27] This interference and domination by the mother breaches her obligation to not do that in the very Agreement she now presents as a shield against the father’s present motion for more time. The mother is interfering with the limited time between this father and daughter. The father resents that and responds, often in a sarcastic manner.
[28] The mother has and continues to reject the father’s requests that they engage a parenting coordinator. She does so because of her current dominant position, despite the obvious parental difficulties which are filtering down on the Child she loves and does so in order to dictate the agenda.
[29] Overall, the mother acknowledges the Child’s relationship with her father but affords little priority to or respect of their relationship if their schedule does not match her views and priorities.
[30] It is very difficult for parents to learn to live without their child(ren) following a separation. These parents have not yet learned how to do that and cope by themselves with their resulting emotions.
[31] The father at times is argumentative, verbally combative, insistent and no less stubborn than the mother as to having his way. The father has an unproductive temper. He harbours anger and resentment, part of which may be his personality and part may be the mother’s conduct leading up to the separation.
[32] The father currently is improperly discussing the issue of time allotment with the Child, thereby implicating and harming the Child.
[33] Like the mother, the father seizes opportunities to exert control such as insisting upon communication of hotel room numbers and safe arrival notices.
[34] The father is inconsistent in his changing positions as to custody and access. He freely engages litigation rather than using the dispute mechanism under the Agreement.
[35] The time shortly after a separation causes a lot of anxiety to most separated parents. The court does not accept however that this father, then represented by legal counsel and working with a mediator, was pressured into signing this Agreement.
[36] Notwithstanding the above, para. 3.4 of the Agreement again provides that:
John will spend a generous amount of time with Bridget including but not limited to: (emphasis added)
(a) Alternate weekends from Friday at 5:00 p.m. until Monday morning (pick up at Louise’s home and drop off at school);
(b) Alternating Tuesdays overnight … on weeks following Louise’s weekend with Bridget;
(c) Alternating Thursdays for dinner … on weeks following John’s weekend with Bridget; …
constitutes a minimum and suggests the father may or is entitled to more time.
[37] The mother incorrectly treats this provision as the father’s maximum entitlement per two weeks, and in order to increase that limited time, the father must prove a material change in circumstance which has not occurred.
[38] This provision creates minimum access for the father. It does not contractually create a ceiling, which the father must demonstrate material changed circumstance to exceed or increase.
[39] This wording is not a contractual bar to the father or the court on this motion. The quantity of time between this father and the Child under this wording contemplates increased access, which the father now seeks. An increase in time with the father is not on this provision, a “change” to the access provisions of the Agreement requiring proof of a material change in circumstances as per Austin v. Austin, 2014 ONSC 5678, at para. 198, Gordon v. Goertz, [1996] 2 S.C.R. 27, 1996 191 (SCC) at para. 10 and E.G. v. F.B.G, 2004 BCSC 564 at para. 27.
[40] There is no need to seek appointment of the OCL if this court were to now grant interim week about access. Given that quantum change, the current inability by each of the parties to deal with one another effectively, the still younger age of the Child who has been forced to adjust to the parents’ relatively fresh separation and a subsequent living arrangement largely with her mother and the limited access of the father to date, it is premature to determine week about access on an interim basis, which may or may not be a bargaining position by the father to increase the current access level.
[41] The father works from home. His work days frequently extend into the evening. The paternal grandmother lives with the father but is senior in age. It may not be in the Child’s best interests to spend every second week with the father who regularly must work part of evenings.
[42] This court will not on the conflicting evidence, including what the Child may be expressing on the subject, at this time grant interim equal time.
[43] The involvement of the OCL or a family assessment would provide helpful information to assess whether equal parenting time would be appropriate given this court’s concern as to the present dysfunctional relations between these parents and what is in the Child’s best interests.
[44] There is specific helpful information that would assist the court to properly address the issue of equal parenting namely; what does this 10 year old want given the contradictory allegations of the parents as to what the Child is expressing? That is not expert evidence as per Baillie v. Middleton, 2012 ONSC 3728 at para. 38.
[45] What 10 year old (a) will have the heart to tell his/her mother that he/she wants to spend less time with that mother and (b) will have the courage to tell his/her father that he/she prefers the current time allotment? A gentle and professional relationship with a child enables presentment of their wishes. That is part of the mandate of the OCL which retains the jurisdiction in any event to not accept the court’s appointment request.
[46] The mother in her affidavits states the father loves the Child and can be a doting father. The mother acknowledges that the Child enjoys her father’s company; that they have fun together and they spend quality time together. The mother further states that the Child cherishes the time she spends with her paternal grandmother who lives with the father.
[47] Beyond the acrimony of these parents, which the mother blames exclusively on the father and the father’s alleged dislike of the mother’s older daughter, the mother not does present the father as an unfit parent or who poses a risk to the Child.
Disposition
[48] Each parent is different. Changing residences for a child, involves emotional adjustment and different parental approaches and expectations with each change.
[49] Frequent changes are appropriate for young children. Frequent residency changes necessitating constant emotional change and patterns by the child are not desirable as the child ages.
[50] In addition to the other access provided in the Separation Agreement and the February 11, 2015 order, the father is granted interim access, quantifying s. 3.4 of the Agreement, of:
(a) Week 1 – Friday night from the end of school until the commencement of school Monday morning; and
(b) Week 2 – Wednesday afternoon from the end of school until the start of school on Friday.
[51] Barring an emergency, the parties are directed to not initiate communication or contact to the Child or instruct the Child to contact them, while she resides with the other parent. The Child may communicate as she wishes with the non-resident parent and the resident parent is directed to not discourage or limit Child initiated contact with the other parent.
[52] Each parent is prohibited from discussing the issue as to time the Child spends with either parent or this proceeding.
[53] School homework assignments are to be completed on a regular and ongoing basis in each parent’s home.
[54] The father is to advise the mother within 30 days whether he now intends to pursue his claim for equal time sharing. If he intends to pursue that remedy now, this court will thereupon grant an order requesting the appointment of the OCL to determine the wishes and to that extent, the needs and best interests of the Child pursuant to s. 30 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as am.
[55] The mother will within the same 30 days notify the father whether she intends to pursue her amended claim for sole custody.
[56] The parties are limited to one (courteous) email or telephone communication, per subject once every three days, to the other parent. Evidence of a parent refusing to respond to communication requests will be addressed by the court.
[57] The father is directed to pay the mother the August 18, 2015, $500 costs award within 24 hours of the date of this decision.
Costs
[58] A party seeking costs has 30 days to submit short written submissions. Responses thereto are due 20 days thereafter. Any reply to such response is due within 10 days thereafter.
[59] Subject to submissions, it appears this decision represents mixed success.
[60] The court currently has no knowledge of any basis to grant costs exceeding a partial indemnity scale.
Kane J.
Released: September 15, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JOHN STUART BRUCE
Applicant
– and –
LOUISE GIROUX
Respondent
REASONS FOR decision
Kane J.
Released: September 15, 2015