CITATION: Khaemba v. Dorman, 2015 ONSC 572

COURT FILE NO.: FC-10-2741

DATE: 2015/01/28

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

TIMOTHY KHAEMBA

Applicant

– and –

WINIFRED DORMAN

Respondent

Blake R. Lyngseth, for the Applicant

Ezioma O. Nnorom, for the Respondent

HEARD: November 25-28, 2014 at Ottawa

REASONS FOR Decision

Parfett J.

1This matter is a motion to change a final order dated January 20, 2012. The Applicant is seeking joint custody, a change in the parenting schedule and the fixing of child support in accordance with that schedule. The Respondent opposes any change to the current order.

Background

2The parties met in 2002 when they were both working at Tim Hortons. The Applicant was born in Kenya and immigrated to Canada in 2002. The Respondent was born in Ghana and immigrated to Canada in 1998. The Respondent sponsored the Applicant. They began cohabiting in 2003 and separated at the end of 2009. They have one child, Jabari (D.O.B. May 2, 2007) who is now seven years old.

3Immediately after the separation in 2009, the Applicant father, Timothy Khaemba did not have stable housing and was living in Toronto. Consequently, he did not have access to his son until he returned to the Ottawa area in March 2010. Initially, the Applicant father again did not have stable housing so the parties agreed that he could exercise access every Saturday and Sunday from nine in the morning to five in the afternoon. The Respondent mother, Winifred Dorman was working weekends and she permitted the Applicant to use her home for the access.

4This arrangement only lasted a few months. In the early summer of 2010, the Respondent denied access to the Applicant after an incident in which the child suffered an injury to his wrist. As a result of the denial of access, the Applicant brought the initial application that led to the order of January 2012.

5This order granted the Applicant access three weekends a month and left him the choice of when in the month the weekends would occur. He also had access every Monday evening from 4:00 p.m. to 7:00 p.m. Although the order granted final decision‑making authority to the Respondent, it did not actually indicate that she had sole custody. The order also did not address the issues of holiday access or extraordinary expenses.

6Less than a year after the final order was obtained, the Applicant brought this motion to change. He alleged that there were a number of problems with the custody and access situation. Specifically, he noted that the Respondent was making unilateral decisions concerning their child, was late in picking up Jabari from his access, which interfered with his work schedule, and failing to provide adequate notice of her intention to travel with Jabari. In addition, there was a lingering issue with respect to a car that the Respondent used but for which the Applicant paid. From the Applicant’s perspective, the most critical issue, however, was the amount of time that Jabari was spending at the daycare. The Applicant had observed that Jabari was sometimes picked up from the daycare very late at night and also sometimes stayed overnight at the daycare. He believed that this negatively impacted the child’s energy levels the next day.

7Two other incidents are relevant to the issue of the parenting schedule: the assault conviction of 2009 and the incident of April 21, 2014 that resulted in an order that all exchanges of the child occur at the daycare. The assault occurred while the parties were still living together. There was an argument and it turned physical. The parties disagree on the precise events and neither of them filed the transcript of the guilty plea that was entered by the Applicant. However, they both agree that police were called, the Applicant was charged and there were no injuries. The Applicant received a conditional discharge. Shortly after the resolution of the criminal charges, the parties reconciled.

8The more recent – and more relevant – incident for the purposes of these proceedings is the incident of April 21, 2014. On that day, the Applicant had picked up Jabari early from the daycare. The Respondent finished work and decided that she would collect Jabari early from his father given his father had picked him up early from the daycare. The Respondent found the Applicant and Jabari roller‑blading in a nearby park. The parties disagreed over whether Jabari should be picked up at that time or later. Ultimately, the Respondent put Jabari in the back of the car and the Applicant attempted to stop her. The Applicant ended up in the car and there was a tussle over the steering wheel. The car ended up crashing into a pole and police were called. No charges were laid as a result of the incident, but the Children’s Aid Society did undertake an investigation and they recommended that pick‑ups and drop‑offs occur at the daycare in order to avoid further confrontations.

Issues

9There are three issues for this Court to decide:

1. Custody;

2. Parenting schedule; and

3. Child Support.

Custody

10Although a great deal of time was spent at trial dealing with the relationship between the parties, ultimately custody was not in issue. The Applicant conceded at the outset of the trial that the Respondent should retain the final decision‑making authority that had been granted in the final order. There was certainly ample evidence supporting the position of both parties that they were unable to co‑parent this child. However, I will not outline any of that evidence except as it might affect the issue of the parenting schedule. Furthermore, and with a view to allaying some of the concerns raised by the Respondent, I will grant an order for sole custody to her. This decision simply reflects the decision‑making provisions of the January 2012 Order.

11Therefore, the only remaining issues for this Court to decide are the appropriate parenting schedule and child support. The issue of child support will be resolved depending on the parenting schedule that ultimately is put in place.

Parenting Schedule

12Neither party is very happy with the current parenting schedule. The Applicant is seeking increased access that would see him with Jabari every weekend from Friday after school to Tuesday before school. He wants to reduce the amount of time that Jabari spends in daycare. He also has enrolled Jabari in weekend activities to which the Respondent refuses to take him. The Respondent is requesting that the Applicant’s access be reduced to every second weekend. She is also unhappy with the fact that the Applicant sometimes cancels his access weekend on short notice and has unilaterally changed his weekday evening access several times since the final order. Any change in the access schedule plays havoc with the Respondent’s work schedule.

13A subsidiary issue was the holiday/vacation parenting schedule. The parties have since agreed upon this aspect of the parenting schedule and it can be incorporated into the final order. Moreover, in his final submissions, the Applicant modified his request for access to three weekends a month from Friday after school to Tuesday before school.

14In addition to dealing with the situation between the parties as it is presently, the Respondent will be graduating from her nursing program in April 2015 and this will have a significant impact on both the daycare issue and access. She indicated in her testimony that she has already been promised a job as a nurse by her current employer. Even though her new post will be different from her current position, she advised the Court that she will maintain her seniority and will be in a position to choose her shifts. This ability will ensure that she will no longer work weekends, nights or evenings.

15As noted earlier, the Applicant’s main concern is the amount of time that Jabari spends in daycare. A great deal of court time was taken up with his efforts to show that Jabari spent an excessive amount of time in daycare. In the end, the evidence certainly showed that Jabari does spend some evenings and overnights at the daycare, but the exact amount of time spent at the daycare was never proven. The Respondent indicated that her current position as a personal support worker requires her sometimes to work evenings, weekends or nights. Up until recently, she was a casual employee and had to accept whatever shifts she was offered. That situation has changed recently as she is now a permanent part‑time employee and her shifts are more consistent. However, she still works some evening, weekend or night shifts in order to earn extra money.

Positions of the Parties

16The Applicant contends that it is not in Jabari’s best interests to spend as much time as he does in daycare. He points to the evidence that shows that the child spent five overnights as well as two late night pick‑ups in the month of January 2014. This schedule is generally reflective of the child’s reality. The Applicant argues that the parties should ultimately share parenting time equally. In the meantime, however, he is seeking three weekends a month from Friday after school to Tuesday morning, at daycare or school. As noted earlier, this position was changed from the initial position taken at trial. The Applicant concedes that he owes money with respect to dental expenses, but argues that he is already paying the appropriate child support.

17The Respondent states that the Applicant is requesting greater time with his son when, in fact, he has never previously been interested. She questions his commitment to picking the child up from daycare and argues that he is regularly unable to pick him up on time. Furthermore, she argues that the Applicant’s work schedule is uncertain; his home environment is unstable; he has a history of violence; and will, if given the chance, keep dragging the Respondent back to court to make changes with respect to the parenting schedule, particularly given that her schedule will be changing again in April. She is seeking reimbursement for certain costs and would like to see a more detailed arrangement with respect to the sharing of section 7 expenses.

Legal Principles

18The relevant portions of section 24 of the Children’s Law Reform Act¹(“CLRA”) state:

Merits of application for custody or access

24. (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).

Best interests of child

(2) The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10.

Past conduct

(3) A person’s past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1).

19This section confirms that the only test on the issue of access is the best interests of the child. In assessing that issue, the factors set out in sub‑section 2 are to be taken into consideration. In the present case, all of the factors set out in the sub‑section are relevant with the exception of (b). Jabari is only seven years old and his views are of limited use.

Analysis

20As noted above, the starting point for this analysis is an examination of what is in this child’s best interests. These parents both love their child dearly, but they do not work cooperatively together, even when the issue is their son.

21The primary example of the inability to cooperate is found in the April 2014 incident. Sub‑section 3 of the CLRA speaks to the issue of the past conduct of the parties and indicates that it is relevant only insofar as it might affect the party’s ability to parent. In April 2014, the Applicant and the Respondent were involved in a serious altercation in front of the child and police had to be called. In my view, both parties were responsible for this ludicrous dispute. The Respondent had no business interfering with the Applicant’s time with his son and the Applicant was required to back down once it was clear that the Respondent was going to take the child. Because this dispute occurred in front of the child, it speaks to the parties’ ability to parent. Neither one was sufficiently in control to behave in a manner that showed respect for the other party. That approach shows a mutual inability to function in the best interests of the child.

22It also makes it impossible to order the access schedule that is, in fact, in the best interests of this child. If the parties were able to get along and work together for the benefit of the child, it would be possible to arrange matters such that when the Respondent had to work evenings, weekends or nights, the Applicant would take Jabari. However, that is not possible.

23Moreover, there is an issue with Jabari’s activities. The Applicant has registered and paid for swimming lessons, soccer and piano lessons for the child. The Respondent does not take her son to any of these activities when they occur during her time with Jabari. Nor does she encourage her son to practice piano even though the Applicant has supplied a keyboard that the child can use for that purpose. The Respondent contended that she was never asked to ensure that Jabari practiced piano nor was she asked to take Jabari to his swimming lessons. She indicated that even if she had been asked to take Jabari to the pool, she would not have done so as she does not swim. The Respondent seemed quite surprised when it was pointed out to her that she would not be required to get into the water with her son. She is, in any event, opposed to Jabari taking swimming lessons in the winter as it appears that it aggravates his asthma. The Applicant was unaware that there was an issue with respect to the swimming lessons and his son’s asthma. As for soccer, the Respondent stated baldly that this was the Applicant’s interest, not hers.

24This evidence further illustrates the lack of communication and cooperation between the parties even when it comes to matters involving their child.

25I am very mindful of the fact that the Respondent’s reality is going to change in a little less than four months’ time. There will be few, if any, evening, weekend or night shifts. In my view, it does not make sense to change the parenting schedule now, only to have to do it again in four months’ time. Instead, it would be better to look ahead and plan for the situation after April 2015.

26There is another change that has occurred in the relatively recent past and that is the fact that the Applicant has obtained a full‑time management position with the City of Ottawa. His hours are now stable and involve very little overtime work.

27The Respondent points out that the Applicant’s living arrangements leave something to be desired. The Applicant lives in a five‑bedroom rented home. He and one other person are the lessors and there are three other sub‑tenants. The Respondent contends that these sub‑tenants change regularly. The Applicant does not dispute that he has sub‑tenants. However, he was never cross‑examined on the frequency with which the sub‑tenants come and go. There is no question that a revolving door of strangers is not the best situation in which to have a child living. However, there is no evidence from the Applicant on this point and the Respondent is not in a position to be able to testify to that issue. Therefore, I cannot place any reliance on this evidence. Moreover, I note that the Respondent herself is not sufficiently concerned about the issue to seek to deny the Applicant overnight weekend access.

28Parenthetically, I must observe that the Respondent testified concerning a great many subjects that her counsel never raised in her cross‑examination of the Applicant. Therefore, there was a serious Browne v. Dunn, (1893) 1893 65 (FOREP), 6 R. 67 (H.L) issue. On the other hand, the Applicant’s counsel never objected and never sought to remedy the situation. In the circumstances, the Court was left with a large quantity of evidence of dubious value.

29A final observation of the parties is that they both love their son dearly. They are both involved in his life and are good parents.

30Taking into consideration that the only test is what parenting arrangement is in the best interests of this child, I find that it would not be appropriate to change the current parenting arrangement at this time. As noted earlier, it will only have to be changed again in April.

31However, starting in May 2015, there should be an equal time parenting arrangement. The Applicant’s proposal would see the Respondent losing most of the weekend time with her son. In my view, that is not appropriate. Therefore, there will be a week on/week off parenting arrangement. The daycare is prepared to continue to act as the exchange point for the child and consequently, the exchange should occur every Friday at the daycare.

32The vacation schedule will be in accordance with the agreement arrived at by the parties.

Child support

33Given my decision regarding access, there will be no change in child support payable until May 1, 2015. Starting on that date, there will be an off‑set of Guideline support. As soon as the parties receive their T‑4 summary for 2014, they must disclose it to the other party and child support will be adjusted in accordance with the Federal Child Support Guidelines to reflect the fact that there is a shared parenting schedule. It is important to reiterate that the Respondent has sole custody of the child and therefore will have final decision‑making authority with respect to the child. The shared parenting schedule does not mean shared decision‑making.

34Section 7 expenses should be shared by the parties in proportion to their incomes. The parties should agree on the child’s activities in writing in advance. If one party does not wish the child to participate in a particular activity, the other party may register and pay for that activity. Neither party will unreasonably withhold their consent. However, if there is a health reason for the refusal, then it is incumbent on the party seeking to register the child in the activity to get medical clearance prior to registration. Each party must take the child to his activities when it is their access week. If for some reason it is not possible for a party to take the child, then the other party must be given the opportunity to do so.

35In her written submissions, the Respondent provided a detailed request for orders that cover many matters that were not discussed at this trial. To the extent that her requests are not opposed by the Applicant and/or do not conflict with what has been outlined in my decision, they may be included in the final order.

Conclusion

36The Respondent will have sole custody of the child of this marriage and will therefore have final decision‑making authority. The Applicant will have the authority to speak to school, daycare and health care professionals regarding the welfare of his son. The current parenting schedule will not be changed. However, in May 2015, the schedule will be changed to reflect the Respondent’s expected change in employment circumstances. At that time, there will be a shared parenting schedule week on/week off with the exchange to take place Friday at daycare. Child support will be adjusted accordingly at that time. Section 7 expenses will be shared in proportion to the parties’ incomes.

Costs

37The parties should resolve the issue of costs themselves, if possible. However, if the parties cannot resolve the issue of costs, brief written submissions of not more than one page, with attachments including Offers to Settle and a detailed Bill of Costs, are to be provided within 15 days with a right of reply within a further five days.

Footnotes

1. 1R.S.O. 1990, c. C-12, as amended.