Hummel v. Oakes, 2015 ONSC 7025

COURT FILE NO.: D25014/15

DATE: 2015-11-16

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Miranda Hummel, Applicant

AND: Sean Oakes, Respondent

BEFORE: Mr Justice Ramsay

COUNSEL: Kiran Sah for the Applicant; Respondent self-represented

HEARD: November 13, 2015 at Welland

ENDORSEMENT

[1] The Applicant moves for temporary custody with a schedule for access by the Respondent.

[2] The parties married in 2003 and separated in 2014. They have since divorced. They have four children, who are now aged 8, 6, 5 and 3. In April 2004 the parties began living separately under the same roof. In August 2014 they sold the matrimonial home in Thorold. The Applicant moved to Fenwick and the Respondent moved to St Catharines. In August 2015 Reid J. ordered on a temporary basis, without prejudice to another motion being brought, that the children should reside with the Applicant, with specified summer access to the Respondent. The Applicant now wants a temporary order providing that until trial she shall have custody of the children, with alternate weekend access to the Respondent and a term that the Respondent shall not take the children from daycare without her written permission obtained no later than the day before. The Applicant also asks me to invite the participation of the Children’s Lawyer.

[3] I do not think that the Children’s lawyer is required. Given their age, it is a question of a clinical investigator. There is nothing to suggest that there is any problem between either parent and the children or that either one is less than capable of taking care of them. They are a bit young for their opinion to be given much weight.

[4] The daycare request arises from an incident on September 17, 2015. Reid J. had ordered that the Respondent not take the children from the daycare “for access visits” without the Applicant’s permission given one day in advance. It did not have to be written permission. The Respondent took two of the children from daycare to lunch at Tim Horton’s because it was the five-year-old’s birthday. I doubt whether the Respondent considered this to be in breach of the order, because he was not taking her to his place for an access visit. On previous occasions, he had done this, as he was entitled, if not wise, to do before Reid J.’s order, and this is what caused the Applicant to ask Reid J. to order as he did. In any event, the Applicant deposes that this lunch upset the five-year-old because she had been excited about having lunch with her daycare friends on her birthday. I doubt that. I think the Applicant was upset. I do not think it necessary to change Reid J.’s order.

[5] The Respondent submits that week about custody should be ordered. The Applicant submits that I should order sole custody to her, with alternate weekend access, because this is the status quo and the children need structure. It is a well-recognized principle that temporary custody orders should maintain the status quo whenever possible in the best interest of the children, because it is generally in the best interest of the children to have stability and not to be moved about when it can be avoided. But I have to apply this principle in the context of the circumstances.

[6] The Applicant has a day job. The Respondent is a musician. He manages a music store. His work day starts at 2 pm. As manager, he is not required to be at the store all the time. He also does appearances as a musician. He “gigs” on weekends, no longer on weeknights. Weekends are his busiest time for work.

[7] Before separation the Respondent was accustomed to giving daily hands on support to the Applicant with the children. Since then, he only has them on weekends, when he is busiest at work. If given week about residence, the Respondent would have available to him a babysitter, his sister, his parents, and the Applicant’s parents, who are on good terms with him, but not with the Applicant.

[8] The evidence of an email from the Applicant to the Respondent in February 2015 shows that during the initial phase of the separation the Respondent was seeing the children much more than every other weekend. I question whether alternate weekend access is really the status quo. I think the status quo post-separation involved considerable contribution of time from both parents until the Applicant unilaterally changed things either for her own convenience or to gain advantage in the litigation. She changed the children’s residence from Thorold to Fonthill. She changed their church and their AWANA club. She has taken the oldest son out of hockey. She has changed his school from St Catharines to Fonthill. The children spend much less time with either set of grandparents. The Applicant is systematically structuring the children’s lives to minimize contact with their father. She wants his access to be limited to weekends, which is his busy time at work. This is the “structure” she says is so important to them. It is not the structure into which they were born and, until recently, raised.

[9] In my view the best option for the children at this point is to order joint custody with week about residence, Friday to Friday. The parties will have an equal say in the children’s upbringing and equal responsibility and the father’s role will not continue to be diminished and marginalized. The children’s schools shall not be changed again without consent of the parties or a court order. Either party shall notify the other when the children travel outside the regional municipality. The father’s residence period shall commence on Friday, November 20. Condition 4 of Reid J.’s order stands. Condition 3 is varied to read:

The Respondent shall not take the children from daycare except in his residence week.

[10] This is a temporary order, meant to remain in force until the trial judge orders otherwise.

[11] As a result of the change in residence child support has to be reconsidered. Reid J. ordered the Respondent to pay $577 a month based on an income of $23,000 per annum. The Applicant makes $49,000 a year. I shall simply order the set-off amount for now. Either party may move to vary this order as far as it pertains to child support if there is further evidence about the parties’ respective incomes or matters that should be considered under paragraphs 9 (b) and (c) of the Child Support Guidelines. Until then, the Applicant is ordered to pay $551 a month, which is the difference between $1108 and $557 commencing December 1, 2015. A support deduction order will issue. As the lower earning parent, the Respondent may end up getting the Child Tax Benefit. The parties can negotiate the effect of this and, if necessary, seek relief from the court.

[12] As the successful party was self-represented there will be no order as to costs.

J.A. Ramsay J.

Date: 2015-11-16