COURT FILE NO.: FC-15-1482

DATE: 2015/12/08

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Katharine Michelle van den Ham, Applicant

AND

Jared Taze Corky Thibodeau, Respondent

BEFORE: Madam Justice S. Corthorn

COUNSEL: Virginia G. Ollerhead, Counsel for the Applicant

Steven J. Greenberg, Counsel, for the Respondent

HEARD: August 12, 2015

ENDORSEMENT

Introduction

[1] The parties lived together from January 2004 until September 2013. They have two children: Taylor Taze Mackenna Thibodeau, born October 26, 2005; and Hunter John Antoine Thibodeau, born April 26, 2007. Pursuant to the endorsement of Mackinnon J. dated July 30, 2015, the applicant mother was granted leave to proceed with a motion on an urgent basis “on the issue of reinstatement of the mother’s access” to the children. The motion was scheduled by Mackinnon J. for August 12, 2015 and heard by me on that date.

[2] On an interim, interim basis, I ordered that the applicant was to have access to the children, Taylor Thibodeau and Hunter Thibodeau, every weekend from 3:40 p.m. on Friday to 8:00 p.m. on Monday.

Background

[3] The factual record is very much in dispute as between these parents. In the affidavit and other evidence filed on behalf of the mother, she describes herself and is described by others as a devoted and caring mother. The mother describes the custody and access arrangement subsequent to the date of separation as having proceeded pursuant to an ‘informal’ agreement to share custody of the two children on the basis of an alternating weekly access schedule (“the Agreement”).

[4] The evidence of the mother is that the children’s time with her pursuant to the Agreement continued without significant incident until early 2015 when: a) she retained counsel; and b) her counsel communicated directly with the respondent father to inform him that the mother would be seeking to have the Agreement formalized and seeking both child support and spousal support. The mother is convinced that the father’s conduct, subsequent to the date of service of the notice of application herein (July 14, 2015), is demonstrative of a deliberate effort on his part to gain a tactical advantage in the context of the present litigation. The tactical advantage which the mother suggests the father is attempting to gain is to ‘establish’ a status quo based on the children having little or no access with their mother. It is the mother’s evidence that the father has deliberately denied the children any access with the mother from mid-July onwards.

[5] The father describes the mother as having abandoned the children in the first several months following separation. He also describes the mother as an individual who, prior to the separation, made and continues to make personal decisions (including with respect to education, employment, and personal relationships) that put her interests and desires ahead of the best interests of the children.

[6] The father denies that there ever existed an agreement, informal or otherwise, as between the parties with respect to custody and access. The scenario which he describes is as follows:

• In the months following the separation, the access which the mother had with the children was extremely sporadic and very limited, by her choice and owing to the nature of her lifestyle at the time (including working late nights in the restaurant industry).

• Over time, he “reluctantly” allowed the mother to have time with the children, although the mother’s work schedule made it difficult to put in place a regular pattern of access.

[7] However, the father acknowledges that for 15 months prior to July 2015, the access schedule had been such that the children lived with each parent on an alternating week basis. That 15-month period accords with the mother’s evidence as to point in time when the Agreement was put into effect (March 2014).

[8] In his affidavit, the father raises a number of concerns about the mother’s conduct. The concerns are with respect to events that occurred in October 2013 (automobile accident in which the mother was involved), June 2014 (telephone call from Taylor requesting that she be picked up from her mother’s home), and October 2014 (exposure of the children to the intimate nature of the mother’s relationship with a man in her life).

[9] The father says he is now raising concerns which he has had for some time, including when the parties were still together as a couple. The father’s stated concerns are as to the nature of the mother’s employment (restaurant/service industry), the irregular hours which such employment demands, and the “youthful lifestyle” associated with employment in that industry. The father cites jobs held by the mother in 2013, 2014, and early 2015. The father maintains that the mother’s choice of youthful lifestyle was a choice he was not prepared to accept and a significant catalyst to the couple separating.

[10] It is clear from the affidavit evidence that the relationships between the mother and her mother-in-law and the father and his mother-in-law are strained. That strain does not appear to be abating and may well not abate for some time, if at all. Both the mother and the father rely on their respective family members, their mothers in particular, to assist with childcare when they are each working and for the mother when she is attending school.

[11] The father expresses concern that the mother’s residence has only two bedrooms, leading to the requirement that the children share a room when they stay with their mother. The father says that the fact that the children have to share a room is “a concern for [him] going forward.”

[12] The mother’s evidence is that she lives in a rented townhome close to many of her family members. As a result of that proximity: a) she is able to turn to her parents and to her sister for assistance with childcare; and b) the children are developing meaningful relationships with their extended family including grand-parents, aunt, uncles, and cousins. The mother describes her reliance on family members for assistance with the children as no greater than that of the father on his mother. According to the applicant, the children’s paternal grand-mother was, at least as of the summer of 2015, residing with the father and, prior to then, would stay with the children at their father’s house when he was at work. In his affidavit the father suggests otherwise by emphasizing the mother’s irregular working hours and minimizing the time that he is required, because of his “flexible” full-time work, to be out of his home and away from the children.

[13] The father expresses concern that the children’s attendance at school suffers when they stay with their mother. He says the children are frequently late for school. That concern is not, however, supported by any independent evidence such as attendance records from the school which the children attend.

[14] Included as an exhibit to the mother’s July 2015 affidavit are copies of the children’s respective final report cards for the 2014-15 academic year. Both children are receiving primarily A’s and B’s, with Hunter’s grades improving notably from the first to the final report card. There is nothing in the copies of the report cards indicative of any concerns with respect to tardiness on the part of either of the children.

[15] The father also raises a report made by an individual, whose identity is not provided, to the Children’s Aid Society (“the Society”) regarding the mother potentially physically harming one of the children. The mother includes in her affidavit a copy of the April 9, 2015 closure letter which she received from the Society upon completion of its investigation of the matter. The Society informed the mother as follows:

The referral received by the Society on February 3, 2015 raised the following concerns with respect to the children in your care: an allegation of physical harm and child exposure to adult conflict. The Society has completed its investigation and determined, based on the information collected, that your children are not at risk of harm and no child protection concerns have been verified.

[16] The father makes numerous references in his affidavit to what he describes as the wishes of the children that they not spend time at their mother’s home. The father says in essence that the children complain that during the weeks they stay with their mother she is frequently away from the home, as a result of which they are cared for by family members of the mother. Summarizing his view on the subject, the father says:

I see no need for the children to be babysat where they feel uncomfortable when we live within 6kms and the children can be comfortable in their home with their friends close by. The children also agree that this would be the best situation for all and have been quite vocal regarding that.

[17] In her affidavit, the mother emphasizes her financial predicament subsequent to the separation and the significant financial inequality between herself and the father. She says that having received no spousal or child support from the father she has no alternative but to continue to work in well-paying restaurant industry positions and to pursue post-secondary education in the hope of moving forward with a career. The respective financial positions of the parties are of most relevance to the claims by the mother for both child support and spousal support. Those claims are to be dealt with independent of this motion. I do not consider the mother’s pursuit of part-time employment and post-secondary education to be a ‘negative’ in the factors to be considered in determining this motion for access.

Decision

[18] I order that the children’s access with their mother be re-instated on the basis of the Agreement in effect from March 2014 forward – alternating weekly access – with the re-instatement to occur gradually over a number of weeks. The terms of re-instatement are set out in the ‘Summary’ section at the end of this endorsement.

Positions of the Parties

a) The Applicant

[19] The focal point of the submissions of counsel for the applicant mother was that the father had, in response to service of the notice of application, which includes a request for child support, made the unilateral decision to alter the status quo specifically in an effort to gain a tactical advantage in the litigation. Counsel for the applicant submitted that conduct of this kind is to be discouraged by the Court.

[20] The applicant’s position is that the ‘concerns’ raised by the father in his affidavit are historical and did not, until the father was served with the notice of application, have any impact on the pattern of access which had been established as of March 2014. Counsel for the applicant questioned why, if the concerns expressed by the father were so significant, did he abide by the Agreement from March 2014 forward?

[21] The applicant relies on two cases: Papp v. Papp (1969), 1969 219 (ON CA), [1970] 1 O.R. 331 (C.A.) and Grant v. Turgeon (2000), 2000 22565 (ON SC), 5 R.F.L. (5th) 326 (Ont. S.C.). Both cases deal with the evidentiary burden to be met by a party who, on an interim motion with respect to custody, seeks to change the status quo. In summary, the cases establish that on a motion of this kind “compelling reasons indicative of the necessity of a change to meet the children’s best interests” is required. See paragraph 15 of the decision in Grant v. Turgeon and paragraph 34 of the decision in Papp v. Papp.

b) The Respondent

[22] Counsel for the respondent focused on the wishes of the children as the father’s sole concern and as the driving factor behind the steps taken by the father in July 2015. The father’s position is that as the children get older their wishes must be considered, with the potential for the status quo to change because of those wishes. Counsel for the father submits that the father’s conduct is in no way intended to garner tactical advantage in the litigation.

Discussion and Analysis

[23] The parties both acknowledge that in March 2014 the children began living with each parent on an alternating week schedule (i.e. in accordance with the Agreement). That schedule continued until late July 2015 when the father unilaterally determined that a different schedule was required. The mother’s evidence as to the chronology of events leading up to her application and the father’s unilateral decision to change the access schedule is not contradicted by the father. The father’s affidavit does not respond in any way to the mother’s evidence in that regard.

[24] The chronology of events is said by the mother to be as follows:

Jan. 21, 2015 - The mother sends the father an e-mail message in which she informs him that: a) she wants an agreement in writing with respect to custody of the children and support; b) she has retained a lawyer to address those issues; and c) he will in the near future receive a letter from her lawyer.

Jan. 22, 2015 - Counsel for the mother writes to the father: a) informing him of the mother’s claims for joint custody, shared access, child support, and spousal support; and b) requesting production of various financial documents and information.

Feb. 22, 2015 - Counsel for the mother receives from the father an incomplete response to the request for production of financial documents and information.

Jul. 10, 2015 - The notice of application is issued.

Jul. 14, 2015 - The notice of application, the mother’s affidavit sworn on July 9, 2015, and the mother’s Forms 13 and 13A are served personally on the father.

Jul. 23, 2015 - The father sends text messages to the mother in which he says that based on the wishes the children, expressed to him over a period of a couple of months, he is changing the access schedule: “So as of this week they will not be returning to your home during the weeks and will stay with me until you can arrange a more appropriate schedule that allows you the time to spend with them.”

[25] In her July 28, 2015 affidavit, the mother sets out in detail the efforts which she made subsequent to July 23, 2015 to maintain contact with the children despite the father’s continuing refusal to permit the children to have access with her. As of the date of the return of the motion before me, the mother had not seen the children for approximately four weeks.

[26] Based on the contents of the mother’s July 28, 2015 affidavit, including the copy attached of the father’s July 23 text message, I infer that the access schedule in July 2015 was as follows:

• The children were with their mother during the week of July 13 (from Friday, July 10 to Friday, July 17), when the father was served with the notice of application and supporting materials;

• The children were with their father from Friday, July 17 to Friday, July 24; and

• The children were scheduled to return to their mother’s on Friday, July 24.

[27] The father’s text message on July 23, 2015 was with respect to the scheduled return of the children to their mother’s on Friday, July 24, 2015. Had the Agreement been adhered to, the children would have returned to their mother’s on July 24, 2015 and been with her from July 24 to 31 and again from August 7 to 14, 2015.

[28] The father’s evidence is that the children had complained, during the month of July 2015 in particular, that their mother is frequently at work when they are staying with her and, in her absence, they are taken care of by the mother’s relatives. The father makes reference to one week in particular following which the children reported that their mother was present for only two of the seven days they spent at her home. I note that in her responding affidavit (August 10, 2015) the mother specifically addresses a number of the statements made in the father’s affidavit, but she does not respond specifically to the statement regarding being present for only two out of seven days. The mother’s lack of specific response to that statement is of some concern; however, it is not fatal to the mother’s position on this motion.

[29] The father acknowledges that he works on a full-time basis, Monday to Friday, and is required to balance the demands of his work with his obligations as a parent. The mother continues to work in the restaurant industry. Her evidence is that the shifts she works are mixed between daytime (ending at 4:00 p.m.) and evening (ending at midnight) shifts. It is also her evidence that in September, once she returns to continue her post-secondary education, she will be working few shifts at her restaurant job. I find that the difference, if any, between the number of hours that each parent is out of their respective home to work or for continuing education is not sufficient to support a conclusion that one parent is significantly more available for the children than is the other.

[30] Taylor is 10 years old and Hunter is 8 years old. The children are still sufficiently young that they are continuing to develop their respective relationships with their parents. It remains important for them to have as much time as possible with each parent. It is understandable that the children face challenges in changing homes each week, adjusting to the different schedules in each of the households in which they live, adjusting to the difference between their schedules when in school and during the summer months, and adjusting to the impact of summer vacation on their relationships with their friends (whether from school or elsewhere).

[31] As noted above, the father’s position on the return of the motion is that his conduct is driven by the wishes expressed to him by the children. In that regard, the father provides two specific examples. The first example is from June 2014. The father describes both children as eager to come home from their mother’s house prior to the end of their week with her because they did not want to spend time with their mother’s relatives.

[32] The second example is from early July 2015 – as described above – when the children complained that their mother was not present for much of their week with her. Based on the children’s wishes, the father took the position that the mother could have the children on her days off and that on those days the children were not to be with the mother’s relatives as caregivers. The father then implemented his position with respect to access by refusing to deliver the children to their mother for their next ‘scheduled’ week with her in late July 2015.

[33] I find that the father’s unilateral decision to alter the existing access schedule and to refuse to permit the children to see their mother on a regularly scheduled basis stems from his erroneous belief that he has unilateral control over when the children will have access with their mother. That belief is clearly set out in the father’s affidavit. For example, at paragraph 29 of his affidavit the father says that, in July 2015, after hearing the children complain about their mother’s only being present for two of the seven days they were with her, “I then decided based on numerous concerns over a 16 month period to review the schedule with Katharine and allow her access on days that she was not working.” (Emphasis added.) At paragraph 30 of his affidavit, the father says, “I had instructed my lawyer to advise the mother that she was welcome to have the children on her days off whatever that is.” (Emphasis added.)

[34] I also find that the father’s unilateral decision to change the access schedule and restrict the children’s access with their mother was an unwarranted, knee-jerk reaction to being served with the notice of application and the supporting documents. The father’s reaction is clear evidence of his lack of understanding of both the importance of the children’s relationship with their mother and his role in encouraging that relationship, the latter of which exists even in the face of contrary ‘wishes’ expressed to him by the children.

[35] The father had a number of options available to him, short of making the unilateral decision to change the access schedule and refusing to allow the children to have access with their mother. He could have engaged in discussion with the mother, including through her counsel, as to the concerns being expressed to him by the children. He could have suggested that the parties proceed to mediation. He could have pursued either option while maintaining the status quo as it has existed since March 2014. The father’s obligation was to do much more than to ‘pull the plug’ on the children’s access with their mother.

Summary

[36] Based on the record before me, I find no “compelling reasons indicative of the necessity of a change to meet the children’s best interests” (see paragraph 15 of Grant v. Turgeon). I am, however, mindful of the fact that the children’s regularly-scheduled access, in accordance with the Agreement, ceased as of four months ago.

[37] In her decision in Grant v. Turgeon, Mackinnon J. referred to the decision of the Ontario Court of Appeal in Sypher v. Sypher (1986), 1986 6337 (ON CA), 2 R.F.L. (3d) 413, as to the purpose to be served by an interim order. At page 414 of that decision, Zuber J.A. said, “… the purpose of the interim order is simply to provide a reasonably acceptable solution to a difficult problem until trial.”

[38] In disputes of this kind, shared parenting is to be encouraged where possible. In identifying a “reasonably acceptable solution” in this matter, it is important that there be consistency for the children. That consistency is to be measured by correspondence to the manner in which the parents were handling access prior to the application being issued and served. (See paragraph 28 of Grant v. Turgeon.)

[39] The interim, interim order provides that the children, Taylor Thibodeau and Hunter Thibodeau, are to have access with their mother from 3:40 p.m. on Friday to 8:00 p.m. on Monday every weekend. The applicant’s request for reinstatement of access as per the Agreement is granted and the schedule set out below replaces the terms of the interim, interim order. The reinstatement of access in accordance with the arrangement shall be made on a gradual basis so as to allow the children to adjust to the return to the original schedule.

[40] In summary, I order as follows:

1. The children shall have access with their parents on a week-on/week-off basis as per the Agreement, with reinstatement of the Agreement to occur on a gradual basis as follows:

a) The children shall have access with their mother from 3:40 p.m. on Friday, December 11 until 8:00 p.m. on Tuesday, December 15, 2015;

b) The children shall have access with their mother from 3:40 p.m. on Friday, December 18 until 8:00 p.m. on Wednesday, December 23, 2015;

c) For the period from 8:00 p.m. on Wednesday, December 23, 2015 to 3:40 p.m. on Friday, January 1, 2016 the parties shall agree upon a schedule so as to permit the children to have equal access with each parent throughout the holiday period;

d) The children shall have access with their mother from 3:40 p.m. on Friday, January 1, 2016 to 3:40 p.m. on Friday, January 8, 2016;

e) The children shall have access with their father from 3:40 p.m. on Friday, January 8, 2016 to 3:40 p.m. on Friday, January 15, 2016; and

f) Thereafter, the children shall continue to have access with their parents on alternating weeks from 3:40 p.m. on Friday to 3:40 p.m. the following Friday.

2. The parties may, by agreement in writing, make alterations to the schedule of access set out immediately above as may be required because of pre-existing, reasonable plans with the children.

3. If the parties are unable to agree upon an access schedule with the children for the period from 3:40 p.m. on Wednesday, December 23, 2015 to 3:40 p.m. on Friday, January 1, 2016, they may return to Court for an order setting out an access schedule for that period.

Costs

[41] If either party wishes to pursue costs, written submissions as to costs may be made within ten business days of the date of release of this endorsement, with a right of reply within five business days thereafter. The submissions:

a) Are to comply with Rule 4 of the Rules of Civil Procedure in terms of format;

b) Shall include or attach sufficient information so that costs, if awarded, may be fixed; and

c) Are not to exceed three pages in length (excluding attachments).

Date: December 8, 2015

Justice S. Corthorn

COURT FILE NO.: FC-15-1482

DATE: 2015/12/08

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Katharine Michelle van den Ham, Applicant

AND

Jared Taze Corky Thibodeau, Respondent

BEFORE: Madam Justice S. Corthorn

COUNSEL: Virginia G. Ollerhead, Counsel for the Applicant

Steven J. Greenberg, Counsel, for the Respondent

HEARD: August 12, 2015

ENDORSEMENT

Justice S. Corthorn

Released: December 8, 2015