CITATION: Taylor v. Baker, 2016 ONSC 1259
COURT FILE NO.: F1297/15
DATE: March 3, 2016
SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT
RE: Michael L. Taylor, applicant
AND:
Jill Elizabeth Baker, respondent
BEFORE: MITROW J.
COUNSEL: Michael R. Nyhof for the applicant
Joanne Beasley for the respondent
HEARD: March 2, 2016
ENDORSEMENT
[1] The applicant father brings a motion seeking frequent overnight access to the parties’ child Benjamin, born June 20, 2013.
[2] The respondent mother opposes this relief. She identifies various issues, as she perceives them, including transition issues, and she submits that the motion is premature and should await the completion of the Office of the Children’s Lawyer s. 112 report. Ms. Beasley made a candid submission that the respondent would not oppose consideration being given to the Children’s Lawyer’s report on a motion for interim relief.
[3] For reasons that follow, the applicant’s request for overnight access is allowed, but for now, not to the extent sought by the applicant.
DISCUSSION
[4] The parties are not married to each other; they cohabited briefly, and separated in January 2014.
[5] I have reviewed all the affidavit material, including the respondent’s unnecessarily lengthy 157 paragraph affidavit.
[6] The evidentiary record established that both parties are loving and dedicated parents.
[7] The respondent does not work outside the home. The evidence supports a finding that the respondent is a thoughtful, caring mother who is dedicated to caring for Benjamin, who has resided in her primary care since separation.
[8] Having said that, the respondent raises a number of concerns regarding the applicant’s care of the child that are little more than speculation and conjecture. The respondent, at times, appears obsessive about picayune matters – the whole discussion regarding the child’s soother is an example. The respondent concludes that the child is not napping at some of the Saturday visits when he is with the applicant, which the applicant denies; the respondent surmises that the applicant feeds the child milk which causes upset to the child, but the applicant denies giving the child milk; the respondent makes an unusual complaint of the child returning from access visits smelling of air freshener, but the applicant denies exposing the child to air freshener except for the air freshener hanging in the car which the applicant deposes does not have a significant odour.
[9] A particularly stark example of the respondent drifting into unwarranted and obsessive concerns about the applicant’s care of the child can be found in the respondent’s evidence that she read an article about “deciphering baby stool,” from which the respondent then formed an opinion, and “verily” believed that the applicant was still feeding the child formula; this amateur forensic analysis, based on the article’s description of bowel movements from a “formula-fed baby,” is deserving of no weight. The applicant denies feeding the child formula (or milk).
[10] Significantly, the applicant’s evidence as to the care of the child during access visits is corroborated to a material extent by the evidence of his partner, Ms. Moore, with whom he resides. Ms. Moore has two children of her own, who are in her care on alternating weeks.
[11] The respondent clearly has made significant efforts to promote access since separation, including, at one time, at 7:00 a.m. on weekdays.
[12] Although the respondent complains about issues as to the child’s behaviour at transitions, the reasons for the child’s apparent occasional upset are not clear. Further, the applicant’s evidence is that the respondent generally is not present at the access exchanges; she utilizes her parents, instead, as intermediaries. The applicant’s suggestion, put forward through counsel, that the respondent be present at access exchanges, was a reasonable suggestion that, in my view, the parties should consider implementing, at least on a trial basis.
[13] While a number of the respondent’s allegations about the applicant’s conduct are disputed, there is no dispute that the applicant engaged in videotaping, despite the respondent’s protests, and that the applicant, twice, had the child’s hair cut, for which the applicant deposes he was “chastised” at the case conference (and rightly so, in my view). The videotaping conduct, I find, was not appropriate.
[14] For her part, the respondent appears to have enlisted her parents, on at least one occasion, to engage in drive-by surveillance of the applicant’s residence to see if his car was there at times when the child was in his care.
[15] There is, unfortunately, conflict, at times, between the parties; the level of the respondent’s mistrust of the applicant is high, and this fuels the respondent’s tendency to make unwarranted negative assumptions about the applicant and his care of the child.
[16] I would urge the parties, in consultation with their respective counsel, to give serious consideration to retaining a qualified person to engage in joint counselling with the parties, directed at assisting the parties in improving their relationship as it relates to discussions regarding their child, and suggesting strategies to the parties designed to limit conflict, and to improve each party’s trust of the other in parenting the child.
[17] Currently, the interim access order dated December 16, 2015 includes access each Monday and Friday from 5:30 p.m. to 7:30 p.m. and each Saturday from 10:00 a.m. to 7:30 p.m. The applicant seeks overnight access to include each Friday from 5:00 p.m. to Saturday at 7:30 p.m., and each Tuesday from 5:30 p.m. to Wednesday at 8:00 a.m., and Good Friday from 10:00 a.m. to Saturday at 7:30 p.m.
[18] The respondent’s evidence is that she is content that the applicant “exercise liberal access” to the child; she further deposes that the child is in “excellent health.” Also noteworthy is the applicant’s submission that the parties exchanged regular emails regarding the child, and that the respondent did not share in these emails the many concerns that she now raises in her affidavit.
[19] While I agree with the respondent’s submission that the result of the Children’s Lawyer’s investigation is important, I cannot accept that there should be no overnight access in the meantime. Overnight visits are in the child’s best interests and are long overdue. Until the Children’s Lawyer’s report is released, there should be overnight access every second weekend. The schedule set out in the order below will give the applicant an overnight on Good Friday, as requested, as that will fall on his overnight weekend.
[20] The applicant also seeks “Facetime” access each Thursday; that is in the child’s best interests and is included in the order, along with access on Father’s Day, as requested.
ORDER
[21] For reasons set out above, I make the following order:
- The applicant shall have interim access to the child as follows:
a) each Monday from 5:30 p.m. to 7:30 p.m.;
b) alternating Saturdays from 10:00 a.m. to 7:30 p.m., commencing Saturday, March 5, 2016;
c) alternating weekends from Friday at 5:00 p.m. to Saturday at 7:30 p.m., commencing Friday, March 11, 2016, except that for the Easter weekend, the overnight access shall be from 1:00 p.m. Friday, March 25, 2016 (Good Friday) to 7:30 p.m. Saturday, March 26, 2016;
d) on Father’s Day from 10:00 a.m. to 5:00 p.m.;
e) “Facetime” access, connecting through appropriate electronic devices, with the respondent to initiate the contact, each Thursday at 7:00 p.m. and the parties shall exchange all necessary contact information to facilitate this access; further, this access is subject to the child’s attention span, or 15 minutes, whichever is less;
f) such further and other times as may be agreed to by the parties; and
g) access exchanges shall take place at the respondent’s parents’ residence at 1042 Wembley Road, London, Ontario, or such other location as mutually agreed to in writing.
After the release of the Children’s Lawyer’s report, this order may be reviewed at the instance of either party, on motion, and the material filed on the applicant’s motion for overnight access at tab 8 of the continuing record shall be deemed part of the material on any motion to review this order;
The parties shall contact the trial coordinator to schedule the motion to review, to be heard by me, and any additional affidavit evidence shall be limited to material facts occurring subsequent to the date of this order;
This order is made pursuant to the Children's Law Reform Act, R.S.O. 1990, c. C.12;
This interim order replaces paragraphs 2 and 3 of the interim order of Carey J. dated December 16, 2015; and
If the parties are unable to agree on costs, then the applicant shall forward his written costs submissions to the trial coordinator within 14 days; the respondent’s written submissions shall be forwarded to the trial coordinator within 14 days thereafter and reply submissions, if any, within 7 days thereafter; submissions shall not exceed 3 typed pages (2 pages for reply) plus copies of offers, time dockets and any authorities.
“Justice Victor Mitrow”
Justice Victor Mitrow
Date: March 3, 2016