Court File and Parties

COURT FILE NO.: FS-16-5552 DATE: 2016-06-10

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Robert Wesley Doherty, Applicant

Stephen R. Lundin, for the Applicant

• and -

Tracy Lynn Doherty, Respondent

Carlynne S. Bell, for the Respondent

HEARD: May 25, 2016, at Kenora, Ontario

Regional Senior Justice D. C. Shaw

Decision On Motions

1There are two motions. Ms. Doherty brings a motion for an order that she have custody of the child of the marriage, Ainsley Marie Doherty, born August 27, 2012. Mr. Doherty brings a motion for an order that the parties have joint custody of Ainsley.

2Both motions also request an order for child support. However, on the hearing of the motions, counsel agreed that the respective support claims would be argued after the decision on custody was made.

Background

3The parties were married on August 1, 2009. They separated June 28, 2016. Ainsley, who will be four years of age in August, is the only child of the marriage.

4Ms. Doherty is employed as a paramedic with Northwest Emergency Medical Services, based in Dryden. Her work schedule is:

Week One: Wednesday and Thursday (nights) Week Two: Monday, Tuesday (days) and Friday, Saturday, Sunday (nights) Week Three: Wednesday, Thursday (days) Week Four: Monday, Tuesday (nights) and Friday, Saturday, Sunday (days).

5In every six week period, Ms. Doherty does not work a Monday shift, as this is a dropped shift in her schedule. She deposes that she has flexibility in her work schedule, subject to management approval which is not unreasonably withheld.

6In her affidavit, sworn May 18, 2016, Ms. Doherty proposes that the child be in her primary care, with Mr. Doherty to have the child every second week from Thursday after the babysitter/school and returned Monday morning to the babysitter/school.

7In submissions, I understood that Ms. Doherty’s proposal to be that the child be in her primary care, with Mr. Doherty to have the child:

Week One: Wednesday after babysitter/school until Thursday return to babysitter/school. Week Two: Friday after babysitter/school until Sunday at 6:30 pm. Week Three: Wednesday after babysitter/school until Thursday return to babysitter/school. Week Four: Friday after babysitter/school until Sunday at 6:30 pm.

8Mr. Doherty has his own business. He owns several trucks, hauling logs. He owns a machine which loads the logs on the trucks.

9Mr. Doherty proposes that the parties share the care of the child on a week on/ week off basis.

10After Ainsley was born, Ms. Doherty went on maternity leave for approximately eight months. She stayed at home with Ainsley during that time.

11In May 2013, Ms. Doherty returned to work. She contacted Alexandra Laroque who was starting to establish a home childcare service. At that time, Ms. Laroque had a daughter who was two months younger than Ainsley.

12Ainsley came into the care of Ms. Laroque in May 2013. Ms. Laroque deposes that from May 2013 until the parties separated in June 2015, Ms. Doherty was the parent who provided her with a childcare schedule each month relating to Ms. Doherty’s shift work hours, provided all of the drop-offs and pick-ups, and provided all of Ainsley’s diapers, wipes, bottles, formula, clothes and medication. Ms. Doherty was also the one who paid Ms. Laroque for her childcare services.

13Although the affidavits filed by each of Mr. Doherty and Ms. Doherty stand in stark contrast to one another as to events before and after separation, it is reasonable to conclude, without making findings of credibility, that from Ainsley’s birth until separation approximately three years later, Ms. Doherty was the child’s primary caregiver.

14Mr. Doherty, himself, while disputing Ms. Doherty’s allegations that he had very little to do with Ainsley before separation, acknowledges that his business, which at that time was hauling wood chips on a strict schedule, made him less available for Ainsley than is now the case when his business is hauling logs. He also comments on his recently improved parenting skills.

15Following the separation Ainsley has resided with each parent on a week on / week off basis. She has continued to be cared for by Ms. Laroque, on behalf of both parents. Since the end of December 2015, Ms. Laroque has been assisting the parties by providing Sunday evening drop-offs and pick-ups at her home. This has been put in place because of difficulties that had arisen when the parties directly exchanged the child. The difficulties eventually led to the involvement of Child and Family Services. Child and Family Services recommended a third party exchange person.

16Ms. Laroque deposes that from the beginning of her involvement as a childcare provider for Ainsley she has observed that Ms. Doherty and Ainsley have a strong bond. She states that Ms. Doherty has always been educated and aware of Ainsley’s developmental milestones as an infant and toddler and that Ms. Doherty has been very effective at communicating about important aspects of Ainsley’s wellbeing.

17Ms. Laroque deposes that before separation, she did not witness any interaction between Mr. Doherty and Ainsley. Ainsley was always dropped off and picked up by Ms. Doherty, or occasionally by Ms. Doherty’s parents. However, Ms. Laroque states in her affidavit, sworn April 13, 2016, that during the last six or seven months she has seen a relationship begin to slowly develop between Mr. Doherty and Ainsley.

18Ms. Laroque deposes that when Ainsley is in the bi-weekly care of Mr. Doherty, Ainsley is usually with Ms. Laroque for approximately 10 to 12 hours per day, although Mr. Doherty will take the odd day off and keep her. Mr. Doherty usually drops Ainsley off very early in the morning, between 4:00 am and 6:00 am. Ainsley then goes back to sleep, without a problem.

19Ms. Laroque deposes that Ainsley is usually excited to see her father when he comes to pick her up. However, when problems have arisen with Ainsley during a pick-up or drop-off, Mr. Doherty has a difficult time in verbally guiding or disciplining Ainsley. Ms. Laroque deposes that Mr. Doherty usually reacts to this kind of behaviour by either shrugging it off or ignoring the behaviour and letting Ms. Laroque deal with it.

20Ms. Doherty and Ms. Laroque have spoken about the fact that Ainsley will be starting junior kindergarten in the Fall of 2016. Ms. Laroque will continue to provide childcare when Ainsley is in school, both before and after school, if necessary.

21Ms. Laroque states that Mr. Doherty has not discussed any arrangements with her so that she is not sure what his plans are when Ainsley starts junior kindergarten. She is of the view that before and after school childcare will be difficult for Mr. Doherty due to his early morning work schedule.

22Ms. Laroque states that Ainsley has excellent language skills for her age, that she is a kind and polite child and almost always uses good manners when she needs something.

Discussion

23I am satisfied from the materials filed on the motions that, at least on an interim basis, joint custody, in the sense of joint decision making, is not practicable nor in the best interests of the child. The parties are unable to communicate directly with one another. They require a third party to effect Ainsley’s transitions. They have not been able to discuss Ainsley’s needs and development through a communication book. Ms. Doherty started a communication book in January 2016. She records in the communication book on a daily basis while Ainsley is with her. She then gives the book to Ms. Laroque. However, Ms. Laroque deposes that Mr. Doherty wants nothing to do with the log book and has refused to take it or look at it. Mr. Doherty explains his refusal on the basis that because his reading and writing skills are not good, a communication book does not work well for him. That may well be the case. However, if the parties are unable to speak to one another civilly and if they are unable to communicate by way of a log book, the prospects of being able to make joint decisions, at this stage of the process, are not favourable. Continued conflict is harmful to Ainsley’s interests.

24I am satisfied from the affidavits on the motions that Ms. Doherty has been and remains the parent primarily responsible for Ainsley’s medical and dental appointments, arranging for her entry this Fall into kindergarten and scheduling her outside activities.

25Mr. Doherty submits that the status quo should continue pending trial.

26The status quo is an important consideration on interim motions. Courts are reluctant to change ongoing custody / access arrangements when the child appears to be doing well.

27In this case, the status quo prior to separation was that Ms. Doherty was Ainsley’s primary caregiver. Ms. Doherty deposes, and it was not contradicted, that from the date of separation until November 2015, Ms. Doherty would care for Ainsley three or four days a week when Ainsley resided with Mr. Doherty and Mr. Doherty was at work. Ms. Doherty deposes that after November 2015, Mr. Doherty told her that he would no longer allow her to care for Ainsley while he was at work. Ms. Laroque’s evidence is that during the week that Ainsley resides with Mr. Doherty, she is brought by Mr. Doherty to Ms. Laroque’s home between 4:00 am and 6:00 am, Monday to Friday, and is in Ms. Laroque’s care for 10 to 12 hours. The actual status quo, as distinguished from a notional status quo, appears to be that for approximately the first three years of Ainsley’s life, before separation, and then for the next five months after separation, Ainsley resided primarily with Ms. Doherty. During the seven months since November 2015, as among the two parents and Ms. Laroque, Ainsley has been in the primary care of Ms. Doherty, secondarily in the care of Ms. Laroque and, on a tertiary basis, in the care of Mr. Doherty.

28Although Ms. Doherty’s proposal would reduce somewhat the time that Ainsley spends with Mr. Doherty, it would also reduce the time that Ainsley spends with a third party caregiver in favour of more time with the person who has historically been her primary parent.

29Preservation of the status quo is not, itself, the goal. Promotion of the best interest of the child is the desired goal. Further, although it is always difficult on an interim motion, argued on competing affidavits, untested by cross-examination, to accurately determine contested facts, it is probable that the present situation, in place since November 2015, where Ms. Doherty no longer cares for Ainsley during Mr. Doherty’s week, was unilaterally imposed by Mr. Doherty. A unilaterally established status quo should not, in most circumstances, be given much weight.

30I also have concerns with the fact that on the weekdays that Ainsley resides with Mr. Doherty, he brings her to Ms. Doherty’s between 4:00 am and 6:00 am. Although this seems less than ideal at the present time, it will become even more problematic once Ainsley starts junior kindergarten in the Fall. Having a child come to her caregiver at such an early hour and then attend school for a full day does not appear to be in the best interests of a four year old.

31I have therefore determined that Ms. Doherty shall have interim custody of Ainsley and that Ainsley shall reside primarily with Ms. Doherty.

32With respect to access, I prefer Ms. Doherty’s proposal contained in her affidavit of May 18, 2016, rather than her proposal made in submissions. The May 18, 2016, proposal minimizes the number of transitions and has all exchanges taking place at either Mrs. Laroque’s home or at school.

33Mr. Doherty shall therefore have access to Ainsley every second week, from Thursday after school, or until picked up from Ms. Laroque’s home, until Monday morning, to be returned to school or to Ms. Laroque’s home. This access shall take place during Week Two and Week Four of Ms. Doherty’s work schedule as set out in paragraph 15 of her affidavit of May 18, 2016, filed on these motions.

34The issue of child support remains outstanding. I am not seised with the matter. It was not argued before me.

Costs

35If the parties are unable to agree on costs, they shall file written submissions within 20 days, with the Trial Co-ordinator in Thunder Bay, not to exceed five pages inclusive of any Bill of Costs.

_________ ”original signed by”_ ___ Regional Senior Justice D. C. Shaw