Court File and Parties

COURT FILE NO.: FC-14-2182-1 DATE: 20160615 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Roland Selbert Smilde, Applicant AND Kelly Ann Smilde, Respondent

BEFORE: Mr. Justice Robert N. Beaudoin

COUNSEL: Robbie Loomer (appearing for Allison Lendor), for the Applicant Fan MacKenzie, for the Respondent

HEARD: June 14, 2016

Endorsement

[1] The Father commenced this application on February 12, 2016. He seeks an order amending the separation agreement executed by the parties on November 20, 2013, and in particular, amending the provisions of the agreement and the custody and access and child support. The Father now seeks a joint custody arrangement.

[2] The parties were married on June 18, 1994 and separated on July 1, 2012. There are two children of the marriage, Morgan Taylor Marie Smilde, born in June 25, 2001 (almost 15 years of age) and Ashley Caitlyn Smilde, born November 18, 2002 (13 years of age).

[3] The parties executed a separation agreement on November 20, 2013. That agreement provided that the Mother would have the care, custody and control of the children subject to liberal access to the Father upon reasonable notice to the Mother. The parties were divorced on March 2, 2015 and each of them has new partners and stepchildren from their new relationships.

[4] The Father brought this motion seeking summer access to the children from July 8, 2016 to July 22, 2016 and August 12, 2016 to August 28, 2016. At a case conference held on April 6, 2016, parenting issues were identified and a request was made of the Office of the Children’s Lawyer (OCL) for representation for the children. I have been advised that the OCL has indicated it will not become involved.

[5] In support of the motion, the Father has sworn two affidavits, the first dated May 12, 2016 and a second sworn June 10, 2016. The Mother provided her sworn affidavit dated June 9, 2016, to which are attached numerous exhibits. It is apparent that there is a continuing conflict between the parties with respect to custody and access and there is evidence that this is now impacting their daughters.

[6] The Father emailed his request for summer vacation time with the daughters on March 20, 2016. In his original affidavit, he alleges that he has always had regular access to the children since separation and he accuses the Mother of continuously undermining his access by planning activities and appointments for them that fall within his access time. It appears that there were access problems in the summer of 2015 and he alleges that it was his turn to make the first request for summer access this year.

[7] In her detailed affidavit, the Mother responds that she agreed with additional summer access on condition that this be arranged in accordance with the children’s best interests. She proposes that the Father have one additional parenting week in July and one additional week in August with no activities or appointments to be scheduled during these periods. This would allow the Father and the children to enjoy the summer holidays without any interruption and there would be no issue about the Father taking the girls to any activities or appointments.

[8] The issue of the daughters’ activities and appointments has been ongoing. The Father alleges that the Mother deliberately schedules these so as to interfere with his time with the girls. The Father had made it clear he would not take the children to any appointments or activities during his access time if these events were not previously discussed or approved by him.

[9] The Mother denies the Father’s allegations that she has attempted to undermine his time with the girls and has offered evidence of her attempts to offer additional time to the Father. She further denies that she has purposely planned activities or appointments during the Father’s time and swears that she is going to extreme efforts to ensure that the Father’s time is not impacted by these activities.

[10] The Mother also cites examples where the Father has refused the opportunity to exercise access with his daughters if the girls were to have an activity or an appointment during his scheduled time. This year, on Valentine’s Day, the girls indicated that they wanted to take part in a Tae Kwon Do activity on a Sunday that fell during the Father’s access weekend. While it was short notice, the evidence is clear that the Mother explained the reason and offered to pick up the girls and drive them back. The Father responded as follows: “If the kids decide they want to attend the TKD on Valentine’s Day, then I would prefer they stay at home this weekend.”

[11] There is also evidence that the Father has attempted to involve the girls in his access disputes with the Mother. The Mother further alleges mental health challenges on the Father’s part and maintains that these are at the root of his parenting issues. Their daughter, Morgan, has requested counselling and Ashley has cut herself and is on a wait list for a psychiatrist at CHEO.

[12] The girls have chiropractic care throughout the year every Monday subject to some changes for holidays and the doctor’s availability. The Father is not supportive of this care. Ashley’s orthodontic appointments are not yet scheduled, but some are expected to take place over the summer months. The Mother states that both girls are required to complete 40 hours of volunteer work and that Morgan has mentioned the idea of obtaining a summer job. It is also unknown when counselling appointments will be scheduled.

[13] In reviewing the materials, it is apparent that the Father is making his request for access based on what he considers to be “fair” rather than what may be in his daughters’ best interests. By seeking one half of the summer vacation period, I believe that the Father is attempting to use this equal timesharing proposal to bolster his claims for joint custody and shared parenting. His affidavit evidence focuses solely on his sense of entitlement and his allegations against the Mother; I am struck by the lack of evidence focusing on the girls, their interests and their activities. The Father is self-employed and is presumably in control of his own vacation time. He has not presented any specific plans for his time with the girls.

[14] There is evidence that the Father has involved his daughters in the dispute with the Mother and that he is communicating to the Mother through them. Both girls appear to be suffering from the ongoing conflict.

[15] There has been no established pattern of access since separation and I am not satisfied that there was any agreement as to who would get first choice with respect to time with the girls over the summer months. The Mother’s proposal for summer access is liberal and respects the principles of the existing separation agreement. It would allow uninterrupted access to the Father without any conflict with any potential activities or appointments that may be scheduled for the girls. I accordingly order the Father’s access to take place in accordance with the Mother’s proposal as set out in appendix “B” to her Affidavit.

[16] It is regrettable that the OCL declined to get involved to represent the children in this dispute. I renew the Court’s request for the appointment of the OCL for that purpose, and I attach a copy of this endorsement in support of that order.

[17] The parties are to provide me with their brief submissions as to costs, (not exceeding three pages) within 20 days of the release of this endorsement.

Mr. Justice Robert N. Beaudoin Date: June 15, 2016