Court File and Parties

COURT FILE NO.: FC-14-778 DATE: 2016/07/14 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Margaret Irene Goodyear, Applicant AND Kyle Richard Burton, Respondent

BEFORE: Justice A. Doyle

COUNSEL: Loreen Irvine, for the Applicant James W. Jeffcott, for the Respondent

HEARD: July 7, 2016

Endorsement

[1] This is a motion by the respondent father for the following:

• joint custody of the parties’ 5 year old son;
• increased parenting time;
• an order restricting the applicant mother from permanently relocating with the child outside the jurisdiction;
• a custody/access assessment or in the alternative an update of the Office of the Children’s Lawyer’s (OCL) report; and
• child support based on section 9 of the Child Support Guidelines (Guidelines).

[2] The motion by the mother is for an order for:

• sole custody;
• a reduction of the father’s parenting time;
• permission to move with the child in the event of a military posting; and
• child support in accordance with the Guidelines based on the father’s 2015 income.

[3] The parties agree to equally share the section 7 special and extraordinary expenses. The current expenses are daycare and tutoring. Any other section 7 expense will require consent in advance. The parties agree that the issue of retroactive support will be determined by the trial judge.

[4] The father believes that the access for holidays can be agreed to between the parties and therefore a court order is not necessary.

[5] Therefore, the issues are as follows:

i) Is sole custody or joint custody in the best interests of the child? ii) What parenting arrangement is in the best interests of the child? iii) Should the court order a section 30 Children’s Law Reform Act assessment? Alternatively, should there be an update of OCL report? iv) What child support is payable? v) Should the mother be permitted to move with the child from the Ottawa area if her employment requires a posting elsewhere in Canada?

Background

[6] At the time of the birth of Harley on October 2, 2011, the parties were not residing with each other, as the mother lived in Winnipeg, Manitoba and the father lived in Ottawa.

[7] In August 2012, the mother moved to Ottawa as her other child, Ilyas, born February 21, 2010, required special schooling due to his autism. In addition, when asking for the posting, she indicated that the father of Harley lived in Ottawa and at the time the father of Ilyas lived in Kingston and both would be available for support of the children.

[8] The mother works for the military and the father is in the car sales business.

[9] The parties cohabited in 2013. They separated in December 2013.

[10] The parties do not agree on how frequently the access has been enjoyed by the father. Each party blames the other for any changes to or cancellations of access.

[11] The father feels that he has been shut out from the child’s life.

[12] The OCL prepared a report dated February 27, 2015. The disclosure meeting took place in December 2014.

[13] After a thorough investigation and discussion, the social worker Kathleen Szirtes, MSW RSW, recommended, among other things, that:

i) The parties should have joint custody and that the mother have decision-making power on major decisions. The father would have access to all records. ii) The father would have access Tuesday either morning or after school and overnight every other week. If this were permitted at work, he would have the child every other weekend from Saturday morning to Tuesday afternoon. Pickup would be at the school or a mutually agreeable locale. iii) The father was to attend parenting courses and mother was to attend counselling regarding setting boundaries. iv) Harley was to receive assessment and treatment services as recommended by preschool and the Portia Learning Centre. Both parents are free to travel in the country during their access. This did not include permanent relocation which would have to be looked at separately. v) The child should be moved from the daycare to a smaller daycare. This occurred right after the meeting in January 2015.

[14] Harley has exhibited some aggressiveness, behavioural issues, speech delays and some early learning challenges. The OCL reports that Harley is a vulnerable child and has issues with anger and his temperament. Also, he does not do overly well with a lot of change.

[15] The daycare staff reported to the OCL social worker that Harley is a pretty happy child who settles in. He plays well with peers, but at times can be aggressive. Staff indicated that Harley is uniformly upset and crying during drop off by either parent.

[16] There were concerns that the father had delayed in providing consent to behavioural and learning needs assessments and support services. Ms. Szirtes found that Harley would be best suited with one stable home environment with a priority being given to a schedule with minimal disruption. She noted that the mother had shown more sophisticated insight into Harley’s strengths and support needs and advocating for those needs. She suggested that the mother is best able to provide a real home environment, with access to the father.

[17] Harley was regularly struggling with regular weekly transitions. He has minor speech delays and aggressive behavioural issues, which led to an early learning assessment. The lack of communication delayed the evaluation. The OCL commented that the child does not do well with transitions. There is a lack of consistent care for Harley and the existence of two households provides difficulties which could impact his overall development.

[18] The OCL confirmed that the father had an interest in an ongoing strong relationship with Harley. Harley has a good connection with his father. Ms. Szirtes commented that the father required an insight into his son’s needs and there was a need to ensure consistency in his care. She found that the father has not shown any history of decision-making regarding the child’s care.

[19] The evidence indicated that there were many disputes regarding visits and cancellations of visits.

[20] This matter first came before me on April 19, 2016 for a motion. The father required an adjournment as he had just been served with the mother’s materials and he needed time to prepare his responding materials and obtain a critique of the OCL report.

[21] My endorsement notes Harley’s behavioural difficulties, including aggressiveness, and his difficulty with transitions identified in the OCL report. Pending a hearing of the motion, the court ordered on an interim without prejudice basis the following:

i) Commencing April 29, 2016, the father would have access to Harley every second weekend from Friday after school to be picked up before 4:30 p.m. until Monday morning when he would drop him off at school; ii) Every Wednesday after school, the father would pick him up from school before 4:30 p.m. until Thursday morning when he would drop him off at school; iii) Father’s Day from 9:00 a.m. to 6:00 p.m.; iv) any other access the parties could agree to; v) the parties could communicate only by email unless it was urgent; and vi) the father was not to attend the mother’s home unless he was invited.

[22] The parties agree that the structure put in place in April has been an improvement for Harley. There is now consistency and predictability in the access. Cancellations and changes of access are no longer occurring.

[23] The father is currently paying $414 per month in child support.

Is sole custody or joint custody in the best interests of the child?

Father’s position

[24] The father is requesting joint custody in accordance with the OCL report, or, in the alternative, that custody should be determined at trial.

[25] The father indicates that he has been fully involved in Harley’s life. Upon the return of the mother to Ottawa he was involved in the care of the child and also during the one-year cohabitation in 2013.

[26] He is concerned that if the mother obtains sole custody, she will continue her campaign to minimize the father’s involvement in Harley’s life. Her actions, including communications that have been recorded, confirm her desire that he not be part of her life.

Mother’s position

[27] The mother submits that it is in the best interest of Harley that she be awarded sole custody. She has been the primary caregiver for Harley and has made all decisions with respect to daycare, health issues, tutoring and schooling.

[28] She indicated that it is important that she obtain sole custody in order that she can continue to make the parenting decisions. She indicates that Harley’s current school is a French school. Harley is not functioning well and she proposes that Harley transfer to a school with an English and French program. The father indicates that he has not heard of this issue and is not aware of any problems at school.

[29] The mother refers to s. 20(4) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (CLRA), which states:

Where the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other of them, the right of the other to exercise the entitlement of custody and the incidents of custody, but not the entitlement to access, is suspended until a separation agreement or order otherwise provides.

[30] She indicated that the parties were not residing together at the time of the child’s birth. As the mother was in Winnipeg and the father was in Ottawa, the father acquiesced to the mother making decisions regarding custody. Even after separation, the mother continued to make decisions regarding Harley’s health, education, welfare and meeting his financial needs. The father made very little financial contribution to the child’s life, although she admits that he did pay daycare expenses and make car loan payments.

Analysis

[31] The court is not prepared to make an interim custody order.

[32] Section 24(2) of the CLRA sets out the factors to be considered when determining the child’s best interests. It is reproduced below.

The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and, (i) each person entitled to or claiming custody of or access to the child, (ii) other members of the child’s family who reside with the child, and (iii) persons involved in the child’s care and upbringing; (b) the child’s views and preferences, if they can reasonably be ascertained; (c) the length of time the child has lived in a stable home environment; (d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child; (e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing; (f) the permanence and stability of the family unit with which it is proposed that the child will live; (g) the ability of each person applying for custody of or access to the child to act as a parent; and (h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

[33] In this case, the court finds that both parents have a bond with Harley and have the ability to care for him while in their care. Although the OCL reported some inconsistencies in both households in discipline and issues of follow-through on the father’s part, the court finds that the child benefits from the time with his father.

[34] The mother has played a lead role in meeting the child’s needs to date. She has shown the willingness to deal with his educational and medical needs.

[35] Up until recently, the maternal grandmother and uncle were residing with Harley and involved in his upbringing. Harley has a brother who was one year older than him and with whom he has a close bond. They should not be separated for any great length of time.

[36] The court is not prepared to adopt the recommendation of the OCL. As stated in Bos v. Bos, 2012 ONSC 3425, the report’s recommendations should not be relied on unquestioningly as the report has not been tested through cross-examination and the father has proceeded with a critique. However, the court can rely on the factual findings contained therein. The facts therein clearly set out the conflict between the parties and their efforts to gain control in the conflict.

[37] In Ciutcu v. Dragan, 2014 ONCJ 602, Justice Sherr determined that the mother would have temporary sole custody of the two children with the father continuing to enjoy access. The children had lived with the mother for three years since the parties separated. The court concluded that joint custody was not the children’s best interest as the parties were unable to communicate and there were fundamental disagreements.

[38] Unlike in this case, the father there acted unilaterally and alienated the child’s dentist and proceeded to provide the children with homeopathic remedies without the prior consent of the mother.

[39] However, the court must consider the willingness of a parent to allow the other parent to play a meaningful role in the child’s life: see Barnes v. Parks (2001), 141 O.A.C. 362 (C.A.).

[40] There is evidence that the mother has not fully fostered a relationship between the father and Harley. The mother has been uncooperative, although she feels justified due to the father’s action. It remains untested by cross-examination to what extent this is part of a campaign by the mother to reduce the father’s role in Harley’s life.

[41] If the court orders sole custody to the mother, there is a risk that the mother could continue to minimize the father’s involvement with the child. The court documents are replete with incidents of disagreements about access scheduling and arrangements.

[42] There is contradictory evidence as to whether the mother was the instigator of the missed visits, last minute cancellations and changes of access times. The mother states the father regularly cancelled visits.

[43] In addition, the mother has not kept the father informed of important changes to Harley’s life. For example, the father found out for the first time during the motion that the mother had moved. She provided her new address in open court. The father was not even aware of the move and the new living arrangements for Harley. The mother is no longer living with her mother and brother and now has a place of her own.

[44] Awarding interim custody at this stage will unfortunately set out a “winner” in the control for Harley. This is not in his best interests.

[45] The father filed seven affidavits and the mother filed six affidavits. The Court also received the OCL report and the Dr. Worenklein report. Each of the parties has filed several affidavits containing allegations that confirm the conflictual nature of their past relationship.

[46] The court is not prepared to order joint custody when there may not have been a history of good communication on major issues dealing with the child.

[47] In addition, the evidence does not provide details of the school issue to allow the court to determine whether a transfer of school is necessary or requires a determination of custody at this stage.

[48] Therefore, there will be no order as to custody pending further order of this Court.

What parenting arrangement is in the best interests of the child?

Father’s position

[49] The father wishes access to be increased to include Tuesday overnight. He believes that this would allow him continuity of care and allow Harley to spend more time with his father. He believes that the child benefits from the role the father can play in his life and that he is a loving and caring father who can continue to meet his child’s needs.

Mother’s position

[50] Although the mother agreed that since the access regime was implemented in April 2016 Harley’s behaviour has improved, she believes that the child should be returned on Sunday night as opposed to Monday morning. She believes that he should be back with the mother on Sunday night so he can start his school week with his mother.

Analysis

[51] The status quo is a very important consideration in interim motions dealing with custody and access: see McEachern v. McEachern (1994), 5 R.F.L. (4th) 115 (Ont. Ct. J. (Gen. Div.)).

[52] As stated in Gordon v. Goertz, [1996] 2 S.C.R. 27, a child should have maximum contact with both parents as long as it is the child’s best interests.

[53] In determining access, the court must consider the child’s best interests and the factors set out in section 24 of the CLRA.

[54] Since the interim order of the Court in April 2016, the child has been doing well. It is important that a child with special needs be able to have a structure and routine. Predictability in his schedule is very important. The OCL report speaks of Harley’s special needs and the challenges he faces with change.

[55] There is no evidence that the child is not doing well on Monday after having a weekend with his father. On the other hand, the court is reluctant to add another overnight stay each week with his father. This would mean another change in his schedule after only 2.5 months.

[56] There is evidence that at this time the current schedule has resulted in a reduction of Harley’s behavioural issues and aggression.

[57] There is no evidence of behavioural issues at school on the Mondays after the father has had the child for the weekend. Harley’s report cards are not before the court.

[58] The court is not prepared to change the status quo. The child has had many disruptions in the access schedule due to his parents’ inability to agree on times. Therefore, it is in Harley’s best interests to continue the current and consistent routine until a further court order or trial.

Should the court order a section 30 Children’s Law Reform Act assessment or should there be an update of the OCL report?

Father’s position

[59] The father submits that an assessment is required for the following reasons:

• it will provide for psychometrics testing – he believes that the mother has some mental health issues that could be addressed through psychometrics tools;
• the OCL report is almost 2 years old; and
• the child is older.

[60] The father filed a critique by Dr. Worenklein which recommends an assessment and confirms some of the concerns outlined in the OCL report such as Harley’s struggles with transitions and the conflict between the parties.

[61] The cost would be $7,000 to $9,000.

Mother’s position

[62] The mother believes that an assessment is not warranted as there are no clinical issues, it is expensive and the family should not endure another intrusive investigation.

[63] She would not be opposed to an updated OCL report.

Analysis

[64] When determining whether assessment should be ordered, the court must consider the cost of the assessment and the length of time involved: Linton v. Clark (1994), 21 O.R. (3d) 568 (Div. Ct.).

[65] The presence of a clinical issue or issues of pathology are not prerequisites for the making of an order pursuant to section 30: Glick v. Cale, 2013 ONSC 893, 48 R.F.L. (7th) 435.

[66] As per Berman v. Berman, 2015 ONSC 7194, an updated assessment may be required when there has been changes since the last assessment: see also Tucker v. Tucker, 1998 ABCA 281, 65 Alt. L.R. (3d) 213; and Elliott v. Loewen (1993), 44 R.F.L. (3d) 445 (Man. C.A.).

[67] The Court finds that an update is required as the report is almost 2 years old, the child is older, and there is now a relocation issue that was not dealt with at the time of the original report.

[68] The Court is not satisfied that full assessment is required in there is no evidence of clinical issues or mental health issues.

[69] On page 14 of the OCL report it is indicated that there are no concerns with respect to the mother’s mental health. Her psychologist, Dr. Cybulski, and a social worker both confirm that she does not have a bi-polar disorder.

[70] Indeed, the evidence shows that she is a working warrant officer with the military and has excelled in diverse courses of study.

[71] She is under stress from the litigation and the contact with the father. There is no evidence that her status affects her parenting ability and, therefore, the court finds that there are no clinical issues before the Court that would require the intrusion of the assessment under section 30 of the CLRA.

[72] However, an updated OCL report would be helpful as:

• there continues to be conflict between the parties;
• the child is two years older; and
• it has been two years since the last assessment.

[73] Also, there is a need to update the court with respect to whether the parents have made any progress with respect to parenting and becoming more child-focused.

[74] The Court requests the re-involvement of the OCL and orders the OCL to provide the court with an update.

[75] The parties will be required to file their intake forms within the appropriate timeline set out by the OCL.

What child support is payable?

[76] In 2015, the mother earned $66,000 and the father earned $119,830. His financial statement sworn April 2016 shows an income of $95,000 per year and he advises the court that he anticipates that $110,000 will be earned in 2016. The best evidence of income is his 2015 tax return and for this year he will pay based on line 150 for that year.

[77] Child support will be in accordance with the Guidelines. The most current information is that the father earned $119,830 last year.

[78] Commencing July 1, 2016, child support will be payable by the father in the amount of $1022 per month.

Should the mother be permitted to move from the Ottawa area if her employment requires a posting elsewhere in Canada?

[79] The mother believes that she has de facto custody of the child. Her employment with the Canadian Armed Forces requires that she be available for posting roughly every 3 to 5 years. However, she did admit that there will be no posting while the litigation is ongoing.

[80] There is no evidence of a posting at this time. The court has no detail on which to make a full analysis under Gordon v. Goertz to determine what is in this child’s best interests.

[81] There is evidence of the mother’s previous postings in Comox, B.C. and Winnipeg Manitoba. However, there is no information regarding the where, how and when of a future posting. How can the court at an interim stage weigh the factors needed to determine what is in the child’s best interests?

[82] It is in Harley’s best interests that his permanent residence not be moved on an interim basis pending litigation.

[83] Therefore, the Court orders that the mother will not permanently relocate the child beyond a 15 km radius from her current residence without further court order.

Conclusion

[84] In conclusion, the court orders as follows:

1. There will be no order as to custody;
2. The father will visit the child every second weekend from Friday after school before 4:30 p.m. until Monday morning when he will drop him off at school and every Wednesday after school where he will pick him up before 4:30 p.m. until Thursday morning when he will drop him off at school;
3. Holidays will be discussed and agreed to by the parties;
4. The parties will communicate by email unless there is an emergency;
5. The father will not attend at the mother’s home unless he is invited to do;
6. The court requests an update from the OCL;
7. The mother will not be permitted to relocate the child from a 15 km radius from her current residence without further court order;
8. Commencing July 1, 2016 the father will pay child support of $1,022 per month based on an annual income of $119,830;
9. The parties will equally share section 7 expenses, which include daycare costs and tutoring at this time;
10. Any other section 7 expense will require appropriate notice and consent in advance; and;
11. The issue of retroactive support will be determined by the trial judge.

[85] If the parties cannot agree on the issue of costs, the father will provide his 2 page submissions by July 29, 2016 along with a bill of costs and any offers to settle. The mother will provide her 2 page submissions with a bill of costs and any offers to settle by August 12, 2016.

Madam Justice Doyle Date: July 14, 2016

COURT FILE NO.: FC-14-778 DATE: 2016/07/14 ONTARIO SUPERIOR COURT OF JUSTICE RE: Margaret Irene Goodyear, Applicant AND Kyle Richard Burton, Respondent BEFORE: Justice A. Doyle COUNSEL: Loreen Irvine, for the Applicant James W. Jeffcott, for the Respondent HEARD: July 7, 2016 ENDORSEMENT Madam Justice Doyle Released: July 14, 2016