Court File and Parties

COURT FILE NO.: 14-49071 DATE: 2016-07-22 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Bethany Barritt, Applicant AND: Drew Barritt, Respondent

BEFORE: The Honourable Mr. Justice D. A. Broad

COUNSEL: Filomena Andrade, for the Applicant Respondent, self-represented

HEARD: July 21, 2016

Endorsement

[1] The respondent father has brought a motion to increase his access to permit him to travel with the parties’ child Lyra Claire Barritt (dob March 11, 2010) from August 10 to 17, 2016 to attend his wedding in Red Deer, Alberta on August 13, 2016, and to vary the existing order for access to provide him access to the child on every third Friday for six consecutive days to the following Thursday in order to coincide with recent changes in his work schedule. The respondent is employed as an ironworker in Alberta and works 14 days on and 7 days off in three week cycles. The respondent also seeks to maintain the existing Tuesday evening access to be exercised, not by him, but by his future wife and her children, in the weeks when he is in Alberta.

[2] The existing temporary order of Justice Gordon dated November 26, 2014, made on consent, provides for the respondent to have access to the child every other weekend from Friday after school, or at 3:30 p.m. when there is no school to Sunday at 7:00 p.m. and every Tuesday from after school, or 3:30 p.m. when there is no school, to 8:30 p.m.

[3] The applicant has brought a motion seeking disclosure of the respondent’s 2014 and 2015 Income Tax returns and Notices of Assessment, the name and address of his current employer, copies of his last three pay stubs and monthly on an ongoing basis, and that he immediately notify the applicant of any change to his employment.

[4] The respondent advises that the child will be participating in his wedding as a flower girl and that he proposes that the child stay with his fiancée’s mother (age 51) and sister (age 19) at the mother’s home overnight on the wedding night. The child would then stay with the respondent and his wife for the balance of the time in Alberta. The respondent will accompany the child on the flight to Alberta and on the return flight. The respondent advises that the child knows his fiancée’s mother and sister, having met them when they visited in Ontario last summer.

[5] The applicant is opposed to the child attending the respondent’s wedding in Alberta because she does not believe that she will be properly cared for while there. She says that the respondent and his fiancée will be busy with their wedding and would be required to leave the child in the care of virtual strangers. The applicant states that she should not be expected to agree to the respondent taking the child to the “other side of the country” and leaving her with virtual strangers where she could not be present in the event of an emergency. She has offered to accompany the child in order to ensure that the child is properly cared for, however, the respondent has refused to pay for her expenses in that respect.

[6] The applicant points to the case of Deakin v. Deakin 2012 ONSC 7301 (S.C.J.) where Mitrow, J. denied a motion by a father to travel with the parties’ six-year-old child to Cuba to attend a friend’s wedding. Mitrow, J. observed, at para. 20, that was required to assess any potential risk to the child in the face of conflicting affidavit material. At para. 21 he concluded that the child’s best interests require a cautious approach until the court can make findings as to the veracity of the mother’s allegations. He noted “the trip to Cuba is primarily an adult activity-not centred around [the child]”.

[7] It is noted that in Deakin the request was to attend a friend’s wedding, not a family wedding, much less a wedding of one of the child’s parents. There is no indication in Deakin that the child was intended to play any role in the wedding. Moreover there were allegations made by the mother of violent behaviour on the part of the father and a concern that he may have an undiagnosed mental illness, or some emotional instability.

[8] It is well known that when dealing with issues of custody and access the court’s only concern is the best interests of the child. What is in the best interest of the child is contextual and will depend upon the particular circumstances of the child under consideration. In my view Deakin should not be taken as general authority that a request by a parent for permission to travel with the child to attend a wedding cannot be in the child’s best interests. Indeed a review of the case law has indicated that attending a family wedding, and in particular a wedding of a parent, will very often be held to be in the child’s best interests (see Fearon v. Fearon 2007 CarswellOnt 6295 (S.C.J.), Pollington v. Rossi 2012 ONCJ 340 (O.C.J.), Broda v. Broda 2000 ABQB 634 (Alta Q.B.)). The intangible benefits that such an experience can have in the life of a child was commented on by Veit, J. in Broda at para. 18:

In this case, it is obvious that the children would like to be allowed to leave the province to attend a family wedding in California and that such a trip would provide benefits to them. Apart from the pleasure of a trip, the trip would allow them to attend at, and participate in, a family wedding; a social ritual like a wedding may assist in the building and strengthening of emotional links to a strong and stable family network of support which is assuredly important for children. Their participation in any such activities help anchor their place in a loving family and is obviously to be encouraged. The constellation of likely benefits associated with participation in the family wedding can perhaps be summarized by saying that this activity is likely to add to the children's sense of belonging.

[9] It is observed that the current temporary order for custody and access, made on consent, does not prevent either parent from travelling with the child to another province in Canada. Neither does it prevent the respondent from temporarily delegating the care of the child to other persons, while remaining responsible for her care during his access times.

[10] S. 16(10) of the Divorce Act requires the court to give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child. In my view this principle refers not only to the quantity of the contact, but the quality. The reality is that the respondent will be remarrying and the child has been and will continue to be spending time with the respondent’s new spouse, her children and to some degree her extended family. The child’s participation in the wedding celebration will be, in my view, in her best interests and is to be encouraged.

[11] The applicant is naturally apprehensive with the prospect of the child travelling to another province and for at least part of the time being in the care of persons who are unknown to the applicant, and with whom the child has had the little contact to date. However, I am not satisfied on the evidence that the applicant has demonstrated any well-founded cause for concern that the respondent will not act responsibly in seeing to it that the child is properly and safely cared for both during the wedding celebration and on the overnight following the wedding. The applicant’s concerns are capable of being addressed by requiring the respondent to provide his itinerary for the trip to Alberta to the applicant as well as details of his plan for the care of the child during the wedding celebration, reception and overnight, including the names, addresses and telephone numbers of the individuals who will be charged with caring for the child during those times.

[12] I am not satisfied that the circumstances are such as to require the respondent to pay for the applicant to accompany the child to Alberta and return with her to Ontario in order to see to the child’s well-being.

[13] With respect to the variation to the existing order to accommodate the respondent’s new work schedule, I am satisfied that providing for access to him for six consecutive days, every three weeks, while he is in Ontario, rather than maintaining the existing access regime, is in the child’s best interests. Maintenance of the existing order would mean that the child would have significantly less time in the care of the respondent. However, the schedule should be varied for the first week of school to allow the applicant to assist the child to settle into her new school and to attend to all administrative and other details associated with that. Accordingly, the respondent’s access for the period commencing September 2, 2016 shall be restricted from that date at 3:30 PM to Monday, September 5, 2016 at 7 PM.

[14] However, I am not satisfied there is any basis for maintaining Tuesday evening access for the respondent’s new wife and her children, in the absence of the respondent. The respondent’s fiancée is not a party to the proceeding. The order for access in this case is for the respondent, not third parties.

[15] The respondent is not opposed to the disclosure sought by the applicant.

[16] In all of the circumstances it is appropriate to make an order that neither party discuss the issues in the litigation with the child or speak disparagingly of the other party to or in the presence of the child.

[17] It is therefore ordered as follows:

(a) The respondent shall have access to the child from August 10 to 17, 2016 and shall be permitted to travel with the child during that time to Red Deer, Alberta to attend and participate in his wedding on August 13, 2016;

(b) the respondent shall, by July 29, 2016, provide to the applicant, in writing, his itinerary for the trip to Alberta as well as details of his plan for the care of the child during the wedding celebration, reception and overnight on the day of the wedding, including the names, addresses and telephone numbers (cell and landline) of the individuals who will be caring for the child during those times. The child shall be in the direct care of the respondent at all other times when she is in Alberta;

(c) the existing order of Justice Gordon for access to the respondent shall be varied to remove the provision for access on alternate weekends and Tuesday evenings, to be replaced with access to the respondent commencing every third Friday at the end of school, or 3:30 p.m. when there is no school, to the following Thursday at 7:00 p.m. commencing July 22, 2016, provided that the respondent’s access commencing September 2, 2016 shall end on September 5, 2016 at 7:00 p.m.;

(d) the respondent shall provide to the applicant copies of his 2014 and 2015 Income Tax returns and Notices of Assessment (the latter when received), the name and address of his current employer, copies of his last three pay stubs and monthly on an ongoing basis, and shall immediately notify the applicant of any change to his employment; and

(e) neither party shall discuss the issues in the litigation or adult issues with the child or speak disparagingly of the other party to or in the presence of the child.

[18] Given the divided result, it would seem appropriate that there be no order as to costs. However, if either party wishes to seek costs they may deliver brief submissions (not to exceed three double-spaced typed pages), excluding Bills or Costs, within 7 days hereof. Any party may deliver reply submissions within 7 days thereafter, not to exceed two double-spaced pages. Such submissions shall be delivered to my chambers at 85 Frederick Street, 7th Floor, Kitchener, Ontario N2H 0A7. If no submissions are received within this timeframe, the parties shall be deemed to have settled the issue of costs.

D. A. Broad J. Date: July 22, 2016