Newman v. Nicholson, 2016 ONSC 5470

CITATION: Newman v Nicholson, 2016 ONSC 5470

COURT FILE NO.: 08-1156-13

DATE: 2016/08/30

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Susan Rae Newman, Applicant

AND

Ross Nicholson, Respondent

BEFORE: Justice A. Doyle

COUNSEL: Michèle Blais, for the Applicant

Self- represented

HEARD: August 23, 2016

ENDORSEMENT

1The applicant mother brings a motion to change the January 26, 2012 final order of Master Roger (as he then was) whereby she would have sole custody of their 14 year old son and access by the respondent father would be reasonable and generous in accordance with the child’s wishes and as mutually agreed to by the parties.

2The father wishes to maintain a joint custody arrangement along with the schedule set out in the final order which includes every second Wednesday at 5 p.m. until Sunday at 1 p.m., every other Wednesday from 5 p.m. to 8 p.m. and every other Sunday from 1 p.m. to 8 p.m.

3The issues are as follows:

• Has there been a material change of circumstances as it pertains to custody and access?

• If yes, what custody arrangement is in Kai’s best interests?

• What parenting schedule is in Kai’s best interests?

Background facts

4The parties commenced cohabitation on January 1, 2002 and separated on July 1, 2004. They have one child of the relationship Kai born July 2, 2002, who has resided primarily with the mother since separation.

5The final order provides for the following:

• the parties would have joint custody of the child;

• the child’s primary residence would be with the mother;

• the father’s access would be as set out above; and

• the father would pay child support in the amount of $388 per month based on an annual income of $43,974.

6Kai plays competitive hockey and, at the time of the motion, was trying out for Triple AAA hockey. He will be playing either AA or AAA hockey this winter. This takes up considerable amount of time with practices, games and tournaments. During the summer, he participates in high performance athletic programs, hockey camps and is engaged in high school sports.

7There was also evidence that Kai was late arriving at school when in the care of the father.

8Kai’s health issues are as follows:

• in 2015, he suffered two concussions;

• suffers from small intestinal bacterial overgrowth; and

• has suffered from anxiety and obsessive compulsive behaviours for which he is currently undergoing a psycho-educational assessment.

9In December, 2012 the father brought a motion to change the final order as a result of his change of his income. Further disclosure was ordered and that motion has been adjourned to another date for argument.

10In December 2015 as a result of the father’s non-payment of child support, the Family Responsibility Office (FRO) suspended his driver’s license affecting his ability to transport Kai to his activities.

Has there been a material change of circumstances as it pertains to custody and access?

Mother’s position

11The mother submits that the following events have created a material change of circumstances:

• Kai is now 4 years older and his needs have changed;

• the communication between the two parents has significantly deteriorated;

• the parties cannot work together in a joint custodial arrangement;

• the mother has increasingly taken charge of the child’s needs; and

• the father has not honoured his parental obligations.

Father’s position

12The father did not articulate a position with respect to this issue.

Analysis

13Section 29 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”), states:

A Court shall not make an order under this Part that varies an order in respect of custody or access made by a Court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child. R.S.O. 1990, c. C.12, s. 29.

14The Court finds that there is evidence that there has been a material change of circumstances justifying a variation of the final order.

15Kai has developed into an athlete but with some serious health issues that are being investigated at this time.

16In addition, in 2014, the mother states that father has increased his drug and alcohol consumption and he has angry outbursts.

17The father’s lack of response to communication from the mother concerning Kai’s health is the most dramatic change that requires a Court to review whether the final order as continues to be in Kai’s best interests. The record shows that there has been a lack of communication between the parties. The father admits that at times he did not respond.

18The ongoing concerns raised by the mother since the final order also provide evidence that a material change of circumstances has occurred. These concerns include lack of care when Kai had a concussion at hockey; lack of timely attendance at sporting activities and school, and not ensuring appropriate food and nutrition.

If yes, what custody arrangement is in Kai’s best interests?

Mother’s position

19The mother submits that a joint custody regime is no longer sustainable due to the lack of communication between the parties. These issues are serious as they affect Kai and the number of health issues that he is currently undergoing.

20At this time, the mother provides information to the father and seeks his input but does not receive input.

21At this time by default, she makes the final decisions.

Father’s position

22The father admits to some communication issues and wishes to maintain the status of joint custody.

23The father admits that by default, the mother makes final decisions and he feels that he just lets her dictate.

Analysis

24In determining the custody and access, the Court must determine the child’s best interests in accordance with the section 24 of the CLRA:

(1) 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. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10.

25As stated in the Ontario Court of Appeal in Kaplanis v. Kaplanis 2005 CanLII 1625 (ON C.A.):

1. There must be evidence of historical communication between the parents and appropriate communication between them.

2. It can’t be ordered in the hope that it will improve their communication.

3. Just because both parents are fit does not mean that joint custody should be ordered.

4. The fact that one parent professes an inability to communicate does not preclude an order for joint custody.

5. No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.

6. The younger the child, the more important communication is.

Analysis

26In determining what custody arrangement is in the child’s best interests, the Court finds that the parties do not possess the minimum ability to communicate in order to make major decisions as they pertain to Kai.

27In reviewing the factors set out in the CLRA, the Court notes the following:

• both parents have a strong bond with Kai;

• the child has lived primarily with the mother;

• the mother has played the lead role with respect to Kai’s schooling, medical needs, activities registration and scheduling;

• each party wishes to play a role in parenting Kai;

• the mother has organized Kai’s activities and his competitive sports and has managed the activities schedule;

• the mother has arranged the psycho-education assessment and made the appropriate calls and scheduling; and

• Kai’s time with his father is an opportunity for Kai to play video games and allow him some “down time”

28Equally significant is to ensure that Kai’s medical, educational and emotional needs are met. The mother should continue in this role and it is clear from the evidence that the parties have not been able to implement a joint custody arrangement whereby they both agree on the final decisions pertaining to Kai.

29There is no evidence of communication or meaningful and fruitful exchange of information. In fact, the communication is abrasive and contemptuous and resorts to name-calling. The father tends to blame the mother for issues. The father does not deny this.

30In addition, he deliberately ignores her emails regarding Kai and admits he is tardy at responding to emails. He does not demonstrate a willingness to work with the mother to make decisions together.

31Nevertheless, the father should continue to play a meaningful role.

32Therefore, the final order will be varied so that the mother will have sole custody of Kai. She will consult with the father prior to making any final decision, and will keep him informed regarding all major decisions pertaining to Kai. This order will now reflect the current reality for Kai.

33The father will have a right to direct access of all records, including educational, medical, psychological, and dental or any other record pertaining to the child.

34Once the psycho-educational assessment is released, the parties will address Kai’s needs and what services will be put in place. Again the mother will continue to play the lead role and ensure the father is consulted, is afforded the opportunity to provide input and is informed on an ongoing basis.

What parenting schedule is in Kai’s best interests?

Mother’s position

35The mother has a number of concerns regarding the father’s care of the child.

36He failed to ensure that Kai obtained proper medical attention when he injured himself while playing hockey. He has poor judgment and parenting skills including allowing him to play video games for too long.

37She suggests that access should be reasonable and generous as agreed between the parties and in accordance with Kai’s wishes. The Court may wish to stipulate a minimum of 1 or 2 visits per week.

Father’s position

38The father would like to continue with the previous schedule. He admits that at this time, it may be challenging for him as his driver’s license is currently suspended. He does have sleep apnea but denies any substance abuse.

39The support issues were adjourned to October 28, 2016 for final determination and he expects his license will be reinstated, once the retroactive and ongoing child support issues have been determined by the Court.

40He has little time with Kai over the summer.

Analysis

41In determining what access is in Kai’s best interests, the Court considers the following:

• at this time, Kai is very busy with after school activities including competitive hockey;

• the father will only be available during the week to take him to these activities once his driver’s license is reinstated;

• there is a history of tardiness bringing Kai to school and activities on a timely manner;

• Kai is a well-adjusted child with leadership qualities and a good athlete;

• the child should have a sense of relaxation which he currently enjoys at this father’s home in contrast the rigors of a very busy schedule while at his mother’s residence;

• due to his license suspension he did not pay for a bus pass for Kai;

• due to his reduction in income, the father admits to going through a rough time, and being stressed; and

• the only evidence with respect to the child’s wishes and preferences is in the father’s affidavit where he stated the child would like to live week on/week off with each parent.

42Kai’s best interests’ dictate that he be brought to school and events in a timely matter. The father has shown he is unable to do so before and after his license suspension.

43However, it is important and in Kai’s best interests that he sees his father regularly. It is important that he has a regular schedule and time with his father. It is in his best interests that a schedule be set.

44The Court will not reinstate the visits set out in the final order as it has proven to be problematic for the father to take Kai to places on time. In addition, the child has many activities during the week and it is in his best interests at least at this time, that there be a routine that encompasses the mother playing the lead parent in organizing him in his educational, medical and activities schedule but still sees his father regularly. At this point of his life, Kai needs consistency and routine.

45Therefore, the Court orders that, pending the father’s license suspension, he will see Kai as follows:

• the final order will be varied so that, commencing September 10, 2016 every second weekend from Saturday at 10 a.m. to Sunday at 6 p.m. The father is required to bring Kai to educational or recreational activities on a timely basis. If he is unable to do, then he will ask the mother if she is able to do so.

46Once his driver’s license is reinstated, the father will have access during the school week on a night from after school to the next morning before school. The parties are to agree on what night. If they cannot agree, it will be Wednesday after school until Thursday morning. Again, he will ensure that the child arrives at school and at his activities on time.

47The holiday schedule will be shared between the parties, which includes Christmas break, March break and summer holidays. The holiday schedule will be agreed by the parties. The father will be entitled to at least 1 week at Christmas break and 3 weeks in the summer.

48Costs of this motion will be determined by the Judge hearing the final motion to change the support issues.