Lachapelle v Leblanc, 2016 ONSC 5928

Court File and Parties

COURT FILE NO.: FC-15-2316 DATE: 2016/09/21 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

NADINE LACHAPELLE Applicant – and – REBECCA LEBLANC Respondent

Counsel: Karen Pelletier, counsel for the Applicant Cecil Lyon, counsel for the Respondent

HEARD: September 13, 2016

Endorsement

Overview

1The parties are the parents of Lili Ella Lachapelle-Leblanc (“the child”) born December 21, 2010. The parties are embroiled in a custody dispute regarding their five-year-old child.

2The parties have filed a total of thirteen affidavits containing over 400 paragraphs of facts, 90 exhibits and three factums. Both parties have filed motions seeking temporary orders as follows:

a. sole custody of the child; b. in the alternative, an interim without prejudice order granting joint custody with final decision-making to one of the parties; c. an interim without prejudice order that the parties continue the current 2/2/3 parenting schedule; d. the determination of the exchange time for the child; e. a right of first refusal to the other parent; f. a determination of which dentist the child shall be treated by; g. a determination of which school the child should attend; h. a parenting assessment including a determination of who should conduct such assessment and which party shall be responsible for the cost of such assessment; i. an order that the parties retain an English-speaking or bilingual co-parenting counsellor in Ottawa and in the alternative, an order that the party shall retain an English-speaking or bilingual parenting coordinator in Ottawa; j. an order that the parties be placed on the Coordinated Case Management Program in Ottawa; k. a determination of how the parties will share various holidays including Christmas, Easter, Thanksgiving, summer holidays; l. an order that the child continue to be treated by a therapist namely, Rehka Chargarlamundi; m. the applicant’s’ request for police enforcement of any custody\access order; n. the determination of the amount of child support payable by the applicant to the respondent based on the shared custody arrangement; o. a determination of which section 7 expenses are to be shared and in what proportion; p. a determination as to whether the respondent is entitled to spousal support and if so, in what amount; q. a determination of the commencement date of child support and spousal support (if any); and, r. costs

3Despite the parties indicating that they did not consent to any relief, the parties agreed to the following order on an interim without prejudice basis:

a. the parties shall share the physical custody of the child on a 2/2/3 schedule; b. with respect to Christmas, the parties agreed that they would follow the shared custody schedule and no special provision shall be made for Christmas; c. the parties shall submit to an assessment. The parties shall provide me the particulars of the proposed assessors, who must be bilingual, including the commencement date, cost and a copy of their curriculum vitae by September 30, 2016; s. the child shall continue to be seen by her therapist Rehka Chargarlamundi; d. the parties to provide me their Spousal Support Advisory Guidelines and child support calculations by September 30, 2016; and, e. the parties agree that the only expense that would be shared as a section 7 expense would be the daycare expense incurred by the applicant for the child.

Withdrawn Relief

4The respondent withdrew and adjourned her request for an English-speaking or bilingual co-parenting counsellor in Ottawa and in the alternative an English-speaking or bilingual parenting coordinator in Ottawa.

5Once counsel for the respondent became aware that the Coordinated Case Management Program in Ottawa no longer existed, she withdrew this claim.

Background

6The parties commenced living together in a conjugal relationship as of August 1, 2007. They separated on July 17, 2015.

7At the end of July 2015, the Children’s Aid Society of Ottawa became involved with the family and recommended a shared parenting schedule of 2/2/3. The parties have been operating under said schedule since the end of July 2015.

8The applicant is employed with the Federal Government with an annual income of approximate $101,500. The respondent is employed as a teacher with the Ottawa Catholic School Board and with an anticipated income of $43,000 in 2016.

9Lily has been under the care of Dr. Susan Pella since her first tooth. On November 4, 2015, Lily had an appointment with her dentist, Dr. Pella, who diagnosed that the child had six cavities. The applicant reported to the respondent that the child would have to be sedated to deal with the cavities and that all cavities needed to be fixed as soon as possible. The child was referred to Dr. Mahal, a pediatric dentist, who met with the child and the applicant on December 17, 2015 for a consultation. On February 2, 2016, Dr. Mahal performed surgery on the six cavities.

10Since September 2015, the child has seen a therapist namely, Rekha Chargarlamundi.

11The family residence was sold in October 2015.

12Lily has been attending École élémentaire publique Kanata since she started attending school. The respondent does not understand the French language. All of the school notices and information are provided in French. Lily’s recent report cards are in French, the school portal is in French and homework is to be done in French.

Sole Custody of the Child

13Since July 2015, the parties have been operating under a 2/2/3 shared custody schedule with the child. The parties have agreed to an assessment. Despite these agreements, the parties request that I make a determination as to which parent will have temporary sole custody of the child to be able to make decisions regarding the child until the trial of this proceeding.

14Upon a review of the documentary evidence, it is clear that this is a high conflict proceeding and that the parties have significant difficulty in making decisions jointly. Both parties agree that the significant conflict between the parties precludes the parties jointly agreeing to anything.

15In the circumstances, I decline to make an order for temporary sole custody. All major decisions that have an effect on the child will be dealt with in this decision including which school the child shall attend and which dentist shall treat the child. In the event there is an issue that arises that requires the consent of the parties and such consent is not obtained, the parties may bring a motion before me. I will remain seized of this matter solely on the issue of any major decision affecting the child. This matter will proceed to trial and I do not intend to declare a winner or loser on the issue of who has custody of this child at this time.

Right of First Refusal

16The respondent requests this relief because the applicant travelled to California in February 2016 and left the child with her parents despite the availability of the respondent. While I can understand the applicant’s desire to afford her parents time with her child, I am of the view that the child’s best interests would be served with being with her parent, the respondent, rather than her grandparents. However, I decline to grant that relief at this stage as it will be one of the issues canvassed by the assessor.

The Exchange Time for the Child

17The applicant requests the exchange for the child be at 9 am while the respondent proposes that the exchange of the child be at 3:45 pm. I find it is in the child’s best interest that the exchange will be at 3:45 pm because the parent who has the child the evening before will be responsible for the child’s care until after school. Consequently if the child is ill on the day she is to attend school, the parent who had the child the evening before will be responsible for the child’s care.

Which school should the child attend?

18The child has been attending École élémentaire publique Kanata. The respondent alleges that her inability to understand the French language will have a negative effect on the child’s education. She proposes that the child be placed in an unnamed French immersion school.

19In response, the applicant submits that the parties agreed that Lily would attend a French school and that she has been attending that school for over three years.

20Further, the applicant states that the entrance interview for the child was done in English to accommodate the respondent, all parent-teacher interviews have been performed in English, the school staff has no issue communicating with the respondent in English and the respondent’s father is bilingual.

21In the circumstances, I find that it is in Lily’s best interest to continue in the school that she has known for over three years. Further, as of the date of this motion being argued, the child was in school for almost three weeks. Further, the respondent has not provided me with an alternative plan other than to indicate that the child should attend the school which has French immersion. My focus is what is in the best interests of the child. To move her at this time would be very disruptive to the child.

Which dentist should treat the child?

22The applicant proposes that the child be seen by Dr. Mahal while the respondent proposes that she should be seen by Dr. Pella. The applicant argues that the cause of the six cavities is related to Dr. Pella’s care. The parties disagree as to the cause of the cavities.

23I find that significant changes are occurring in this young girl’s life. She has been under the care of Dr. Pella. There is insufficient evidence to conclude that Dr. Pella was negligent in the care of the child and consequently, I order the child to continue to be seen by Dr. Pella. At this stage in the child’s life, the less changes the better.

Sharing various holidays including Christmas, Easter, Thanksgiving, Birthdays of the parents, and Summer Holidays

24With respect to the holidays in 2017, I decline to makes such a decision at this time as this will be canvassed by the assessor and the holidays are at least 6 months away.

Request for Police Enforcement of any Custody\Access Order

25The applicant requests the enforcement of any custody or access order by the police as a result of an allegation that on one occasion the respondent refused to return the child at the previously agreed time. The evidence discloses the since July 2015 there have been very few occasions where the parties have not followed the schedule. In the circumstances I decline to make this order and this relief is dismissed.

Deferred Decision on Child Support, Spousal Support, All Issues Concerning an Assessment and Costs

26I have reserved my decision on these issues as the parties are to provide further information no later than September 30, 2016. The issue of costs will be addressed once I complete my decision on all issues.

Disposition

27I order as follows:

i. There shall be no order as to custody; ii. The exchange time shall be 3:45 pm; iii. The request regarding holidays is dismissed; iv. The request for police enforcement is dismissed; and, v. The child shall attend École élémentaire publique Kanata.

Shelston J.