Court File and Parties

Kingston Court File No.: 705/12 Date: 2017-03-10

Ontario Superior Court of Justice

Between:

Myles Charles Harper, Applicant Douglas R. Haunts, for the Applicant

- and -

Amanda Olner, Respondent Peter S. McCullough, for the Respondent

Heard: January 30, 2017 (full day), January 31, 2017 (a.m. only) and February 1, 2017 (p.m. only)

Trousdale J.

Reasons for Judgment

1The Respondent mother, Ms. Olner (“the mother”) brought a Motion to Change the order of Justice C. Robertson made on consent of the parties on August 25, 2014. In response to the mother’s Motion to Change, the Applicant father, Mr. Harper (“the father”) brought a Cross-motion to Change the existing order. This Motion to Change and Cross-motion to Change were heard before me on viva voce evidence commencing January 30, 2017 over the course of two days.

2There is one child born of the relationship between the parties, being a son born May 23, 2009. The parties separated in 2012.

3The order made on August 25, 2014 (“the existing order”) provides that the father and the mother have joint custody of the child with the child’s principal residence to be with the father. The mother and the father shall consult and discuss between them issues that affect the child but all final decisions shall be made by the father.

4The existing order provided that during the child’s Senior Kindergarten year (Sept. 2014 to June 2015) the mother would have the child in her care from Wednesday after school to Sunday at 7:00 p.m. in every second week, and from Wednesday after school to Friday after school in the alternate week. The child was in the care of the father at all other times.

5The existing order provided that once the child started Grade one in September, 2015, the child was to reside with the father throughout the week. The mother was to have the child in her care every second weekend from Friday after school to return to school on Monday morning, and every Wednesday from after school to return to school on Thursday morning. The child was to be in the care of the father during the balance of the time during the school year.

6During the summer, the child was to reside with each parent on a week on/ week off basis. Christmas vacation and spring break were to be divided equally between the mother and the father.

7The order also stated in paragraph 2 that the schedule of the mother’s time with the child may be revisited and reviewed should the child make significant progress and development with his speech therapist and on the recommendation of other professionals who are involved with the child’s development and progress.

[8] The mother is seeking: (a) Additional time with the child so that the time the child is with the mother is much closer to 50% of the time; (b) Clarification and specification of holiday period times; (c) That paragraph 5 of the existing order be varied to provide that if the father reaches a decision that the mother considers unreasonable, she may apply to a court of competent jurisdiction to have such decision reviewed; (d) That paragraph 7 of the existing order regarding a Parenting after Separation program, and Pathways be removed; (e) That paragraph 12 of the existing order requiring the use of a communication book between the parties be removed.

[9] The father is seeking: (a) That the order for joint custody to the mother and the father be changed to sole custody to the father; (b) That the mother’s time with the child be on Wednesday evening from 3:40 p.m. until 7:00 p.m. and every second weekend from Friday at 3:40 p.m. to Sunday at 6:00 p.m. (c) That the mother’s time with the child in the summer be three weeks until the child no longer requires speech therapy, at which time the mother’s time with the child in the summer would return to week on/ week off.

Issues

1. Has there been a material change in circumstances justifying a change to the custody and access provisions set out in the existing order made on consent on August 25, 2014?
2. If so, what changes, if any, should be made to the custody provisions?
3. If so, what changes, if any, should be made to the access provisions?
4. Should there be a clarification and specification of holiday times?
5. Should the variations and/or deletions requested by the Respondent mother in paragraphs 5, 7, and 12 be granted?

Material Change in Circumstances

10The parties consented to the existing order on August 25, 2014. The mother had the child with her for approximately 50% of the time while the child was in Senior Kindergarten from September, 2014 to June, 2015. The parties each had the child on a week on / week off basis for the summer of 2015.

11The child commenced Grade 1 in September, 2015. The existing order provided that once the child commenced Grade 1 the child was to reside with the father during the week in the school year except for the Wednesday night overnight with the mother each week. The child was to spend the summer vacation with each parent on a week on / week off basis.

12The mother commenced her Motion to Change on November 2, 2015 where she sought an increase in her time with the child. The new schedule had only just started in September, 2015 and the mother was already seeking a change. The mother’s evidence is that the father had told her that in the summer of 2015 in spite of the existing order, the 50/50 time would continue once the child was in Grade 1 as this schedule was going so well. This was not admitted by the father.

13However, I find that the father unfortunately did not comply with the existing order as he did not allow the mother to have the child overnight on the Sundays of her every other weekend with the child once the schedule changed in September 2015.

14The mother testified that the father told her that the child must be returned on Sunday evening during the school year. The mother said she went along with it to avoid a fight. The father testified that he was not made aware of the provision in the existing order which provided for the mother to be able to return the child to school on Monday morning on her alternate weekends with the child. The mother took no steps to enforce the order. I note that both parents had counsel at the time the existing consent order was made.

15The child has always had serious speech difficulties and has been receiving speech therapy initially from Early Expressions, and subsequently through the school system once he started school. Both parents testified that the child’s speech has improved substantially, although he is still receiving ongoing speech therapy. The school recommended that the child attend a reading camp for two weeks during the summer of 2016, which he did.

16There is evidence that the child received psychological testing conducted by psychologist, Dr. Susan Hughes in or about 2013/2014 prior to the existing order being made, which testing was paid for by the father. The evidence is that the child may be on the autism spectrum although the testing needs to be updated. The father testified that he has been unable to obtain an updated report from Dr. Hughes as he is unemployed at the present time and could not afford the cost of the testing. He testified that he had called Dr. Hughes in November, 2016 and was advised that she had no opening until February, 2017, which was beyond the dates set for trial. I hope that the parties will proceed with updated testing as soon as possible and will search for possible sources of funding if neither parent can afford it.

17In 2013/2014, Ms. Trish Crowe for the Office of the Children’s Lawyer prepared a report regarding custody and access of the child. The existing order was consistent with Ms. Crowe’s recommendations. Neither party requested an update of the Office of the Children’s Lawyer Report during this second round of litigation.

18Some notes from the speech professionals working with the child were filed as exhibits at the trial. There are no recommendations before me from them or from other professionals involved with the child’s development and progress that the mother’s time with the child should be revisited and reviewed at this time.

19On the evidence before me, I find that at this time there has been no material change in circumstances justifying a change in custody or significant changes in access. The existing order was made only 17 months prior to this trial. The child, who has an Individual Education Plan, appears to be making some progress at school and in his self-regulation, with the exception of his acting out at the reading camp during the summer of 2016. The child has continuing challenges in terms of his speech and possible autism, and he requires a regular and stable routine. At the end of Grade 1, the child was reading at an early Grade 1 level.

20I find that there should be no change to the joint custody provisions provided for in the consent order of August 25, 2014. The father’s Motion to Change for sole custody is dismissed.

21I find that the mother’s proposal for two mid-week overnights each week during the school year is not in the best interests of the child at this time. However, the father should forthwith implement the provisions of the order of August 25, 2014 which provides for the mother returning the child to school on Monday morning after her every other weekend with the child.

22I note that if the mother’s alternate weekend has an additional holiday or PA day attached to it, the mother has not been permitted by the father to have the child with her on the holiday or PA day.

23I find that it is reasonable to vary the existing order to provide that during the regular schedule during the school year (except for holiday times otherwise expressly dealt with herein) if there is a PA day or holiday attached to the mother’s alternate weekends with the child, she shall be entitled to pick up the child on Thursday after school if the holiday or PA day is on Friday, and to return the child to school on Tuesday morning if the holiday or PA day is on the Monday. This would allow the mother to have additional time with the child without disrupting the child’s regular school routine.

Consent Changes to the Existing Order

24During the course of this trial, the parties were able to arrive at some consent changes to the existing order. On consent, the following provisions shall be included in the Final Order made by me herein:

(1) The child’s name shall be legally changed to “M.A.N.H.” and each party shall forthwith sign all documents required to facilitate this change. (2) The Respondent mother shall have telephone access with the child on Tuesdays at approximately 7:00 p.m. and on Saturdays at approximately 7:00 p.m. for a maximum of ten minutes per each call when the child is not in the care of the Respondent mother. The cell number for contact by the mother is 613-XXX-XXXX. The Applicant father shall have similar times for telephone calls with the child when the child is in the care of the mother at 613-XXX-XXXX. (3) The Respondent mother shall have the child with her on Mother’s Day in every year from 10:00 a.m. to 7:00 p.m. whether it is the Respondent mother’s weekend or not. (4) The Applicant father shall have the child with him on Father’s Day in every year from 10:00 a.m. to 7:00 p.m. whether it is the Applicant’s weekend or not. (5) The Applicant father and the Respondent mother shall each have the child with him or her on the child’s birthday for 2.5 hours with the Respondent mother to have the period from 3:30 p.m. to 6:00 p.m. and the Applicant father to have the period from 6:00 p.m. to 8:30 p.m. irrespective of the regular schedule. (6) The Applicant father and the Respondent mother shall share equally residency time of the March Break, with the parent whose regular weekend is the first weekend of March Break according to the regular schedule to have the child from Friday after school or 3:30 p.m. to Wednesday at 12:00 noon, and the other parent to have the child from Wednesday at 12:00 noon to Monday at school. (7) Except as otherwise set out herein the Christmas vacation shall be divided equally between the parties from 3:30 p.m. on the day school ends to 3:00 p.m. on the day before school re-commences after New Year’s Day. In odd numbered years, the Applicant father shall have the child with him from December 24th at 3:00 p.m. to 12:00 noon on December 25th and the Respondent mother shall have the child with her from December 25th at 12:00 noon to December 28th at 12:00 noon. In even numbered years, the Respondent mother shall have the child with her from December 24th at 3:00 p.m. to 12:00 noon on December 25th and the Respondent father shall have the child with him from December 25th at 12:00 noon to December 28th at 12:00 noon. The balance of the Christmas holiday vacation shall be divided equally between the parties. (8) Irrespective of the regular schedule, the Respondent mother shall have the child in her care on Hallowe’en in odd numbered years from 3:30 p.m. to 8:00 p.m. with a pre-arranged stop at Amherstview Foodland for the Applicant father to see the child in his costume. Irrespective of the regular schedule, the Applicant father shall have the child in his care on Hallowe’en in even numbered years from 3:30 p.m. to 8:00 p.m. with a pre-arranged stop at Amherstview Foodland for the Respondent mother to see the child in his costume. (9) Irrespective of the regular schedule, the Respondent mother shall have the child in her care on Easter weekend in odd numbered years from Thursday after school or 3:30 p.m. to Monday at 7:00 p.m., and in even numbered years, the Applicant father shall the child in his care on Easter weekend from Thursday after school or 3:30 p.m. to Monday at 7:00 p.m. (10) Irrespective of the regular schedule, the Respondent mother shall have the child in her care on Thanksgiving weekend from Friday after school or 3:30 p.m. to Monday at 7:00 p.m. in even numbered years, and in odd numbered years the Applicant father shall have the child in his care from Friday after school or 3:30 p.m. to Monday at 7:00 p.m. (11) Irrespective of the regular schedule, in odd numbered years the Respondent mother shall have the child in her care on July 1st Canada Day from 9:00 a.m. to July 2 at 10:00 a.m., with the Applicant father to have the child in his care on July 1st Canada Day from 9:00 a.m. to July 2 at 10:00 a.m. in even numbered years. (12) All access exchanges shall take place at the Amherstview Foodland. (13) Paragraph 7 of the Order of Justice Robertson made August 25, 2014 shall be rescinded. (14) Paragraph 12 of the Order of Justice Robertson made August 25, 2014 shall be rescinded.

Other Changes Requested

25As the requirement for the use of a communications book has been removed on the consent of the parties, I find that another method of communication regarding issues concerning the child needs to be put in place. The Final Order shall contain the following paragraph:

“The parties shall use text message to communicate to the other information regarding the child such as information regarding dates of school events or functions, dates of other special events, dates of medical and dental appointments and school interview appointments, reasonable requests for changes in access to accommodate special events, and other such information, as well as to deal with any issues regarding the child.”

26Pursuant to paragraph 5 of the existing order, the father and the mother shall consult and discuss between them issues that affect the child but all final decisions shall be made by the father. The mother has requested that paragraph 5 of the existing order be varied to provide that if the father reaches a decision that she considers unreasonable she may apply to a court of competent jurisdiction to have such decision reviewed.

27I find that prior to September, 2015, the parties were getting along better. However, they have not gotten along that well since then and the evidence is that they both have different ideas about what is best for the child medically, nutritionally, etc. I find that there is no need to make any change to this paragraph. In my view, on the evidence before me, it will only serve to increase the possibility of further litigation which is stressful for the parties, and for the child.

28However, as the parties will continue to have joint custody, and as paragraph 5 of the existing order will remain in place, the father and the mother will continue to be required to consult and discuss between them issues that affect the child. The mother alleges that the father does not keep her informed of medical/ dental appointments and of other matters concerning the child. The evidence is that sometimes the child is taken to medical appointments by the paternal grandmother rather than by one of the parents. It is unclear whether the mother has been given the option to take the child to such appointments or whether the mother has been kept advised of such appointments.

29In order to ensure that the mother is kept fully informed regarding all major issues concerning the child, so that she will be able to give her view to the father regarding such issues, the following clause shall be added as clarification of the obligation of the parties to consult and discuss any issues regarding the child as set out in paragraph 5 of the existing order:

“The Applicant father shall authorize all health care providers, educational providers including teachers, and any other professional attending to the needs of the child to release information regarding the child to the Respondent mother as she may request from time to time. The Applicant father shall forthwith advise the Respondent mother of all medical, school related and dental appointments regarding the child as soon as the Applicant father makes such appointments, so that the Respondent mother may have an opportunity to attend such appointments. The Applicant father shall keep the Respondent mother advised of all school news, notices and functions relating to the child.”

Order

30Final order to go accordingly.

Costs

31The parties were able to resolve some issues on consent and both parties had mixed success. If the parties are unable to resolve the issue of costs between themselves, the parties may make written submissions regarding costs to me of no more than two typewritten pages plus any offers to settle and a Bill of Costs, with the initial moving party’s (Respondent mother) submissions to be served and filed by March 31, 2017 and the Applicant father’s submissions to be served and filed by April 21, 2017. Any Reply by the Respondent mother shall be served and filed by May 3, 2017 and any Reply by the Applicant father shall be served and filed by May 17, 2017. In default of any submissions regarding costs being filed by the required dates, there shall be no order as to costs.

Justice A.C. Trousdale

Released: March 10, 2017