Court File and Parties
Court File No.: F282-16 Date: 2017/04/25 Superior Court of Justice – Ontario Family Court
Re: Paula Vandersluis, Applicant And: Travis Perrin, Respondent
Before: George J.
Counsel: William Doran, Counsel for the Applicant Glenda McLeod, Counsel for the Respondent
Heard: April 21, 2017
Endorsement
[1] There are two motions before me. The applicant mothers at tab 12 of the continuing record. The respondent fathers at tab 14.
[2] The parties never married but were once in a romantic relationship. They share one child, Bryce Perrin DOB April 29, 2010. The applicant says she has always been the child’s primary caregiver. The respondent contends childcare was always a shared responsibility, and that, to the extent this is no longer the case, is the result of the applicant’s unilateral decision to limit his parenting time.
[3] The applicant seeks an interim order confirming what she says is the status quo, which has the child in her primary care. She seeks a child support order that would base the respondent’s obligation on an annual income of $76,703.00. The respondent notes this to be his income in his most recent financial statement (April 4, 2016).
[4] The respondent wants an interim order setting out a ‘shared parenting regime’ with the child in his care equal time. He says this was the status quo before this custody dispute arose. He argues that any child support order should reflect the 50/50 arrangement.
[5] The applicant deposes that she and the respondent have abided by the same child care schedule since separation. She has the child in her primary care, with respondent having two mid-week (not overnight) visits, and alternating weekends.
[6] She is a postal worker with a flexible work schedule. She contends the respondent’s work schedule does not allow this same flexibility. She has two children from a prior relationship, both living with her, with whom the child shares a close sibling bond.
[7] Applicant counsel focuses on two things. First, the undisputed fact that, however brought about, the status quo, for over a year, has the child living with her with access to the respondent. Second, the evidence suggests the child is doing well in her care. He is not suffering, and therefore there is no reason to disrupt the current schedule.
[8] While she maintains the status quo is what’s best for the child going forward, she agrees a joint custody order should be made. She believes both she and the respondent should continue to jointly make all important decisions respecting the child.
[9] The respondent takes a very different view. While he agrees the child has in fact been in the applicant’s primary care for a while now, this was instituted unilaterally, and designed to give the applicant a strategic advantage in this litigation. Before that, and from birth, he insists they co-parented in all respects. He describes it this way, beginning at para. 10 of his affidavit:
Following our separation, the applicant and I worked with one another to determine the issues of custody and residency of our young son. We did not execute a separation agreement, and did not obtain a court order with respect to same.
Instead, we voluntarily adhered to a regime of joint custody and shared parenting, whereby our son, Bryce alternated between our respective homes on an essentially equal basis. In addition to Bryce attending at our respective homes on alternating weekends, Bryce also attended at my home two evenings each week, on an overnight basis, and at the applicant’s home two evenings each week, on an overnight basis.
My relationship with the applicant in the first three years following our separation was one of civility and cooperation; she and I were able to determine which weekdays Bryce attended at my home throughout the week, which varied on a weekly basis given my employment obligations.
By virtue of maintenance of such a shared parenting regime for a period of approximately three years, I have been intimately involved in all aspects of Bryce’s care whilst he resided in my care and control….
[10] He goes on to describe how it was he who bathed Bryce, shopped and cooked meals, transported him to events and appointments, and attended parent/teacher interviews, amongst other responsibilities.
[11] All of this is disputed.
[12] There is a status quo. However brought about, the child has been, for about a year now, living primarily with the applicant, with the respondent having two mid-week visits and alternating weekends. There is a dispute as to how long this has been the case. The respondent says he never agreed, or acquiesced to the current schedule, and that beforehand, time was shared completely. The applicant contends this has been the case since separation. They disagree on whether the mid-week visits were, and should be, overnights.
[13] I can’t resolve these disputes. The evidence is untested. To my knowledge, cross examinations have not occurred. I am not entirely sure why not, as this case cries out for that step. There is no independent evidence establishing one version as preferable to the other. He says A; she says B. There are no internal inconsistencies I can point to which would permit me to discount either’s affidavit. Neither lack cogency. Both have an air of reality.
[14] Respondent counsel correctly states the law, which is captured in the various authorities she cited. Unilateral changes cannot be made to the status quo. Having said that, the overarching principle is the best interests of the child. Everything else, including parental rights and the construct of the status quo, is subordinate.
[15] Apart from a narrow focus on the status quo, it seems to me the respondent’s primary concern lies with the quality of his parenting time. His counsel spoke quite eloquently about the importance of certain parts of a typical day, and how, at other times, there are more limited opportunities to bond. For instance, she stressed the importance of a parent being with the child in the morning, after they wake, and as they prepare for and contemplate the upcoming day. She similarly spoke of the important interaction that occurs between a child and parent in the moments leading to bedtime.
[16] He has been missing out on these opportunities and laments the prospect of him not ever having them. The child is at an age where this has heightened significance. This will diminish over time, especially so when he reaches his teen years.
[17] I accept this. The court should not slavishly adhere to a status quo, if the net result is either parent’s time with the child is not as meaningful as it should, and could, be. A full and loving relationship, with each parent, is inarguably in the best interests of the child.
[18] This is the most compelling aspect of the respondent’s argument, which applies even when, as here, I am unable to resolve the factual disputes that persist. This renders the principles set forth in the Grant and Moggey decisions less relevant, as I am unable to make hard findings of fact or to determine what the status quo was before the “current issue of custody and access arose;” see Grant v. Turgeon, 2000 CarswellOnt 1128, and Moggey v. Moggey, 1990 CarswellSask 72.
[19] Were I able to determine, on the record before me, that the applicant had engaged in self-help, unilaterally creating a status quo designed to enhance her position in this litigation, then I would gladly reject her claim and give greater weight to the respondent’s position on status quo. I simply can’t.
[20] As I allude to earlier, this does not mean I shouldn’t look to maximize the respondent’s time with the child and ensure it is as meaningful as possible. Regardless of status quo - which is intended to ensure the child’s life is stabilized as much as possible (in the context of the disruption inherent in a family breakdown) - a child’s contact with each parent is “to be maximized to the extent that this is compatible with the child’s best interests”; see Young v. Young (1993), 49 R.F.L. (3d) 117. What it does mean is I must do so in a way that only minimally disrupts the current schedule; one where by all accounts the child is doing quite well.
[21] I don’t come to this conclusion lightly. I arrive here cognizant of the long line of authorities that say a party should not be permitted to act with a view to gaining a strategic advantage. Furthermore, I am mindful of the impact of temporary orders, which often influence the final disposition, if not actually reflect the final result. The bottom line is, on the issue of strategic advantage, I have cross-allegations. I have already spoken of the respondent’s allegation, which is the applicant made a unilateral decision to alter a previous and longstanding arrangement as a prelude to her taking her current position. On the other hand, the applicant alleges the respondent is not sincere in his position on this motion, evidenced by the fact he has missed access visits in the past, arguing his real motivation is to reach the threshold of the child being in his care at least 40% of the time, so as to limit his child support obligation.
[22] I don’t know what is true. Both theories could be true. Both could be wrong. The truth could lie somewhere in the middle. Who knows?
[23] On the issue of child support, the respondent should be paying the table amount. His position on this aspect of the motion wasn’t entirely clear. At one point he seems to be suggesting he needn’t pay the table amount. At another he appears to be arguing that when you consider his contributions otherwise (including the payment of a vehicle loan), he is in fact paying the table amount. At yet another, he seems to be arguing his current income is not as its set out in his most recent financial statement.
[24] This is all within the context of his primary position, which is I should order a 50/50 split in parenting time, which would then potentially trigger s. 9 of the Child Support Guidelines. I don’t believe my order, which I set out below, would have the child in his care more than 40% of the time over the course of a year. However, even if it did, I am unable to engage the second part of the two-part test in s. 9, which would have me determine whether to exercise my discretion and depart from the guideline amount, having regard to the factors set out in the section (i.e. the increased cost of the shared custody arrangements; and the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought). In fairness, the respondent concedes that, relative to the past year or so, support should be calculated in accordance with s. 3 of the Guidelines.
[25] This will at some point become relevant on the issue of retroactivity, and going forward, should the court at trial order equal parenting time.
[26] The best evidence is the respondent’s annual income is $76,703.00. Child support should be set accordingly.
[27] In the result, I make the following interim order:
- The parties shall have joint custody of the child Bryce Jason Perrin DOB April 29, 2010;
- The child’s primary residence shall be with the applicant.
- Commencing April 28, 2017 the child shall be in the respondent’s care as follows:
- Alternating weekends from after school Friday until before school Monday. For clarity, the child shall be in the respondent’s care the weekend of April 28th, and every other weekend thereafter.
- Every Wednesday after school until before school Thursday.
- At other times as agreed.
- The respondent shall pay to the applicant $697/month for the benefit of the child, pursuant to the Child Support Guidelines, and based on a per annum income of $76,703.00.
[28] At the conclusion of oral argument, I invited counsel to make submissions respecting costs; in doing so assuming complete success. They, however, expressed a desire to make written submissions after knowing the motion’s outcome. On reflection, I do not need to hear from counsel further, and decline to make a costs award.
[29] It is arguable the applicant was more successful in that my order is closer to the status quo than a 50/50 equal time arrangement, and the Family Law Rules do presumptively entitle a successful party to their costs. However, there is a mixed result in that I have extended the length of the weekend time and ordered a mid-week overnight visit. Furthermore, I have considered the reasonableness of each party’s position, and after applying the principle of proportionality, have determined a costs order is unnecessary. No order as to costs.
“Justice J. C. George” Justice J. C. George Date: April 25, 2017