Court File and Parties
KINGSTON COURT FILE NO.: 397/12 DATE: 20170609
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: K.M., Applicant AND: C.W., Respondent
BEFORE: Justice A. C. Trousdale
COUNSEL: Jacques J. Ménard, Counsel for the Applicant C.W., Self-represented
HEARD: March 13, 2017
Endorsement on Motions to Change
[1] This was a Motion to Change brought by the Respondent mother, C.W. (“the mother”) on October 14, 2014 for an order varying the order of Justice C. Robertson made February 20, 2013 (herein “existing court order”) and a cross Motion to Change brought by the Applicant father, K.M. (“the father”).
[2] On the morning this motion was to be heard, the mother sought an adjournment of the motion to allow her to retain new counsel as her former counsel was removed from the record on February 20, 2017. Her former counsel had previously filed affidavit material and a Factum on the mother’s behalf for the hearing of this Motion to Change which was originally set to be heard on December 13, 2016. On December 13, 2016 the matter had been adjourned as disclosure from Family and Children’s Services consented to by both parties had not yet been received.
[3] On March 13, 2017 the adjournment requested by the mother was opposed by the father who alleged that the child is at risk in the care of the mother. I did not permit the adjournment as the date for this Motion to Change was set on December 13, 2016, this Motion to Change has been ongoing since October 22, 2014, and the mother did not know when she would be able to retain counsel. The motion proceeded before me on affidavit evidence filed by the parties and on oral argument. Each party had filed a Factum.
[4] The mother seeks the following relief: (1) An order changing the existing court order for joint custody that the child spend approximately 50% of the time with each parent to an order that the mother have sole custody of the child, or in the alternative a joint custody order with the primary residence of the child to be with the mother; (2) An order that the access or residency periods of the father be every second weekend plus the existing holiday access; (3) A change regarding the current arrangements for Mother’s Day weekend and Father’s Day weekend; (4) Ongoing child support; and (5) An order that the parties consult regarding medical treatment and schooling and seek a consensus and if unable to, the Respondent mother shall decide on the specific issue subject to review by a court of competent jurisdiction.
[5] The mother had initially requested retroactive child support but she advised the court at the hearing that she was not pursuing that claim.
[6] The father originally filed a Response to Motion to Change requesting that the joint custody order continue. In addition, he put forward a plan for the parenting time he would have depending on whether he lived in Kingston, or whether he lived within a day’s drive from Kingston, or whether he were deployed or lived more than a day’s drive away from Kingston.
[7] On September 2, 2016 Justice Minnema ordered on consent that the pleadings be deemed to include amended requests for relief related to the fact that the father has relocated to Borden Ontario. The father now seeks the following relief: (1) That the existing court order be varied to provide that the child be placed in the sole custody of the father; (2) That the father be permitted to move the residence of the child to Borden, Ontario with access to the mother every second weekend and for a share of holiday periods; (3) That the transportation of the child for access by the mother be shared by way of the parties meeting at a half way point on Highway 401; and (4) That there be no child support at this time payable by the mother to the father, but that the mother contribute to the father’s transportation costs if he is required to do all the transportation.
Background
[8] The mother and the father cohabited for a period of three years from late 2008 to February 12, 2012.
[9] There is one child born of their relationship, being a daughter, C.A.M. (“the child” or “the child C.A.M.”) born in 2010. This child is now 7 years old.
[10] From February 12, 2012 to February 20, 2013, the child spent time in the care of each of the parties.
[11] On February 20, 2013, Justice C. Robertson made the existing court order on the consent of both parties, that they would have joint custody of the child. The order also provided that the child was to spend approximately equal time with each parent with the child residing with the father on Monday, Tuesday, Wednesday and Thursday of each week, and with the mother from Friday between 1:00 to 1:30 p.m. (until other arrangements are made) to Monday between 4:00 to 4:30 p.m. each week. The order provided that the residency schedule was to be reviewed in February, 2014. The parties followed this schedule for a period of one year.
[12] On February 3, 2014, the father learned that he had been accepted into the Canadian Armed Forces. He was away from Kingston in St. Jean, Quebec on training from February 24, 2014 to May 30, 2014. From May 30, 2014 to October, 2014 the father was in Borden, Ontario for training for avionics. The parties agreed that the child would reside primarily with the mother while the father was away at training. The father returned as often as he could on weekends to spend time with the child, or his family members brought the child to where he was on some weekends to visit.
[13] From the beginning of August, 2014 until the end of October, 2014, the mother did not allow the father to see the child. The mother commenced this Motion to Change in October, 2014.
[14] The father was in Kingston full-time for training from October 18, 2014 to May 25, 2015. From May 25, 2015 to July 17, 2016, the father was in Kingston every weekend from Friday to Sunday. As of July 17, 2016, the father resides in Borden, Ontario, which is 356 kilometers from Kingston, Ontario.
[15] The mother continues to reside in Kingston with the child.
[16] The father drives to Kingston every second weekend to pick up the child and take her to Borden for the weekend. In the summer of 2016, the child resided with each parent on a week on/ week off basis.
Issues
(1) Has there been a material change in circumstances to permit a change of the existing order regarding custody and/or access and/or the primary residence of the child? (2) If there has been a material change in circumstances, what, if any, changes should be made to the existing court order regarding custody and access? (3) Is it in the best interests of the child that the father be permitted to move the residence of the child to Borden, Ontario? (4) What should the arrangements be for transportation of the child for access with the other parent? (5) What child support should be payable?
The Mother’s Plan
[17] Although the mother did not have counsel at the hearing, she was able to put forward her plan to the court in an organized fashion. The mother’s position is that because of the father being away for substantial periods of time for his military training, she has had the primary care of the child since February, 2014. She submits that she has provided a safe, stable home for the child and has looked after all of the needs of the child for the last three years. She argues that it is not in the best interest of the child to change her primary residence from the mother’s residence to the father’s residence which would involve a change of primary parent, a change of community, and a change of school and friends. She argues this would be disruptive to the child and would be detrimental to the child’s development. She submits that the father has abandoned his role as a primary caregiver and that there is no reason to change the actual residency situation of the child where she resides in the primary care of the mother with access to the father every second weekend and for a share of holiday periods. She states that the child is well-looked after in her care and that Family and Children’s Services of Frontenac, Lennox and Addington would have apprehended the child if there were a serious risk to the child being in the mother’s care.
[18] The mother and the child reside in Kingston, Ontario. The mother has a son from a subsequent relationship who will be 3 years old in July and resides with his father, J.D. The child will have visits with her half-sibling at the home of J.D. The mother’s access to the child is also to take place at the home of J.D.
[19] The child attends French Immersion in Grade 1. She just started at this school in December, 2016 as the mother and the child moved to another residence in a different area of Kingston at that time. She attends the after school program at the Boys and Girls Club three days per week. The child has some speech and language difficulties. She has occupational therapy and speech therapy at school. The mother has recently enrolled the child for counselling with Pathways for Children and Youth as the Family and Children’s Services worker told the mother that the child may have an attachment disorder. The mother says the child has never been formally diagnosed with an attachment disorder. The mother is trying to get the child assessed through the school regarding a possible learning disability as the mother is unable to afford the cost of such an assessment herself.
[20] The mother has been diagnosed as having a personality disorder. She states that she has been affected by abuse and trauma. The mother has taken 3 preparatory programs to deal with this and is trying to get into an intensive mental health day program called the Chrysalis program at Kingston General Hospital. She is on a wait list for that program. She further stated that she is doing her best to deal with her mental health issues but that the mental health system has limited resources and it is hard to get into. She says she has a therapist and a family doctor and that she has medication she can take.
[21] The mother states that the child does not like to visit the father. The mother alleges the father has emotionally and mentally abused the child, by calling the child “stupid” and sticking out his tongue at the child. She also alleges that the care provided by the father for the child is poor such as unexplained bruises, infected bug bites, lack of hydration and returning the child in soiled underwear as he refused to allow her to use the washroom. The mother is concerned about a disclosure the child has made to her regarding the father touching the child inappropriately, and regarding alleged domestic violence in the father’s home.
The Father’s Plan
[22] The father is in the Canadian Armed Forces and now resides in Borden, Ontario with his spouse and their son who is one and half years old. The father’s spouse is a stay-at-home parent at this time. The child knows the father and his spouse and the child’s half-brother well as she spends every second weekend and half of holiday periods with them. The father’s evidence is that he expects to be in Borden for a period of 8 to 10 years.
[23] The father states that he can provide the same programs in Borden, Ontario which the child has in Kingston, Ontario, including assistance with the child’s language difficulties. The Military Resources Centre at Borden provides many activities and opportunities for socialization for the child and her family. The child has already made some friends in Borden during her visits there.
[24] The father’s position is that he can best provide for the needs of the child and that it is in the child’s best interest to reside with him on a full-time basis in Borden, Ontario.
[25] The father disputes that the mother has provided a stable home for the child during the last three years. He argues that the mother has mental health issues which affect her parenting of the child. He is concerned about the three failed relationships the mother has had since their separation, including one recent partner about whom Family and Children’s Services of Frontenac, Lennox and Addington (“the Society”) were very concerned and stipulated that the child could not have unsupervised access to that partner. The father is also concerned about the mother’s recent change of residence and neighbourhood which resulted in the child changing her school midway through Grade 1 and a change from an English program to a French immersion program when the child already has language difficulties for which she is being treated.
[26] The father alleges that the mother verbally abuses the child and subjects the child to physical punishment. The father alleges that the mother is emotionally abusive to the child by denigrating the father in the presence of the child and trying to harm his relationship with the child by making a number of false reports to child protection authorities about the father and his new family. These reports have been investigated and found to be groundless by child protection authorities. The mother has also denied the father access to the child.
ANALYSIS
Material Change In Circumstances
[27] Section 29 of the Children’s Law Reform Act, (R.S.O. 1990, c.C.12, as am.) provides as follows:
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.
[28] In the case of Gordon v. Goertz, [1996] S.C.R. 27, the Supreme Court of Canada set out at paragraph 49 the principles governing changes in custody and access orders. These principles may be summarized as follows:
- The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.
- If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them.
- This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.
- The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect.
- Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.
- The focus is on the best interests of the child, not the interests and right of the parents.
- More particularly the judge should consider, inter alia: a) The existing custody arrangement and relationship between the child and the custodial parent; b) The existing access arrangement and the relationship between the child and the access parent; c) The desirability of maximizing contact between the child and both parents; d) The views of the child; e) The custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child; f) Disruption to the child of a change in custody; g) Disruption to the child consequent on removal from family, schools, and the community he or she has come to know.
[29] The mother’s primary position is that the joint custody order should be changed to sole custody to her, while the father’s primary position is that the joint custody order should be changed to sole custody to him. Therefore, I find that inherent in the position of each party is the acknowledgment that there has been a material change in circumstances to justify a change in the existing joint custody order.
[30] I also note that the existing court order provided for a review of the residency schedule in February, 2014. Therefore, I find that the parties had agreed that the residency arrangements would be reviewed after a year to see whether those arrangements were in the best interests of the child. The mother commenced this review in October, 2014.
[31] Further, I find on the evidence before me that there have been material changes in circumstances since the order of February 20, 2013 including the father enlisting in the Canadian military, the move of the father to Borden, Ontario, the involvement of Family and Children’s Services with the parties, ongoing conflict between the parties regarding parenting issues and access, and the new relationships and other children which the parties have had since separation. I also find that there have been material changes in circumstances regarding the needs of the child at this time given her language difficulties and potential other developmental difficulties which have not yet been adequately assessed due to her young age, and the costs of such an assessment.
Residence, Custody and Access Issues
Residence
[32] The mother’s plan is for the child to continue to reside with her in Kingston, Ontario. The child would continue to have contact with her half-brother who will be three years old in July, 2017 and who resides with his father, J.D. in Kingston.
[33] The father’s plan is for the child to reside with him in Borden, Ontario with his wife and the child’s half-brother who is one and a half years old.
[34] Subsequent to the separation of the parties in 2012, the mother married a man from whom she separated approximately 6 months after marriage.
[35] She then had a relationship with J.D. with whom she had a son in July, 2015. She and J.D. separated in 2016. J.D. advised the Society that he separated from the mother as she threatened him with a knife during an argument when he had their son in his arms. The child born of the relationship between the mother and J.D resides with J.D. and the mother only has access to that child at the home of J.D.
[36] Subsequent to the mother’s relationship with J.D. the mother entered into a relationship with T.B. When the Society became aware of the relationship, they advised the mother that they had concerns regarding this person and that the child should not be left unsupervised in T.B.’s care until a thorough assessment had been carried out by the Society. The mother stated to the Court that she never left the child in T.B.’s care. However, the Society worker stated in her notes that the mother was feeling overwhelmed as she was no longer able to have T.B. babysit the child due to the Society’s concerns about him.
[37] The mother’s evidence on the motion was that she ended this relationship with T.B. in October, 2016 upon being advised by the Society about their concerns regarding T.B. However, evidence put forward by the father of a Facebook posting by T.B. of a photograph of T.B. and the child posted November 26, 2016 which posting was subsequently “liked” by the mother supported the father’s allegation that the relationship continued into November, 2016 even after the mother became aware of the Society’s concerns.
[38] The child has had some difficulties at school. Her final June report card from Senior Kindergarten at a centrally located public school in Kingston showed that the child had missed 16 days of school during that school year. The report card did indicate that the child had some success in the language program. It was recommended in preparation for Grade 1 that she have daily reading throughout the summer and continued practice identifying letters and corresponding sounds.
[39] The child’s report card from the first term of Grade 1 at the same school in Kingston (fall of 2016) indicated that the child had struggled with most of the literary and mathematic expectations at the Grade 1 level. The child also needed frequent and ongoing reminders to follow the rules, routines and expectations of the day.
[40] In the late fall of 2016, the mother moved with the child to a new residence outside the boundary of the centrally-located school. The public elementary school for her new residence in Kingston is a new school. The mother chose not to send the child to that school as she said she had heard things she didn’t like about the school. Further she stated that the child is used to going to school on the bus and that at the new local school she would have to walk to school, which the child was not used to doing. Instead, the mother chose to enroll the child in a school outside the mother’s local area in a French immersion program in mid-December, 2016 for the second half of Grade 1. The child goes on the bus to that school. The mother has no French background.
[41] I find that it was a poor decision by the mother to enroll the child in a French immersion program when the child has speech difficulties and possible developmental delays, and had struggled with most of the literary and mathematic expectations at the Grade 1 level in the first term of Grade 1 in an English language program.
[42] The quality of the relationship between the mother and the child and the impact of the mother’s mental health issues on her parenting have been of concern to the Society, the child’s prior school principal and the child’s physician. The father shares these concerns.
[43] The principal of the centrally-located school reported to the Society that the observations of the principal and others at the school are that the mother is harsh, rude and mean in her interactions with the child at all times. The mother yells at the child and swears at the child. The child told the principal that if the child did not eat all her lunch the child would be hit by the mother when she got home. The mother did not get along with the principal and called the principal a derogatory name in front of another student. On receiving this information, the Society became concerned with the mother’s ability to appropriately parent and ensure the child’s emotional well-being.
[44] In August, 2016, a physician at the Department of Pediatrics at Hotel Dieu Hospital in Kingston, wrote the family physician to advise of the results of her meeting with the mother and the child. As an addendum to the letter, the physician advised that she had spoken with the mother’s Society worker regarding her concerns of the interactions between the child and the mother at the meeting in the physician’s office. As some parts of the letter produced to the court had been redacted, it was not possible to ascertain the nature of those concerns. However, I find that the physician was concerned enough about the interactions between the mother and the child to report this to the Society.
[45] The records of the Society indicate that J.D., the father of the mother’s second child, told the Society that he separated from the mother when she threatened him with a knife during an argument. He stated that he had their son in his arms during this incident.
[46] J.D. also reported to the Society that when he went to pick up his son at the home of the mother in October, 2016, he heard the mother yelling and screaming at the child, C.A.M. and observed her holding that child by the forearm. J.D. reported his concerns to the Society about the mother’s treatment of the child, C.A.M. He advised the Society that the mother shows no affection towards the children (C.A.M. and the child J.D. has with the mother) and that the children get no love from the mother. He told the Society that he was scared for the child C.A.M. and that he is upset that he is no longer inside the home to make sure that the child, C.A.M. is ok.
[47] I find on the evidence before me that J.D. has custody of the mother’s second child and that the mother’s access to her second child takes place at J.D.’s home which I assume is in J.D.’s presence. The mother gave no explanation at the hearing as to why her access to her second child appears to be supervised access.
[48] The evidence before me is that the Society has opened a protection file regarding the mother and the child which remains open to this time. On November 4, 2016, the Society sent a letter to the mother regarding the Society’s protection concerns including the need for the mother to address her mental health to ensure that it didn’t continue to have a negative impact on the child. The worker stated in the letter that the Society had received reports from the child’s school that the child struggles to get through a regular school day because of the mother’s behaviours such as yelling and the mother’s demeanour toward the child. The worker was concerned about the mother’s negative comments about the father on the child’s emotional well-being. The letter states that the Society has concerns about the mother’s devaluation of the father in front of the child. The Society was also concerned about the mother asking the child to make negative statements about the father to other people. The letter confirmed that the mother had agreed to work voluntarily with the Society to address those concerns.
[49] In October, 2015 the mother reported that the child told her in October, 2015 that the father touched the child inappropriately. The father denied this allegation. This was investigated by the Kingston Police and the Society. The Society reported that the concerns investigated were not verified and the file was closed.
[50] On June 6, 2016, the mother reported to the Kingston Police that the child told her that the father had hit his spouse in front of the child, C.A.M. and the father’s younger child. The father and his spouse denied this allegation. This was investigated by the Kingston Police and by child welfare authorities in the Borden area. The concerns were not verified.
[51] There is evidence that in December, 2015 the child, while in the care of the father and/or his spouse ingested a birth control pill and was taken to emergency. Although appropriate steps were taken, the mother was not advised of this incident by the father and/or his spouse. They should have told the mother about this incident.
[52] On June 30, 2016, the mother took the child to the hospital with a suspected urinary tract infection. The child was to go to the father for that weekend. That afternoon the mother sent a text message to the father advising that for the access of July 1st she was giving the father temporary custody of the child for an undetermined period of time until she could seek help for her mental health. She advised that when she got better she would seek her lawyer and the courts again.
[53] The father took the child to Borden and did bring an urgent motion in Kingston for temporary custody of the child, as he stated he was afraid the mother would change her mind and accuse him of wrongfully withholding the child. The emergency motion was contested by the mother. The Court determined that the motion was aggressive based on some bad texts and dismissed it as being premature.
[54] I find that the mother displays a negative attitude towards the father in front of the child and that the mother is not supportive of the father’s relationship with the child.
[55] There is no evidence before the Court regarding the child’s views and preferences. As the child is still quite young, it would be one factor of many to consider and would not be determinative of the issues. However, it would have been of assistance to the Court to have had a Section 112 Courts of Justice Act assessment and report on the issues of custody and access. The father requested this order on several occasions but the mother was never willing to agree to an order for the involvement of the Office of the Children’s Lawyer until her oral submissions before me on this motion. Based on the evidence before me, however, I find that it is not in the best interest of this child to further delay this matter which has been ongoing for over two and a half years by ordering a Section 112 assessment now.
[56] I find that in the last few years the mother has had a number of destabilizing changes in her personal situation including the end of her relationship with J.D. and apparent supervised access by the mother to their young son, as well as involvement of the Society with the mother as a result of the concerns about her relationship with T.B., and concerns about her mental health issues, and her harsh conduct and demeanour towards the child as observed by personnel at the child’s school and the father of her second child. The mother has also in the last 6 months had a change of residence with a resulting change of neighbourhood and change of school for the child, including a change of the language in which the child is being instructed. Although the mother states she took the child to all of the child’s doctor’s appointments, there is evidence that at least a couple of appointments were missed.
[57] The mother loves the child and wishes to continue to provide primary care for the child. However, I find that the mother’s mental health issues have adversely affected her parenting ability and her relationship with the child. Further, the mother has exercised poor judgment in some of the decisions she has made regarding the child.
[58] The father and his spouse have been investigated by the Simcoe Muskoka Child, Youth and Family Services (“the Borden Society”) regarding allegations that the father was being physically and verbally abusive to his spouse in front of this child and his infant son, and allegations regarding negligence of those two children. The Borden Society found no concerns in the father’s household in that regard, and have told the Society in Kingston that if the child were to move to Borden, the Borden Society would not have an open file with the father’s family.
[59] On the evidence before me, I find that the plan put forward by the father offers greater stability and security for the child than the plan put forward by the mother.
[60] The father has previously been very involved in the day to day parenting of the child as the parties had shared the parenting of the child for a period of several years earlier in the child’s life.
[61] On considering all of the evidence before me, I find that there has been a material change in circumstances since the existing court order was made and that it is in the best interests of the child that her primary residence be with the father. Accordingly, there shall be an order that the father be permitted to move the residence of the child to Borden, Ontario.
[62] The transfer of the child’s residence to the residence of the father shall take place on the Friday of the father’s alternate weekend in accordance with the schedule the parties are now following. At that time, the mother shall provide to the father the original of the child’s birth certificate and the original of the child’s health card.
[63] Although this transfer will likely take place before the end of this school year, the child has only recently started at French immersion school in Kingston and will not be attending French immersion school in Borden in the fall of 2017. The father shall forthwith enroll the child in school in Borden so that she will likely have the opportunity for some part of June, 2017 to be introduced to her new school and to meet other children in her class. This will hopefully facilitate her adjustment to the new school prior to the fall of 2017.
Custody
[64] The mother and father have had joint custody of the child since the existing court order was made on consent on February 20, 2013.
[65] Since that time, the mother and the father have had difficulty in coming to agreement on major issues regarding the child including where she should go to school, and issues regarding her health and diet. Each parent has a lack of trust in the judgment of the other parent. Their communication is very poor. The parties have had a high level of conflict between them over the last two and a half years. This has resulted in each parent seeking that joint custody be changed and each parent now claims sole custody of the child.
[66] I find that the parties have not been acting as effective joint parents for several years now. There has been a lot of conflict in their relationship which has been exacerbated by ongoing court proceedings and involvement of police and child protection agencies since the fall of 2014 to the present. The parties do not respect the judgment of the other and have different ideas of what is in the best interests of the child. Looking at the dysfunctional history of the parties as joint custodians of the child over the last three years, I find that it is in the best interests of the child that one parent should have custody of the child. On the evidence before me, I find that it is in the best interests of the child that the father have custody of the child, as I have found that it is in the best interests of the child to reside in the primary care of the father in Borden, Ontario.
[67] Accordingly, there shall be a final order that the father shall have custody of the child, C.A.M. born […], 2010.
[68] I find that it is in the best interests of the child that the mother be kept advised of all major issues affecting the education, health, religion and general wellbeing of the child. The father shall be required to keep the mother fully informed in writing in a timely fashion regarding all such major issues. The father shall provide to the mother a copy of each of the child’s report cards within 14 days of his receipt thereof, and a copy of any medical or psychological or speech or other such assessments or reports regarding the child within 14 days of the father’s receipt thereof. The mother shall be entitled to talk to the child’s teachers, physicians, dentist, coaches and others involved with the child and the father shall sign any consents that may be required to do so.
[69] The father shall forthwith obtain counselling for the child in Borden to assist the child with any issues arising from her change of residence and school, and her relationship with each parent.
[70] The father shall forthwith use his best efforts to have the child assessed regarding her language difficulties and any other developmental and/or intellectual delay the child may have so that appropriate assistance and/or treatment shall be obtained for the child. The Applicant shall provide to the Respondent a copy of all assessments or reports to the Respondent.
[71] Neither parent shall denigrate the other parent or his or her partner or family members to the child or in the hearing of the child, nor shall they permit other persons to do so.
Access
[72] It is important for the child to have a continuing relationship with the mother. The mother shall have access to the child as follows:
(a) During the school year, every second weekend from Friday evening (or Thursday evening if Friday is a holiday) to Sunday evening (or Monday evening if Monday is a holiday). (b) During the summer school vacation, unless otherwise agreed upon by the parties, the child shall be with each party on a week on / week off basis, with the change-over day to be mutually agreed upon by the parties. In default of such agreement it shall be every Sunday evening (or extended to Monday evening if Monday is a statutory holiday). The regular school schedule during the school year shall be suspended during the summer school vacation. (c) Irrespective of the regular schedule during the school year, the child shall spend the first half of the Christmas school vacation including Christmas Eve and Christmas Day with the mother in every even-numbered year, and the second half of the Christmas school vacation with the father in every even-numbered year. The Christmas school vacation shall commence from the time the child is out of school for Christmas school vacation until the evening before the child recommences school in January at the end of the Christmas school vacation. In every odd-numbered year, the child shall spend the first half of the Christmas school vacation including Christmas Eve and Christmas Day with the father, and the child shall spend the second half of the Christmas school vacation with the mother. The regular schedule during the school year shall be suspended during the Christmas school vacation. (d) If Mother’s Day shall fall on a weekend where the father has the child with him, the mother shall be entitled to exchange that weekend with the father in return for giving up her regular weekend either the weekend prior to Mother’s Day weekend or the weekend after Mother’s Day weekend, or make such other exchange of weekends as they mutually agree upon. (e) If Father’s Day shall fall on a weekend when the mother has the child with her, the father shall be entitled to exchange that weekend with the mother in return for giving up his regular weekend either the weekend prior to the Father’s Day weekend or the weekend after the Father’s Day weekend, or make such other exchange of weekends as they mutually agree upon. (f) Irrespective of the regular schedule during the school year, the child shall spend Easter weekend from Thursday evening to Monday evening in every even-numbered year with the mother, and in every odd-numbered year with the father. If the Easter weekend in an even-numbered number falls on a weekend when the father has the child with him, the mother shall be entitled to exchange that weekend with the father in return for giving up her regular weekend either the weekend prior to the Easter weekend or the weekend after the Easter weekend, or make such other exchange of weekends as they mutually agree upon. If the Easter weekend in an odd-numbered year falls on a weekend when the mother has the child with her, the father shall be entitled to exchange that weekend with the mother in return for giving up his regular weekend either the weekend prior to the Easter weekend or the weekend after the Easter weekend, or make such other exchange of weekends as they mutually agree upon. (g) Irrespective of the regular schedule during the school year, the child shall spend Thanksgiving weekend from Friday evening to Monday evening in every odd-numbered year with the mother, and in every even-numbered year with the father. If the Thanksgiving weekend in an even-numbered number falls on a weekend when the mother has the child with her, the father shall be entitled to exchange that weekend with the mother in return for giving up his regular weekend either the weekend prior to the Thanksgiving weekend or the weekend after the Thanksgiving weekend, or make such other exchange of weekends as they mutually agree upon. If the Thanksgiving weekend in an odd-numbered year falls on a weekend when the father has the child with him, the mother shall be entitled to exchange that weekend with the father in return for giving up her regular weekend either the weekend prior to the Thanksgiving weekend or the weekend after the Thanksgiving weekend, or make such other exchange of weekends as they mutually agree upon. (h) Irrespective of the regular schedule during the school year, in every odd-numbered year the child shall spend the five weekdays of March Break attached to the mother’s usual alternate weekend with the mother. In even-numbered years, the child shall spend the five weekdays of March Break attached to the father’s usual alternate weekend with the father. (i) At such further and other times as the parties mutually agree upon including telephone access, Skype access or Face-time access.
Transportation Issues
[73] The mother does not have a driver’s licence nor does she have a vehicle. The mother seeks that if the child’s residence is moved to Borden, Ontario the father should be responsible for all transportation for access by the child to the mother as he owns a vehicle and has been responsible for all transportation since he moved to Borden, Ontario. She argues that seeing the child once every four weeks as proposed by the father if the mother won’t or is unable to provide transportation, is not sufficient time for the child with the mother.
[74] The father’s position is that the parties should share the transportation by meeting midway between Kingston and Borden on Highway 401 to exchange the child. If the mother refuses or is unable to do that, he is willing to bring the child to Kingston once every four weekends for a visit provided that the mother contributes to his transportation expenses. However, he argues that the mother should be responsible for her share of the transportation.
[75] The father is employed and has another young child in his home. It is a 4 hour trip each way by car from Borden to Kingston. He estimates that it costs him $50.00 in gas each round trip from Borden to Kingston back to Borden. I find that it is not reasonable that the father should be solely responsible for the transportation of the child for all access visits with the mother. However, I find that the father as custodial parent has the responsibility to help maintain the child’s relationship with the mother. At this time given the father’s superior financial circumstances, the father will need to assume a greater burden regarding transportation than the mother.
[76] For the first 6 months after the date of transfer of the child to the residence of the father, the father shall be responsible for all the transportation for the mother’s time with the child in order to give the mother an opportunity to organize herself to assist in some of the transportation for access.
[77] The mother also has a responsibility to help maintain her relationship with the child and to organize herself so that she can assist with some of the transportation. If she decides not to obtain a driver’s licence or does not have access to a vehicle or the assistance of friends with a vehicle, she will need to look into taking the child by train or bus to a station midway between Kingston and Borden where the father could meet them there for the exchange to Kingston and back to Borden.
[78] After the first 6 months from the date of transfer of the child to the residence of the father the father shall provide transportation of the child to Kingston and back to Borden, unless otherwise mutually agreed upon by the parties, as follows: (a) one weekend out of every two weekends the mother is to have the child with her during the school year; (b) one week out of every two weeks the mother is to have the child with her during the summer school vacation; (c) the mother’s vacation with the child during the Christmas school vacation; and (d) The mother’s vacation with the child during the March Break in odd-numbered years.
[79] After the first 6 months from the date of transfer of the child to the residence of the father, unless mutually agreed upon by the parties, the father and the mother shall be responsible for the transportation to meet each other with the child at a halfway point on the 401 or halfway bus or train station as mutually arranged between the parties to exchange the child to go to Kingston and return to Borden as follows: (a) The second weekend out of every two weekends the mother is to have the child with her during the school year; and (b) The second week out of every two weeks the mother is to have the child with her during the summer school vacation;
[80] The issue of transportation may be reviewed by the court in the event of a material change in the circumstances of either party.
Child Support
[81] The father is in the Canadian Armed Forces and earns a gross annual salary of $40,099.00 upon which he was paying child support of $361.00 per month to the mother pursuant to the temporary order of Justice Minnema made on consent on May 12, 2016.
[82] The mother works at a gaming centre. In her most recent Financial Statement sworn November 25, 2016, she stated that her income for 2015 was $10,591.82 and that her current gross income from employment is $1,400.00 per month, which I have calculated equates to $16,600.00 per year. Child support payable for one child on a gross income of $16,600.00 per year according to the Ontario Child Support Guidelines would be $127.00 per month. The father in submissions stated that he would not claim child support from the mother if there is an order that the child reside with him, but he would be looking for the mother to contribute to his transportation costs if he is required to bring the child to Kingston for access with the mother.
[83] Taking into account the transportation expenses that the mother will have in order to keep up her relationship with the child and her current gross annual income of $16,600.00, I find that the mother would on her current income suffer undue hardship if she were required to pay child support to the father for the child. Accordingly, there shall be an order that taking into account the above factors, there shall be no child support payable by the mother to the father at this time. However, the issue of child support shall be subject to review if there shall be a material change in circumstances with respect to the mother’s gross annual income.
[84] By May 15 in each year commencing May 15, 2018, each party shall provide to the other a complete copy of his and her income tax return including all schedules and attachments.
[85] There shall also be a final order that the temporary order of Justice Minnema made on May 12, 2016 that the father pay child support to the mother in the sum of $361.00 per month shall be terminated effective June 30, 2017.
Order
[86] Final Order to go in accordance with this endorsement varying the Order of Justice Robertson made February 20, 2013. This Order shall not require the prior approval of the mother prior to it being issued.
Costs
[87] 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 four typewritten pages plus any offers to settle and a Bill of Costs, with the Applicant father’s submissions to be served and filed by July 10, 2017 and the Respondent mother’s submissions to be served and filed by August 8, 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: June 9, 2017