CITATION: Mader v. McCormick, 2017 ONSC 4283
COURT FILE NO.: FS-1028/16
DATE: 2017-07-13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LARRY MADER
Applicant
– and –
TRACY McCORMICK
Respondent
COUNSEL:
Glenda D. McLeod, Counsel for the Applicant
Respondent, Self-represented
HEARD: June 6, 2017
BEFORE: The Honourable Mr. Justice R. D. Reilly
JUDGMENT ON APPEAL
[1] The applicant/father, Larry Mader, and the respondent/mother, Tracy McCormick, were married on April 2, 1999. There are two children of the marriage, Lauren Mader, born May 22, 2002, currently age 14, and Nikolas Mader, born December 8, 2004, currently age 12.
[2] The parties separated on April 1, 2010 and negotiated the terms of a separation agreement dated May 3, 2010.
[3] The parents share joint custody of the children. It could be said that the principal residence of the children is with the mother, but with considerable time spent with their father as well. According to father’s affidavit, sworn August 15, 2016, he sees the children on a regular basis, as follows:
- Monday after school until 8:30 p.m.;
- Tuesday after school until 8:30 p.m.;
- Wednesday after school until 5:30 p.m. (when the respondent/mother picks up the children after she is done work);
- Thursday after school until 5:30 p.m. (when the respondent picks up the children after she is done work)
- thereafter, the children spend alternating weekends with each of their parents from Friday after school until Sunday at 7:00 p.m.
[4] The history of events leading up to this appeal is set out in the considerable material filed by the parties, including their affidavits, and the facta which they filed on the appeal. All of this material was before the Honourable Justice Rogers when she delivered her decision on December 6, 2016. It is this decision which is under appeal at this time. The principal issue on appeal was whether private counsel should be appointed for the children, Lauren and Nikolas,to independently represent them and present their position before the court. The history of events was summarized by the trial judge, Madam Justice Rogers, on December 6, 2016. The children had previously been represented by the Office of the Children’s Lawyer, who presented their “wishes and preferences” to Madam Justice Rogers. By way of summary, the children made it clear that the time sharing arrangement, whereby they spent considerable time with both father and mother, was to their preference and they did not wish to have it changed. The applicant father then withdrew his claim to alter the children’s time sharing schedule.
[5] The applicant father’s application to change the time sharing arrangement appears to have been prompted by his recent retirement. He was now apparently free to spend more time on a daily basis with his children. The respondent mother opposes any change in the time sharing arrangement. According to the decision of Madam Justice Rogers, father was seeking a change to provide overnights with each parent every 2-3 days for 2-3 days at a time. Father also sought a change in child support.
[6] Madam Justice Rogers was presented with considerable jurisprudence dealing with the issue of representation for children of divorced parents. Her analysis of the case law is correct and she clearly took the jurisprudence into consideration in coming to her conclusion.
[7] The jurisprudence cited by counsel is accurate. The wishes of children should clearly be taken into consideration in assessing their best interests, which includes time spent with either or both parents. I would note however that Lauren and Nikolas were well represented previously by counsel for the Office of the Children’s Lawyer. Madam Justice Rogers considered the potential negative impact of further intervention on the children. The children clearly are doing well. Ultimately, Madam Justice Rogers determined “I am not satisfied that an order for the appointment of private counsel for the children is necessary, and appropriate, given the fact they had counsel 2 years ago.” Father’s motion for the appointment of private counsel for the children was dismissed.
[8] Having considered the copious material filed on this appeal, I am quite satisfied that Madam Justice Rogers’ decision was proper. Her analysis of the law was correct and I can find no palpable and overriding error that she might have made with respect to the facts in the case. Madam Justice Rogers was familiar with the history of this case and all the circumstances that she was required to consider in coming to her decision. This appeal as to her decision is dismissed.
[9] If counsel are unable to agree with respect to the costs of this appeal, they may make brief written submissions to me in chambers within 30 days of publication of my decision.
R. D. Reilly J.
Released: July 13, 2017