CITATION: Darling v Booth, 2017 ONSC 5024
COURT FILE NO.: 13-35
DATE: August 23, 2017
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DEAN DARLING
– and –
DODI BOOTH
Julie Bergeron, counsel for the Applicant
Self-represented
HEARD: July 21, 2017
RULING ON MOTION TO CHANGE
Desormeau, J.
ISSUES
[1] The Court is dealing with a Motion to Change the Final Order (“Final Order”) of Justice Leroy, dated July 17, 2015 pursuant to Rule 15 of the Family Law Rules (“FLR”).
[2] The Motion is brought by the Respondent mother: Ms. Booth.
[3] The Applicant father: Mr. Darling, is also requesting variations to the Final Order.
[4] The principal issues revolve around communication difficulties and terms of access to the child: Oliver Dean Booth Darling, born August 30, 2012. Child support must also be readjusted, on consent of the parties, based on 2016 income.
[5] An interim motion was heard on the majority of the issues on November 8, 2016 whereby Justice Laliberté made a temporary order.
[6] Ultimately, to be decided is whether the Final Order of Justice Leroy should be varied, and if so, how it should be varied.
POSITION OF THE PARTIES
[7] Ms. Booth’s position is that there has been a Material Change in Circumstances due to the child being older than at the time of the signing of the Final Minutes of Settlement, which were incorporated into a Final Order. In her Motion to Change form, dated January 20, 2016, she specifically requests that access exchanges not occur at the Centre York Center (“CYC”), and that there be more flexibility in the access schedule.
[8] At the motion hearing, as set out in her “Statement of Issues” Affidavit, dated June 29, 2017, Ms. Booth requests the following, broader, relief:
a. That the father, and his counsel, cooperate and communicate with her in a timely fashion;
b. That the father shall be responsible for providing Oliver clothing and outerwear in advance of his access time with the child. The clothing and outerwear must be the proper size, and must accommodate special events at school or elsewhere (ie: jersey day; hat day; church day, etc.);
c. Snow days and sick days need to be addressed;
d. The child is not to be exposed to cigarette smoke while in the father’s care;
e. The daily telephone call time, and content of the telephone calls, need to be addressed;
f. Issues surrounding medical questions and directions for the child must be clearly stipulated to ensure compliance by the father. Additionally, the father should be compelled to provide a detailed personal medical history;
g. Extracurricular activities need to be addressed, including terms in the final order for a code of conduct, who can attend the activity, emailing of receipts for related expenses, etc.;
h. Housekeeping items, such as removal of Wednesday access, mailbox delivery of items, video/ Skype calls, right of first refusal, O.P.P. reports and Christmas access need to be addressed;
i. That there be compliance by the father with the terms of the Final Order, including not making derogatory remarks about the mother, etc.;
j. That third party exchanges be changed to neighbours, rather than through the CYC; and
k. Costs for the proceedings.
[9] Mr. Darling does not agree with the relief sought in Ms. Booth’s Motion to Change. He also seeks a variation of the Final Order. His position ultimately is to eliminate, as much as possible, any contact between the parties, from which conflict arises. He wishes more clarity in the Order, which he suggests would diminish the conflict. Mr. Darling’s Response to Motion to Change, dated February 29, 2016, sets out his request to have access every second week-end from Friday at 5:00 p.m. to Sunday at 5:00 p.m., and Wednesdays from 5:00 p.m. to 7:00 p.m.; extended if there is a holiday or P.D. day prior to, or following, the Friday to Sundays week-ends; restrict cancellations; police enforcement of the terms of access; readjust child support; address communication issues; and costs.
[10] At the motion hearing, like Ms. Booth, Mr. Darling seeks the following, broader, relief:
a. That access between the father and Oliver be every second week-end, from Friday after school until Monday morning when the child will be returned to school. This access is in conformity with the interim Order of Justice Laliberté, dated November 8, 2016. Mr. Darling requests that this access be extended to include P.D. days, such that if a P.D. day falls on the Friday, or the Monday, of the father’s week-end with the child, the father’s access would commence either on the Thursday after school, or be extended to the Tuesday before school;
b. That both parties take the necessary steps to ensure that the child is transported by school bus to, and from, the father’s residence during his access week-ends;
c. That provisions be made for snow days; sick days; rescheduling of access; and access exchanges during non-school time;
d. That access times for holidays, special occasions and summer access needs to be specified;
e. That communication be limited, and only in a specified manner;
f. That the child’s clothing, and responsibilities for same, be specifically addressed;
g. That child support and special and extraordinary expenses be readjusted based on 2016 income, and limits be placed on these expenses;
h. That there be notice provisions for the child attending the emergency room;
i. That the mother stop recording the father’s telephone conversations with the child;
j. That outstanding costs be paid;
k. That all of Ms. Booth’s claims and requests be rejected as she has failed to pay costs owing in this matter; and
l. Costs for the proceedings.
[11] Both parties sought broader relief than what was plead in their Motion to Change and Response. Neither party amended, or requested to amend their pleadings to seek the additional relief. Additionally, neither party objected to the broader relief being sought at the motion. Having considered Rule 2 FLR, and the primary objective of same, this court finds that both parties were put on notice of the relief being sought by the other, and as such, there was no prejudice to either party in this motion proceeding on all issues.
[12] The court has taken the opportunity to review the entire Continuing Record, which contains a plethora of Notices of Motions and Affidavits from both parties, and their supports.
[13] Briefly summarized, the collective result of Ms. Booth’s evidence is as follows:
a. The Final Order does not address all of the issues which will arise between now and when Oliver is an adult;
b. There have been numerous communication difficulties between Ms. Booth, Mr. Darling and his counsel. Ms. Booth indicates that there is zero cooperation from Mr. Darling unless every detail has been provided for based on the Final Order;
c. The father should be supplying the child appropriate clothing for school, in advance. These should be the correct size, and include outerwear. They should accommodate special events such as jersey day, church, etc. Ms. Booth’s clothing, or other items for Oliver, have either: never been returned by Mr. Darling, or when returned, they are destroyed, no longer wearable, or smelly;
d. Oliver is seeing a child psychologist to best manage the horrors he is going through due to clothing issues, amongst others;
e. Mr. Darling insists on bringing the child to school on snow days, which is not expected, nor welcome;
f. Ms. Booth feels that 30 days is sufficient time for Mr. Darling to respond to regular communications. Her evidence is that some communications have gone years without a response;
g. Medical questions require more urgent responses, in particular when dealing with the child. Timely responses have not occurred in the past;
h. Mr. Darling needs to adhere to the directions of doctors, such as not allowing Oliver to get his ears wet. If not spelled out in the new Final Order, Mr. Darling will not follow the doctor’s recommendations, or administer medicine appropriately;
i. Ms. Booth does not regularly check her email, and as such, this is not an effective method of communication. She suggests communication should occur by telephone, text message, or by leaving notes in each other’s mail box;
j. Oliver suffered severe breathing problems as he was born prematurely with underdeveloped lungs. Oliver has 2 spots of permanent damage on his lungs due to cigarette smoke exposure while in Mr. Darling’s care;
k. Oliver continues to be exposed to cigarette smoking while in his father’s care, and this greatly affects his health;
l. Mr. Darling is not appropriate during the telephone calls to Oliver. He interrupts, or doesn’t answer the telephone. Mr. Darling does not advise in advance of any cancellations. The time of the call should be changed to 4:50 p.m.. If the child is unavailable, or there is an unforeseen emergency, notice should be given, when possible, and the telephone call should be rescheduled;
m. Ms. Booth has missed an unreasonable amount of work due to Oliver’s poor health during his first few years of life. Mr. Darling has refused to take any time off to help be responsible for Oliver’s health needs. He needs to take a proportionate amount of time off from work in order to care for Oliver when he is sick or has a medical appointment;
n. Responses are required to address extracurricular activities, including notices via text message if attending, and a code of conduct for the parties is required if attending;
o. Mr. Darling does not comply with the terms of the Final Order in that he bashes Ms. Booth; has inappropriate discussions; does not readily comply or respond to Ms. Booth’s requests for the travel authorizations;
p. Mr. Darling’s family has mental health issues, and it is in Oliver’s interests to know what affects Mr. Darling. A detailed personal medical history is therefore required;
q. Mr. Darling has been verbally abusive and has had involvement with the O.P.P.. He refuses to sign releases for the O.P.P. reports to be disclosed;
r. The parties reside on the same road, seven kilometers apart. Ms. Booth has set up video and audio recording surveillance at her home, which was discussed in advance with the Children’s Aid Society. There is no evidence to support that Mr. Darling has any issues with exchanges at Ms. Booth’s home. Oliver does not need a 240-kilometer drive to and from the Centre York Center for access exchanges, as these can be effectuated at Ms. Booth’s home, facilitated by a neighbor, or occur at the O.P.P. station. Access exchanges have occurred with a third party in the past. Ms. Booth cannot afford to drive to Cornwall when so many options exist. Oliver does not travel well, and the two hours for each exchange affects Oliver both physically and mentally;
s. Ms. Booth’s financial circumstances have changed. She lost her employment, and is now working at a chip stand. Her home is for sale. Her car has 340,000 kilometers on it;
t. Ms. Booth has a team of professionals involved, including a family doctor, pediatrician, specialized pediatrician, child surgeon, obstetrician, fertility doctor, social worker, multiple CAS workers, CAS mediator, a second CAS mediator, countless O.P.P. officers, psychologist, child psychologist, psychiatrist, child psychotherapist, multiple lawyers, school staff (two teachers, an educational assistance, a secretary and a principal). These professionals have attempted to assist. Some have written letters which are attached to Ms. Booth’s affidavit materials, including but not limited to: Dr. Peter’s; Dr. O’Kelly; Dr. Adetola; Dr. Shahnavaz; and Dr. Javanovic. Some letters address common sense issues, such as allowing the child to travel with his moose teddy bear, not exposing the child to cigarette smoke, or giving the child his aerochamber. There is still no cooperation however from Mr. Darling;
u. Mr. Darling is not acting with the foresight to care for the child’s needs;
v. Child support and special and extraordinary expenses need to be readjusted, based on 2016 income for both parties, commencing July 1, 2017, as per the Final Order. Ms. Booth insists that 2016 income be used to readjust the propionate amount for special and extraordinary expenses for 2017, despite her change in financial circumstances. 2017 income will therefore will need to be considered to address 2018 special and extraordinary expenses;
w. A photograph of a receipt to Mr. Darling should be sufficient proof for the amount of the activity, rather than mailing the receipt;
x. Costs needs to be addressed and paid for by Mr. Darling for previous motions heard, as well as this motion. Ms. Booth is making contributions towards the outstanding costs awards against her.
[14] I have also reviewed Mr. Darling’s affidavit evidence contained in the continuing record. His evidence can be summarized as follows:
a. Mr. Darling has been consistent in exercising access, except for the Wednesday visits, which have been problematic due to his work schedule, and that it requires too much travelling. He is no longer requesting the Wednesday visits;
b. Nothing has changed since the Final Order that would allow for a change of location for the access exchanges. The exchanges should continue to be at the CYC due to Ms. Booth’s unreasonable behaviours. Specifically, Ms. Booth has made false claims against Mr. Darling, such as alleging that he: returned the child sick with a high fever, or in vomit stained clothing, that he is an unfit parent, and that the child is exposed to cigarette smoke;
c. Mr. Darling denies the child ever being returned to the mother soaked in urine. The child was never knowingly returned to the mother with a fever. Mr. Darling does however admit that on one occasion, Oliver had vomited in his vehicle, so he did have vomit on him upon a return. This was not a repeated occurrence;
d. Ms. Booth’s behaviour towards Mr. Darling when he attended at her home has been harassing and intimidating. She has previously alleged that Mr. Darling was driving by her home and stalking her. Mr. Darling has been warned by the O.P.P. not to attend Ms. Booth’s residence. The exchanges at the CYC avoid any additional problems and protect Mr. Darling. Further, the CAS recommended that exchanges take place at the CYC;
e. Mr. Darling does not have, or use, email. Skype is not a viable option. He does not wish to communicate by way of direct delivery to mail boxes. He requests communication by short and concise text messages, by way of the communication form, or regular letter mail;
f. Though Ms. Booth claims that Oliver has been traumatized by the travelling to the CYC, Mr. Darling has observed no evidence of this despite travelling the same time and distance with the child;
g. All of CYC notes regarding Mr. Darling’s exchanges are positive. The same notes show numerous cancellations of visits by the mother. Allegations made by Ms. Booth to the CYC workers, such as Mr. Darling smelling of alcohol, or the child smelling of cigarette smoke, were never substantiated;
h. Mr. Darling wishes access continue as per the November 8, 2016 Interim Court Order of Justice Laliberté: every second week-end from Friday after school until Monday before school. The child will take the bus directly from the respective parent’s home to and from school. When there is no school due to a P.D. day, access will be extended to include the P.D. day to that parent. In the summer, or during winter break, access exchanges should continue to occur at the CYC;
i. There has been excessive difficulty in making arrangements for special holiday time, such as summer vacation, or Father’s Day, despite being part of the Final Order. Summer access and special holidays need to be specified, with concrete dates and times, to prevent further disputes;
j. Ms. Booth has been unreasonable in her requests for immediate responses. Following separation, she would telephone and text Mr. Darling constantly. She has been harassing. She has been derogatory towards Mr. Darling, and his parenting skills, in her communications. It has been very stressful for Mr. Darling to deal with the mother and her demands. Due to her verbal abuse, he has requested that he have limited contact with her, and only on important issues regarding Oliver;
k. Communication has been an issue in the past, and therefore the CAS came up with a document that facilitated vital, but limited, information being shared. An updated form is required. A communication book or email is not appropriate as Ms. Booth will request too many details, or be unreasonable. For instance, she has previously requested exact measurements of any food provided to the child, and details of how the food was cooked;
l. Ms. Booth is difficult to deal with, is unreasonable, and is unable to respond succinctly to requests for information. Her letters are voluminous. Ms. Booth demands that everything be done her way. There is no flexibility on any issues. Ms. Booth is never willing to settle any issue, and her position remains that Mr. Darling have as little access to Oliver as possible;
m. The Children’s Aid Society do not report any concerns about Mr. Darling’s parenting abilities to care for Oliver over an extended period of time. They have no protection concerns should Oliver reside with Mr. Darling full time;
n. Receipts for special and extraordinary expenses should be mailed to Mr. Darling. Payment for same will be made once the receipt is received. He suggests limiting the child’s activities to one activity per year. Further, Mr. Darling suggests a list specific information be provided prior to enrolling the child into any activity, including the cost, equipment, who can attend, etc.. He wishes to be able to attend these activities, free from any harassment by Ms. Booth;
o. Child support needs to be readjusted based on Mr. Darling’s 2016 income of $51,480.00. Special and extraordinary expenses shall also be readjusted based on his and Ms. Booth’s 2016 income, commencing June 1st, 2017. Ms. Booth’s 2016 income was $45,341.00;
p. Mr. Darling denies failing to return Oliver’s books and clothing. Mr. Darling has also purchased the proper sized clothing and footwear for Oliver. He suggests that the child attend school on Fridays in one set of the mother’s clothing, and the child shall return to school on Monday in the same, cleaned clothing. The remainder of Oliver’s clothing for the father’s access week-end shall be provided by the father. Mr. Darling feels that the cost for that clothing is covered by his child support payments, and as such, he should not have to send clothing to the mother;
q. Mr. Darling does not expose Oliver to cigarette smoke. These are false allegations;
r. Mr. Darling denies refusing to permit Oliver to have his moose teddy bear during visits. He states that the child does not use it in his home. He also has an aerochamber for the child’s pumps at his home and does not require the mother’s aerochamber;
s. Mr. Darling always administers the medication for the child as required, and will continue to do so. He has provided the requisite information confirming this on the communication sheet;
t. Mr. Darling denies the child being “prepared”, interrupting, or not answering the telephone when the mother calls;
u. Mr. Darling does not suffer from any mental health illnesses. He does not have O.C.D.;
v. Ms. Booth is unable to put Oliver’s needs ahead of her own. She has demanded that the child’s clothing be changed, and returned to her, prior to the child going to see his father. She has demanded that the uneaten contents of the child’s lunch box from Fridays not be disposed of, but be refrigerated and returned to her on the Monday;
w. Ms. Booth should be held accountable for all of the legal costs incurred by Mr. Darling. He is seeking costs for the motion, as well costs for the last conference in June, and the motion which was resolved by way of an Interim Order on July 10, 2017. Those costs were reserved to this motion hearing. To date, only $375.00 has been paid by Ms. Booth of the $11,000.00 of costs awarded to Mr. Darling, dating back to February 12, 2016, July 18, 2016, and December 7, 2016.
x. Mr. Darling also requests that Ms. Booth’s claims be rejected, and not heard, given Ms. Booth’s non-payment of the costs awards.
[15] For reasons put on record, in conjunction with Rule 2 FLR, the motion proceeded despite the request made by Mr. Darling at paragraph 14(x) above.
THE LAW
[16] In deciding this matter, the Court has considered the applicable legislation, the relevant case law, as well as the documents filed by the parties, and their submissions at the motion.
[17] The court takes note that the originating application from 2013 was made under the Divorce Act (“D.A.”).
[18] Section 17 D.A. permits parties to apply to vary, rescind or suspend the terms of existing support and custody orders.
[19] Subsection 17(5) D. A., states that before the court makes a variation order in respect to a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests to the child as determined by reference to that change.
[20] Under subsection 17(9) D.A., in making a variation order, the court must give effect to the principle that a child of the marriage should have as much contact with each former spouse is as consistent with the best interests of the child and, for that purpose, where the variation would grant custody of the child to a person who does not currently have custody, the court must take into consideration the willingness of that person to facilitate such contact.
[21] Custody and access orders are never final. All parenting arrangements reflect what is in the best interests of a child from time to time. The Divorce Act authorizes judges to vary an outstanding custody or access order if the order is no longer in the best interests of a child.
[22] The decision of Supreme Court of Canada decision of Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 (S.C.C.), is applied in a request to vary a custody or access order.
[23] On an application to vary a final custody order, the court must accept the prior Order of Justice Leroy dated July 17, 2015 was correct at the time it was made. The onus is on the person seeking to change an order to establish that the circumstances have changed since the making of the prior order, to such an extent that the existing childcare arrangements are no longer in the best interests of the child: Gordon v. Goertz, supra; Crawford v. Dixon, 2001 CanLII 28121 (ON SC), [2001] O.J. No. 466, 14 R.F.L. (5th) 267 (Ont. S.C.J.), at paragraph 10.
[24] In Gordon v. Goertz, supra, at paragraph 49, Justice McLauchlin stated the following:
49 The law can 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 rights of the parents.
[25] If the Applicant is unable to show the existence of a material change, then the inquiry can go no farther: Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 (S.C.C.), at paragraph 10; Wilson v. Grassick (1994), 1994 CanLII 4709 (SK CA), 2 R.F.L. (4th) 291 (Sask. C.A.).
[26] “Material change” means a change, such that, if known at the time, would likely have resulted in different terms in the order. If the issue which is relied on as constituting a change was known at the relevant time, it cannot be relied on as the basis for variation. The change itself could not have been foreseen or reasonably contemplated by the judge who made the initial order. The onus of proof lies on the applicant and the standard of proof is “on the balance of probabilities”: Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670; G.(L.) v. (B.)(G.) (1995) 1995 CanLII 65 (SCC), 15 R.F.L. (4th) 201 (S.C.C.); Gordon v. Goertz, supra, at paragraph 13.
[27] A material change in circumstances needs to be established, even if both parties are requesting a variation to the final order.
[28] Justice Mackinnon in Greenberg v. Greenberg dealt with a high conflict case where the level of stress caused by the conflict between the parties constituted a material change in circumstances which warranted a change from joint custody to sole custody. Justice Mackinnon determined that the breakdown of joint decision making and conflict resolution process could not reasonably have been contemplated, or foreseen, when the Order was made. She went on to state that whatever reasons the parties had in 2005 to believe that they could overcome their hostility and co-parent effectively have long since vanished. Greenberg v. Greenberg, 2009 CarswellOnt 7881, at paragraph 163.
[29] Justice Johnston, in a case similar to the one being determined herein, stated “involving children in the parents’ battles in high conflict cases is ‘akin to sprinkling poison on the Kids [cereal] every morning’. While the parents in this case would not think they are harming their children; their conflict is doing just that.”: Gordon v. Gordon, 2015 ONSC 4468, at paragraph 1.
[30] Ms. Booth alleges that the grounds to permit the variation should be based on the child being older than when the Final Order was agreed to. However, the evidence presented by both parties sets out a high level of conflict that has spiraled completely out of control. The evidence suggests that the child has been exposed to the ongoing conflict. It is not in his best interest that this conflict continues. I am satisfied that Justice Leroy, in making the 2015 Order, which was made on consent of the parties, could not have anticipated the level of conflict would escalate to the extent presented to this court on this variation request.
[31] Having considered Gordon v. Goertz; Greenberg v. Greenberg and Gordon v. Gordon, above, I am satisfied that the level of conflict constitutes a material change in circumstances warranting the Final Order to be revisited.
[32] I make this determination in considering best interests of the child: Oliver. Similar to Gordon v. Gordon, supra, at paragraph 2, at the heart of this case are animosity, bitterness, stubbornness, ego and a fundamental inability by both parents to understand the harm their conflict is causing, or potentially causing, their child. I find that this pertains more to Ms. Booth than to Mr. Darling. However, both parents are unable to recognize the potential harm they are causing to this child. Neither parent has the insight to recognize that they are both part of the problem.
[33] As set out in Gordon v. Goertz, having determined that a material change of circumstances has occurred, the court must now consider the matter afresh, with regard to the present circumstances, instead of defaulting to the original court order. The inquiry cannot be limited to the material change, as all factors bearing on the child’s best interests should be considered. Ultimately, the only issue when it comes to custody and access is the welfare of the child whose future is at stake. Gordon v. Gordon, supra, at paragraph 26.
[34] As set out in Bubis v. Jones, 2000 CanLII 22571 (ON SC), 2000 CarswellOnt 1243, the fresh inquiry necessitates adherence to section the provisions of section 24 of the Children’s Law Reform Act, which states as follows:
24 (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).
Best interests of child
(2) The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) any familial relationship between the child and each person who is a party to the application.
Past conduct
(3) A person’s past conduct shall be considered only,
(a) in accordance with subsection (4); or
(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.
Violence and abuse
(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,
(a) his or her spouse;
(b) a parent of the child to whom the application relates;
(c) a member of the person’s household; or
(d) any child.
[35] Oliver continues to reside in the primary care of Ms. Booth. He has enjoyed meaningful and regular access with Mr. Darling, which includes every second week-end, from Friday after school until Monday before school. I find that there is no reason to change this regularized access regime.
[36] I have reflected on the many allegations made by Ms. Booth regarding Mr. Darling, which has in part led to this acrimonious relationship. During the motion, however, Ms. Booth conceded that there is no evidence before the court that Oliver’s lung damage was due to any cigarette smoke exposure.
[37] Further, while a number of doctors have provided letters in support of Ms. Booth’s requests, there is no evidence provided regarding these doctor’s expertise to opine on issues such as: communication between parents; the physical and mental effect on Oliver for travelling for two hours during access exchanges; the frequency and duration of access periods between the child and his father; and opining about the most appropriate and beneficial terms of access between the child and father. As such, the appropriate amount of weight in the circumstances has been given to these letters.
[38] I have reflected on the changes requested by both parties. Both parties agree that more concrete terms are required in the order to remove any uncertainty.
[39] In the circumstances, I find that flexibility and changes to the schedule are not luxuries available to these parents. I find that the ineffective communication between the parents, and the level of parental conflict, speaks to the need for an order that is clear, certain, and not open to discussion or debate between the parents. It is hoped that with clear, inflexible terms, the level of conflict, and Oliver’s exposure to it, will be reduced. I echo the comments of Justice Mackinnon in Greenberg v. Greenberg, supra, at paragraph 170, that in making this order, I hope that what Oliver loses in terms of occasional flexibility will be more than made up for by a significant reduction in his exposure to conflict.
[40] I find that requests for disclosure of police records, and medical information regarding Mr. Darling, are unnecessary. Therefore no order will be made on these issues.
[41] In the circumstances, given the conflict, I am not inclined to include a term regarding the right of first refusal to either parent.
[42] The level of conflict between the parties necessitates third party exchanges. During the school year, this can be effectuated through the school. However, during holidays, provisions need to be in place to diminish the conflict between the parties. I have not been persuaded by Ms. Booth that there should be any change to where access exchanges occur, being at the CYC.
CONCLUSION
[43] For reasons stated in this ruling, the Court varies the Final Order of Justice Leroy dated July 17, 2015 with regards to paragraphs 2, 3, 4(e) re: communication book; 4(f) re: telephone access; 5, 7, 8, and replaces those paragraphs with the following terms, as a Final Order:
[1] The Applicant father shall have access to the child: Oliver Dean Booth-Darling, born August 30, 2012 as follows:
a. Starting the weekend of November 18, 2016, and every second week-end thereafter, the child shall be under the care of the Applicant father from Friday after school until Monday morning, when the child shall return to school (a suitable third party is permitted to do so on the Applicant’s behalf, if need be); in the event of a holiday or a P.D. day prior to, or immediately following the Applicant’s access week-end, access shall be extended by one day, such that if the Friday is a P.D. day or statutory holiday, access will commence Thursday after school, and if the Monday is a P.D. day or statutory holiday, access will end on Tuesday before school.
b. For his access periods with the Applicant father, the necessary arrangements shall be made, and documents signed by both parties, prior to August 30, 2017, so that the child may take the bus to his father’s home for the start of access after school on Friday and from his father’s home at the end of access on Monday morning. Until this takes place, the father shall be responsible for pick up and drop off of the child.
c. Snow days: when the school busses are cancelled due to a snow day, and the child is in the Applicant father’s care, that day shall be treated as a P.D. day, and the child shall be returned to the mother the next day as if the child would be on a P.D. day.
d. Sick days during the school year: if the child is not at school on a given Friday that the Applicant father is to commence access, the Respondent mother shall have one of two options:
i. She shall advise the father by no later than 10:00 a.m. that access will be rescheduled to the following week-end; or
ii. She shall advise the father by no later than 10:00 a.m., and make arrangements with the Centre York Centre by 11:00 a.m., and she shall bring the child to the Centre York Centre for a 5:00 p.m. exchange. The father shall also communicate with the Centre York Centre by 12:30 p.m. to confirm that the exchange will take place at their center;
iii. Additionally, the mother shall provide a doctor’s note for any rescheduled access.
e. Sick days during the summer and other holidays: Access shall not be cancelled unless the Applicant has a doctor’s note confirming the child’s illness. Otherwise, access shall proceed as usual. In the event of serious illness, supported by a doctor’s note, the father’s access will be rescheduled to the following week-end.
f. Access exchanges during non-school days: any access during the summer months or holidays, not specifically provided for herein, exchanges shall take place at the CYC. Exchanges shall take place at the commencement of access, on Friday at 5:00 p.m. and exchanges shall also take place on Sunday at 6:00 p.m. at the end of the access visit. In the event that the CYC hours do not permit this time for the exchange, the time will be the closest possible to the time above. For example, if the CYC closed at 4:00 p.m. on a Friday, the father’s pick up time shall be advanced to 4:00 p.m. The time will be varied when necessary to accommodate the CYC hours all the while ensuring that the father loses as little time as possible from his access periods. The time will only be adjusted to accommodate the CYC hours. The child’s return time will not be adjusted if this means an early pick up time for the child at the start of access. [Note: This paragraph was the relief sought by Mr. Darling in the motion materials]
g. Holiday access:
i. Christmas Holidays: Regardless of the regular access schedule, in odd numbered years, the father shall have the child Oliver in his care from Friday when school ends for the Christmas holidays until December 27th at 5:00 p.m. For instance, in 2017, the child shall be with his father from December 22nd after school until December 27th at 5:00 p.m. This Christmas holiday schedule supersedes the regularly scheduled time with the child.
ii. For even numbered years (ie: 2018), regardless of the regular access schedule, the father shall have the child on December 27th at 5:00 p.m. until January 3rd at 5:00 p.m.
h. Annually, and regardless of the regular access schedule, the child shall be with his mother for Mother’s Day from 9:00 a.m. to 6:00 p.m.
i. Annually, and regardless of the regular access schedule, the child shall be with his father for Father’s Day from 9:00 a.m. to 6:00 p.m.
j. School summer holidays: in addition to his regular access schedule of having the child every second week-end, the father shall have two non-consecutive weeks (7 days) of extended summer holidays, which shall commence on a Friday at 5:00 p.m., and terminate the following Friday at 5:00 p.m.
i. In 2018, the summer access between the child and the father shall be:
July 13th at 5:00 p.m. to July 20th at 5:00 p.m.; and
August 10th at 5:00 p.m. to August 17h at 5:00 p.m.
ii. In 2019, and every year thereafter, the father shall have the child every third full week in July, and every second full week in August, from 5:00 p.m. on Friday to the following Friday at 5:00 p.m..
[2] The Respondent mother shall be permitted to communicate with the father by text message to a maximum of once per day. This text message must be brief, to the point, and relating to the child. The father must acknowledge the text message within 12 hours of receipt of same. Medical questions regarding the child shall be answered as soon as practicable.
[3] The communication sheet marked as Schedule “A” to Mr. Darling’s “order’s sought”, located at Volume 4, Tab 9, shall replace the prior communication sheet, and will be used by both parties to convey information regarding medication (if and when required) as well as any important information regarding the child’s health, education and activities.
[4] The parent who does not have the child in their care may have one telephone communication with the child per day, at 4:50 p.m., for a maximum of five minutes. If the child is not going to available at 4:50 p.m., then the parent with the child shall advise the other no later than 4:00 p.m., and shall provide a suitable time for the telephone call to take place. At that time, the other parent shall immediately confirm whether they will be calling the child at the suggested time.
[5] Each parent shall advise the other forthwith if the child is brought to the Emergency Room.
[6] The mother shall deliver, by regular letter mail, to the father, any invoices or receipts for the child’s special and extraordinary expenses for reimbursement. She is not permitted to attend the father’s home to leave any receipts or invoices in the father’s mailbox.
[7] Commencing July 1, 2017, and every first of the month thereafter, the Applicant father shall pay child support to the Respondent mother, for the benefit of the child: Oliver Dean Booth-Darling, born August 30, 2012, in the amount of $464.00 per month, based on the Applicant’s 2016 annual income of $51,480.00, and the Child Support Guidelines.
[8] The Respondent mother shall be responsible for all of the child’s clothing at all times of the year, including, but not limited to: back to school; winter clothing (snowsuits, boots, toques, mitts); Christmas holidays; summer break; jackets; rain boots, etc. to cover all seasons. The Respondent mother is also responsible for purchasing the child’s backpack and lunch kit. The same backpack, lunch kit, and clothing shall be used by both households. Effective immediately, the Applicant father shall ensure that any clothing the child wears to attend his access visit is returned to the mother within 12 hours of the end of the access visit. The child is to be sent to school or access visits wearing clothing purchased by the mother. The child is not to change his clothing upon arrival at access, or returning from access. The child will return to the mother’s care following the access week-end (or week) in the clothing that the child was wearing upon arriving at the father’s home. This clothing shall be washed during the course of the access visit, and repaired immediately if damaged. The clothing shall include all outerwear and school articles (boots, jackets, toque, mitts, school bag, lunch kit, etc.). The mother shall not change or remove the child’s outerwear or other clothing prior to the father’s access, nor shall she refrain from sending them. The father shall not be permitted to keep the child’s outerwear or other clothing at his home. The mother shall return to the father all clothing that he purchased which is currently in her possession. The father shall also return to the mother all clothing that the mother purchased which is currently in his possession.
[9] On consent of both parties with regards to using 2016 income, effective July 1, 2017, based on the Applicant father’s 2016 income of $51,480.00, and the Respondent mother’s 2016 income of $45,341.00, the Applicant father shall contribute his proportional share, being 53%, of the total cost of the child’s special and extraordinary expenses. The Respondent mother shall contribute her proportional share 47% of the same costs. The percentage calculation shall be used annually, based on each parties’ Line 150 of the T1 General Income Tax Returns of the prior year (ie: for the 2017 year, commencing on July 1, 2017, the 2016 income was used. To achieve the proportional share calculation, both incomes were added together to obtain a total income for both parties. Thereafter, each parents’ respective incomes were divided by the total income.)
(a) As set out above, the parties shall share, in proportion to their respective incomes, all of the child’s special and extraordinary expenses, to include daycare, medical, dental orthodontic, camp, one sport or activity per year, post-secondary expenses (for college or university) and other reasonable extraordinary expenses which must be discussed and agreed upon, in writing, by both parties, prior to being incurred. The mother shall not register the child in any activity or sport, regardless if it falls on her time or the father’s time, without the father’s prior written approval. The mother is to provide the following information to the father, in writing, should she wish to register the child in any type of activity, and the mother shall provide at minimum 72 hours’ notice for the father to respond to the inquiry:
i. The cost of the activity;
ii. The name of the organization running or administering the activity;
iii. When and where the activity is to take place (location, day, time, frequency, duration);
iv. Whether the father is permitted to bring the child to the activity; and
v. If equipment is required for the activity. If so, the cost of same shall be calculated as a special and extraordinary expenses, as set out in section 9, above.
(b) The parties shall jointly be responsible for caring for the child’s equipment or requirements for any of his activities or sport. If any of the equipment or required items for the activity become damaged while in the care of one parent, that parent shall be responsible to replace same, with either a new item or a gently used item.
(c) Each party will receive a receipt for their proportionate payment of expenses, in their name, for income tax purposes.
(d) Each party shall name and maintain the child as an eligible beneficiary under any medical or dental benefits plan available to them through his or her respective places of employment.
[10] Neither party is permitted to record the child’s telephone conversations with the other parent.
[11] It is recommended that both parents enroll in counselling, and to take Triple P parenting courses to address their communication skills, and the impact of conflict on Oliver.
[12] Both parties shall exchange their Income Tax Returns and Notices of Assessment annually, as well as provide three recent and consecutive pay statements leading to the date of financial exchanges. All such information shall be conveyed by June 30th, annually. If the parties’ income has changed from the prior tax year, then the child support amount payable set out above shall be varied to ensure it is consistent with the Child Support Guidelines. This change shall take place effective July 1st, annually, based on the parties’ income from the prior calendar year. The parties shall maintain strict confidence in respect to the financial information received from one another.
[13] All outstanding costs owed by the Respondent mother are fixed at $10,625.00, and are payable forthwith.
[14] Both parties shall require leave of this court prior to commencing any new proceedings or scheduling any motions.
[15] The parties are invited to discuss costs for the motion heard July 21, 2017, the conference which was heard June 13, 2017, as set out in the Minutes of Settlement dated June 13, 2017, and the motion that was set to be heard July 10, 2017. Failing agreement, both parties are to serve and file cost submissions, no greater than 2 pages in length, by September 8, 2017.
[16] Any terms of Justice Leroy’s Final Order dated July 17, 2015 not addressed herein shall remain in full force and effect.
Justice Hélène C. Desormeau
Released: August 23, 2017
Darling v. Booth, 2017 ONSC 5024
COURT FILE NO.: 13-35
DATE: August 23, 2017
ONTARIO
SUPERIOR COURT OF JUSTICE
DEAN DARLING
– and –
DODI BOOTH
Ruling on motion TO CHANGE
Justice Hélène C. Desormeau
Released: August 23, 2017