Superior Court of Justice - Ontario

Citation: Payne v. Jamieson, 2017 ONSC 5243

Court File No.: 740/17

Date: 2017-09-01

Re: Keira Payne, Applicant And: Jeremy Jamieson, Respondent

Before: The Honourable Mr. Justice A. Pazaratz

Counsel: Ms. Lidija Flanjak, Counsel, for the Applicant Mr. J. Kerr, Counsel, for the Respondent

Heard: September 1, 2017

Endorsement

[1] This is the last Friday motions list before school starts on Tuesday. The parties have brought last minute motions and cross-motions to determine whether their three year old daughter Lily should commence Junior Kindergarten in Hamilton (where the Applicant mother lives) or in Jarvis (where the Respondent father lives).

[2] The parties lived together in Hamilton on an unmarried basis from July 2007 to early 2015. The Respondent says he moved to Jarvis to live with his current partner shortly after separation. The Applicant questions whether the Respondent has been living in Jarvis as long as he claims. But either way, he’s there now, living with his partner and her two young children in a relationship of apparent permanence. As well, his partner is now pregnant with a child of their relationship.

[3] The most unfortunate aspect of this motion is the timing. The parties have been separated more than two years. To their credit they have gotten along with one another without the need for any court involvement until recently. The Respondent says this is because they communicate well and they are cordial. The Applicant says the Respondent is domineering and controlling, and he perceives they communicate well simply because she gives in to him.

[4] Whatever those dynamics, it appears to be common ground that for an extended period of time there has been – on consent – effectively an equal timesharing arrangement.

[5] The Applicant has raised many concerns about the Respondent’s personality and behaviour – concerns which the Respondent denies. It is impossible for me to make determinations with respect to those allegations on this motion. But it is also largely unnecessary for me to do so.

[6] The reality is that even the Applicant mother is acknowledging that were it not for the fact that Lily has to start school in a few days, and were it not for the fact that the parties live so far apart, she would be quite content that the equal time sharing arrangement continue.

[7] So what it really boils down to is that Lily was benefitting from a long-standing equal time sharing arrangement in which there were many positive features in both of her households and family units. That equal time sharing arrangement was relatively easy to manage when Lily had no school commitments. But now a school commitment is imminent. And that leaves us with at least one determination, and possibly two.

[8] The Respondent father proposes that Lily attend school in Jarvis. But he insists the 50-50 timesharing arrangement can basically remain in place, with a couple of periodic variations to adjust for his work schedule here in Hamilton. Basically he says he or his partner will assume responsibility to do all of the driving, and Lily will have about 9 one-way trips between Hamilton and Jarvis in a two week period. He regards this as quite manageable.

[9] The Applicant mother proposes that Lily attend school in Hamilton. She says the child’s Monday to Friday school commitment will constitute a material change in circumstances which renders 50-50 timesharing impractical. She proposes that the Respondent would have access on alternate weekends with a mid-week non-overnight visit.

[10] As stated, for purposes of this motion, I find that the parties are fairly evenly matched in terms of parenting skills, attachment to the child, etc. Clearly Lily has an excellent relationship with both parents. She also has an important relationship with the Respondent’s partner and her two children. (And as stated the partner is pregnant with another child.)

[11] For purposes of this motion I also find that the two proposed schools are evenly matched (it is junior kindergarten).

[12] The decision herein must be based upon the best interests of the child. And here it is easy to make an important determination: It is not in the best interests of this child to have to travel 1 hour by car between Hamilton and Jarvis, before or after school, perhaps nine times every two weeks. The drive time would be onerous, particularly since it would be during or adjacent to busier daytime travel times. It would require the child having to wake up earlier for a long drive. It would be fatiguing for the child.

[13] The Applicant’s proposal is much more convenient and seamless for the child. She can drop Lily off at school on her way to work. After school a maternal grandparent can pick up Lily and care for her until the mother returns at 4:15 p.m. Inevitably, when it comes to young children, logistics and practicality have to be given serious consideration.

[14] But having said that, both parties have to assume responsibility for the fact that their inability to resolve this issue has created a bit of a crisis which may jeopardize this young child’s relationship with both parents.

[15] The parties had a Case Conference on July 26, 2017. They return for a Settlement Conference on October 3, 2017. There are many options the parties should address. And – speaking plainly – the Respondent may at some point need to re-think whether it made sense for him to relocate his residence such a distance away, when all of his other connectors (including work) and all of the child’s other connectors (including a doctor and dentist) were in Hamilton.

[16] It is important that the quality and quantity of the relationship Lily has with each parent should not be abruptly changed. Accordingly, I do not believe that the Applicant’s proposal of “alternate weekends” would give Lily and the Respondent enough time together.

[17] The Applicant seeks retroactive and ongoing child support. I agree with the Respondent that retroactivity should be left to the trial judge. There is significant factual dispute about what’s been paid since separation.

[18] The parties agree to the numbers, if set-off child support is deemed appropriate – which in this case I believe it is.

[19] Temporary Order:

a. The child Lily shall be enrolled in Rosedale school in the Applicant’s jurisdiction.

b. The Respondent shall have time with child three out of four weekends (on the first and third of those weekends it shall be from Friday after school until Monday morning delivery to school; on the middle of those three weekends the child shall be returned to the Applicant Sunday at 4 p.m.). In addition he shall have a visit each Wednesday from after school until Thursday morning delivery to school.

c. The child shall be with the Applicant during all other times (including every fourth weekend).

d. During weeks when school is not in session, the time shall be divided equally such that the parties shall share an equal number of overnights with the child.

e. The Respondent shall be responsible for all transportation.

f. The Respondent shall pay to the Applicant net child support of $246.00 per month commencing August 1, 2017 based on his income of $67,651 and the Applicant’s income of $41,000.00. Retroactivity is reserved to the trial judge.

g. SDO.

[20] There shall be no order as to costs.

Pazaratz, J.

Date: September 1, 2017