Court File and Parties

CITATION: Robinson v. Lewis, 2017 ONSC 6228

COURT FILE NO.: 17/355

DATE: 20171018

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Gary Robinson (Applicant)

AND:

Alicia Lewis (Respondent)

BEFORE: Justice R. Raikes

COUNSEL: Jessi L. N. Stanfield, for the applicant

Richard Linley, for the respondent

HEARD: October 11, 2017

ENDORSEMENT

[1] The parties are the parents of Bentley Cooper Robinson born May 7, 2012. Bentley is now 5 years old.

[2] The applicant father moves for an order:

• Requiring the respondent mother to return Bentley’s primary residence to Stratford.
• Granting the applicant interim custody of Bentley at the home of the paternal parents, Gary and Sarah Robinson.
• Granting weekend access to the respondent three of every four weekends.
• In the alternative, directing that Bentley remain in the primary care of the respondent in London with weekend access by the applicant every three of four weekends from Friday to Sunday (Monday on a long weekend) to be exercised in the home of the paternal grandparents.

[3] The parties began cohabiting in July 2009 when they purchased a home in Stratford. They separated in January 2017, although the applicant moved back into the matrimonial home where the respondent and Bentley were residing in July 2017. The respondent and Bentley immediately moved to other accommodation in Stratford. The matrimonial home sold at the end of July 2017. The respondent then moved with Bentley to London in August 2017.

[4] As mentioned, Bentley was born May 2012. The applicant was then working in Alberta. The respondent took a maternity leave and the applicant came home for two weeks at regular intervals as work permitted. He moved back to Stratford full-time when Bentley was almost one year.

[5] After her maternity leave, the respondent returned to work initially on a part-time basis and then full-time. She is a dental hygienist who has worked in London the last five years. Because of their respective work schedules, family, friends and nannies helped care for Bentley, including the paternal grandparents.

[6] The applicant deposed that the respondent has a long history of mental illness with past suicide attempts; the most recent was in 2015. She was also hospitalized in September 2016. He asserts that she has a history of heavy drinking and an addiction to crystal methamphetamine. She concedes the addiction for which she went to a residential rehab program in November 2016. She denies any ongoing use or relapses since she completed the program.

[7] The applicant has his own addiction to crystal methamphetamines for which he went to rehab more recently. The respondent deposed that after the applicant’s attendance in rehab, she came back to the matrimonial home in July 2017 and found him with another woman in the attic. Both had pipes and were in the process of cooking up the methamphetamine for use. He denies what she says she saw.

[8] The applicant has provided two clean drug tests starting in August. He notes that the applicant has not done the same.

[9] The applicant also expresses concerns about the respondent’s new partner with whom she and Bentley are residing in London. He has a past record of domestic violence. He is also an addict who has been through rehab. The respondent asserts that they are supporting each other to stay clean.

[10] Bentley is now attending a French Immersion school in London. He is transported to and from school by bus. The respondent takes him to the bus each day and picks him up most days. Friends pick him up on days when she cannot because of work.

[11] The respondent has provided little information as to their living arrangements except the address. If interim custody is given to the applicant, Bentley will be living with his paternal grandparents who have a large home. He will have his own bedroom.

[12] The parties never married. Issues of custody and access in this case are governed by the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as am., s. 24(1) (“CLRA”). The applicable test is the “best interests of the child”. While decisions in other cases are of interest, each case turns on its own facts and requires an individualized analysis.

[13] Section 24(2) of the CLRA sets out factors which the court should consider in assessing the best interests of the child. Those factors are:

a. the love, affection and emotional ties between the child and each person claiming custody or access, the other members of the child’s family who reside with the child and persons involved in the child’s care and upbringing;

b. the child’s views and preferences if they can be reasonably 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 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 or access for the child’s care and upbringing;

f. the permanence and stability of the family unit with which it is proposed the child will live;

g. the ability of each person applying for custody or access to act as a parent; and

h. the relationship by blood or through adoption between the child and each person who is a party.

[14] In addition, the court may consider a person’s past conduct if it is satisfied that that conduct is relevant to the person’s ability to act as a parent: s. 24(3).

[15] Joint custody is not appropriate where parents are unable to cooperate or communicate effectively. However, a parent cannot create problems with the other parent and then claim custody on the basis of lack of cooperation: Lawson v. Lawson, 2006 CanLII 26573 (ON CA), [2006] O.J. No. 3179 (ON CA).

[16] A parallel parenting regime may be suitable where both parents love the child and should play an active role in the child’s life, yet have difficulty communicating or reaching a consensus on the child’s upbringing. Typically, parallel parenting regimes allocate decision-making on major matters so that in the case of a conflict, one parent will have final say: Ursic v. Ursic, 2006 CanLII 18349 (ON CA), [2006] O.J. No. 2178 (ON CA). Where the parents are unable to communicate with each other, an order for parallel parenting may be reasonably necessary to ensure the parent without primary residence has a real relationship with the child: Plugers v. Krasnay, [2016] O. J. No. 2089 (ON CA).

[17] Turning now to the consideration of the factors in s. 24(2), I find:

• Bentley is related by blood to both parties so that factor is neutral.
• Bentley is only five years old which makes obtaining his views and preferences difficult and of dubious utility.
• Both parents appear to love and care for Bentley and there is no suggestion by either that Bentley does not love and care for them.
• Bentley’s paternal grandparents have been involved in Bentley’s life and appear to have a loving attachment to him.
• I do not doubt that each party is capable of providing Bentley with guidance and education and the necessaries of life so long as they are not using and abusing drugs.
• The applicant is residing with his parents and will be relying upon them to assist him in the role of caregiver to Bentley.
• The respondent has recently moved to London and now resides with her boyfriend and Bentley. The information concerning the relationship between her new boyfriend and Bentley is limited but does not raise concerns for Bentley’s safety or well-being.
• Upon separation, Bentley resided with his mother. He has lived with his mother continuously since then. The applicant’s plan contemplates that he and Bentley will live indefinitely with his parents.
• The respondent’s evidence that the applicant was using methamphetamine or was with someone who was using methamphetamine in July is troubling. I appreciate that the applicant denies what she says she saw. Certainly, I am not in a position to resolve such factual disputes that depend in large measure on credibility and reliability on the basis of affidavit evidence alone.
• By the same token, there is also a concern that the respondent’s boyfriend has a past history of domestic violence and is himself a recovering addict. If he relapses, will she? If he relapses, will she remove Bentley from that environment? These are valid concerns for the applicant to have. However, the evidence at this point indicates that she has completed a rehabilitation program and has not relapsed. There is no evidence that Mr. Vogt is using drugs presently.
• The respondent’s previous mental health struggles are also of note; however, there is no evidence that she is behaving erratically or inappropriately.

[18] In the end, this is a close call but I find that it is in Bentley’s best interest that he remain in the primary care of his mother with generous access to the applicant as detailed below. In coming to this conclusion, I am well aware and, in no small degree, concerned that both parents have an unfortunate history of drug abuse. I am heartened by the applicant’s clean drug tests starting in August and encourage him to keep on that path. Bentley is counting on him to do so.

[19] When the parties separated, Bentley remained with his mother. They lived together in the matrimonial home until July when the applicant moved back in. They then left the matrimonial home and resided elsewhere. Bentley has flourished in her care. While the applicant’s evidence raises concerns related to the respondent’s past mental health and drug abuse, the evidence before me suggests strongly that she has charted a new path for a healthier lifestyle and she is mindful of her primary obligations to Bentley. She has been a steady presence for Bentley since separation.

[20] Applicant’s counsel provided a case that I decided in 2016, also in the City of Stratford: Klassen v. McKeown, 2016 ONSC 1311. In that case, I ordered that a child be returned to Stratford so as to protect and preserve the relationship between the father and a child. That case is, however, distinguishable on its facts as:

• the mother took the child to live in Bowmanville, a considerable distance from Stratford. By contrast, London is a 35-40 minute drive from Stratford which permits greater and more meaningful access;
• the mother left Stratford immediately after a fight with the father in the matrimonial home where they were residing with their daughter. There was no period of separation. Thus, the father in that case went from daily contact with his daughter to none. That is to be contrasted with this case;
• in Klassen, the father was prepared to vacate the apartment and live elsewhere to facilitate the child’s return to Stratford. In this case, the matrimonial home has been sold. There is no residence to return to; and
• the respondent in this case has been working in London for five years. In Klassen, the mother left her employment in Stratford to live in her sister’s residence with no immediate job at hand.

[21] I indicated to respondent’s counsel in oral submissions that I was deeply concerned by the respondent’s unilateral decision to move to London without forewarning to the applicant, without his consent and without a court order. My decision in this matter should not be interpreted as approval of her actions. To the contrary, the respondent’s conduct in acting unilaterally is entirely inappropriate.

[22] It is important that the access arrangements be meaningful so as to continue and nurture the bond between Bentley and his father. I note that both sides contemplated that the other would have three of four weekends. Subject to some minor modification, that strikes me as a reasonable compromise.

[23] Therefore, I find that it is in Bentley’s best interest that he continue to be in the primary care of the respondent in London subject to the following terms:

• the respondent and her boyfriend, Kevin Vogt, will abstain from any possession or use of any controlled substances or drugs except in accordance with a prescription;
• the respondent will abstain from consuming alcohol when Bentley is in her care;
• the respondent will promptly notify the applicant of any change of address or living arrangement;
• the applicant shall be entitled to access Bentley’s school, medical and dental records;
• the applicant shall be entitled to attend Bentley’s school activities and extracurricular activities and, for that purpose, the respondent shall provide a copy of Bentley’s schedule to the applicant each month;
• the respondent shall advise the applicant of the name of Bentley’s doctor and dentist;
• the respondent shall advise the applicant of any change of school for Bentley;
• in the event of a medical emergency involving Bentley, the parent in whose care Bentley is at the time of the emergency shall immediately notify the other parent via text or other agreed-upon electronic communication;
• the respondent will consult the applicant on issues concerning Bentley’s education and health-care. If the parties cannot agree, the final decision will rest with the respondent;
• the respondent will consult the applicant on issues concerning Bentley’s extra-curricular activities. If the parties cannot agree, the applicant will have final say;
• neither party will disparage the other or permit any one to disparage the other in Bentley’s presence;
• the parties shall communicate in a civil, respectful manner at all times;
• neither party will discuss adult issues with Bentley;
• both parents will encourage a positive relationship between Bentley and the other parent;
• Bentley shall be in the care of the applicant three of every four weekends from Friday at 4:30 pm to Sunday at 6 pm;
• in addition, the applicant shall have a midweek visit with Bentley on Wednesday from 4:30 pm to 7 pm in London or such other weekday as the parties may agree;
• the applicant’s weekend access shall take place at the home of the paternal grandparent pending agreement between the parties or further order of this Court;
• the weekend access will commence on Friday, October 20, 2017;
• I trust the parties can agree on the specific weekends in each four week segment, but if not, they may seek direction from the Court; and
• the parties will discuss a Christmas holiday schedule and, failing agreement, the matter will be determined by this Court upon motion by either party.

[24] For greater clarity, the arrangement which I have set out above contemplates a parallel parenting regime. This will require the parties to consult with one another and communicate with one another in Bentley’s best interests. Unilateral decision making is discouraged. I feel confident that with the above terms in place, these parents will establish lines of communication that permit them to discuss issues of importance to Bentley and to resolve those issues in a respectful and civil manner.

[25] If the parties cannot agree on costs, they may make submissions in writing not exceeding three pages within 15 days.

“Justice R. Raikes”

Justice R. Raikes

Date: October 18, 2017