COURT FILE NO.: F431/17
SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT
RE: Maxwel John Lowther, applicant
AND:
Rachel Anastasia Varriano, respondent
BEFORE: MITROW J.
COUNSEL: Brenda D. Barr for the applicant Monique Rae Bennett for the respondent
HEARD: April 11, 2018
ENDORSEMENT
INTRODUCTION
1The applicant, Maxwel John Lowther (“the father”), and the respondent, Rachel Varriano (“the mother”), are the parents of Grace, born October 1, 2015 (“the child”).
2The issues that were argued on the special appointment were interim custody and interim access. Each party has brought a motion. The mother seeks interim custody of the child and an order that the father’s access continue as per the existing interim interim consent order made on December 22, 2017 (“the existing order”). The father seeks an order of interim joint custody with a parenting schedule that has the child living with each parent 50 percent of the time. The father proposes a brief transition period before this equal parenting regime takes effect.
3Pursuant to the existing order, the child is with the father alternate weekends from Friday at 5 p.m. to Sunday at 7 p.m. (until March 2, 2018, the weekend access ended Sunday at 5 p.m.). Also, the child is with the father every Tuesday from 11 a.m. to 7 p.m. and every Thursday from noon until 7 p.m.
4In the existing order, the parties agreed to a number of custody/access related issues, including the attendance of the parents at the child’s speech therapy, the child’s passport application and the requirement for the parties to sign travel consent forms. Except where indicated otherwise, the order below does not deal with those matters and the existing order continues to apply. The parties were also able to agree to child support in the existing order and the order below does not deal with interim child support.
5The parties never cohabited. The child was born as a result of the parties’ brief relationship.
6The mother is a university student, who is in the process of finishing her undergraduate program. She will start teachers college in September 2018.
7Prior to the birth of the child, the father was employed on a fulltime basis as a registered nurse. Currently, the father is enrolled on a fulltime basis in a two-year nurse practitioner program that started in September 2017. He also works part-time as a registered nurse.
8For reasons that follow, the mother shall have interim custody of the child and the father shall have interim access as set out in the order below.
9The parties agreed that this matter has been placed on the trial list for December 2018.
DISCUSSION
10By the time the motions were argued, the parties each had filed a number of affidavits that included updates given the various adjournments.
11Consequently, the motion material spans a time period from July 2017 to April 2018.
12A review of the entire evidentiary record satisfies me that there is merit regarding some of the mother’s concerns as discussed in her affidavit material.
13There has been much evidence from the mother that the child began to engage in behaviour that was concerning and alarming to the mother. This behaviour initially was observed throughout 2016; it was the mother’s evidence that the concerning behaviour was observed to occur after the child’s visits with the father, particularly as the length of the visits increased. The behaviour included the child banging her head, crying inconsolably, screaming and flailing her arms and legs in bed. At times, the mother described the child as holding onto her while “screaming shrilly.” The mother described occasions having to stay up with the child until 4 or 5 a.m. as the child would not settle.
14The mother and child reside with the mother’s parents (“the maternal grandparents”). The maternal grandmother has filed an affidavit and her observations of the child’s behaviours corroborate the mother’s evidence. The maternal grandmother also noted that the child would pull at her hair, often pulling it out, would pull at her eyelashes and would hurl her toys.
15The father agreed that he was not in a position to give evidence as to the child’s behaviour when she was home with the mother.
16Although the maternal grandmother is not an arm’s-length witness, her evidence regarding her personal observation of the child’s behaviour was stated succinctly, was restricted to facts, was child-focussed and stayed clear of opinion or conjecture or any criticism of the father. I do attach weight to this probative evidence.
17Given the child’s behaviours, in February 2017, the mother implemented a schedule where the child would visit with the father frequently but the visits would be shorter and after the child’s nap time.
18Both parties agree that these regular visits occurred seven out of nine days, from 4 p.m. to 7 p.m. (see mother’s affidavit at tab 28, paragraph 2 and father’s affidavit at tab 22, paragraph 34). Also during this period, there were some additional all day access visits.
19The father’s perception was that the mother was unduly restrictive as to his access, to the extent that in July 2017 he brought a motion, on an alleged urgent basis, that included a request for increased access. However, no motion was heard in July 2017; instead, various orders were made for exchange of affidavit material, a case conference was held and eventually the motions were adjourned to December 22, 2017.
20Based on the evidentiary record, I find that the child displayed troubling symptoms and behaviours as observed both by the mother and the maternal grandmother, whose evidence established that this behaviour had a correlation to the father’s access visits, particularly as the visits increased in duration.
21Given the nature and extent of the child’s behaviours, the mother, quite rightly I find, had reason for concern. Important, also, is that the mother told the father that she is not blaming him for the child’s conduct and that the father is not doing anything wrong: see the mother’s text message to the father, Ex. P to the mother’s affidavit sworn August 1, 2017. The evidence establishes that the child, over time during 2017, settled down and that her concerning behaviours abated substantially; this, to some extent, paved the way for the parties to agree to the interim interim consent order referred to earlier and made on December 22, 2017.
22On the issue of the child’s behaviour, I find that the father lost focus as to the child’s best interests. The father was more preoccupied with increasing his access time. Throughout his affidavit material, on numerous occasions, the father’s primary response to the evidence of the mother and the maternal grandmother, as to their observations of the child’s behaviours, was to explain that the child did not engage in those behaviours while the child was in his care. The father also points that out in his letter to the child’s family physician, Dr. McKeough (more later about that letter).
23The father’s focus should not have been on the child’s presentation while in his care but rather on trying to understand why access visits were followed by the child’s extreme behaviours in the mother’s home. This was not about ascribing fault – the mother was clear she was not blaming the father. I find the father minimized the mother’s observations and concerns regarding the child’s behaviour following access. Instead of being supportive, and working with the mother on this issue, the father took an aggressive approach and brought an urgent motion that included a claim for increased access.
24It was the mother’s evidence that she attended an appointment with Dr. McKeough on January 30, 2017 in order to discuss her concerns regarding the child’s reaction to access visits. The father was not present at this appointment. It was the mother’s evidence that she wanted to discuss her concerns without feeling “intimidated” by the father. As a consequence of this appointment, Dr. McKeough referred the child to a pediatrician for an opinion about possible Autism Spectrum Disorder.
25Although the father points out that he engaged in no conduct that would cause the mother to feel intimidated, the father’s lengthy five-page letter to Dr. McKeough offers some insight as to why the mother may have felt intimidated by the father. This letter is not restricted to a factual account of the father’s observation of the child or presenting symptoms to assist Dr. McKeough. For example, the letter refers to a “concern” that the father was not made aware of the appointment.
26In January 2017, the child was 15 months old. Since birth, the child had lived in the mother’s de facto primary care, with the father’s consent and/or acquiescence. The father’s custody rights, therefore, were suspended as provided in s. 20(4) of the Children's Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”):
20(4) Where the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other of them, the right of the other to exercise the entitlement of custody and the incidents of custody, but not the entitlement to access, is suspended until a separation agreement or order otherwise provides.
27There was no evidence of an existing order or separation agreement that displaced the statutory presumption. The mother, as the de jure custodial parent by operation of statute, was at liberty to seek medical advice regarding the child, with no obligation to give the father advance notice. The same result would have followed even without considering s. 20(4), as the mother was the de facto custodial parent. If the father had a concern about not being notified of the appointment, then this concern was not justified, particularly in light of the circumstances of this case. Interestingly, the father apparently was of the view that the obligation to notify the other parent when making a medical appointment for the child did not apply to him, as evidenced by the fact that he took the child to a walk-in clinic for a second opinion without first notifying the mother. This is discussed in more detail below.
28The father’s letter speculates that he may have been “painted” by the mother in an unfavourable light and, later, the letter refers to the father’s belief that the child’s outbursts as witnessed by the mother could be a way for the mother to “get what she wants.” The letter, read as a whole, depicts the father as someone who has a need for control and who does not take seriously the mother’s concerns about the child’s behaviours. The evidentiary record is bereft of any credible evidence supporting the father’s belief expressed to Dr. McKeough that this is about the mother getting “what she wants.”
29The affidavit material dealt extensively with the issue of whether the child should have whole milk; the mother frequently referred to the child having rashes, or a bloated tummy, which raised the mother’s concerns about the potential of a milk allergy given her understanding that these symptoms can be present when there is an allergic reaction.
30At the time that the motions were argued, although there was no medical report filed on this issue, the child had been referred to a specialist for testing and a future appointment had been set.
31I find that it was reasonable for the mother, as the child’s primary caregiver, to be concerned about a potential allergy, particularly milk; the maternal grandmother, who is a pharmacist, again provided some cogent and helpful background evidence; she deposed that all four of her children (and this includes the mother) have had allergic reactions to milk.
32The maternal grandmother had done significant research on her own to educate herself on this issue while raising her own children; she was aware of the symptoms and it was the maternal grandmother’s observation that the child was displaying symptoms similar to those of the mother and her siblings. The maternal grandmother also raised a concern about the child’s potential increased risk of an allergic reaction given the family history on the maternal side.
33There is no dispute as to the father’s position on this issue. He does not believe that the child “suffers from food insensitivities” (see, for example, paragraph 28 of his affidavit sworn August 10, 2017). In his letter to Dr. McKeough, the father states that he “has not been able to appreciate any signs of milk intolerance” when feeding the child milk.
34On March 16, 2017, the mother took the child to see Dr. McKeough because the child’s rash was not resolving. The mother deposed that Dr. McKeough suggested to hold any dairy products to see if the child’s rash cleared up. According to the mother, she told the father the following day, when he arrived at her residence to pick up the child, about Dr. McKeough’s recommendations; the mother deposes that the father reacted angrily and aggressively, that he banged on her door and yelled “you’re sick.”
35For his part, the father denies acting aggressively towards the mother as alleged during that occurrence (see the father’s affidavit sworn August 10, 2017 at paragraph 34). However, during his oral questioning, the father did admit telling the mother that she was sick.
36The father then took the child to a walk-in clinic for a second opinion regarding the child’s rash and the issue whether the child should or should not consume milk. The father deposes that he spoke to Dr. Li, “a pediatric specialist,” who told the father that the child’s rash “was likely not” related to the milk “but could be caused by excessive drooling related to teething” [my emphasis]. If this statement attributed to the doctor is accurate, it certainly is not a diagnosis excluding milk allergy.
37It is noteworthy that the mother deposed that her practice was to make notes in a journal relating to the child, including which foods the child has eaten, any symptoms and what transpired during access exchanges. Copies of the mother’s journals from February 28, 2017 to June 22, 2017 were included in her affidavit material.
38The father continues to feed the child milk when she is with him; he confirmed this during his oral questioning and he has given that evidence in his affidavit material. The mother had requested that the father follow dietary restrictions with the child, as set by the mother, but in a letter from his counsel dated December 15, 2017, the father takes the position that he will not agree to this request as there is no reason in doing so.
39While no medical reports were filed from Dr. McKeough for the March 16, 2017 appointment or from Dr. Li, even assuming that both parties have accurately reported what they were told by those doctors, I find the father’s position to be somewhat troubling.
40The issue is that the child was presenting with symptoms, including a rash; there is no credible evidence that calls into question the child’s symptoms as reported by the mother and maternal grandmother; no medical specialist as yet had conducted tests and opined on whether the child had a milk allergy. There can be no criticism of the mother, who was the de jure statutory or, alternatively, de facto custodial parent, taking the child to see Dr. McKeough. This was not a contest between the parents as to whether the child had milk allergy symptoms, or actually had a milk allergy. The father’s approach is suggestive more of an attitude that his assessment as to the child having no food allergies must prevail, an attitude I find that is indicative of the father’s need for control and is not focussed on the child’s best interests. The mother was searching for answers in child-focussed ways to determine whether the child had a milk allergy – while the father already had determined that issue.
41Further, the father’s attitude towards the mother on this issue demonstrated some measure of disrespect and minimization of her role as the child’s primary caregiver and this includes the father’s ill-advised comment that she was “sick.” I find there is credible evidence to explain why the mother may have felt intimidated by the father, irrespective of whether the father intended her to feel that way.
42The father’s material includes his strong belief about the importance of milk in the child’s diet. However, Dr. Gloor (the pediatrician who found that the child did not have symptoms of autism) saw the child and both parents, with the parents being interviewed separately, on September 12, 2017. The medical report discusses briefly that two to three cups of homo milk are recommended while a child is under age 2 and that if the child is not drinking milk, then the child would require vitamin D supplements and other foods for a source of calcium.
43Dr. Gloor was not consulted to provide an opinion as to whether the child has a milk allergy, but the report does indicate an alternative to the child’s diet during any periods of time that no milk is being taken. There was no medical or other credible evidence presented by the father to justify his insistence on continuing to feed milk to the child in light of the concerns being raised by the mother. Further, the father’s evidence included his belief that milk intake was important for the child’s speech-language development; however, Dr. Gloor noted that there was no relation between speech and milk intake.
44I find that the mother’s evidence as to the child’s symptoms, and how long they persisted, to be more reliable than the father’s evidence.
45According to the medical report, the father told Dr. Gloor that at 16 months he started to give the child whole milk, that the child developed a rash and that he continues to give the child whole milk and that the rash has resolved. The father also gave evidence during his oral questioning that the child’s rash resolved after two months.
46However, the mother, in her affidavit sworn December 7, 2017, deposes that the child has continued to have issues with a bloated tummy and rash on and off throughout 2017 and also the previous year. In relation to the child’s rash, the mother includes copies of photographs covering the period between early March 2017 and close to mid-October 2017 that show rashes in varying degrees.
47Also, during oral questioning, the father’s evidence was that it was “a long time ago” since he has seen the child with a distended tummy. However, the mother’s evidence included copies of photographs from February 2017 to October 2017 showing the child having a distended or bloated tummy.
48The evidence satisfies me that the child continued to exhibit symptoms that included rashes and a distended or bloated tummy, contrary to the father’s evidence and statement to Dr. Gloor.
DISPOSITION
A. Jurisprudence
49The father in his submissions relies heavily on the “maximum contact principle” in support of his position that the interim parenting schedule should, after a brief transition, result in the child spending equal time with each parent.
50This case is to be decided pursuant to the CLRA; in determining best interests, the court is required to consider the factors in s. 24(2).
51Although the maximum contact principle is founded on s. 16(10) of the Divorce Act1, R.S.C. 1985, c. 3 (2nd Supp.) c.3 [as am. by S.C. 1997, c.1], the father relies on various authorities and submits that the maximum contact principle should be applied in cases under the CLRA: see, for example, Borsfai v. Hyde, 2015 ONCJ 117 (Ont. C.J.), at paras. 138-139; Hatcher v. Golding, 2017 ONSC 785 (Ont. S.C.J.), at para. 153; and Whidden v. Ellwood, 2016 ONSC 6938 (Ont. S.C.J.), at paras. 148-152.
52Many of the cases cited by the father are trial decisions; accordingly, there was an element of permanency arising from a final order that the trial judges had to consider in those cases.
53The father placed an emphasis in his submissions on Warcop v. Warcop, 2009 ONSC 6423, 2009 O.J. No. 638 (Ont. S.C.J.), a case which involved a child of similar age to the child in the case at bar. In Warcop, the trial judge accepted the principle that there is no presumption that a child should be in the care and control of each parent 50 percent of the time (para. 114). The father cites Warcop because the trial judge found it was in the child’s best interests to spend equal time with each parent. The father relies on para. 118 in Warcop in submitting that a parenting arrangement that results in less than equal time with each parent would send a message to a child that one parent is less valuable than the other.
54It is important to set out precisely what the trial judge stated at para. 118:
118 I also think that a permanent arrangement that results in one parent caring for Luke less than 50 percent of the time will mean that the message to Luke is that one parent is less valuable than the other. Such a message would be unfortunate, and in my view, unnecessary. It is not in Luke's best interests. [my emphasis]
55Firstly, the discussion as to a child receiving a message that one parent is “less valuable” than the other was in the context of a “permanent arrangement” as part of a final order; secondly, children potentially viewing a parent as less valuable than the other if that parent’s time is less than 50 percent was not a general statement of principle, but rather was a finding made with reference specifically to the child in that case and in the context of the specific facts of that case.
56It is trite that orders in custody and access cases, whether interim or final, depend heavily on their facts. For that reason, an order of equal parenting time in one case may not have precedential value for another case. For example, in Warcop, equal parenting time was ordered; however, in B.V. v. P.V., 2012 ONCA 262, the Court of Appeal for Ontario set aside a trial judge’s decision as to access on the basis that the amount of access ordered was minimal access and was not in accordance with the maximum contact principle in the Divorce Act and, in that case, the Court of Appeal for Ontario ordered that the parenting time should be 35 percent for the access parent and 65 percent for the primary caregiving parent.
57In considering the parenting time that meets the child’s best interests, I do take into account the principle of maximum contact. The preamble to s. 24(2) of the CLRA states: “The court shall consider all the child’s needs and circumstances, including …” [my emphasis].
58Given the preamble, the factors listed in s. 24(2) are not exhaustive and the maximum contact principle can be considered in determining what is in a child’s best interests.
B. Interim Custody
59I have considered whether this is an appropriate case, on an interim basis, to refrain from ordering “interim custody” or “interim access” and whether instead to order that each parent have “interim care and control” of the child while the child is in that parent’s care.
60Given the concerns discussed earlier, I find that it is in the child’s best interests for the mother to have interim custody of the child until trial. This will best promote, for the child, an orderly approach to dealing with her health care and, in particular, dealing with any issues regarding food allergies, including any appropriate dietary restrictions that may be necessary or advisable.
61Until trial, this order is one that will best avoid confrontations, including potential gridlock, between the parents in relation to making necessary decisions affecting the child’s health care. The order below, on an interim basis, gives the mother full control over the child’s medical care and diet.
62Although no order is being made to this effect, the parents are encouraged to retain the services of a child psychologist or a child therapist to be “on call” to assist the parents in resolving any child-related issues that may arise until trial.
C. Interim Access
63Although the parents have had some disagreements, I find also that the parents should be commended for working together and cooperating with each other at other times to promote the best interests of the child. During oral questioning, each parent agreed that the other was a good parent.
64Although the parents never cohabited, they have been able to act responsibly in furthering their relationship to be able to parent the child, including introducing each parent to the other parent’s extended family. For example, the father became involved as a support during the pre-natal period and the mother had taken the child on various occasions to visit with the father and/or the paternal family in Chatham.
65The father at no time wavered in his desire to be a fully involved parent; he relocated in London to ensure that he would be available for the child.
66The evidentiary record satisfies me that the father is fully engaged in all aspects of the child’s life and that his visits with the child include many child-focussed activities.
67There was cooperation between both parents in attending some medical appointments together, although there is some disagreement between the parents as to what was stated by the physician.
68The father at one point did suggest mediation to assist the parties; it is unfortunate that this mediation did not occur. I agree with the father and I find that the mother procrastinated somewhat by failing to agree to a timely mediation date.
69It was not until the existing order that the father was given overnight access, which occurred early January 2018. There was a lengthy period since February 2017 when the access visits were kept short. I am of the view that some overnight visits could have, and should have, occurred earlier.
70It was unfortunate that the parties were unable to marshal some of their resources away from litigation and put those resources instead towards jointly retaining an expert child therapist, who could have provided some ongoing assistance to the parties in working towards a child-focussed parenting schedule.
71The father’s time with the child must reflect the difficulties that the child has had in transitions from the father’s home to the mother’s home. The parenting schedules suggested by the parents do not meet the child’s best interests. The mother’s position that the current order should remain until trial is unduly restrictive; the father’s position that the parties quickly transition to equal parenting time is too aggressive and ignores the transition issues that the child has had.
72There is recent evidence from the mother that, since the existing order, the child has difficulty adjusting to new sleep and eating patterns. The mother deposes that the issues relating to the child’s bloated tummy have not resolved, although the frequency of these occurrences since the existing order has not been stated. The father deposes in his last affidavit that the child occasionally has a small amount of bloating; otherwise, the father reports no issues since the previous order.
73The father’s evidence, which I accept, is that he has flexibility with his employer and that his parenting plan was premised on the basis that he would not be working when the child is in his care.
74In fixing the parenting schedule set out in the order below, the father’s draft proposed order, Ex. #1, was used where appropriate including adding additional overnights.
COSTS
75Based on the affidavit material and the submissions made when the motions were argued, it would appear that this could be a case of divided success.
76The parties are encouraged to settle the issue of costs. However, if that issue cannot be resolved, then the order below provides for written costs submissions.
ORDER
77I make the following interim order:
The mother shall have interim custody of the child pursuant to the Children's Law Reform Act.
Without limiting the generality of paragraph 1, the mother shall have the sole responsibility for medical needs of the child and shall be the party to decide medical issues regarding the child’s medical care.
The father shall follow all dietary restrictions for the child that have been set out in writing by the mother.
The father shall comply with any written request from the mother to provide to the mother a list of foods that the father has given the child, for such duration and at such frequency as specified in the written notice; if the mother makes such a request, then the mother shall provide to the father a list of foods that she has given to the child for the same duration and frequency.
The mother shall give the father reasonable written notice of all medical appointments for the child. The mother may, if she chooses, elect to attend the medical appointments alone with the child and the mother shall so advise the father in writing; otherwise the father also may attend the appointments.
On presentation of a copy of this order, both parties may make inquiries and shall be given information by the child’s doctors, dentists, healthcare providers, counsellors or others involved with the child. Each party shall execute an authorization and direction, if so required, to allow the other party access to this information.
Nothing in this order prevents the father from contacting the child’s physician and requesting an appointment with that physician to discuss any aspect of the child’s healthcare. If the father elects to do so, then he shall give the mother reasonable written notice of same and, if the father provides any written material to the physician, then the father shall provide a copy of the written material to the mother. Unless the father consents, in writing, the mother shall not attend the appointment.
My interim interim consent order dated December 22, 2017 shall continue except for the following paragraphs which are vacated: paragraphs 2, 11, 12, 13 and 14. If there is any conflict between the order dated December 22, 2017 and this order, then this order prevails.
The father shall have interim access as follows:
a) for the next four weeks according to the following schedule:
Week 1 – Tuesday 8:30 a.m. to Wednesday 8:30 a.m. and Friday 5 p.m. to Sunday 7 p.m.;
Week 2 – Tuesday 11 a.m. to 7 p.m. and Thursday noon to 7 p.m.;
b) for the next following eight weeks:
Week 1 – Tuesday 8:30 a.m. to Wednesday 8:30 a.m. and Friday 8:30 a.m. to Sunday 7 p.m.;
Week 2 – Tuesday 8:30 a.m. to Wednesday 8:30 a.m. and Thursday noon to 7 p.m.;
c) thereafter until trial as follows:
Week 1 – Monday 8:30 a.m. to Wednesday 8:30 a.m. and Friday 8:30 a.m. to Sunday 7 p.m.;
Week 2 – Tuesday 8:30 a.m. to Wednesday 8:30 a.m. and Thursday noon to 7 p.m.;
The father shall have such additional interim access as may be agreed to by the parties.
The parties shall cooperate in agreeing to variations to the access schedule in order to accommodate any changes in either party’s plans, or to make arrangements for special occasions, including statutory holidays.
Notwithstanding the interim access schedule, the following shall apply:
a) if, on the Mother’s Day weekend, the child is scheduled to be with the father, then the father’s weekend shall end at 10 a.m. on Sunday and the child shall be with the mother for the balance of the weekend;
b) if, on the Father’s Day weekend, the child is scheduled to be with the mother, then the child shall be with the father that weekend from 10 a.m. until 7 p.m. on Sunday.
If any further motion is brought in relation to custody or access, I am not seized, but if I am available to hear the motion, then the trial coordinator shall place the motion before me if requested by both parties.
If the parties are unable to agree on costs, then written costs submissions may be made by the parties and shall be forwarded to the trial coordinator; the father’s submissions shall be forwarded within 14 days, the mother’s submissions within 14 days thereafter, and the father’s reply submissions, if any, within 7 days thereafter. All submissions are limited to two typed pages, double-spaced, plus copies of any bills of costs, time dockets, authorities and offers.
“Justice Victor Mitrow”
Justice Victor Mitrow
Date: May 8, 2018
Footnotes
- S. 16(10) of the Divorce Act is as follows: In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.