COURT FILE NO.: 13-8043M
DATE: 20180516
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
R.L.
Mr. Gavin Grant, for the Applicant
Applicant
- and -
A.W.
Self-Represented
Respondent
HEARD: In Writing
REASONS FOR DECISION ON ACCESS
Conlan J.
I. Introduction
The Trial
[1] After a lengthy trial, in Reasons for Judgment reported at 2018 ONSC 1997, this Court resolved a bitter custody dispute between R.L. (the maternal grandfather of the three children aged 10, 8, and 6 years) and A.W. (the children’s biological father). Custody was granted to A.W., with whom the children had been living in Sudbury for years.
[2] It was decided that it would not be in the best interests of the children to be relocated to Toronto to live full-time with their grandfather.
[3] At paragraphs 177 and 178 of the Reasons for Judgment, this Court made some preliminary observations about continued access between R.L. and the three children but invited further submissions, in writing, on that issue.
[4] Those submissions have been received and reviewed. A.W., self-represented, did not comply with this Court’s explicit directions regarding the written submissions. In particular, no draft Order was provided by A.W. Further, some of A.W.’s submissions are improper and irrelevant, such as a complaint that the other side lied throughout the trial.
The Status Quo Regarding Access
[5] For many years now, R.L. has had access with the children. The most recent Temporary Order was made by Justice Mossip on June 29, 2017, whereby R.L. has access with the children from 6:00 p.m. on the last Friday of every month until 5:00 p.m. on the Sunday of that weekend.
The Issue
[6] The issue is what access should look like going forward. This Court’s decision must be governed by what is in the best interests of the children.
II. Analysis and Conclusion
Place of Exchanges
[7] Clause 1 of R.L.’s draft Order provides that all access exchanges shall take place at MacTier, Ontario. A.W. proposes that they occur at Britt instead.
[8] In light of past practices, and because MacTier is almost exactly mid-way between Sudbury and Toronto, I agree with R.L. All access exchanges shall take place at MacTier.
Regular Weekend Access
[9] There is no dispute between the parties that R.L. shall continue to have access with the children in accordance with the days and times stipulated in the June 29, 2017 Order of Justice Mossip (from 6:00 p.m. on the last Friday of every month until 5:00 p.m. on the Sunday of that weekend). I agree.
Summer Access
[10] Regarding summer access, R.L. proposes that he have access with the children for three periods during each summer (two weeks, two weeks, and two days). A.W. suggests some twenty days in total over two periods.
[11] Except for the extra two days, which I find to be unnecessary, I agree with R.L. The evidence at trial substantiates that the summer is an especially fun and valuable season for the children and the family of their late mother. The children deserve to enjoy some extended time with R.L. and his loved ones at the family cottage. Hence, clause 3 of R.L.’s draft Order shall prevail, which provision reads as follows:
- The Applicant shall have extended summer access as follows:
a. The first Friday at 6:00 p.m. the children are out of school for summer vacation (may include the June weekend access), or 6:00 p.m. the first Friday after school ends for summer vacation, throughout until 5:00 p.m. Sunday two weeks later.
b. The Applicant shall have a second summer access contiguous to the monthly July weekend access, commencing 5:00 p.m. the Sunday of the July weekend access, until 5:00 p.m. Sunday two weeks later.
Christmas Access
[12] The parties essentially agree on Christmas access, except that R.L. suggests that he have the children for the first half of the holiday period in 2018 (which includes Christmas day), while A.W. proposes the opposite. I agree with A.W. With the litigation now over, the children deserve to spend this Christmas with their father and his family. Clause 5 of R.L.’s draft Order, set out below, shall be amended accordingly:
- The Applicant’s Christmas Holiday access shall be the first half of the Holidays from 6:00 p.m. Friday, December 21, 2018 through to 5:00 p.m. Saturday, December 29, 2018. Holiday access shall then alternate every year thereafter, either the first-half from 6:00 p.m. Friday until 5:00 p.m. the following week Saturday, or the second-half commencing 6:00 p.m. Saturday until 5:00 p.m. the following week Sunday, with Christmas Holidays always being 16 days in total. Should a Friday pick-up exchange fall on the 24^th^ or 25^th^, that exchange will then be 6:00 p.m. December 23.
March Break Access
[13] R.L. wants to have some access with the children during March breaks, while A.W. opposes that. I agree with A.W. There shall be no access between R.L. and the children during March breaks, as that is valuable family time for those in Sudbury.
[14] A.W.’s alternative proposal is accepted by this Court – R.L. shall have six extra days throughout the year “to use as he wants”. That is in addition to all other access ordered herein. A.W. wants to limit those six extra days to ones that do not conflict with the children’s activities, but that is not workable. No such limitation shall be included in the Order.
Travel
[15] R.L. asks that he or a designated family member be permitted to travel with the children during access, including out of Canada. A.W. opposes any travel outside Canada at this time. I agree with R.L., except that included in the Order shall be a clause that R.L. be present throughout any travel with the children outside Ontario.
[16] There is absolutely no reason to think that the children will be placed at any risk by travelling with their maternal grandfather. And the benefits of travel for children, including these ones, are obvious in that they will be exposed to different people and different places, serving only to make them more mature, more culturally-sensitive, and more tolerant citizens as they grow older.
[17] Prior to any travel outside Ontario, it is the responsibility of R.L. to provide to A.W., in advance, in writing, full particulars which may include date and time of departure, date and time of arrival, all flight and/or train and/or bus and/or vessel information, all lodging information, contact and alternate contact information, and so on.
[18] Clauses 7, 8 and 9 of R.L.’s draft Order, which are set out below, shall prevail, subject to any necessary amendments in order to comply with the above:
The Applicant or designed family member shall be permitted to take the children out of the country during any access. The Applicant will provide notice and travel related details prior to travel as soon as any travel plans have been decided.
The Respondent will provide annually two notarized originals of a letter during the May weekend access pick-up exchange, authorizing the Applicant or designated family member to take the children on domestic air travel within Canada as well as out of the country during any access, along with photocopies of the children’s valid Health cards. This letter will also include authorization for the Applicant to make medically related decisions in the event of some unforeseen medical emergency while away as well as authorization to sign waivers for the children, should the Applicant be required to do so, to be able to take the children on rides and various other activities. This annual authorization letter will state it is valid for a period of no less than one year, to be renewed annually. The Respondent will complete any document requirements an airline or other organization might have as well as provide the Applicant authorization to apply for visas for the children, should a visa be required for travel.
The Respondent will provide the Applicant or designated family member the children’s valid passports during the access pick-up exchange immediately following the Respondent receiving such notice of travel plans from the Applicant. Passports are to be returned to the Respondent during the access return exchange immediately following travel.
Extra Access for Various Events
[19] R.L. has the following provision, clause 10, in his draft Order:
- The Applicant shall have additional access to take the children to time-specific events which fall on dates outside the Applicant’s past and present ordered access. These may include, but are not limited to: Monster Truck Jam, Quebec Winter Carnival, Color the Wind Kite Festival, Canadian National Exhibition Midway Rides, Albuquerque Hot Air Balloon Festival, Cirque De Soleil, The Royal Agricultural Winter Fair, Santa Claus Parade, Stars on Ice. Dates will be presented via written communication to the Respondent a minimum of three weeks prior to such time-specific event access.
[20] I do not accede to that request. First, it is an invitation for further trouble between the parties in that they will undoubtedly have great difficulty reaching any agreement. Second, it is unnecessary. R.L. may use any of his already-ordered access, which is generous, to bring the children to those types of excursions.
Who May Pick-up and Drop-off the Children at Access Exchanges
[21] Clause 11 of R.L.’s draft Order states as follows:
- The Applicant shall be permitted to have any extended family member pick up or drop off the children.
[22] That is opposed by A.W., as he argues that R.L. must be ordered to be present at all access exchanges. I agree with R.L., except that I feel comfortable with only those alternate persons whom I met and heard from at trial – R.L.’s partner, his sister, and his brother-in-law. If not R.L. himself, only one of those three alternates shall pick up or drop off the children.
Police Enforcement
[23] Finally, clause 12 of R.L.’s draft Order provides that:
- If requested by the Applicant, the Police shall immediately enforce the access terms of this Order.
[24] A.W. opposes any police enforcement. I agree with R.L. I will not repeat what I said in my Reasons for Judgment about A.W.’s history of non-compliance with Court-ordered access, but I would encourage any reviewing Court to consider those observations. In my view, police-enforcement is necessary.
Final Order
[25] R.L.’s counsel shall prepare a Final Order in accordance with both the Reasons for Judgment and these Reasons regarding access. That Order shall be presented to the Court for review and approval. It is unnecessary that A.W. approve the draft Order in advance.
Conlan J.
Released: May 16, 2018
COURT FILE NO.: 13-8043M
DATE: 20180516
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
R.L.
Applicant
- and -
A.W.
Respondent
REASONS FOR DECISION ON ACCESS
Conlan J.
Released: May 16, 2018