WELLAND COURT FILE NO.: F32/15
DATE: 2018-05-30
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Martin Derek Lundy
Jolanta B. Bula for the Applicant
Applicant
- and -
Sara Alexandria Taylor
Dean J. D. Moldenhauer for the Respondent
Respondent
HEARD in ST. CATHARINES: March 26,27,28, April 3,4,5, 2018
REASONS FOR JUDGMENT
M. J. Donohue, J.
Overview
[1] Ms. Taylor, mother, brings this motion to change the order of Scott J. of August 29, 2012.
[2] That order provided for sole custody to mother of their daughter “Z”, now age 13, and joint custody of their daughter “C” now age 11. Primary residence for both girls has been with mother. Access has been three weekends a month, Friday to Monday morning, and Wednesday overnights as well as four weeks in the summer and shared holidays. No child support was paid as the children were with their father more than 40 percent of the time.
[3] Ms. Taylor’s motion to change, brought in April 2015, asked for sole custody of both daughters, a reduction in access and payment of support.
[4] In March 2016, the report from the Office of the Children’s Lawyer (“OCL”) recommended sole custody and primary residence to be switched to the father, Mr. Lundy.
[5] Mr. Lundy then amended his answer to claim sole custody with limited access for mother to two weekday evenings and one weekend per month.
[6] Various other minor variations were sought on the access terms.
Background
[7] The parties married in 2005 and had two daughters. The eldest, “Z”, was not Mr. Lundy’s biological child but there is no dispute that he has always stood in the place of a parent to her. The younger daughter, “C”, is his biological daughter.
[8] After their 2009 separation, Ms. Taylor began to participate in what she described as “Pagan” celebrations, several times a year. After separation, Mr. Lundy attended a variety of Christian churches but ultimately became a member of the Mormon church.
[9] Both parties have remarried. Ms. Taylor married Dan Taylor. They have her 19-year-old son from a prior relationship living with them and the girls. Mr. Lundy married Naomi Lundy. Naomi has two daughters and a young son from her prior marriage and they reside primarily with her. Her two daughters are similar ages to “Z” and “C” and share bedrooms.
[10] Due to various health difficulties, Ms. Taylor is not employed outside the home and has been a stay-at-home mother for her children. Due to epilepsy, she does not drive. Ms. Lundy is fully employed but has flexibility to work at home.
[11] Ms. Taylor brought her application to change because she felt Mr. Lundy was not honouring her sole custodial rights over “Z” and was involving “Z” in the Mormon church activities over Ms. Taylor’s objections. She felt that he was not respecting personal boundaries and was distressing the girls, such that Family and Children’s Services (“FACS”) had to be involved. As well, she felt he was not honouring the treatment of the girls’ issues of lactose intolerance. Further, there were arguments over access time.
Law on Motions to Change
[12] Section 17 of the Divorce Act grants the court authority to vary an order. In this case s. 17(5) and (9) are the relevant provisions:
(5) FACTORS FOR CUSTODY ORDER—Before the court makes a variation order in respect of 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 of the child as determined by reference to that change.
(9) MAXIMUM CONTACT—In making a variation order varying a custody order, the court shall give effect to the principle that a child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child and, for that purpose, where the variation order would grant custody of the child to a person who does not currently have custody, the court shall take into consideration the willingness of that person to facilitate such contact.
[13] The Supreme Court of Canada stated in Gordon v Goertz 1996 191 (SCC), [1996] 2 S.C.R. 27, paragraphs 9 and 11, that for an order to be varied there was to be shown a material change in the situation of the child. If so, the court must make an order that best reflects the interests of the child in the new circumstances.
The requirement of a material change in the situation of the child means that an application to vary custody cannot serve as an indirect route of appeal from the original custody order. The court cannot retry the case, substituting its discretion for that of the original judge; it must assume the correctness of the decision and consider only the change in circumstances since the order was issued… [Para. 11].
Should Primary Residence be Changed?
[14] For the past six years, primary residence for the two daughters has been with their mother, Ms. Taylor, with generous access, over 40 percent, with their father, Mr. Lundy. Mr. Lundy seeks to change the 2012 order to have primary residence be with him.
[15] Mr. Lundy relies on the opinion of the OCL, Ms. Hotson, of March 24, 2016 for this request. Ms. Hotson made her recommendations largely for two reasons. Firstly, she concluded that Ms. Taylor was coaching the girls to give certain answers and was encouraging them to make false allegations of abuse against their father. She concluded that Ms. Taylor was trying to distance the children from their father.
[16] Secondly, Ms. Hotson was concerned about the cleanliness of the home and the children. The interviews were conducted in Ms. Taylor’s family room where there was an “overpowering” smell of urine, the floors were dirty and strewn with clothing. As well, the children were being treated for lice.
Allegations of Abuse
[17] In the interview with “Z”, Ms. Hotson formed the opinion that the child had been coached as to what to say. “Z” said she did not want to live with her father, did not want to go to church, he yells, and, her father had touched her chest and inner thigh. Ms. Hotson suspended her investigation while the allegation of inappropriate touching was investigated by FACS and the police. It was found to be not verified.
[18] In the follow-up interview with “Z”, the child admitted to Ms. Hotson that her mother influenced her, or “coached” her. She said if she gave examples then her mother would be upset, say she has “ruined it all” and she might not get to live with her mother. “Z” stated she could “never choose between her mother and Mr. Lundy and can’t live without either one of them.”
[19] Ms. Hotson was further concerned by discussions she had with FACS that Ms. Taylor had made allegations of sexual and physical abuse of the children by Mr. Lundy in the past. Ms. Hotson concluded that there was “clear documentation that FACS has had no concerns regarding Mr. Lundy in relation to sexual or physical abuse towards the children.”
[20] While the inappropriate touching allegation in late 2015 was being investigated, there was a cessation of access for one month until it was concluded to be “not verified.” Ms. Taylor then delayed the resumption of access by another month. Ms. Hotson mistakenly stated it took two months to resume.
[21] This information formed the basis for the OCL to recommend the dramatic switch of custody and residence from mother to father.
Analysis of Abuse Allegations
[22] It is now two years after this report recommended the reversal of custody and residence. Such a change no longer appears to be appropriate. The court had the ability to review all the FACS reports since 2012 and give further context to the dynamics in this family.
[23] It is significant that although FACS was concerned that Ms. Taylor was practicing alienating behaviours in May 2012, Ms. Taylor still consented to the August 29, 2012 order which provided for extremely generous access with the girls’ father. That access has been maintained over the last six years.
[24] It is also significant that a number of Ms. Taylor’s complaints of abuse to FACS were of incidents which are borne out as legitimate in the FACS records, the medical records and Mr. Lundy’s testimony.
• Mr. Lundy twisted “C”’s arm in the car attempting to move her position;
• he yanked “C”’s hand in an argument over snow pants;
• he kissed and hugged “Z”’ at skating lessons despite her requests that he stop;
• he climbed into “Z”’s bed while she was asleep and she awoke and was distressed by finding him there;
• there was concerns investigated of him undressing and the girls undressing with him at the YMCA swimming lessons;
• there were a number of records by FACS discussing Mr. Lundy’s yelling which distressed the girls.
[25] Ms. Hotson did not have this history which could well have softened her view of Ms. Taylor’s possible coaching of allegations in late 2015.
[26] Ms. Hotson was also unaware that the resumption in access was delayed by Ms. Taylor due to “Z”’s distress at the time and threats to self-harm. It is noteworthy that there is no evidence of access being denied in the last two years.
[27] In this acrimonious parenting relationship, the evidence points to more alienating behaviours by Mr. Lundy than of Ms. Taylor, as outlined below.
[28] The evidence on the whole, since 2012, does not support that Ms. Taylor was seeking to disrupt and alienate the daughters from a relationship with the father. It does not support a change in primary residence.
Cleanliness of the Home
[29] Ms. Taylor acknowledged that the home was not clean at the time the OCL was doing the report. She explained that she had had surgery in late 2015 and a second surgery in January 2016 requiring bed rest.
[30] Ms. Hotson, although aware that Ms. Taylor was having issues with mobility and had just had surgery before each interview, did not mention this in her report. Ms. Hotson also referred to incidents in police reports before 2012 when the home was found to be unclean to draw her conclusions that the problem was chronic.
[31] Following the disclosure report, Ms. Taylor took immediate steps to have the urine soaked carpet ripped up and the house properly cleaned. Recent photos of every room show a home in good repair and tidily kept.
[32] Reviewing all the records, it appears that the poor state of the home for was for a brief time only and it has not persisted to the present. The FACS records are replete with home visits confirming that the children are clean. There is no mention of disrepair. In the FACS records since 2012, there was never a complaint by Mr. or Ms. Lundy that the girls were not kept clean by their mother. In their trial testimony, Mr. and Ms. Lundy testified that although there was a time that the girls had an odour to them, it did not continue.
[33] The evidence from 2012 to date therefore does not support this reason for suggesting a change in residence from mother’s to father’s home.
Changing Schools
[34] Although both families live in Niagara Falls, they reside in different catchment areas.
[35] Ms. Hotson admitted that she did not turn her mind to the fact that a change in primary residence would necessitate a change in school.
[36] The school records demonstrate that although there had been a number of lates and absences earlier, at a time when the girls were dealing with problems of lactose intolerance, the last two years have shown consistent attendance. The records show that both girls are doing well at their current school.
[37] The evidence that they have attended and thrived at this school for over five years supports keeping the status quo for primary residence with mother.
Views and Preferences of the Child
[38] In 2016, both girls told Ms. Hotson that they did not want to live with their father. Mr. and Ms. Lundy testified in 2018 that they talked to the girls, who expressed their willingness to change schools and live with their father.
[39] The evidence in this case shows that the daughters are frequently influenced by each set of parents. Their views and preferences are acknowledged, however the court looks at what is in their best interests and whether there has been a material change supporting the variation.
Conclusion on Primary Residence
[40] As the concerns of the OCL regarding alienation by mother and the poor cleanliness of the mother’s home have not been evident for over two years, the circumstances do not support changing the children’s primary residence and school from the original order of August 29, 2012.
Should Custody be Changed?
[41] The order of August 29, 2012 provided for Ms. Taylor’s sole custody of “Z” and Ms. Taylor and Mr. Lundy to share custody of “C”.
Should Father have Sole Custody of Both Children?
[42] The recommendation of the OCL, some two years ago, was to have Mr. Lundy be the sole custodial parent. For the reasons set out above, I am not satisfied that the basis for that recommendation was solid. With the passage of time, the concerns of the OCL have been addressed.
[43] The court is also concerned with the extent to which the OCL was influenced by Mr. Lundy advising that Ms. Taylor had mental health issues and depression. Mr. Lundy told the OCL that it was these issues that caused him to seek sole custody.
[44] Ms. Taylor was not questioned on her mental health by the OCL for her report, nor in court by Mr. Lundy’s counsel. The OCL did not investigate any medical records regarding Ms. Taylor’s mental health and none were filed at trial.
[45] There is, therefore, no evidence or information before the OCL or this court apart from Mr. Lundy’s bald statements that Ms. Taylor has mental health issues which would affect her custodial decision-making.
[46] At trial, Mr. Lundy was asked about Ms. Taylor’s poor custodial decisions. His examples were not very significant or concerning. He testified that she sent the girls to school without proper clothing; for example, without a jacket. He testified that “Z”’s chiropractic and dental needs were not being met. However, the court was not given any detail of what those needs were; no chiropractic or dental records were filed; and Ms. Taylor was not cross-examined on this allegation. There is no mention or complaint in any of the FACS records of Ms. Taylor not meeting the girls’ medical/dental needs.
[47] The driving concern regarding “Z” between the two parents has been Mr. Lundy’s involvement of “Z” in the activities of the Mormon church, against Ms. Taylor’s expressed wishes.
[48] Apart from the issue regarding religion, Mr. Lundy did not provide any evidence of poor decision-making on the part of Ms. Taylor.
[49] In contrast, there is evidence, particularly in the FACS records, of some of Mr. Lundy’s poor decision-making and a failure to put the children’s needs first:
• Mr. Lundy resisted the dietary requirements and medication prescribed for lactose intolerance for over a year;
• he resisted input about personal space and “boundaries” recommended by FACS;
• there were complaints of his yelling behaviour in the home that distressed the children;
• there was evidence of his manhandling the girls;
• he left the girls (under the age of 10) unsupervised at the YMCA and failed to acknowledge this was an error even when confronted with the YMCA’s written policy.
[50] When sole custody is considered, courts look to whether the custodial parent will support and foster the children’s relationship with the non-custodial parent. In this case. there is evidence of alienating behaviour by Mr. Lundy that suggests he would not support his daughters’ relationship with their mother.
• although the order provided for him to have four weeks of summer vacation with the girls, he resisted their mother having them for a one or two-week vacation as he would not allow disruption of his access schedule;
• Mr. Lundy acknowledged that he did not allow contact between the girls and their mother during his access time; the children were not “allowed” to phone or message her;
• he practiced name-calling of Ms. Taylor and her husband in front of the children;
• as noted above, he cast aspersions on Ms. Taylor’s mental health to the OCL;
• he told the children not to call Mr. Taylor “daddy”;
• he insisted that Ms. Taylor share the Mother’s Day weekend with Ms. Lundy and would not share the Father’s Day weekend with Mr. Taylor.
• he changed the girls’ dentist without any discussion with Ms. Taylor;
• he told Ms. Taylor not to attend the girls’ extracurricular activities;
• he refused Ms. Taylor’s specified access on March 21, 2018 despite the date being part of her faith practices;
• he arranged a mental health assessment of “Z” with a psychiatrist without informing Ms. Taylor;
• he refused to adjust access times for “C”’s birthday when Ms. Taylor was able to get special tickets for “C” to see her favourite show in Toronto, and further, he used this request telling Ms. Taylor to contact her lawyer about resolving the schedule “on a complete basis.”
• he improperly involved these children in the litigation, discussing with them a change in residence and schools.
[51] In contrast, Ms. Taylor has maintained the generous access. She allows the children to freely call or message the Lundy home while in her care. There is no evidence of her denigrating the Lundy parents, or name-calling of the Lundy parents in front of the children. There is no evidence of yelling in her home or problems with boundaries.
[52] On this evidence, there is no basis to change the order to remove Ms. Taylor from making custodial decisions for the children.
[53] The court must however deal with the issue of Ms. Taylor’s objection to “Z”’s involvement in the church.
Decision-Making Involving Religion
[54] Ms. Taylor attended a Christian church as a child and married Mr. Lundy in a Christian ceremony, at church. Both children were christened in the church.
[55] Ms. Taylor testified that she did not “connect” with the Christian faith. As an adult, she discovered a group that celebrates the solstices and she began to participate in these festivals. The dates of these festivals were specified in the August 29, 2012 order to provide that the children would be with her for those celebrations. The order provided that the children would be with their father for the traditional Christian celebrations of Easter, Thanksgiving and Christmas.
[56] Ms. Taylor described “Z”’s biological father as half Native but not involved in her life. Ms. Taylor is not Native herself, but Mr. Taylor is, and she wishes her daughter to learn of the Native traditions.
[57] Ms. Taylor testified that she did not want “Z” attending the Mormon church. She gave no evidence that the two faith practices were incompatible. She gave no details of what her objection was to anything which was occurring at the Mormon church other than one incident.
[58] In 2014, “Z” attended a church event in New York State where a song and dance was done which “Z” understood to mean they were saying Native peoples were evil. “Z” was upset by this. This is the only example which Ms. Taylor gave of a problem with the church.
[59] FACS later investigated an incident where “Z” alleged that Ms. Lundy threw a pitchfork at her and said she was evil. It was later determined that Ms. Lundy threw a plastic skating-costume pitchfork, describing it as a symbol of evil. Ms. Taylor agreed under cross-examination that this incident was blown out of proportion.
[60] Since 2014 Ms. Taylor has requested Mr. Lundy not to take “Z” to church, that he not send “Z” to church camp, and not have “Z” participate in the Wednesday church group for girls.
[61] When the OCL interviewed “Z” in early 2016, “Z” said she did not believe in God and did not want to go to church. However, she also stated that she loves the activities she does with the Lundy’s, “better than just sitting at her mother’s home.”
[62] The only extracurricular activities that the children have been involved in have been through the Lundy household. These have included swimming, piano, Highland dancing and skating, as well as the church programs.
[63] At present, the only extracurricular activities involve the church. The two girls participate with their half siblings, the two Lundy girls, close in age to each of them.
[64] Every Wednesday night they go to a church youth group that involves cooking, crafts, sports and skills. The summer camps involve activities and sports. On Sundays, three weekends a month, the Lundy family attend church services followed by Sunday school for all the children and then an hour of kids’ activities.
[65] Church is clearly a big part of the girls’ lives and in coordination with their half-siblings, the Lundy girls, with whom they are close. Ms. Lundy testified that the girls are considering joining the church.
[66] Ms. Taylor acknowledged in her testimony that “Z” enjoys the church activities and camp.
[67] Her objection remains that she says “Z” does not believe in God and as sole custodial parent of “Z”, she decides that Mr. Lundy is not to involve “Z” in the church.
[68] Ms. Taylor could not state any harm or risk to “Z” being involved in the church. She told the OCL in 2016 that she wanted the “children to be able to decide their religion on their own.” She testified that she has “no problem with the girls learning about different religions.” Although Ms. Taylor would prefer that “C” not attend, she had no objection to “C” being involved with the church.
[69] While she is teaching her daughters about her faith practices involving Pow Wows and drum-downs, it appears she objects to Mr. Lundy teaching “Z” about his faith practices.
[70] Of note, the OCL recommended that both children attend the religious services of both parents until they are age 15 and can then decide their own religious beliefs.
[71] Mr. Lundy’s position was to relate the church activities to the court order on extracurricular activities, paragraph 9, which provided that “consent” of the other parent was not required if there was no impact upon time with the other parent nor contribution to expense being sought.
[72] The evidence supports that at one time “Z” experienced discomfort and possibly racism at a church event but it has not continued. The evidence supports that the church activities are a major part of both “Z” and “C”’s lives and the life they live with their half siblings.
Law on Custody and Religion
[73] Section 16(8) of the Divorce Act states; “In making an order under this section, the court shall take into consideration only the best interests of the child of marriage as determined by reference to the condition, means, needs and other circumstances of the child.
[74] Where religious practices of the parents was a concern of custody decisions, the law was carefully reviewed by Justice McGee in Rosenberg v Minster, 2011 ONSC 4758. At paragraphs 10,11, 12 and 17 and 18 she stated as follows:
[10] It is well settled law that where limitation of access is in issue, the only question to be considered is what is in the best interests of the child. It is not for courts to choose between the religious practices of parents: H.(B) v Z.(S.), 2000 26912 (ON CJ), 2000 CarswellOnt 4641 (Ont. C.J.).
[11] The best interests of a child usually means that a child’s relationship with the other parent is more important than exclusive conformity with the religious practices of one parent. H.(B.) v. Z. (S.) supra citing Young v. Young (1993) 49 R.F.L. (3rd) (S.C.C.) At page 120 of Young v. Young , the court held that
The custodial parent does not have the right to determine whether limits should be placed on access. His or her obligation to make basic child-rearing decisions does not mean that an access parent of a different faith should not share his or her religion with a child.
[12] More specifically, Sopinka J states at page 122
The best interests test should be interpreted as permitting the right to freedom of religious expression to be overridden only if its application leads to consequences that are more significant than inconvenience, upset, or disruption to the child and, to a lesser extent, the custodial parent. The child has the right to have a meaningful relationship with both parents. Consequently, each parent should be allowed to involve the child in the different aspects of his or her everyday life. Parental rights should be shared following marriage breakdown and the traditional notion of the custodial parent having full control over the child is no longer appropriate. The best interests of the child test is, in general, to be applied. When it is used to restrict religious expression, however, risk of substantial harm is not only an important factor, but must be shown.
[17] Section 6(4) of the late Professor McLeod's signature publication, Child Custody Law and Practice is a compelling summary of the fundamental principal of religious tolerance within Canadian Law. This principal has been compellingly articulated throughout every line of the Court's work. Within family law, the principal is soundly settled: the court will only encroach upon the personal domain of religious freedom, if the failure to do so is shown to place a child at substantial risk of harm.
[18] “Absent such harm, a noncustodial parent ought to be able to exercise unfettered access to the children,” paragraph 23: Fruitman v. Fruitman 1998 CarswellOnt 1941 and at paragraph 24, “[T]he burden is upon the party who asserts that “harm” is occurring or likely to occur on the balance of probabilities. I am of the view that a court ought to exercise great care and diligence before determining that “harm” has or is likely to occur by reason of the exercise of access. Domestic, custody and access trials are normally acrimonious and the parties often take extreme positions.”
Analysis of Custody and Religion
[75] In this trial, there is no evidence that “Z”’s involvement in the church will place her at any risk or harm. Rather the evidence is that it has been for her benefit and enjoyment.
[76] Each parent has sought to extend their faith practices to their daughters. There is no evidence that the two faith practices are incompatible. It appears that the girls will benefit from the teachings of both.
[77] For the sake of clarity and the best interests of the children, the order of August 29, 2012 is amended therefore to specifically state that each parent may make decisions involving religion practices for the children while in their care.
Should Custody of “C” be Changed from Joint to Sole?
[78] For the reasons set out above, the court does not accept the recommendation of the OCL to grant Mr. Lundy sole custody of either daughter.
[79] There was very little evidence to support that joint custody of “C” was workable. Both parties sought the court to order sole custody on the basis that there was no cooperation or ability to discuss decisions.
Law on Joint or Sole Custody
[80] Are the parties able to communicate and compromise, putting their children’s interests first, such that major decisions affecting their children’s lives can be reached? If not, then sole decision-making by one parent may best serve the children’s interests.
[81] A useful summary of the law of joint or sole custody was provided by Justice Tzimas in D’Angelo v Barrett, 2014 ONSC 6429, paras. 36-39 as follows:
[36] The best interests of the child remains the sole issue in any custody case: see Lawson v. Lawson (2006), 2006 26573 (ON CA), 81 O.R. (3d) 321(C.A.), at para. 14; Kaplanis v. Kaplanis (2005), 2005 1625 (ON CA), 249 D.L.R. (4th) 620 (Ont. C.A.), at para. 10; Ziaie v. Ziaie, 2013 ONCA 156, at para. 1.
[37] The parties’ ability to communicate is a crucial consideration in the determination of custody. In Kaplanis, the Ontario Court of Appeal underscored the significance of the parts’ ability to communicate as one of the determinants of custody. The Court explained that an inability by the parents to communicate did not in and of itself eliminate the consideration of joint custody. However, at para. 11 the Court states that:
…hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody. There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another. No matter how detailed the custody order that is made, gaps will inevitably occur, unexpected situations arise, and the changing developmental needs of a child must be addressed on an ongoing basis. When, as here, the child is so young that she can hardly communicate her developmental needs, communication is even more important. In this case there was no evidence of effective communication. The evidence was to the contrary.
[38] In addition, for joint custody to be a viable option, the parents must be able to co-operate: Roy v. Roy (2006), 2006 15619 (ON CA), 27 R.F.L. (6th) 44 (Ont. C.A.), at para. 4; and Lawson, at para. 15. It is well recognized that joint custody requires a mutual commitment between parents to co-operate on matters pertaining to the raising of their child, and an ability of the parents to put their own interests behind those of the child: Giri v. Wentges, 2009 ONCA 606, at para. 10.
[39] Finally, conflict and lack of co-operation are an impediment to an effective joint parenting arrangement, as well as source of stress for the children: Wreggitt v. Belanger (2001), 2001 20827 (ON CA), 23 R.F.L. (5th) 457 (Ont. C.A.), at para. 20.
Conclusion on Custody of “C”
[82] Ms. Taylor testified that Mr. Lundy does not answer when she calls or answer emails. He did not contradict this evidence. Certainly, the few emails that were exchanged and filed with the court did not demonstrate any degree of cooperative discussion of decisions.
[83] The lengthy battle over recognizing the children’s lactose intolerance, despite medical recommendations, was one clear example of Mr. Lundy being unable to simply cooperate and put his children’s needs first. The evidence summarized above has shown that Mr. Lundy has engaged in alienating behaviours.
[84] On the other hand, Ms. Taylor’s interference in how Mr. Lundy used his access time to involve the girls in church activities spoke more of her own views than being child-focused. This issue has been clarified above with both parents having religious decision-making while the children are in their care.
[85] As acknowledged by the parties themselves, they are not able to communicate and joint custody is not workable.
[86] I am satisfied that Ms. Taylor has demonstrated a change in circumstances since the August 29, 2012 order in that the parties have been unable to discuss decisions reasonably.
[87] In light of my reasons above that Mr. Lundy would not foster the relationship between the girls and their mother, I find that sole custody is best granted to Ms. Taylor, with the exception that each parent has decision-making in religious practices involving the children while in their care.
[88] Accordingly, I find that the best interests of the children will be served by varying the order that Ms. Taylor have sole custody of “C”.
Access
Weekends
[89] The current order provides for three weekends a month, for three nights each, to be with Mr. Lundy.
[90] Ms. Taylor testified that there were difficulties with scheduling these. The court was not given any other evidence of this by emails or FACS records or details of the difficulties. She gave no other reason for seeking to have the children at her home a further weekend each month.
[91] The children have been having this access schedule for six years since the order. There is no material basis for a change of this access which currently involves a day of the children participating in extracurricular activities at the church with their siblings.
Involvement of Other Parent
[92] Ms. Taylor sought to amend paragraph 5(ii) to state that she is free to attend any recreational activity during Mr. Lundy’s access.
[93] Mr. Lundy testified that he did not want her to attend as it caused disputes in front of the children.
[94] The only extracurricular activities that the children have done have been on Mr. Lundy’s access time. In light of the principle of maximum contact, I find it appropriate to specifically state that Ms. Taylor is free to attend those activities.
Mother’s Day and Father’s Day
[95] Both parties sought to amend paragraph 5(iv) in a similar manner.
[96] The order is therefore varied to state that regardless of the regular access schedule, the children are to be with Ms. Taylor on Mother’s Day Sunday from 9:00 a.m. to 7:00 p.m., and with Mr. Lundy on Father’s Day Sunday from 9:00 a.m. to 7:00 p.m. In the event that June 21st falls on a Father’s Day Sunday, Mr. Lundy is to have the Father’s Day access on the Saturday, the day before, from 9:00 a.m. to 7:00 p.m. instead, so that June 21st will be with Ms. Taylor for her faith practices.
Summer Vacation
[97] Both parties recognized the need to change and clarify paragraph 5(v) for summer vacation.
[98] The order is varied to state that both parties are to have four weeks (inclusive of two weeks being consecutive) uninterrupted summer vacation with the children. For the summer of 2018, Mr. Lundy may choose the weeks he requires by June 15, 2018 and advise Ms. Taylor. Thereafter, Ms. Taylor is to choose the weeks she requires by April 1st in odd numbered years. Mr. Lundy is to choose the weeks he requires by April 1st in even numbered years.
Solstice/Equinox Access with Mother
[99] Both parties noted the wording of paragraph 5(vi) needed to be clarified.
[100] I order paragraph 5(vi) be varied to state the children shall be with Ms. Taylor regardless of regular access from 9:00 a.m. for the remainder of the day on March 21st; June 21st; September 21st; October 31st and on December 21st to Christmas Eve at 2:00 p.m. each year.
Transportation
[101] Both parties agreed that paragraph 5(viii) regarding transportation be struck. Mr. Lundy proposed that the paragraph be replaced with an order that “transport of the children shall be shared equally.”
[102] The court was not provided evidence of issues regarding transportation in the last three years or more.
[103] Paragraph 5 (viii) is therefore struck but I am not prepared to add any wording for which I had no submissions or evidence.
Wednesday Nights
[104] Ms. Taylor sought to reduce the weekly Wednesday access with Mr. Lundy to every other Wednesday. Mr. Lundy, in his proposal for sole custody and primary residence, also proposed every other Wednesday access with Ms. Taylor.
[105] There was no evidence that the Wednesday access was a problem apart from Ms. Taylor’s objection to “Z” attending the activities at the church. This is the girls’ only regular extracurricular activity. It is one they enjoy and appears for their benefit and best interests to be involved in a joint activity with the Lundy half-siblings. There is no reason to vary this access.
[106] To clarify, however, if the Wednesday access occurs on one of Ms. Taylor’s solstice access days, it is the latter which is given priority. Mr. Lundy is to waive his Wednesday access in that event.
Parents’ Birthdays
[107] Mr. Lundy proposed to amend paragraph 5 (xviii) to add times of 10:00 a.m. to 8:00 p.m.
[108] There was no evidence or submissions on this change and so no reason to change this order.
Support
[109] Ms. Taylor had sought to reduce the access which would have triggered a support payment.
[110] As the access has not been reduced, Mr. Lundy still has the children more than 40 percent of the time and there is no basis to vary the order to claim support.
Other Consent Amendments
[111] On consent, paragraphs 8 and 11 are deleted from the order.
[112] The parties each provided draft amended orders regarding paragraphs 5(xx), 6, 10, and 12 for which the court did not hear evidence or submissions.
[113] The parties may make further submissions on these issues at a return date as discussed below.
Return Date
[114] If the parties wish a return date before me to make further submissions on the access details, they are to contact the Welland Trial Coordinator within seven days so that arrangements may be made for a 9:00 a.m. appearance in either the Welland or St. Catharines Court House.
Costs
[115] Costs submissions are deferred if the parties advise within seven days that they wish a return date.
[116] Otherwise, if the parties are unable to resolve costs, Ms. Taylor may file written submissions on costs within 21 days. Mr. Lundy may file responding written submissions within 14 days thereafter. Submissions are not to exceed three pages, plus costs outlines, case law and any applicable offers.
[117] Such written submissions are to be forwarded to me at my chambers in Hamilton at 45 Main Street East Hamilton, Ontario L8N 2B7.
M. J. Donohue, J.
Released: May 30, 2018
WELLAND COURT FILE NO.: F32/15
DATE: 2018-05-30
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E N:
Martin Derek Lundy
Jolanta A. Bula, for the Applicant
- and –
Sara Alexandria Taylor
Dean J.D. Moldenhauer, for the Respondent
REASONS FOR JUDGMENT
M. J. Donohue, J.
Released: May 30, 2018