OURT FILE NO.: FS 14-309
DATE: 2018-June-21
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Michelle Elizabeth Burns
Applicant
– and –
Jason Tulpin
Respondent
Gerry Smits, for the Applicant
Iain Sneddon, for the Respondent
HEARD: June 20, 2018
The honourable R. j. harper
Issues
[1] At the outset of the trial the parties settled most of the issues. The issue that required a trial was the nature of the residency scheme with respect to the child Jaelin Tulpin, born February 14, 2007.
Background
[2] The parties, Michelle Elizabeth Burns (Michelle) and Jason Tulpin (Jason) started to cohabit in 1997. They separated in December 2013.
[3] They have 4 children, namely: Sydney, born November 15, 2000 (17); Erin, born January 22, 2003 (15); Jaelin, born February 14, 2007 (11); and Jayce, born July 5, 2011 (7 in July).
[4] Since separation the parties continued to reside in their primary residence located at 45 Morning Dew Drive, Brantford Ontario (primary residence). Jason stated that he resides mostly in the recreation room in the basement. Shortly after separation, Michelle’s mother moved into the primary residence. This caused further discomfort between Jason and Michelle as he did not want his mother-in-law in a home that was owned by him. He took no legal steps to prevent it or change it. He stated that he would stay in the recreation room area and have little communication with Michelle or her mother.
[5] In or about 2014, Jason started to have a relationship with a Chantelle Coates (Chantelle). Chantelle lived and worked in Strathroy, Ontario. This is a community just west of London Ontario. She lives in a home in Strathroy. She has two children, one who is in her late teens and a younger girl who is 9 years old. Chantelle is separated from the father of her children. The oldest child resides where she wants to from time to time and the youngest child is with Chantelle on a week about basis. The child goes to school in London Ontario, where the father lives. When Chantelle has her youngest child living with her, she drives the child to and from school in London every day.
[6] Chantelle has two jobs. She is a manager at a call centre and she works from home for that job. She also works at a long term care facility at a seniors’ home just north west of Strathroy. She has held that job for approximately 3 years.
[7] On the weekends that Jason has his children he brings them to Strathroy to stay at Chantelle’s home. The parties’ eldest child does not like to go on access to Strathroy and most often she just sees her dad when he is at the primary residence. I will comment later about this issue.
[8] Chantelle did not testify at this trial.
[9] As part of the settlement, Jason will pay to Michelle the sum of $60,000 and Michelle will release any claim she has in the primary residence. She will be required to move out of that home in 60 days.
[10] Michelle intends to find accommodation within the same school catchment area of the children and close by the primary residence.
[11] I find that Michelle has not only been the primary care giver of the children since their birth, she continued in that role in a heightened manner after separation. Although Jason did not fully move out of the primary residence, he was absent a significant period of time.
[12] Jason admitted in his evidence that Michelle has always been the one responsible for taking the children to their doctor, their dentist, and their activities. Three of the children, including Jaelin, have been extensively involved in competitive dance. Jason admitted that in an approximate 13 year period he may have attended 2 possibly 3 of the children’s recitals. Jason never attended at any of the children’s parent teacher meetings.
[13] Jason works in what was termed 12 hour continental shifts. He works 12 hour days and 12 hour nights. When on days he works from 6 a.m. to 6 p.m. he leaves for work at 5 a.m.
[14] His work rotations is that he works Mondays and Tuesdays, then off Wednesday and Thursday and then on Friday, Saturday and Sunday. That rotates into his night shift week and continues to rotate.
[15] Jason states that he intends to take sole possession of the primary residence and have the children spend time at the home they are all use to. He wants to have Jaelin stay with him on a week on and week off basis.
[16] Jason intends to have his mother assist with child care. His mother is 66 years of age. She is retired and lives with Jason’s step-father in Delhi, Ontario. That is approximately 40 minutes from Brantford. Jason’s mother was present at the trial and sat through all of the evidence. She did not testify. I find that his mother could have and should have testified in order to give evidence as to her willingness and availability to stay at her son’s Jason’s home at the times she would be needed. She will be required to stay overnight on numerous occasions. This is material evidence that the court should have had and did not. I draw an adverse inference from the fact that she did not testify.
[17] Jason also states that his sister would be willing to help out. He stated that his sister has children. However, he could not state if his sister’s children were still living with his sister. I conclude that he could not have a very close relationship with his sister and do not have any confidence, on the evidence, before me that his sister can or would assist in child care. His sister did not testify.
[18] Jason states that he and Chantelle are in a serious relationship and he is confident that Chantelle will be residing with him at the primary residence by September. He asserts that Chantelle has a good relationship with all his children and is willing to assist in child care if Jaelin resides on a week about basis. Once again, Chantelle will play a significant role in child care with respect to Jaelin. She did not and should have testified. I draw an adverse inference that she did not testify.
[19] There are many contingencies in the plan advanced by Jason to care for Jaelin. However, on the state of the evidence I cannot determine how realistic his plan is. I simply do not have answers to many questions that need to answered.
[20] Jason admitted that he did not know whether the father to Chantelle’s youngest child, who has week about access with Chantelle’s youngest child, even knows of or would approve of Chantelle driving their 9 year old to school in London from Brantford and return on a daily basis. There is no evidence on how a move by Chantelle might affect her relationship with her own children and at least the one job she has north of Strathroy.
[21] In addition, it became clear in cross examination of Jason that he is running his household at a significant deficit that will only increase with the payout to Michelle and the inclusion of child support and other monthly expenses. He states that Chantelle will help out with those expenses. I do not have sufficient evidence to have any confidence that Chantelle will be able to move to Brantford or to keep sufficient income from employment to contribute to expenses if she does move.
[22] Contrasting Jason’s plan with the existing residency scheme, I find that the children are in a consistent and stable routine. There is no evidence that Michelle is not meeting all of their needs. The central issue for any consideration of changing the primary residence with Michelle is the views and preferences of Jaelin.
The Law
[23] Children’s Law Reform Act, the guiding provision within statute. Although neither was able to formulate submissions touching on paragraph 24, I include them in these reasons for the parties’ consideration in future legal disputes.
[24] Merits of application for custody or access:
- (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).
[25] Best interests of child
(2) The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be 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 of the child 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 of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10.
[26] The Children's Law Reform Act, R.S.O. 1990, c. C.12 s. 64 states:
Child entitled to be heard
64(1) In considering an application under this Part, a court where possible shall take into consideration the views and preferences of the child to the extent that the child is able to express them.
Although in the context of whether a judge should interview a child, the courts reinforce the legal requirement to consider the voice of the child when matters affecting the child’s parenting are before the court. The court state:
[27] In L.E.G. (Plaintiff) and A.G. (Defendant), 2002 CarswellBC 2643; 2002 BCSC 1455, Martinson J. observes:
Canada also has an international obligation to make sure that children have an opportunity to make their views known in custody decisions affecting them. Article 12 of the United Nations Convention on the Rights of the Child, Can. T.S. 1992, No. 3, which has been ratified by Canada, requires that children be given opportunities to participate in legal proceedings:
States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
[28] In this case the Office of the Children’s Lawyer chose to participate in these proceedings pursuant to the Courts of Justice Act s.89. Ms. Henry was appointed to represent the children and she was provided with a social work assist. The social worker engaged to ascertain the views and preferences of the child was Andrew Harris.
[29] Mr. Harris interviewed all four children separately. Three of the children expressed a wish to keep the time spent with both parents as it is. It was only Jaelin who stated that she wanted more time with her father. Mr. Harris stated that Jaelin was an articulate mature 11 year old. He stated that Jaelin told him that she wanted more time with her father because that would be fair. She also stated that her neighbours have a week about scheme and that is how she knows about it.
[30] I find that all of the children love each other and they love both parents. I find that both parents love their children. Love is not an issue in this case.
[31] Views and preferences of a child are important and must be considered when they can be reasonably ascertained. However, they are only one consideration that I find in this case to be outweighed by many of the other factors set out as factors to be considered in s. 24 of the CLRA.
[32] All 4 children should be kept on a similar residency scheme wherever possible. The stability and consistency that has been provided by the mother since December 2013 had not been contested. Siblings should be kept together as much as possible. Often, it is the siblings who provide each other with support when parents find it difficult to provide that support.
[33] In this case, I find that the father has admitted that he has not been extensively involved with the children on very important issues that would have to be involved with if there is a week about scheme. He needs to show that he has a track record of involvement with the children’s schooling, their health care and their activities. These are all essential elements of the care he needs to demonstrate that he can meet. He has not done that to date.
[34] I am concerned that he feels that he and Michelle are not able to communicate. He stated that he simply is too uncomfortable and it is easier not to communicate with the mother of his children. That will make the parties agreement to share custody a struggle. The parties need to build trust in order to allow for communication in order that a court can have confidence that Jason can parent on a week about basis.
[35] My decision does not end this matter. As indicated above, Jason loves all of his children. Jaelin wants to spend more time with his father. That may be achieved in the future if the present uncertainties turn into certainties. Until then, the existing residency scheme for all of the children will remain.
[36] This matter may come back to court for a review after October 31, 2018. The parties will need to bring forth evidence of their ability and efforts to communicate. The involvement of Jason with the children’s schooling, activities, and health care. Both parents will need to provide up to date evidence of their living arrangements and their finances.
[37] Consideration must also be given to an update of the views and reference of the children with through OCL involvement or a judicial interview.
Costs
[38] Respondent shall pay $1,000.00 to the applicant inclusive of fees, disbursements and HST.
The Honourable R. J. Harper