Morris v. Morris, 2018 ONSC 4013

COURT FILE NO.: FS-15-0052-00 DATE: 2018-06-27 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

ROWAN WALTERS MORRIS Self-represented Applicant

• and -

FIONA ANNE MORRIS Paul C. Buttigieg, for the Respondent Respondent

HEARD: June 26, 2018, at Brampton, Ontario Price J.

Reasons For Order

NATURE OF MOTION

[1] Rowan Morris (“Mr. Morris”) moves for expanded access to the parties’ son, Owen Morris. Fiona Anne Morris (“Ms. Doherty”) moves for summary judgment granting her sole custody of Own.

[2] The motions were before the court on May 8, 2018, and were adjourned to today as I was doubtful that they could be argued within the hour allocated to motions on regular motion days. Additionally, Mr. Morris had requested six weeks to deliver a response to Ms. Doherty’s motion for summary judgment. Finally, the parties agreed to participate in a mediation on May 31, 2018.

[3] In my endorsement dated May 8, 2018, I set out a timetable, including a requirement that Mr. Morris deliver his responding material by June 19, 2018, and that Ms. Doherty deliver her reply material by June 22, 2018. Mr. Morris delivered only the affidavit he filed on May 7, 2018. It consists in the main of arguments and does not set out the facts relied on in support of the arguments. Ms. Morris delivered a reply to the affidavit on June 22, 2018.

BACKGROUND FACTS

[4] Mr. Morris and Ms. Doherty are both 41 years old. Mr. Morris is a licensed Heating Ventilation and Air Conditioning (HVAC) mechanic. Mr. Rowan has had numerous employments interspersed with long periods of unemployment which Ms. Doherty attributes to his confrontational manner of dealing with people. To her knowledge when she swore her affidavit, Mr. Morris was then unemployed. Mr. Morris tendered an affidavit at the hearing of the motion in which he states that he is employed full time at Superior Boiler Works in Grimsby. Ms. Doherty did not have the opportunity to respond to that evidence or to cross-examine Mr. Morris on it. The court has no evidence as to when that employment began.

[5] Ms. Doherty has been a full-time contract secondary school teacher for the Dufferin-Peel Catholic District School Board for the past seven years.

[6] The parties began their relationship in 2007. They were married on October 10, 2009, and separated five years later, on July 15, 2014.

[7] There is one child of the marriage, Owen William Walters Morris (“Owen”), who will be five years old next month (born July 6, 2013). Ms. Doherty has been Owen’s primary caregiver since the parties separated nearly four years ago.

[8] Mr. Morris began the present proceeding by Application issued February 26, 2015, in which he claims custody of and access to Owen, child support, equalization of net family property, exclusive possession of the matrimonial home and its contents, and sale of family property. Ms. Doherty delivered an Answer on April 2, 2015, in which she made similar claims, in addition to a divorce and spousal support.

[9] A Case Conference was held on September 17, 2015, by Seppi J. The parties signed Minutes of Settlement that day by which Mr. Morris agreed to pay ongoing child support to Ms. Doherty in the amount of $406.00 per month based on his reported income of $45,034.60 in 2014, pay 58.5% of Owen’s special and extraordinary expenses beginning September 1, 2015, and maintain life insurance to secure his support obligation. The parties additionally agreed on a division of the net proceeds of sale of the matrimonial home for sale. Justice Seppi adjourned the issues regarding custody and access to a Settlement Conference on January 19, 2016.

[10] On March 14, 2016, the parties consented to an Order by Bielby J. which provided that Owen would continue residing primarily with Ms. Doherty, and would reside secondarily with Mr. Morris in accordance with a schedule set out in the Order. The parent residing with Owen at the relevant time was to make the daily decisions affecting his welfare.

[11] On November 13, 2015, the parties consented to an Order by Andre J. whereby Mr. Morris would have access to Owen on Tuesdays and Thursday evenings from 5:30 p.m. to 7:30 p.m., and on alternate Saturdays and Sundays from 9:00 a.m. until 4:00 p.m., to be supervised by his mother or father or either of his sisters. The access was to transition to unsupervised access as of June 9, 2015. The Order provided for limited holiday access.

[12] The schedule that the parties agreed upon on March 14, 2016, provided that Owen was to reside with Mr. Morris on Tuesdays and Thursday evenings from 5:30 p.m. until 7:30 p.m. and on alternate weekends from Saturday at 9:00 a.m. to Sunday at 5:00 p.m. and set out a more comprehensive holiday access schedule than before.

[13] Justice Mackenzie made an Order on April 5, 2016, severing the divorce from the claims for collateral relief, and on August 10, 2016, Justice Lemon made an Order for the parties’ divorce.

[14] On March 21, 2018, Mr. Morris made a motion for access to Owen on a “week-about” basis. In his supporting affidavit, he noted that Ms. Doherty had taken Owen with her when she separated from him, and had used every avenue available to her to take custody. He stated that he had passed multiple drug tests, and that after Owen had not seen him for months and had to re-learn who his father was, Mr. Morris completed three months of supervised access with favourable reports regarding his interaction with Owen. Ms. Doherty had demanded criminal record checks for his room-mates, and photos of his living accommodations, further delaying his unsupervised access. He noted that the Children’s Aid Society had been involved several times, and each time, had closed its file. He further noted that the police had never charged him with any offence. He stated that the temporary access order had expired and that he now wished to obtain a final Order.

[15] On April 16, 2018, Ms. Doherty responded with her own motion for summary judgment granting her sole custody of Owen and a final Order for regular and holiday access on the terms previously set out in the Order of Justice Bielby and requiring Mr. Morris to show proof that he had complied with the Order of Justice Seppi requiring him to maintain a $90,000 life insurance policy.

ISSUES

[16] The Court must determine whether there is a genuine issue regarding custody or access requiring a trial, and whether it would be in Owen’s best interests that Ms. Doherty be granted sole custody with a final Order continuing the temporary access by Mr. Morris that the parties previously consented to before Bielby J.

PARTIES’ POSITIONS

[17] Mr. Morris argues that he should be granted access to Owen on a week-about basis. He argues that Ms. Doherty has sought to marginalize him from Owen’s life by insisting initially that access be supervised, by making unreasonable demands for proof of his ability to provide safe accommodation for Owen, and by seeking sole custody.

[18] Ms. Doherty says that Mr. Morris has abused both prescription and street drugs in the past, has personality problems that prevent him from parenting effectively, and has not exercised his right to access consistently. She argues that she has been Owen’s primary caregiver and that the conflict between the parties makes an order for joint custody impracticable.

ANALYSIS AND EVIDENCE

a) Whether the motions should be further adjourned

[19] While Mr. Morris did not explicitly request a further adjournment of the motions, when the Court restricted him, during his argument to facts that were in evidence before the Court, Mr. Morris sought an opportunity to correct the deficiencies in his material. It was his obligation to respond to Ms. Doherty’s evidence during the interval between May 8, 2018, and June 26, 2018. That was the purpose of the adjournment he was granted on that date.

[20] The date of June 26, 2018, was set peremptory to both parties. It would have been unfair to Ms. Doherty if, during the midst of argument, the court had adjourned the hearing again. The Court is required, in a motion for summary judgment, to consider proportionality and to balance the objectives of achieving a just result in the most expeditious and least costly manner against the desirability of permitting one litigant or the other to supplement their evidence or strengthen their argument, with the delay and additional expense that that would entail.

[21] If Mr. Morris had requested an adjournment, and the Court had granted him his request, Ms. Doherty would undoubtedly have sought an order that he pay the wasted costs of the attendance. Based on Mr. Morris’ argument, this would have impose an unbearable burden on him. Additionally, he still lacked the financial resources that he would have required in order to derive the benefit of an adjournment by retaining a lawyer to help him identify the deficiencies in his material and correct them with a further affidavit.

[22] Mr. Morris argued at the hearing that his failure to respond to many of Ms. Doherty’s allegations against him, which he said were false, was the result of his ignorance of the law, and of the onus it and the Family Law Rules impose on him in a motion of this kind. He lacked the financial resources, he said, to access legal advice and assistance in the preparation of his affidavits.

[23] An adjournment of the motions would have been contrary to the Order made on May 8, 2018, which made the hearing peremptory for both parties. Additionally, it would have served no real purpose, as Mr. Morris stated that he still lacked the necessary resources to hire a lawyer to assist him, or to address the concerns that Ms. Doherty had raised regarding his unpaid support, his lack of proper accommodation for Owen, his distance from her residence and Owen’s school, and his lack of time and affordable transportation needed to exercise his access more consistently.

[24] It was not only Mr. Morris’ affidavits that were deficient, but the facts that, even if laid out more completely, did not favour his position. Some of the problems that underlay his distance from Owen’s home and school, his anger toward Ms. Doherty, his inappropriate waylaying of Owen as a means of serving documents on Ms. Doherty, his financial distress as evidenced by the arrears of his support, his failure to respond in a timely manner to Owen’s school’s solicitation of his consent to involvement of a Child Youth Worker, and his unwillingness to have the custody and parenting issues mediated, all require time for him to address in a meaningful way. The court must balance the desirability of extending ever more time to a litigant to “put his best foot forward” against the cost of delay both to that litigant and the opposing party, and the unfair advantage that a further adjournment may entail to the opposing party.

[25] For all of these reasons, I concluded that it would not be in the interests of justice to further adjourn the hearing, or allow Mr. Morris to further supplement his evidence.

b) General principles applying to motions for summary judgment

[26] Under Rule 16 (1) of the Family Law Rules (“FLR”), ether party may bring a motion for summary judgment for a final order without the requirement of a trial. That motion can be brought on all or part of any claim made, or defence presented, in the case. The test for such a motion is whether the evidence discloses a genuine issue requiring a trial of a claim or defence. [1]

[27] The term "no genuine issue for trial" has been variously interpreted to reflect the notion that the responding party cannot succeed, even if granted the right to a full trial. Among the terms that have been used to describe the test are the following:

• "no chance of success", or • "plain and obvious that the action cannot succeed", or • "manifestly devoid of merit" [2] , or • “the outcome is a foregone conclusion” [3] , or • no realistic possibility of an outcome other than that sought by the applicant. [4]

[28] The party making the motion is required to serve an affidavit or other evidence setting out specific facts showing that there is no genuine issue requiring a trial. [5]

[29] Each party to a motion for summary judgment has an obligation to “’put its best foot forward’ with respect to the existence or non-existence of material facts that have to be tried”. [6]

[30] The onus for proving that there is no genuine issue for trial rests with the moving party. However, in response to the evidence of the moving party, the responding party may not rest on mere allegations or denials, but must set out in affidavit or other evidence, specific facts showing that there is a genuine issue for trial. [7] In the oft-repeated maxim of Justice Coulter Osborne of the OCA, the responding party to a motion for summary judgment must “lead trump or risk losing”. [8]

[31] In other words, once the moving party discharges the burden of showing that there is no genuine issue for trial, the onus shifts to the responding party to provide evidence of specific facts showing that there is a genuine issue requiring a trial. [9] An adverse inference may be drawn from a failure to support the allegations or denials in a party’s pleadings. [10]

[32] On a motion for summary judgment, the court is required to take a hard look at the merits of the case. If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order. [11] If the only genuine issue is a question of law, the court shall decide the issue and make a final order accordingly. [12]

[33] If the court does not make a final order, or makes an order for a trial of an issue, the court may also specify what facts are not in dispute. It may further state the issues and give directions about how and when the case will go to trial, and impose conditions, if appropriate. [13]

[34] In determining whether there is a genuine issue for trial, the court shall consider the evidence submitted by the parties. In addition, it may use its expanded powers under subrule 16 (6.1) of the Family Law Rules, which reads as follows:

Powers

In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

[35] In exercising its expanded powers, the court may hear oral evidence from one or more of the parties, with or without time limits, in the form of a mini-trial. [14]

[36] In Hryniak v. Mauldin [15], the Supreme Court of Canada set out the process to be followed in applying the corresponding civil summary judgment rules:

1. The court will first consider whether there is a genuine issue for trial based only on the evidence before the court. This decision is made without exercising the court’s expanded powers.
2. But if there appears to be a genuine issue for trial, the court shall then determine whether the need for a trial can be avoided using those expanded powers. That decision is a discretionary one. But the court shall not exercise its discretion if doing so would be against the interests of justice.
3. The exercise of the expanded powers will not be against the interests of justice if it would lead to a fair and just result; one that serves the goals of timeliness, affordability and proportionality in light of the litigation as a whole. [16]

[37] In keeping with the principles set out in Hryniak, the court must also consider subrules 2 (2) - (5) to ensure that a case is dealt with justly. It does so by ensuring that the procedure is fair to all parties, saves time and expense and that the case is dealt with in ways that are appropriate to its importance and complexity.

[38] The case law dealing with summary judgment under the Rules of Civil Procedure also apply to such motions under Family Law Rules, Rule 16. [17] In fact, as Justice Michael G. Emery of the Superior Court of Justice stated in Afolabi v. Fala [18], reflecting on the application of the Hryniak principles to family law before the expansion of judicial powers under Rule 16:

If anything, family law in Ontario cries out for the summary disposition of issues in appropriate circumstances as much as in any other area of law. This accessibility to timely, affordable justice is as important to the parties in conflict as it is to the confidence of citizens in our court system that cases will be adjudicated efficiently and effectively according to law.

[39] One further note regarding summary judgment: subrule 16 (6) is mandatory when it states:

If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

[40] Whereas the Court of Appeal, in Combined Air Mechanical Services Inc. v. Flesch [19], held that a motion judge should not grant a motion for summary judgment unless satisfied that it had a “full appreciation” of the facts, that decision was overturned by the SCC in Hryniak. The SCC replaced the “full appreciation” test with a three part test of whether the summary judgment motion. Justice Karakatsanis, on behalf of the Court, noted that such motions are an opportunity to simplify pre-trial procedures and move the emphasis away from the conventional trial, in favour of proportional procedures tailored to the needs of the particular case. She stated:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result. [20] (Emphasis added)

[41] Karakatsanis J. called for summary judgment rules to be interpreted broadly, “… favouring proportionality and fair access to the affordable, timely and just adjudication of claims.” [21] Considering the broad interpretation of summary judgment rules called for in Hryniak, and the need for summary disposition in appropriate family law cases described by Emery J. Afolabi v. Fala, the principle set out in Kings Loft I Ltd. v. Emmons is particularly apposite for Rule 16 motions.

[42] Accordingly, the court may grant summary judgment in the following circumstances:

1. Where the parties agree;
2. Where the claim is without merit;
3. Where the motions judge is able to dispose of the matter and where the trial process is not required in the “interest of justice.” [22] [Emphasis added]

[43] Justice Karakatsanis held that the judge hearing a motion for summary judgment must compare the procedures available in such a motion, supplemented, if necessary, by the fact-finding tools provided by Rules 20.04(2.1) and (2.2), with those available at trial. The judge must determine whether the court can make the necessary findings of fact and apply the principles of law to those facts in a proportionate, most expeditious, and least costly manner, to achieve a just result:

This inquiry into the interest of justice is, by its nature, comparative. Proportionality is assessed in relation to the full trial. It may require the motion judge to assess the relative efficiencies of proceeding by way of summary judgment, as opposed to trial. This would involve a comparison of, among other things, the cost and speed of both procedures. (Although summary judgment may be expensive and time consuming, as in this case, a trial may be even more expensive and slower.) It may also involve a comparison of the evidence that will be available at trial and on the motion as well as the opportunity to fairly evaluate it. (Even if the evidence available on the motion is limited, there may be no reason to think better evidence would be available at trial.) [23] (Emphasis added)

[44] In Sweda Farms v. Egg Farmers of Ontario [24], in 2014, Corbett J. described the current approach to summary judgment motions following the Supreme Court of Canada’s decision in Hryniak v. Mauldin, as follows:

Summary judgment motions come in all shapes and sizes, and this is recognized in the Supreme Court of Canada’s emphasis on “proportionality” as a controlling principle for summary judgment motions. This principle does not mean that large, complicated cases must go to trial, while small, single-issue cases should not. Nor does it mean that the “best foot forward” principle has been displaced; quite the reverse. If anything, this principle is even more important after Hryniak, because on an unsuccessful motion for summary judgment, the court will now rely on the record before it to decide what further steps will be necessary to bring the matter to a conclusion. To do this properly, the court will need to have the parties’ cases before it.

[45] Based on the guidelines set out in Hryniak v. Mauldin, I must first determine, based on the evidence before me, and without using the full fact-finding powers of the court, whether there is a genuine issue requiring trial, whether I can fairly and justly adjudicate the dispute, and whether the motion is a timely, affordable, and proportionate procedure. If there is no genuine issue requiring a trial, I must grant summary judgment. [25]

[46] If there appears to be a genuine issue requiring a trial, I must exercise my discretion to determine whether the need for a trial can be avoided by using the court’s powers to hear further evidence at the hearing, provided their use will not be contrary to the interests of justice. The use of those powers must lead to a fair and just result and serve the goals of timeliness, affordability, and proportionality in light of the litigation as a whole. [26]

c) General principles applying to custody and access

[47] “Custody” refers to parental decision-making and authority respecting a child. As the Supreme Court of Canada stated in Young v. Young [27], “the custody parent is responsible for the care and upbringing of the child, including decisions concerning the education, religion, health, and well-being of the child.”

[48] The court makes orders concerning the custody of a child and access based solely on “the best interests of the child”. It determines what is in the child’s best interests by reference to the factors set out in section 24 of the Children’s Law Reform Act (“CLRA”) [28].

[49] The Supreme Court of Canada in Young v. Young and Gordon v. Goertz [29] held that a child’s best interests must be ascertained from the perspective of the child. Parental preferences and rights do not play a role in the analysis, except to the extent necessary to ensure the best interests of the child.

[50] Under Section 20 of the CLRA, both parents are equally entitled to custody of their child. Where the parents live separate and apart, and the child lives with one parent with the consent of the other, the parents’ entitlement to access continues, with each having the right to visit with the child and obtain information about the child’s health, education, and welfare. [30]

[51] Section 24(1) of the CLRA provides as follows:

Merits of application for custody or access

24. (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).

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.

Past conduct

(3) A person’s past conduct shall be considered only,

(a) in accordance with subsection (4); or (b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.

d) Applying the legal principles to the facts of this case

[52] I will review the evidence in relation to each of the above-mentioned factors, insofar as they are relevant to custody of Owen to them.

(a) Love, affection, and emotional ties

[53] Owen has a strong relationship with both parents as well as with his grandparents.

(b) Facilitating contact with the other parent

[54] The court, when making a custody and access order, whether pursuant to sections 20 and 24 of the CLRA, or pursuant to section 16(10) of the Divorce Act [32], “must 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”. To that end, the court is required to consider the willingness of each parent who is claiming custody or access to facilitate such contact. The goal of maximum contact with each parent is not absolute, but the legislation is clear that maximum contact can only be restricted to the extent that it conflicts with the child’s best interests. [31]

[55] As for how the parties should share parenting of Owen, I refer to the comments of McLachlin J., as she then was, in Young v. Young, where she discussed the “maximum contact principle,” in the context of an application under the Divorce Act. Justice McLachlin, speaking for the majority of the Court, said:

... s. 16(10) provides that in making an order, 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." This is significant. It stands as the only specific factor which Parliament has seen fit to single out as being something which the judge must consider. By mentioning this factor, Parliament has expressed its opinion that contact with each parent is valuable, and that the judge should ensure that this contact is maximized. The modifying phrase "as is consistent with the best interests of the child" means that the goal of maximum contact of each parent with the child is not absolute. To the extent that contact conflicts with the best interests of the child, it may be restricted. But only to that extent. Parliament's decision to maintain maximum contact between the child and both parents is amply supported by the literature, which suggests that children benefit from continued access: Michael Rutter, Maternal Deprivation Reassessed (1981), Robin Benians" Preserving Parental Contact: a Factor in Promoting Healthy Growth and Development in Children ", in Jo Tunnard, ed., Fostering Parental Contact: Arguments in Favour of Preserving Contact Between Children in Care and Their Families (1982) (at pp. 117-18). [33]

[56] Immediately after Ms. Doherty separated from Mr. Morris, she tried to organize consistent visits between Owen and his father. On one such visit, Mr. Morris became enraged and caused Ms. Doherty to fear for her own and Owen’s safety. She then insisted on supervised visits but immediately set up and completed the necessary paper work for such visits to begin, to ensure that Mr. Morris could have access to Owen in a safe and controlled environment.

[57] After three months, when Mr. Morris had calmed down and the reports from the supervised access centre disclosed that he was acting appropriately, Ms. Doherty insisted on drug testing because he was drinking heavily and smoking a significant amount of marijuana before their separation. She had also discovered in December 2012 that he was abusing percocets and oxycontin tablets.

[58] Ms. Doherty has fostered a positive relationship between Owen and Mr. Morris’ parents. On Mr. Morris’ last weekend visit, he did not enable Owen to visit with his paternal grandparents, who had a good family friend staying with them, so at their request, she brought Owen by on Tuesday evening for a visit with them, as she agreed that such contract was important for Owen.

[59] Since the matter was last in court on May 8, 2018, Ms. Doherty has continued to facilitate access by Mr. Morris and his parents, as demonstrated by the following:

(a) On June 5, 2018, Mr. Morris’ mother called her in the afternoon requesting her consent for her to pick up Owen instead of Mr. Morris, who was not available. She advised her that she wanted to bring Owen to the park to play with his cousin Brianna. Ms. Doherty agreed. (b) On June 12, Mr. Morris’ mother contacted her again and asked if she could drop Owen off at their home later that evening for an extended visit, to allow Owen to spend time with his grandparents and close family friend. She agreed. For that visit, Ms. Morris asked for extra time the following Tuesday in lieu of Mr. Morris’ upcoming Thursday access which was unable to exercise. She agreed. (c) On June 19, Mr. Morris’ mother again called and asked to cancel that day’s access, and to reschedule to the following Wednesday. Ms. Doherty agreed, and met with Mr. Morris’ mother for his declined access visit of the previous Tuesday, when Mr. Morris was not present.

[60] Unlike the Divorce Act, which the Court applied in Young, the CLRA sets out specific factors that the court should consider when determining what is in a child’s best interests. The CLRA does not include the principle that a child should have as much contact with each parent as is consistent with the best interests of the child, as s. 16(10) of the Divorce Act does. Nevertheless, s. 20(1) and (4) of the CLRA require the court, if it finds that maximum contact with both parents is not in the child’s best interests, to explain why this is so. [34] In making this determination, I have had regard to Mr. Morris’ denigration of Ms. Doherty to Owen. If this conduct continues, it will be increasingly detrimental to Owen’s regard for his mother, both as a role model and a source of security.

(c) Owen’s views and preferences

[61] Owen is too young to express his own views and preferences as to how much time he wishes to spend with each of his parents.

(d) Length of time Owen has lived in a stable home environment

[62] Ms. Doherty has been Owen’s primary care-giver since the parties separated in 2014.

[63] While Owen has lived in a stable family environment with both Mr. Morris and Ms. Doherty, Ms. Doherty asserts that Mr. Morris is currently residing out of his parents’ pop-up trailer at a camp ground at a provincial park located on the outskirts of Grimsby. This is not a stable or appropriate place for Owen to be spending more than one or two days at a time. Mr. Morris denied this assertion at the hearing, and stated that he was building a house in a park near Grimsby, but he tendered no evidence to this effect.

[64] In any event, Mr. Morris has been inconsistent in exercising access to Owen and in integrating him with his extended family.

(e) Ability and willingness of each parent to provide Owen with guidance and education, the necessaries of life, and to meet any individual needs he has

[65] I am confident that Ms. Doherty will support the school’s strategies for addressing Owen’s aggression and his other needs as they arise. Since the court appearance on May 8, 2018, she secured a Child and Youth Worker for Owen through the School Board. She was aware of that service through her employment as a teacher and felt that a CYW would benefit Owen to improve his social skills.

[66] Mr. Morris has taught Owen to ride a bicycle, throw a football, do cannon ball jumps into the pool, and swim. He plans to teach him to catch fish this summer, and to go exploring and hiking together. Mr. Morris has the support of his mother, who was in the courtroom, as were Ms. Doherty’s parents, during the hearing of the motion. According to the affidavit Mr. Morris filed on the day of the hearing, his mother worked in child welfare for 40 years before retiring, and currently volunteers with the Halton District School Board and sits on various committees, including the Special Education Advisory Committee.

[67] Mr. Morris has at times been unresponsive to the efforts Ms. Doherty and others have made to engage him in providing, or consenting to, the support Owen needs. Owen’s teacher contacted Mr. Morris in April and May 2018 to seek his consent for a CYW to be provided to Owen, but Mr. Morris failed to respond to her calls. It was only on May 29, 2018, after Owen had a physical altercation with another student and his School Principal and teacher met with Mr. Owen, did he finally give his consent for a CYW. As a result of the delay, no CYW could be appointed for Owen before the end of the school year.

(f) Plans proposed for the child’s care and upbringing

[68] As noted above, Mr. Morris proposes a week-about parenting schedule. Such a plan is not practical, having regard to the distance between the parties’ homes.

(g) Permanence and stability of each family unit

[69] Each party’s family unit appears to be stable and permanent. Both parents have supportive parents and extended families.

h) The ability of each person applying to act as a parent

[70] I find that Mr. Morris and his parents offer a warm relationship with Owen, but that Mr. Morris is not as capable of recognizing Owen’s needs. I find that Ms. Doherty is better equipped to meet his needs, particularly as they concern his socializing.

[71] Ms. Doherty agrees that Mr. Morris was happy to be a father, but notes that he did not provide her with the material assistance she needed in providing for Owen’s day to day needs. He routinely abused street drugs, was frequently under the influence of marijuana, and would stay out at bars until early evening, just before Owen’s bed time. Ms. Doherty was on maternity leave until Owen was 10 months old. When she returned to work part-time, her father babysat Owen during the day.

[72] On one occasion when Owen was 11 months old, Mr. Morris picked Owen up from Ms. Doherty’s father and he was unable to feed Owen from a bottle, so he brought Owen to the pub where Ms. Doherty was working so that she could breast feed him in the middle of her shift.

CONCLUSION AND ORDER

[73] It is the undisputed evidence of Ms. Doherty that:

(a) Mr. Morris has consistently, and with little or no notice to her, cancelled or chosen not to exercise his mid-week and alternate weekend access to Owen, as provided to him by Bielby J.’s Order. This pattern is evident in the ledger that Ms. Doherty has kept of Mr. Morris’ cancelled access visits back to 2015. In 2018 alone, he had cancelled five access visits up to May 8, 2018. (b) Mr. Morris was verbally and emotionally abusive toward her during their marriage. Since their separation, Ms. Doherty has tried to communicate with him only in writing and to limit their communications to issues involving Owen, but Mr. Morris clearly has difficulty managing his anger toward her. (c) Mr. Morris has refused to attend mediation, contrary to the parties’ Minutes of Settlement, as noted by Woollcombe J. in her endorsement of April 5, 2018. (d) Mr. Morris lives in Grimsby, Ontario, and Ms. Doherty and Owen live in Mississauga. The distance between their homes is 60 kilometres, and requires a 41 minute or more drive each way. (e) Owen is closely bonded to Ms. Doherty’s parents and accustomed to spending time with them on a daily basis. (f) Ms. Doherty lives in the catchment area of St. Bernadette Catholic School, where Owen attends junior kindergarten. He has numerous friends in his class, all of whom live in Ms. Doherty’s neighbourhood. (g) Ms. Doherty has attended to all aspects of Owen’s medical and dental care needs, and has taken him to his swimming lessons, and seasonal soccer and skating activities, which she has paid for. Mr. Morris has never even asked her about Owen’s medical or dental health. (h) Ms. Doherty has daily work obligations in Mississauga and is not able to drive west to Burlington (half way between their residences, where Mr. Morris proposes that access exchanges occur) during rush hour, and turn around to return to Mississauga for work. Ms. Doherty asserted that, as far as she knows, Mr. Morris is unemployed and cannot be depended on to relieve her of the necessity of devoting her time to earning a livelihood for herself and Owen. Mr. Morris currently owes Ms. Doherty arrears of child support in the amount of approximately $15,000 from repeated failure to pay the child support of $406/month that Seppi J. ordered on September 17, 2015. He also has failed to provide proof that he maintains a $90,000 life insurance policy to secure his support obligations. (i) Owen is meeting his age-appropriate milestones, but his teacher, Ms. Dell ’Anno has noted that Owen has been using aggressive behavior, including pushing a classmate to the ground, kicking him and punching him. When asked where he had learned that, he replied that he had learned it from his dad, who does that to his mom. Owen has also used profane and obscene language. (j) Owen returns to Ms. Doherty from access visits with Mr. Morris and calls his mother disgusting and/or fat. He has asked why daddy is rude to momma and then answers the questions with “daddy says momma took me away from him”.

[74] Based on the evidence and having regard to the factors to be considered pursuant to s. 24(1) of the CLRA, I find that sole custody should be granted to Ms. Doherty, on the terms as to access set out below.

[75] There is a basis for an Order for police enforcement of the parenting arrangement, having regard to incidents on August 15, 2016 and March 21, 2018, when Mr. Morris removed Owen from school on days when he was not scheduled to exercise access. He did so without notifying Ms. Doherty or Owen’s school in advance, which required police involvement.

[76] The impediments to Mr. Morris’ access and to his involvement in the decision-making affecting Owen were created, in large measure, by Mr. Morris himself. He frames his move to Orangeville, and later to Grimsby, as circumstances that were beyond his control, owing to his limited financial resources, but acknowledges that he is building a new home in Grimsby, which must require resources that could otherwise have been used to rent accommodation in Mississauga. He attributes his confrontation with the police in the parking lot of Owen’s school to Ms. Doherty’s unreasonable response to his taking Owen into his car in order to serve court documents on her when she inevitably attended in response to a notification that Owen was missing. The incident could have been avoided by Mr. Morris employing a process server to serve the documents in the conventional manner and respecting the fact that it was not a day when he had been given access to Owen. He frames his unpaid arrears of support as the result of the reduction of his income to a level far below what it was when the support order was made, but did not apply to the court to change the support order when his income declined.

[77] For all of these reasons, I find that there is no genuine issue requiring trial insofar as custody and parenting time, or access, are concerned. Additionally, for the reasons set out above in relation to whether the hearing of the motions should be further adjourned, I find that the court’s exercise of its expanded powers of evidence gathering would not have enabled it to achieve a more just result, and would have added to the delay and the parties’ expense, without any likely impact on the outcome.

[78] The court must carefully consider what underlies the factors that impede Mr. Morris’ more effective involvement in Owen’s life. It must ask what is required in order to “maximize the child’s contact with each parent” in a way that adds value for Owen, rather than simply changing the percentages of time Mr. Morris spends with him, and edging him toward the 40% that might justify departing from a calculation of child support based on the Table amount, and calculating it instead on a set-off basis. Viewing the matter through Owen’s eyes, it is more than a matter of the time that each parent is entitled to spend with him. It is a matter of creating expectations in him that can realistically be met, of creating anticipation in him of access that is not likely to lead to disappointment, confusion, and frustration.

[79] In order to achieve these objectives, Mr. Morris needs to make meaningful changes that will bring him closer to Owen without creating chaos in Owen’s life. These changes include:

(a) disposing of the property in Grimsby where he has been building a house, which he says he intends to do, and moving closer to Owen’s school in Mississauga, thereby lessening the distance he must travel to exercise access to Owen without a corresponding increase in the distance Ms. Doherty must travel, in addition to the travel she already does to transport Owen to his activities and to his medical and dental appointments; (b) paying his outstanding arrears of child support and contributions to s. 7 expenses, or causing such arrears to be rescinded by means of a motion to change his support and s. 7 obligations; (c) providing proof that he maintains a $90,000 life insurance policy to secure his child support obligations; (d) responding positively to the efforts Ms. Doherty, and Owen’s principal and teachers, and Child Youth Worker make to engage him in discussions, if not necessarily decision-making, concerning Owen; (e) enhancing his communication skills, and learning how to better manage his anger, in order to reduce parental conflict and engage more effectively with others involved in Owen’s care; (f) participating, in good faith, in a mediation with Ms. Doherty, in order to enhance his problem-solving skills and focus his attention on Owen’s needs and the collective efforts of Owen’s care-givers.

[80] If Mr. Morris is disposed to make these changes, as he says he is, he should be given the opportunity to do so. The court could then consider expanding his access to Owen and explore the desirability of his sharing with Ms. Doherty, to some extent, the responsibility for making decisions about Owen’s care.

[81] Mr. Morris assured the court that he would make all of these changes immediately, and would be ready to have the issues of custody and access revisited before Owen begins his next school year in September 2018. Creating that short a timeline would set Mr. Morris up for failure, intensify the conflict between him and Ms. Doherty, and encourage him to create a strategic and temporary appearance of change without dealing with the fundamental issues or control and shifting his priorities in the way that would be necessary for him to put Owen’s needs ahead of his own consistently and reliably. Realistically, he requires a year to do this. That year will give a respite to Ms. Doherty, and ease the financial pressure on both parties to enable them to redirect their resources away from litigation and toward re-building and re-organizing their lives to make them more responsive to Owen’s needs. Those are the longer-term objectives of this Order.

[82] Based on the foregoing, it is ordered that:

1. Mr. Morris’ motion to expand his access is dismissed.
2. Ms. Doherty’s motion for summary judgment is allowed.
3. Fiona Doherty, shall have sole custody of the Child of the Marriage, Owen William Walters Morris, born July 6, 2013.
4. Owen’s primary residence shall be with Ms. Doherty.
5. Prior to Ms. Doherty implementing a major non-emergency decision regarding Owen’s health, education or religion, she shall notify Mr. Morris in writing and request his input.
6. Ms. Doherty has leave to travel with Owen outside Ontario or Canada for a vacation without the prior consent or authorization of Mr. Morris. All details of the travel itinerary, mode of travel, and where the child will be staying shall be provided to Mr. Morris as soon as the trip details are confirmed.
7. Ms. Doherty may apply for a Canadian passport for Owen including a renewal passport. The consent of Mr. Morris for the issuance of such a passport is dispensed with.
8. Mr. Morris shall have access to Owen as follows: a) The third Tuesday of each month from 5:30 p.m. to 7:30 p.m.; and b) Alternate weekends from Friday at 5:30 p.m. to Sunday at 5:00 p.m.
9. The parties shall observe the following special access days, during which the regular access schedule set out elsewhere in this Order shall be temporarily suspended: a) Father’s Day - If Owen is not otherwise with Mr. Morris on this weekend, he shall reside with him on Father’s Day, from Sunday at 9:30 a.m. until his return to school on Monday. b) Mother’s Day - If Owen is not otherwise with Ms. Doherty on this weekend, he shall reside with her on Mother’s Day from 9:30 a.m. until his return to school on Monday. c) Valentine’s Day – Owen shall spend Valentine’s Day with the parent with whom he normally spends that day of the week based on the terms of this order dealing with regular (non-vacation) access. d) March break – Beginning in 2019, and in odd-numbered years thereafter, from the close of school to the resumption of school, Owen shall spend with Mr. Morris. Beginning in 2020, and in even-numbered years thereafter, from the close of school to the resumption of school, Owen shall spend with Ms. Doherty. e) Easter – i. Beginning in 2019, and in odd-numbered years thereafter, Owen shall reside with Ms. Doherty from the Thursday prior to the Easter weekend at 6:30 p.m. to Saturday at 10:00 a.m. and with Mr. Morris from Saturday at 10:00 a.m. to the resumption of school. ii. Beginning in 2020, and in even-numbered years thereafter, Owen shall reside with Mr. Morris from the Thursday prior to the Easter weekend at 6:30 p.m. to Saturday at 10:00 a.m. and with Ms. Doherty from Saturday at 10:00 a.m. to the resumption of school. f) Victoria Day Weekend – Owen shall be in Mr. Morris’ care on Victoria Day in odd-numbered years beginning in 2019, from 9:00 a.m. to 5:00 p.m., and with Ms. Doherty in even-numbered years beginning at 9:00 a.m. until his return to school the following day. g) Summer Vacation – Each of the father and the mother shall have an uninterrupted vacation time of two weeks’ duration with Owen, during which the other parent’s mid-week access shall be suspended, resuming upon the end of the two week vacation period. The parent having first choice of the vacation period shall advise the other parent by May 15th of the chosen vacation weeks with Owen. The other parent shall advise the first by May 31st of the chosen weeks. Mr. Morris shall have first choice in odd-numbered years, beginning in 2019, and the mother shall have first choice in even-numbered years, beginning in 2020. h) Canada Day Weekend and August Civic Holiday – Owen shall spend Canada day with Ms. Doherty in odd numbered years beginning in 2019, and with Mr. Morris in even numbered years, beginning in 2020. Owen shall spend the August Civic Holiday in Mr. Morris’ care in even numbered years beginning in 2018, and in Ms. Doherty’s care in odd numbered years, beginning in 2019. i) Labour Day Weekend – Owen shall be in Mr. Morris’ care in even numbered years beginning in 2018 from 9:00 a.m. to 5:00 p.m. and in Ms. Doherty’s care in odd numbered years beginning in 2019, from 9:00 a.m. to 5:00 p.m. until his return to school the next day, unless otherwise agreed to by the parties in writing, in advance. j) Thanksgiving weekend – In odd-numbered years, beginning in 2019, Owen shall spend Thanksgiving holiday with Ms. Doherty and in even-numbered years, beginning in 2020, he shall spend it with Mr. Morris. k) Halloween – Owen shall be in Mr. Morris’ care for Halloween in even numbered years beginning in 2018, and in Ms. Doherty’s care in odd-numbered years beginning in 2019, from 5:30 p.m. until 9:00 p.m. The party who has the child for Halloween shall be responsible for Owen’s costume. l) Christmas – Beginning in 2018, and in even-numbered years thereafter, Owen shall reside with Mr. Morris from the beginning of the school holiday until December 25th at 12:00 noon and with Ms. Doherty from December 25th at 12:00 noon until the December 29th at noon and from Mr. Morris from December 29th at noon until the resumption of school. Beginning in 2019, and in odd-numbered years thereafter, the schedule shall be reversed, and Owen shall reside with Ms. Doherty from the beginning of the school holiday until December 25th at 12:00 noon, etc. m) Parties’ birthdays – Owen shall spend at least two hours with each parent on his parents’ respective birthdays. The scheduling of this birthday time will be left to the discretion and availability of the parties.
10. The parent who is assuming care of Owen shall be responsible for picking him up from the other parent at the Tim Horton’s located at Erin Mills Town Centre, unless the parties agree to an alternate location, in writing. The other parent shall attend at the Restaurant at least 15 minutes in advance of the pick-up time.
11. When Owen is in the care of one of his parents, and that parent is unable to care for him directly, it shall be the responsibility of that parent to make arrangements for his care. That parent may ask the other parent to assume care, but shall be under no obligation to do so before engaging other family members, unpaid volunteers, or commercial care-givers to care for Owen.
12. Either parent shall be entitled to travel with Owen outside of Canada during periods when he is in that parent’s care, provided that parent shall provide an itinerary, with flight numbers and the places of lodging and telephone numbers where he/she and Owen may be contacted during any absence from Canada at least 30 days in advance. When one parent proposes to travel, the other shall provide the necessary travel consents to facilitate this.
13. Ms. Doherty shall hold Owen’s birth certificate, Social Insurance card, and travel documents but shall release them to Mr. Morris when he requires them for travel in accordance with this Order. She shall also release these documents, upon Mr. Morris’ request, for periods not to exceed 72 hours.
14. Owen’s OHIP card, or a notarial copy of same, shall travel with him when his residence changes from the home of one parent to that of the other.
15. Both parties shall be permitted to attend all of Owen’s school, day care, and extra-curricular activities including, but not limited to parent-teacher meetings, field trips, concerts, pageants, or presentations.
16. Each of the parties shall have the right to communicate with Owen at any reasonable time by telephone and beginning when Owen is ten years old, by e-mail, and each parent shall keep the other informed of Owen’s e-mail address and telephone number, as well as his residential address, whenever any one of these changes.
17. Neither party shall arrange extra-curricular activities for Owen, or attendance at special events, such as the birthday party of a class-mate, at a time when Owen is to be in the care of the other parent pursuant to this Order. Each party shall be responsible for transporting Owen to and from activities that fall on days when he is in that parent’s care. When special opportunities for Owen arise, such as a school trip or athletic tournament scheduled by a third party service provider, or when unusual problems for the parties occur in relation to access, neither party will unreasonably insist on strict adherence to the foregoing arrangements. Instead, each party shall co-operate in making reasonable alternative arrangements so that Owen’s interests prevail, and each party shall give his/her own needs and convenience only secondary importance.
18. Both Mr. Morris and Ms. Doherty shall have the right to information regarding Owen’s school progress, as well as to the release of information pursuant to the Personal Health Information Protection Act, 2004 (“PHIPA”) regarding Owen’s health and general well-being. Each of the parties may prepare a direction and a consent to Disclose Personal Health Information, pursuant to the PHIPA, authorizing him/her to contact teachers, school officials, doctors and dentists and authorizing them to provide information directly to that party. The other party shall sign and return this authorization within ten days of receipt.
19. Beginning on Owen’s tenth birthday, each of the parents shall have the right to communicate with him, and Owen shall have the right to communicate with either parent, in private, by e-mail or Skype or any equivalent electronic means, at any reasonable time when he is residing with the other parent, and each parent shall, by Owen’s tenth birthday, equip the room which he occupies when residing with them with a computer and internet access for this purpose. Each parent shall ensure that the other is kept informed of Owen’s e-mail address and telephone number whenever they change.
20. This Order shall be enforced by the Peel Regional Police and any other police service with jurisdiction in the area where Owen is believed to be.
21. There shall be no change in Owen’s school without the advance written consent of both parents or order of the court.
22. Each of the parents shall, within 10 days of the date of this Order, provide the other with a valid email address where the parent can receive communications and it shall be the responsibility of that parent to check his/her e-mail on a daily basis.
23. Mr. Morris shall be entitled to have this Order reviewed by the Court at any time after June 30, 2018, provided that: (a) He has served an affidavit on Ms. Doherty describing the steps he has taken to address the issues referred to in paragraph 73 of these Reasons. (b) He has attended a mediation with Ms. Doherty, in an effort to resolve the issues of custody and access, unless Ms. Doherty has declined in writing the offer of such a mediation. (c) He has provided proof to Ms. Doherty that he has purchased and read the following books: (i) “Difficult Conversations” by Douglas Stone, Bruce Patton and Sheila Heen of the Harvard Negotiation Project, published by the Penguin Group (1999), ISBN 0-670-88339-5; or ISBN 9-780670-883394; (ii) “High Conflict People in Legal Disputes” by Bill Eddy, LCSW, Published by Janis Publications Inc. (2006), ISBN 0-9734396-4-5; or ISBN 9-780973-439649; (iii) “Mom’s House, Dad’s House (Making Two Homes for your Child)”, Isolina Ricci, Ph.D., Fireside (1997) N.Y., N.Y., ISBN 978-0-684-83078-0; and (iv) “Parenting After Divorce”, 2nd Edition, Philip M. Stahl, Ph.D., Impact Publishers (2007) Atascadero, CA, ISBN 978-1-886230-84-2
24. Mr. Morris shall pay to Ms. Doherty her costs of this motion, on a partial indemnity scale, fixed in the amount of $8,000.00, inclusive of fees, H.S.T. and disbursements. These costs shall be deemed to be child support and shall be enforced as such by the Director of the Family Responsibility Office, as provided for in s. 1 of the Family Responsibility & Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31, as amended.
25. Support Deduction Orders shall issue.

Price J. Released: June 27, 2018

Footnotes

[1] FLR, subrule 16(6) [2] Bedard v. Huard, 2000 ONSC 22563, [2000] O.J. No. 969 (S.C.J.) at par. 7, citing Iaboni et al v. Fowles-Brown, 2000 ONSC 22875 [3] Catholic Children’s Aid Society of Toronto v. O. (L.M.), 1996 ONSC 7271, [1996] O.J. No. 3018 (O.C.(G.D.)) at par. 80 [4] Children's Aid Society of Toronto v. S.D. [2016] O.J. No. 228 (O.C.J.) at par. 9-10 [5] FLR, subrule 16 (4) [6] Ramdial v. Davis (Litigation Guardian of), 2015 ONCA 726, [2015] O.J. No. 5630 (O.C.A.) at par. 27 [7] FLR, subrule 16 (4.1) [8] 106150 Ontario Ltd. v. Ontario Jockey Club, 1995 ONCA 1686, [1995] O.J. No. 132 (O.C.A.), at par. 35, the principle was recently reaffirmed recently in Ramdial v. Davis (Litigation Guardian of), at par 28. [9] Ramdial v. Davis (Litigation Guardian of), at par 30 [10] Pearson v. Poulin 2016 CarswellOnt 11368 at par. 40 [11] FLR, subrule 16 (6) [12] FLR, subrule 16 (8) [13] FLR, subrule 16 (9) [14] FLR, subrule 16 (6.2) [15] Hryniak v. Mauldin, 2014 SCC 7 [16] Hryniak, at par 66 [17] Ramdial v. Davis (Litigation Guardian of), at par 29 [18] Afolabi v. Fala, 2014 ONSC 1713, 2014 ONSC 1713 (S.C.J.) [19] Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, [2011] O.J. No. 5431 (OCA) [20] Hryniak, at para. 49 [21] Hryniak, at par. 5 [22] Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, at paras. 41-44 [23] Hryniak, at para. 58 [24] Sweda Farms v. Egg Farmers of Ontario, 2014 ONSC 1200, at para. 32 [25] Hryniak, at para. 66 [26] Hryniak, at para. 66 [27] Young v. Young, at p. 99, per L’Heureux-Dube J. (dissenting in the result). [28] Children’s Law Reform Act, R.S.O. 1990, c. C-12, as amended, s. 24. [29] Young v. Young, 1993 SCC 34, [1993] 4 S.C.R. 3 at pp. 47, 99; Gordon v. Goertz, 1996 SCC 191, [1996] 2 S.C.R. 27, at pp. 67-68. [30] CLRA, ss. 20(1), (4) - (5) [31] Young v. Young, at pp. 46, 117-18. [32] Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as amended [33] Young v. Young, at pp. 46, 117-18. [34] Wiedrick v. LeMesurier (2006), 2006 ONSC 919, 27 R.F.L. (6th) 312 (Ont. S.C.), per Wood J.

COURT FILE NO.: FS-15-0052-00 DATE: 2018-06-27 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ROWAN WALTERS MORRIS Applicant - and - FIONA DOHERTY Respondent REASONS FOR ORDER Price J. Released: June 27, 2018