Court File and Parties
COURT FILE NO.: (Perth) FC17-0085 DATE: October 12, 2018
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: JOSHUA ERNEST ALEXANDER DUCLOS, Applicant – and – ASHLEY DAVIS, Respondent
COUNSEL: Ralph Lee, for the Applicant Cameron R. Croxall, for the Respondent
HEARD: September 4, 5 and 7, 2018
REASONS FOR DECISION
JOHNSTON J.
[1] These are reasons for decision following a two day trial upon the issues of custody and access of the parties’ two children, Hayden, age 10 and Aubrey, 6, turning 7 in December.
[2] Father seeks an Order that the children be in his care on an equal basis, one week with him and the following week with mother. Father seeks a 50/50 access schedule and has since the separation. He argues that up to the date of separation, March 2017, he was an equal caregiver to the children and was arbitrarily denied access, for a considerable time after. He argues the children need more time with him and it is in their best interests to have equal parenting time.
[3] Mother seeks joint custody, with an Order that primary care of the children be with her and parenting time with father on alternating weekends and two nights per week.
[4] Mother argues that the children are very attached to her, have been in her primary care since the separation and that she can best meet the needs of the children, in particular, the needs of Hayden. She opines that Hayden is a special needs child, who must have stability and routine.
[5] Ms. Davis argues that she has consistently put the children’s needs before her own needs and father, and that while he loves his children, Father has not.
Analysis of Witnesses
Mr. Duclos
[6] Father presents as a caring father who played a role in both children’s lives before the separation. His partner, Lori Hamilton, agrees that Mr. Duclos is a good father, caring and loving, and the children have a bond with him.
[7] Mr. Duclos has had a steady job for 5 years.
[8] Mr. Duclos claims that he put the children’s needs first when he separated from the mother, testifying that he left because the children were exposed to constant arguing. He portrays himself as the one who walked away from arguments and was the calmer parent.
[9] I find that father was not completely truthful in his evidence on this point. He was attempting to put himself in the best possible light to advance his claim. For example, I find on the evidence that father did not separate to prevent arguments nor to spare the children from the discord. He left the home after he was caught by his wife cheating on her. His response was to leave, and move immediately into his girlfriend’s house and to attempt to gain equal and shared access to the children. Mr. Duclos had a very brief relationship with Ms. Hamilton as of the date he moved in with her. Father fails to understand the impact this separation undoubtedly has had on the children, nor did he foresee a need to gradually introduce a new partner to them.
[10] It is clear that the two parties argued often and often in front of the children. They must both realize this is psychologically harmful to the children. I further conclude on the evidence that Father was more involved in the arguments than he acknowledges. Both parents bear responsibility for the state of their relationship.
[11] I find that Father was not involved with the children’s school to the extent that he testified. He had much less of an understanding of the schooling and the children’s teachers, than Mother. Mr. Duclos did not mention in any detail the needs and challenges faced by Hayden.
[12] Mr. Duclos also filed an affidavit that his criminal charge in Quebec was completed and he received a discharge. In cross-examination Mr. Duclos admitted this was not true and he likely has an old outstanding warrant from Quebec. Further, Mr. Duclos failed to mention in his evidence in-chief that he and his wife and Hayden left Quebec quickly, because he was the target of a home invasion and that the lives of his family were in possible danger. I find that Mr. Duclos was not willing to disclose information that would be adverse to him. Mr. Duclos accordingly was not a reliable witness.
Lori Hamilton
[13] She testified she is partner to Mr. Duclos and has been since he left the home in March 2017. The two intend to marry.
[14] Ms. Hamilton appears to be a sensible, reasonable individual. She works fulltime and testified that she has a good relationship with the two children, Aubrey more so. Ms. Hamilton understands she is not, nor will she be, mother to the children. She understands the role of the mother as a primary caregiver. I accept that she will assist the father in his childcare responsibilities and she is a positive person in the lives of the children.
Rosemarie Mccarten
[15] Ms. Mccarten is mother of the Respondent, and maternal grandmother of the two children.
[16] Ms. Mccarten has lived with her daughter and grandchildren for six years. She has played a role in the children’s daily routine. The children appear to have a close bond with their grandmother.
[17] Ms. Mccarten has, and would continue to assist mother in her childcare of the two children.
[18] In many respects the grandmother is a positive influence in the children’s lives. However, it is abundantly clear that she has animosity towards the Applicant and his partner Lori Hamilton. She was reticent to acknowledge positive attributes about Father. Her evidence concerning the Applicant is not objective. At times she was argumentative in cross-examination and non-responsive to questions.
[19] She lacks insight of the impact on the children when negative things are said to them about father, or his partner. For instance, asked if it was healthy for the children to be exposed to conflict and negative comments, grandmother’s response was: ‘I have no opinion on that’. She then stated that it did not appear to negatively impact the children. She attempted to walk back her testimony by saying it was only one comment, one time.
[20] I am concerned that grandmother may well speak negatively to the children about their father. She and the Respondent must understand this will not be permitted and that to do so is harmful to the children. These children need the love and support of both parents and the extended family support each can offer.
Ashley Davis
[21] I find Ms. Davis’ evidence in-chief about her role in the lives of the children and her involvement with the children at school and the needs of each was informed and detailed.
[22] Mother was fair in her assessment that while Hayden in her view would struggle during the school year with extended access to Father; Aubrey would likely be more adaptable. Mother could have taken the position that both kids would not do well. Accordingly, Mother demonstrated in her testimony that she understands the needs of the two children.
[23] However, at other times in her evidence, the Respondent Mother was herself argumentative and defensive. A number of times in cross-examination, Ms. Davis asked counsel questions instead of answering questions. I find that Mother was, and remains, bitter over the breakup and the circumstances of the separation with the Applicant. Ms. Davis struggles to deal with the issue. As a result Ms. Davis cannot see any positives in the partner of the Applicant. She blames Ms. Hamilton, instead of reflecting on the fact the relationship with Mr. Duclos was very troubled and doomed to fail, with or without the involvement of Ms. Hamilton.
[24] Ms. Davis initially demanded supervised access between father and the children. I find this was not required and was an over-reaching request. Father never posed a risk to the children. It is unclear how long Mother insisted upon supervised access, but I find it was for a period of time. If her concern was that there was no agreement on residency of the children, this could have been rectified very quickly and easily by a written agreement.
[25] Mother also opposed a week of summer access in 2018 between the children and Father. I find her reason for opposition was not reasonable, although, as it turns out, she was probably correct that the full week was a bit long. Father returned the children one day early. Nonetheless, the children, I conclude, had a good time with the father and they needed time with him.
[26] Mother also testified that she told Father not to attend daughter’s baseball game. She denied that she threatened to pull the daughter out of the game if he attended. She acknowledged that she told him not to attend because he had not paid a bill and because it was her parenting time, not his. Ms. Davis then tried to walk back her evidence on this point. I conclude Mother did tell Father not to go to the game and that this was not appropriate. She was less than forthright on this point.
[27] Mother must recognize the role Father has to play in the children’s lives and must recognize that it is in their best interests to facilitate the relationship; to meet the children’s needs. Aubrey, I am satisfied, wanted dad at her game. Children like to perform for their parents and it gives them self-confidence and pride. Parents should not be discouraged in participating in the activities of their children.
[28] Parenting time between father and the children is not something Mother can agree to or disagree to, based on how she feels about Father. At times, I conclude and accept, Mother has not included Father in decisions affecting the children and at times has failed to consider the children’s needs when it comes to their father.
[29] Notwithstanding the above findings, I accept Mother’s evidence that there was and remains a poor relationship and poor communication between herself and Father. Both parents in the future must give more priority to communication, for the sake of good parenting of the children.
[30] I also accept that notwithstanding her animosity towards Mr. Duclos and Lori Hamilton, Mother has been a good and caring parent. She does a good job with the children. She is able to provide Hayden, in particular, structure and routine.
[31] Ms. Davis acknowledges that the children like to see Dad and there is no problem after an access visit.
[32] I accept Mother’s evidence that the children are doing well in her primary care. I accept her evidence notwithstanding the fact I found some issue with her ability to deal with her emotions and her evidence surrounding the circumstances of the separation. I find her credible because she has on major issues been able to provide objective evidence.
Hayden
[33] I find that Hayden is a boy with special needs. He is very sensitive and has had special needs from birth. Hayden is a hyperactive child, he may have ADHD. Hayden has trouble focusing and, as a result, school is not easy for him. Hayden has been bullied at school and at times feels very badly about himself, including, shockingly, he spoke of suicide. Hayden needs routine and structure and real help with his studies. A break in routine results in the child experiencing a bad day.
[34] Hayden at one time enrolled in speech therapy as arranged by mother. Hayden is described by his mother as a ‘people pleaser’, always wanting to do what people want.
[35] Father testified Hayden told him he wanted to be with Father two weeks on and two weeks off. Mother testified that Hayden likes his current routine.
Merits of Application for Custody or Access
[36] In an application under section 24 of the Children’s Law Reform Act the court must determine the matter on the basis of the best interests of the child, in accordance with subsections (2) and (3):
Best Interests: 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 including a parent 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
- In the case at bar I conclude the two children love both their mother and father. Both children have a bond to both parents. The children have as well a bond with the maternal grandmother, who resides in the home with mother and the two children. Grandmother has played an important role in the lives of the children, now and in the past.
- The children recently went on a week vacation with Father and at their request returned a day early. I accept they enjoyed time with Dad, but they missed Mom and wanted to come home early. To Dad’s credit, he responded positively to the children’s request to return early.
- It appears the children are gaining a growing attachment to the girlfriend of Father, Lori Hamilton. However, this relationship is still relatively new.
b) The child’s view and preferences, if they can reasonably be ascertained;
- There is limited information on the views of the children. They may be telling each parent what they wish to hear. Again, there was a week vacation with Dad and they returned early, because they missed Mother.
c) The length of time the child has lived in a stable home environment;
- The children have lived with mother since the separation in March 2017, when father left the home and moved in with his partner. I accept the evidence that the children are happy in their home with mother. This is the home each child has known. The children have the support of the grandparents as well. The current home is stable.
- The status quo has been the children live primarily with mother. Father initially brought a motion for 50-50 access, but appears to have abandoned the same.
d) The ability and willingness of each person applying for custody to provide the child with guidance and education, the necessaries of life and any special needs of the child.
- Each parent is willing to provide the children with guidance and education and to meet their basic needs. Mother has been the primary caregiver since March 2017 when dad left the home. Both parents contributed to the children’s lives before the separation. I accept Dad took six months off work to care for Aubrey after her birth when Mom went back to work. Dad says he understands the needs of Hayden and has and will work with Hayden on homework. Upon consideration of the evidence of both mother and father, I find that Mother has a very good understanding of Hayden’s needs and his special needs. Mother has been very involved with the school on his education plan, I find more so than Dad. Dad testified the child is going into grade 4, in fact it is Grade 5. Mom knew all of the teachers and the particulars of the problems at school. Dad says he understands, but I find he minimized the issues Hayden faces.
- Hayden in particular needs routine, stability and reassurance. I find mother has provided that to date. Dad tries, but mother is better suited to meet those needs.
- Aubrey is different; her issues are not as challenging as Hayden.
e) The plan proposed by each person for the child’s care
- Dad proposes the parents have week on and week off parenting time for each child. Dad works shift, known as continental shifts: one week is a long week of 5 12 hour days and the other, short week is 2 twelve hour days. It rotates as between day and night shifts. Dad’s partner Lori also works shifts. Often they work opposite shift, but sometimes neither would be present and at such times, in the morning a babysitter would be needed. Dad has made arrangements for a young woman to do this.
- Mom works Mondays to Fridays, 7 a.m. to 5 p.m. Her mother is available to assist when she is not there. The children are accustomed to the routine of Mother’s home and very familiar with grandmother. On balance and in comparison, I find the plan of both parents are acceptable, but prefer Mother’s.
f) The permanence and stability of the family unit with which it is proposed the child will live
- Mother’s plan is likely permanent and stable. She continues to live in the same house the children have for a number of years. Mother has a boyfriend, but does not live with him and he is not part of mom’s plan. Grandmother has been a fixture in the lives of both children.
g) The ability of each person to act as a parent;
- Each parent has attributes. Both have faults and at times both fail to understand the impact of their own conduct. Mother for the reasons previously stated is better capable of meeting Hayden’s needs.
h) Any familial relationship between the child and each person who is a party to the application.
[37] Father has argued that an equal parenting plan is in the children’s best interests. Father suggests that equal access time is the presumptive schedule. Father has not satisfied the Court that changing the existing schedule during the school year would be better than the existing schedule. The issue is the needs and best interests of the children.
[38] Upon consideration of all of the above factors, I conclude that both parents are well meaning and love their children.
[39] In the final analysis, particularly during the school year, the best interests of these young children require that they be in Mother’s primary care. I find that ‘week about’ access in separate homes would be contrary to Hayden’s best interests. While Aubrey might be capable of succeeding in a shared arrangement, it is contrary to the two children to separate them.
[40] I accept the evidence of Mother, that Hayden’s needs can best be met with her. Accordingly, I Order primary residence with Mother and parenting time to Father on alternating weekends and two mid-week visits as proposed by Mother. These visits should only take place if Father is available to be with them. I question whether two nights a week is too much, particularly for Hayden. However, I accept Mother’s proposal. Mid-week overnight is, in my view, not in the children’s best interests and would be too disruptive to their schedule.
[41] Access between the children and Father should gradually increase during the summer school break. Routine is not as important during the summer months.
[42] The parties must stop their arguing and involvement of the children in their disputes. The parents must let the children enjoy their time with the other parent; do not make them feel badly about loving the other parent. Involving the children in the adults’ disputes is akin to administering poison to them.
[43] Communication has been a real issue between the parties. Normally, joint custody should not be ordered in cases where the parties cannot agree on. However, in this case, I am ordering joint custody. Mother and perhaps grandmother need to know that Father has an important role to play in the lives of the children. The order for joint custody must be structured and specify rights and obligations.
[44] The parents have shown brief times where they can act in the best interests of the children. For example, Father returned the children after the cottage visit when they wanted to go home early. Mother extended mid-week visits for a time. I urge the parents to seek out counselling on how to deal with their own issues and to gain insight into the needs of their children. Before going to court in the future, if they reach an impasse on important issues, I urge these parents to seek mediation, or the services of a parenting coordinator. They must find ways to avoid conflict particularly in front of the children.
Order
[45] The Respondent, Joshua Duclos, and the Applicant, Ashley Davis, shall share joint custody of the two children: Hayden James Richard Duclos born June 19, 2008 and Aubrey McKenzie Sofia Duclos born December 21, 2011. The Mother shall be the children’s primary caregiver.
[46] Mother shall confer with Father on all major decisions affecting the children’s health, education and general welfare. Consultation, where reasonable to do so, shall be done with reasonable advance notice. In the event of a disagreement on such major decisions, Mother shall have the right to make a final determination.
[47] Mother shall notify the Father of the names and contact numbers of the children’s doctors, dentist or other service providers, and shall notify of any change.
[48] Father shall have the right to be notified of, and right to attend, all extracurricular events for the children, both school and non-school events.
[49] Access between the children and the applicant Father shall occur on alternate weekends from Fridays after school to Sundays at 5 p.m.
[50] Further access shall occur between the father and the children two evenings per week from after school until 7 p.m., provided father is not working and provided father ensures the children’s home work is completed.
[51] Statutory holidays shall be shared on a more or less equal basis. Holidays shall be divided in the year in which they occur. Notwithstanding the regular access, the Christmas holiday shall be shared with the Mother having the children for the first half of the holiday in even numbered years and the reverse on odd numbered years:
For the years 2018, 2019 and 2020, the children shall remain with the Mother from December 24 at noon until December 25 at 6 p.m. The father shall have the children every year from 6 p.m. on December 25 until December 26 at 6 p.m.
Starting in 2021, Father shall have the children December 24 at noon until December 25 at 6 p.m. and Mother have the children from December 25th at 6 p.m. to December 26th at 6 p.m. and alternate every year thereafter.
[52] March break school vacation shall be shared equally in 2019; one half of the time with each parent. Beginning in 2020, the parents shall alternate March break, one year with Father, the following year with Mother, and alternating thereafter. March break 2020 shall be with Father.
[53] In the summer of 2019, the children shall be in the care of father for three separate one week periods in July and August, Father to notify Mother in writing by May 1st the weeks he desires. Mother shall not unreasonably reject the request and shall respond in writing within 7 days of receiving father’s request. If no request is made, Mother shall be entitled to make summer arrangements.
[54] Commencing in the summer of 2020, the children shall reside one week in the care of father and the following week with Mother. The children shall be permitted reasonable telephone access with the other parent, at least three times per week.
[55] Notwithstanding the access schedule, Mother shall have access with the children for the day on Mother’s Day and Father shall have access with the children for the day on Father’s Day.
[56] On the children’s birthdays, the parent who does not have the child in his or her care shall have the right to access for a minimum of two hours.
[57] Father shall have the right to access school, medical and other records pertaining to the children, directly from the service provider. Mother shall notify all service providers to either child of father’s right to information.
[58] Father shall have the right to independently attend teacher-parent interviews and to speak directly to all teachers, doctors and other service providers.
[59] Neither parent shall speak negatively to the children about the other parent, or the other parent’s partner. Neither parent shall permit anyone else to speak negatively to the children about the other parent or parent’s partner.
[60] Each parent shall encourage the children to have a positive relationship with the other parent and to spend meaningful time with the other parent.
[61] The parents shall communicate with one another through Family Wizard or similar program and each pay one half of the monthly cost. At all times communication between the parents shall be civil and respectful and child focused.
[62] Father shall be entitled to photocopies of the children’s health cards.
[63] Neither parent shall permit the children to be exposed to persons consuming excessive alcohol or drugs.
[64] If the children are removed from Ontario, or removed from a 250 km radius of Perth by either parent, that parent shall provide the other with a contact number and itinerary.
Child Support
[65] Father shall pay child support for the two children to Mother, base support in the amount of $918.00 per month, commencing September 1, 2018, and the first day of each month thereafter, until further Order of the court; based upon father’s income of $62,000.00 per year.
[66] Father shall pay to mother arrears of child support fixed in the amount of $1,460.00 for the period prior to the existing support Order.
[67] Section 7 expenses shall be shared equally on a 50/50 basis, including extracurricular events, including swimming, karate, and baseball. The parties shall each consult one another in advance about the activities the children shall be enrolled in. In the absence of an agreement, Mother shall be entitled to enroll the children in an activity, provided she does so on a reasonable basis.
[68] Mother shall provide to Father, copies of all invoices for section 7 expenses within 30 days of incurring the expense and Father shall pay the expense within 30 days. Section 7 expenses shall be enforceable by FRO if they will do so, by Mother filing a copy of the invoice with FRO.
[69] For as long as child support is to be paid, the payor and recipient must provide income disclosure to the other party each year, by May 1st each year, in accordance with section 24.1 of the Child Support Guidelines.
Costs
[70] Counsel shall confer with one another on the issue of costs. If the issue cannot be resolved, counsel for Mother shall, within 14 days, serve and file written submissions limited to two pages, and Bill of Costs. Counsel for Father shall within 14 days thereafter file written submissions, also limited to 2 pages with Bill of Costs.