Court File and Parties
COURT FILE NO.: FC-17-1366-1
DATE: 2018/12/06
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Craig Blair, Applicant
-and-
Janna Hamilton, Respondent
BEFORE: Justice P. MacEachern
COUNSEL: Alison Campbell for the Applicant
Respondent, Self-Represented
HEARD: November 27, 2018
ENDORSEMENT
[1] This is a motion brought by the Applicant, Mr. Blair, seeking an order that interim custody and access be in accordance with the parenting schedule set out in the parties’ Separation Agreement, dated May 4, 2017, until further order or agreement between the parties. Mr. Blair also sought a custody and access assessment with Valerie Morinville, that the children attend counselling, and that neither party attend at the children’s school during the other parent’s access time.
Background
[2] This Application was commenced on October 15, 2018. On November 15, 2018, leave was granted for this motion to be heard on an urgent basis. The first court date is scheduled for January 16, 2019.
[3] The parties were married on September 6, 2003. They separated on August 24, 2015.
[4] There are two children of the marriage, ages nine and eleven years of age.
[5] The parties executed a final Separation Agreement on May 4, 2017. The agreement provides for a 2-2-5-5 schedule for the children as of January, 2018 and, at paragraph 26:
“If, in the future, the parties are unable to agree about an appropriate residential schedule for the children, either parent is free to request that the children’s ongoing residential schedule be determined by arbitration under the “Dispute Resolution” provisions, below.”
[6] The Dispute Resolution provisions provide for any disputes to be determined through a mediation/arbitration process, stating at paragraphs 210 to 212:
“If the parties are unable to resolve any dispute between them relating to the interpretation or implementation of any term of this Agreement or any proposed change to its term, they shall have the dispute(s) resolved through mediation – arbitration with Kathryn d’Artois or another agreed upon mediator-arbitrator.
Any dispute(s) which the parties submit to arbitration will be determined through a secondary arbitration conducted in accordance with the provisions of the Arbitration Act, 1991. Either party may appeal any arbitration award made by the mediator-arbitrator on a question of fact, a question of law or a question of mixed fact and law.
The parties will share equally the arbitrator’s retainer fee, however, an arbitration to whom the parties submit any disputes for determination will have the authority to determine costs of the arbitration process.”
[7] In August 2017, the parties formally retained Ms. d’Artois. They entered into a Parenting Coordinator Agreement with Ms. d’Artois that set out jurisdiction to arbitrate certain issues.
[8] Ms. d’Artois has made two arbitration awards in this matter, one dated on June 29, 2018 and one dated on October 5, 2018. Both awards were made pursuant to the Parenting Coordinator Agreement.
[9] The June 29, 2018 award addresses the commencement date of Ms. Hamilton’s vacation. In her decision, Ms. d’Artois made the following statements:
“Neither parent has the right to make unilateral decisions to change the regular parenting schedule.
It is, in my view, inappropriate for Janna [Ms. Hamilton] to simply schedule her vacation time with the children knowing full well that her vacation dates coincide with Craig’s regularly scheduled parenting time and that he does not agree to her proposed start date and time.
The parents are required to follow all of the terms of their final separation agreement unless they agree not to do so.…
Janice’s summer vacation plans are in breach of the final separation agreement, are unilateral in nature and completely disregard terms that were negotiated with both parties’ lawyers sitting at the negotiation table.”
[10] The October 5, 2018 award was dealt with on an urgent basis, at Mr. Blair’s request. Ms. d’Artois made an immediate arbitration award requiring Ms. Hamilton to respect the current parenting plan. In support of his position, Mr. Blair relied on an email Ms. Hamilton sent to him on October 3, 2018 which stated:
“I’m taking temporary custody of our daughters. I will not subject them to your mental abuse.
I have made arrangements with the school that I will be picking them up until further notice. Arden and Regan know that they are residing with me now.
I suggest the next step should be to get a court date to resolve this in a legally binding manner.”
[11] Mr. Blair has not sought an order to enforce the Arbitration Awards, but rather has brought a new Application seeking to vary the custody and access provisions of the Separation Agreement, and to rescind the arbitration requirement in its Dispute Resolution clauses.
[12] Ms. Hamilton did not raise the mediation-arbitration clause in the Separation Agreement, nor the Parenting Coordinator Agreement, as a bar to the jurisdiction of this court to determine this matter. Ms. Hamilton did state that she takes issue with the awards of Ms. d’Artois, and advises that she seeks to appeal the October 5, 2018 award. Ms. Hamilton seeks her own changes to the custody and access terms of the Separation Agreement.
[13] Neither party filed the Parenting Coordinator Agreement in their material. I do not know the terms of that agreement, except that the parties were in agreement that its terms did not oust the court’s jurisdiction to deal with this motion, and in particular that Ms. d’Artois does not have jurisdiction under the Parenting Coordinator Agreement to vary custody or make significant changes to the parenting schedule.
[14] In dealing with this matter, I proceeded on the basis that neither party objected to the court having jurisdiction to determine these issues. While I am not determining this, it appears to me that the parties, in executing the Parenting Coordinator Agreement, agreed to amend the Dispute Resolution terms of the Separation Agreement to limit the matters to be determined by arbitration to those set out in the Parenting Coordinator Agreement, which does not include proceedings to vary custody or to make significant changes in the parenting schedule. I leave this issue to be addressed between the parties in further discussions and, if they are unable to agree, to be determined by a court in future appearances. In the interim, in the event that there is an issue with the mediation/arbitration terms set out in the Dispute Resolution provisions of the Separation Agreement, I make the Order below under the Court’s parens patriae jurisdiction, given the urgency of this matter and the need for immediate relief to address the needs of the children and their best interests.
Parenting
[15] Mr. Blair alleges that Ms. Hamilton has unilaterally terminated the parenting schedule on two occasions. There was an initial unilateral change in October 2018, referenced above. Mr. Bair’s time with the children was briefly reinstated at around October 20, 2018. It was interrupted again in November 2018, before being reinstated when Mr. Blair obtained leave to bring this urgent motion. Mr. Blair is concerned that without an interim order in place, Ms. Hamilton will unilaterally change the schedule again.
[16] Ms. Hamilton’s position is that the children no longer wish to be in an equal residential parenting arrangement. Ms. Hamilton states that she has discussed varying residential schedules with the children and they have informed her “many times” since August 2018 that they want to change the schedule. In her view, she is simply implementing their wishes.
[17] The court cannot, and does not, condone a parent unilaterally changing a parenting schedule in the face of an existing agreement or court order. If a parent believes that the existing schedule is no longer in the children’s best interests, their recourse is to apply to the court to change the schedule. The existing agreement continues to be binding on the parties in the absence of a court order, or agreement of the parties.
[18] Ms. Hamilton states that the children’s wishes are based on them being older, wanting more flexibility in their schedule, having more friends and activities in her neighbourhood, and experiencing some distress when Mr. Blair came to their school (related to the incident in October when Ms. Hamilton advised him she was changing the schedule). None of these issues create an urgency, and even if an urgent situation had arisen, Ms. Hamilton’s recourse, again, was not to make a unilateral change but to apply to the court for an urgent motion.
[19] Given the evidence before me, I find that it is in the children’s best interest for there to be an interim order providing that the custody and access of the children be in accordance with paragraphs 14 to 17, 22 to 25, and 27 to 101 of the Separation Agreement dated May 4, 2017. The parties shall provide me with a draft order for my signature which incorporates these terms, along with the provisions below, with modifications to the wording to comply with requirements for orders.
Custody and Access Assessment
[20] Mr. Blair has confirmed that Valerie Morinville is available to commence a custody and access assessment on December 10, 2018. He seeks an order requiring the parties and children to participate in this assessment pursuant to s.30 of the Children’s Law Reform Act, and for the cost to be shared by the parties equally. Ms. Morinville requires a retainer in the amount of $3,000 from each per party in order to begin the assessment.
[21] Although Ms. Hamilton originally opposed an assessment, during her argument she accepted that an assessment would be helpful to investigate the wishes of the children, as well as their concerns with the equal timesharing arrangements, and the numerous concerns Ms. Hamilton has raised with respect to Mr. Blair.
[22] On Mr. Blair’s side, he seeks an assessment to investigate his concerns with Ms. Hamilton’s behaviour, as well as the children’s wishes.
[23] I agree with both parties that an assessment is warranted. I am concerned with the escalating issues in this matter. There have been various allegations that the parenting schedule should be changed dating back to when it was signed in May of 2017. These concerns are escalating and place the children’s interests at risk. This assessment, which can start immediately, will provide needed information to attempt to address these issues as quickly as possible.
Counselling
[24] Mr. Blair sought an order that the children attend counselling. I find that it is in the best interests for the children to attend counselling in accordance with the recommendations of Ms. Morinville. Ms. Morinville should be asked to make recommendations for the timing of the counselling, how the parents may participate in this counselling, and the name of the counsellor. The parties shall be required to follow these recommendations unless they are able to agree otherwise.
Attendance at School
[25] Mr. Blair also sought an interim order that neither party shall attend at the children’s school during the other parent’s parenting time. This issue largely arises because of the recent incident at the children’s school due to Ms. Hamilton’s unilateral change to the parenting schedule. Without assessing blame for that incident, both parties were in agreement that neither would attend school during the other parent’s time and I so order. I find that this is in the children’s best interests.
Disposition
[26] Accordingly, I make the following orders:
On an interim basis, custody and access of the children shall be in accordance with paragraphs 14 to 17, 22 to 25, and 27 to 101 of the Separation Agreement dated May 4, 2017. The parties shall provide me with a draft order for my signature which incorporates these terms, along with the provisions below, with modifications to the wording to comply with requirements for orders, including specifying the names and birthdates for the children.
There shall be an assessment pursuant to s.30 of the Children’s Law Reform Act[^1], conducted by Valerie Morinville, on the needs of the children and the ability and willingness of the parties to satisfy the needs of the children. Both parties shall cooperate fully with this assessment. The cost of the assessment shall be shared equally by the parties. On or before December 9, 2018, each party shall pay the sum of $3,000, being one half of Ms. Morinville’s required retainer, so that the assessment can begin as soon as possible.
The children shall attend counselling in accordance with the recommendations of Ms. Morinville. Ms. Morinville shall be asked to make recommendations for the timing of the counselling, how the parents may participate in this counselling, and the name of the counsellor. The parties shall be required to follow these recommendations unless they are able to agree otherwise.
On an interim basis, neither party shall attend the children’s school during the other parent’s time.
This matter shall be case managed and is referred to the local administrative judge to be assigned to a case management judge.
Costs
[27] If the parties are unable to agree on the costs of this motion, the Applicant may file submissions with respect to costs on or before December 14, 2018. The Respondent may file submissions with respect to costs on or before December 21, 2018. Cost submissions of both parties shall be no more than three pages in length, plus any offers to settle and bill of costs, and shall comply with Rule 4 of the Rules of Civil Procedure[^2].
Justice Pam MacEachern
Date: December 6, 2018
COURT FILE NO.: FC-17-1366-1
DATE: 2018/12/06
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Craig Blair, Applicant
-and-
Janna Hamilton, Respondent
BEFORE: Justice P. MacEachern
COUNSEL: Alison Campbell for the Applicant
Respondent, Self-Represented
ENDORSEMENT
Justice Pam MacEachern
Released: December 6, 2018
[^1]: R.S.O. 1990, c.C.12, as am. [^2]: R.R.O. 1990, Reg. 194