Court File and Parties

COURT FILE NO.: FS-17-0125-00 DATE: 2019 03 04

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Audrey Deon Herbert S. Hirschberg, counsel for the Applicant Applicant

- and -

Darryl Colin Bartholomew M. Fordjour, counsel for the Respondent Respondent

HEARD: February 26, 27 and March 1, 2019

Reasons for Decision

LEMAY J

[1] Audrey Deon Herbert (“the Applicant”) and Darryl Colin Bartholomew (“the Respondent”) started dating in 2003. They were in a common law relationship from sometime in 2003 or 2004 until they separated on July 21st, 2016. They have two children together, Jasmine who is currently in grade 9 and is age 14 and Jonathan who is currently in grade 5 and is age 11.

[2] The Applicant is a collection representative with Paccar Financial Services. The Respondent is a constable with the Toronto Police Services (“TPS”), and works an alternating shift schedule. They have both held these positions on a long-term basis. They are both actively involved in parenting their children.

[3] The parties were able to resolve most of the issues in this matter, and a consent order either has been issued or will be issued. Among other things, the parties were able to agree that the Applicant would have custody of the children. The parties have agreed on most of the access schedule as well.

[4] At the start of the trial, the parties had a dispute over two days in the access schedule. One of those two days is at the beginning of the period when the Respondent works afternoon shifts. The other is at the end of the period when the Respondent works night shifts. The Respondent seeks to have both of these days added to his schedule. The Applicant resists the Respondent’s request, but was more concerned about the additional day at the end of the night shift. By the end of the trial, the parties were ad idem that the Respondent’s access should be extended up to the morning of the day that his afternoon shift begins. The other day remained in dispute.

[5] If the Respondent is successful in obtaining access on both of these days, he then seeks a reduction in the quantum of child support that he is paying. He seeks this reduction on the basis that he will have exceeded the 40% threshold in section 9 of the Federal Child Support Guidelines.

[6] For the reasons that follow, I have determined that the Respondent should only be given access on the one additional day at the beginning of his afternoon shift. He will not be given the additional access on the day at the end of his series of night shifts. As a result, there will be no change to the amount of child support that the Respondent currently pays.

Issues

[7] The facts in this case raise two issues that must be determined, as follows:

a) Should the Respondent receive any additional access time?

b) If additional access time is granted, does section 9 of the Federal Child Support Guidelines apply? Should a change be made in the quantum of child support?

[8] I will briefly set out the background facts, and address each issue in turn. Before setting out the background facts, I should note that I heard evidence on the circumstances of the parties’ separation, as well as other extraneous events. I am of the view that those events are not relevant to the very narrow issues that I have to determine in this case.

Background Facts

The Parties

[9] The Applicant has worked for Paccar Financial Services for sixteen years. She earned an income of $66,118.00 in 2017, and her 2018 income is expected to be approximately the same amount. After separation, the Applicant moved in with her sister. Then, in June of 2018, she moved into a house that she had purchased in Peel Village, in the southeast part of Brampton. The children have their own rooms in the Applicant’s house.

[10] The Respondent is a TPS Constable. In 2018, his income was $109,361.96. Since separation, he has lived with his mother in her home in Mississauga. In this house, the Respondent sleeps in the basement in a room that is his. There are three bedrooms upstairs, and the children each have their own bedroom if they wish. Sometimes, Jonathan will sleep downstairs in his father’s room, and sometimes Jasmine will fall asleep in her grandmother’s bed.

[11] The parties’ relationship started in 2003. The Applicant stated that the parties started to live together in 2003, while the Respondent states that they started to live together in 2005. It is not necessary to resolve this factual dispute.

[12] Jasmine was born in 2004. She is currently in grade 9, and is involved in vocal music and archery. She is also interested in badminton, has taken dance lessons and participates in the Christmas Concert. Her parents both testified that she is a very good student. However, she has asked for a tutor in mathematics as she wishes to do better in mathematics.

[13] Jonathan was born in 2008. He is currently in grade 5. Although he is a good student, his mother has identified some academic weaknesses (particularly spelling) that she is working with Jonathan on. Jonathan plays Double A hockey, as well as being involved in a significant number of sports at his school.

[14] Both children are in French Immersion. The French Immersion high school in Brampton, Cardinal Leger, is approximately five minutes away from the Applicant’s home. This is the school that the parties intend Jonathan to go to when he reaches Grade 9. Jonathan’s current school is approximately 15 to 20 minutes away from Jasmine’s school.

[15] The family picture is completed with Jasmine’s golden retriever puppy Bayley. The evidence of the parties was clear that it was Jasmine’s dog, and that she has been “campaigning” for the dog for approximately three years. Bayley arrived in July of 2018 and travels back and forth with the children when they move from their mother’s house to their father’s house and vice versa.

[16] Everyone agrees that both parents are involved parents, and that the children have a good relationship with both parents. Both parents regularly attend the children’s activities, and will do so even when the activity falls outside of their access time.

The Current Access Schedule

[17] The current access schedule is built around the Respondent’s shift schedule. The Respondent works as a TPS constable at 31 Division, which is in the northwest part of Toronto near Jane and Finch. He has held this job since December 22nd, 2014. Although he has been a patrol officer in the past, currently he is performing inside duties and assisting the general public. He has been performing inside duties since shortly after the parties separated.

[18] The Respondent’s schedule repeats every five weeks, and there are three blocks of shifts in each five week schedule. The first day of the schedule is a Friday. The shift schedule and times are as follows:

a) Starting on Day 7 (a Thursday), the Respondent works 7 afternoon shifts in a row. Those shifts run from 1:00 p.m. to 9:00 p.m. The Respondent is required to relieve the previous officer at 12:30 p.m., and he is relieved at 8:30 p.m.

b) Starting on Day 18 (a Monday) at night, the Respondent works a series of seven night shifts in a row. Those shifts run from 9:00 p.m. to 5:00 a.m.. The Respondent is required to relieve the previous officer at 8:30 p.m, and is relieved at 4:30 p.m.

c) Starting on day 29, the Respondent works a series of seven afternoon shifts in a row. Those shifts start at 5:00 a.m. and end at 1:00 p.m. The Respondent is required to relieve the previous officer at 4:30 a.m. and is relieved at 12:30 p.m.

[19] In terms of the shift schedules, the Respondent works at slightly different times than the rest of his platoon. The times set out above are the Respondent’s shift schedule. It expected that the times of the Respondent’s shifts will not vary, and I was provided with a shift schedule that runs for approximately a year from the date of the trial, into early 2020.

[20] The current access schedule was agreed to by the parties and incorporated in a consent Order of Price J. on October 17th, 2017. That schedule has been in place since that time, with one change. The original Order of Price J. was changed on the parties’ agreement to permit drop offs and pick-ups from the Applicant’s home, rather than from school. This change was made to accommodate Bayley. In my view, it has made some of both the drop offs and the pick-ups later. As a result, Bayley’s arrival in the family has not significantly changed the amount of time either parent spends with the children.

[21] Generally, however, the schedule has remained constant, and there have been very few issues with it. As the Applicant testified, the children know the schedule and are comfortable with it.

[22] With that history in mind, I will now address the issues that present themselves in this case.

Issue #1 - The Additional Access

[23] As noted, the Respondent is seeking two additional days of access over the parties’ thirty-five day access schedule. Those days are as follows:

a) Instead of the Applicant picking the children up at the end of the day on the first Wednesday of the schedule, the Respondent wants to drop the children off on the Thursday morning.

b) Instead of the Applicant picking the children up on the fourth Tuesday of the access schedule at the end of the day, he wants to pick them up on the Monday afternoon, after the end of his night shift.

[24] The first day is on consent, and I will not spend very much time on it. I will address the second day in more detail.

[25] I should start, however, with some of the extraneous evidence that the parties provided. It is common ground that the parties are both involved in their children’s lives, and there is no dispute that the parties are both loved by their children. In short, they appear to be good and loving parents.

[26] However, the Applicant led evidence about the fact that the Respondent had cancelled his access on a few occasions on short notice. On one occasion, it was for a wedding. On another occasion, it was for training for work. The Respondent, in turn, led evidence that the Applicant had gone on a trip out-of-country and had left the kids in the care of her sister. In addition to this evidence, there was considerable evidence about the parties’ separation, and the incidents that flowed from that separation.

[27] Although these incidents were of concern to the parties, they are not relevant to the issues that I have to determine. The question that I must resolve is whether a change in the access schedule is in the children’s best interest.

The Afternoon Shift Change

[28] The change in this case is from dropping the children off on Wednesday afternoon to dropping them off Thursday morning. The Applicant was content with this change if Bayley could be accommodated. The Respondent confirmed that he could accommodate this change.

[29] As a result, I understand that the parties have agreed that, on the Thursday morning before the Respondent’s afternoon shift starts, he will drop Bayley at the Applicant’s house and the children at school. The final Order will reflect that fact.

The Night Shift Change

[30] The Applicant argues that giving the Respondent an additional day of access on the Monday after he finishes his night shift is not in the children’s best interest. The Respondent argues that the maximum contact principle should apply as maximum contact is in the children’s best interests. The Respondent further says that he is perfectly capable of taking care of the children when he finishes his shift.

[31] For the reasons that follow, I am not persuaded that having the children be in the Respondent’s care even at the end of the day that he finishes his time on night shift is in their best interests. On this issue, I accept the Applicant’s position for a number of reasons.

[32] First, the Applicant testified that she had more than ten years’ experience with the Respondent on night shifts. She testified that, for a day after the Respondent finished his night shifts, he was difficult, uncommunicative and demanding. Night shifts are difficult. The children are on a different schedule from the Respondent, and he will need time to readjust to a regular sleeping routine. The Applicant’s description of the Respondent on the first day after he finishes night shift fits with common sense and I accept it. It is not in the best interests of the children to have the Respondent care for him in this state.

[33] The second problem with the Respondent’s request is the timing of his night shift. He finishes his night shift at 5 am. He testified that he would be going to sleep by 6:30 am. This is the earliest that I can imagine him going to sleep in the morning. If he requires 6 to 7 hours to sleep, he will not be up until close to 2 pm. He would then have to immediately drive to get the children (as Jonathan’s school is a half hour away), take them to their activities (which on Mondays include hockey, volleyball and sometimes archery) and then be responsible for their meals and homework that evening. It becomes a more chaotic and stressful experience for both the children and the Respondent. That is not in the best interests of the children.

[34] In these two points, it is clear that I have accepted the Applicant’s evidence about the Respondent’s demeanour at the end of his night shift. Given that he Respondent disputed the Applicant’s evidence and said that he would be able to care for the children after school with no problems, I will explain why I accepted the Applicant’s evidence and rejected the Respondent’s evidence on this point.

[35] There are two problems with the Respondent’s evidence. First, the Respondent was focused on himself rather than the children as the reason for the change. On more than one occasion, the Respondent stated that the access was so that he could have more time with the children. Indeed, in cross examination, he stated that he wanted what he deserves in terms of having more time. This is not a response that is focused on the best interests of the children.

[36] The second problem with the Respondent’s testimony about his ability to care for the children after his night shifts is that it appears to be motivated, in part, by the financial issues. If the Respondent is successful in obtaining this second day of access, he will then meet the threshold under section 9 of the Child Support Guidelines. If he meets this threshold, he seeks a substantial reduction in child support. I do not think that the Respondent was untruthful in his evidence. However, it is quite possible that the Respondent is putting a more positive gloss on his ability to manage the children on this additional day than is justified.

[37] The Applicant, on the other hand, has been prepared to accommodate a significant amount of access, and has provided a reasonable explanation for why the Respondent should not have this last day of access. While she may also have been financially motivated, her willingness to extend the access further than the agreed-upon schedule suggests that she was willing to provide the Respondent with more access as long as it was in the children’s best interests. In short, the Applicant’s evidence on this point is more reliable than the Respondent’s evidence.

[38] Finally, I am not prepared to make the change that the Respondent is seeking because the current routine is working for the children. Although this reason is much less important than the first two reasons, the fact that a schedule is working well for the children is a consideration in assessing what their best interests are.

[39] I should also address the maximum contact principle. I agree with the Respondent that this is a critical principle. Indeed, counsel for the Respondent pointed to Gordon v. Goertz (, [1996] 2 S.C.R. 27) in support of this principle. However, Goertz also specifically notes that the maximum contact principle is not absolute, and must be considered in light of the children’s best interests.

[40] In this case, I am not persuaded that the change sought is in the best interests of the children. As a result, the maximum contact principle does not assist the Respondent.

[41] For all of the foregoing reasons, the request to change the access schedule at the end of the Respondent’s night shift is denied.

Issue #2 - Changes in Spousal Support

[42] Section 9 of the Child Support Guidelines governs this case. This section states:

9. SHARED CUSTODY- Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account

(a) the amounts set out in the applicable tables for each of the spouses;

(b) the increased costs of shared custody arrangements; and

(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

[43] In any analysis of section 9, the first step is to determine whether the payor spouse, in this case the Respondent, has reached the 40% threshold. Given that I have denied the request for the second day of access, the parties are ad idem that this threshold is not met.

[44] As a result, the quantum of child support payable by the Respondent to the Applicant shall remain the Guideline amount.

Conclusion and Costs

[45] For the foregoing reasons, I order as follows:

a) All of the changes that the parties have previously agreed to and the issues that they have resolved are to be incorporated into the final Order.

b) The access schedule shall be modified such that, in the first week of the schedule, the Respondent shall have access with the children until Thursday before school, as long as the Respondent returns the family pet to the Applicant’s home on the Thursday morning.

c) The remainder of the Respondent’s requests for relief are dismissed.

[46] This brings me to the subject of costs. The parties are encouraged to attempt to resolve the issue of costs between them.

[47] However, if the parties cannot resolve costs then they are each to file their costs submissions within fourteen (14) calendar days of the release of these reasons. Those costs submissions are not to be more than two (2) single-spaced pages, exclusive of bills of costs, offers to settle and case-law.

[48] The parties will then have a further seven (7) calendar days to provide their reply submissions on costs. Those submissions are not to exceed one (1) calendar page, exclusive of case law.

[49] If I do not receive costs submissions within these time limits, then there will be no costs for either party.

LEMAY J Released: March 4, 2019