Court File and Parties

COURT FILE NO.: FC-09-587-2 DATE: 2019/07/03 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

WARREN JOHN DENNIS STOW Applicant – and – CYNTHIA MAJORIE DAVIDSON Respondent

COUNSEL: Katrina Anders, for the Applicant Rodney Cross, for the Respondent Children’s Lawyer, Michael Chun

HEARD: April 2, 2019

REASONS FOR DECISION

MACEACHERN J.

[1] Mr. Stow and Ms. Davidson have one child who is now ten years of age. The child has resided in the primary care of Ms. Davidson since birth. The parties never married or cohabitated. The existing parenting schedule has been in place since 2013, as set out in the Order of Justice Polowin dated January 13, 2012.

[2] Both parties seek to change the parenting arrangement. Mr. Stow seeks to expand his access time. Ms. Davidson seeks to reduce it. Ms. Davidson also seeks retroactive child support adjustments, relief concerning Mr. Stow’s life insurance, and a restraining order.

[3] The issues to be decided are as follows:

1. Has there been a material change in circumstances that affects the best interests of the child?
2. If there has been a material change, what parenting arrangement is in the child’s best interests given that change?
3. What adjustments should be made to child support?
4. Should a further order be made concerning Mr. Stow’s life insurance to secure his child support obligation?
5. Should a restraining order be granted?

Existing Parenting Arrangement

[4] The existing orders [1] provide Ms. Davidson with sole custody and primary residence of the child. The orders set out a detailed access regime. Under the regular schedule, Mr. Stow has access on alternate weekends from Friday after school to Monday morning, and on alternate weeks, a Thursday overnight visit. The schedule also provides for detailed holiday access. The school summer vacation schedule suspends the regular schedule. Mr. Stow has summer access for two one-week periods of 7 days, plus two weekends from Saturday 9 a.m. to Monday at 8:45 a.m.

Issue 1: Has there been a material change in circumstances that affects the best interests of the child?

[5] I find that there has been a material change in circumstances that affects the best interests of the child since the January 13, 2012 Order.

[6] Both parties submit that there has been a material change in circumstances, although for different reasons. Mr. Stow’s position is that the child is now older and that Ms. Davidson has interfered with his relationship with the child, and alienated the child from him. Ms. Davidson agrees that the child being older is an important factor, and states this is why the child’s views and preferences should have weight. Ms. Davidson also argues that the child’s needs have changed. Both parties acknowledge that Ms. Davidson’s move to Kemptville has caused issues with access transfers, as Mr. Stow resides in Gatineau.

[7] The child’s wishes are a material change. The child is also older. I give weight to her views and preferences, which were provided to the court through her lawyer, on the consent of the parties. Her views have been consistent, strong, and independent. The child does not enjoy the morning commute to school when she is in the care of Mr. Stow. Under the current schedule, morning commutes occur with Mr. Stow on alternate Monday and Thursday mornings. The child finds the morning commutes rushed and stressful. The child finds the current one-week access periods with Mr. Stow during the summer too long. The child prefers shorter periods of three to four days. The child also does not want to have telephone calls with Mr. Stow at certain prescribed times, as provided under the 2012 Order, but instead wishes to be able to speak to Mr. Stow when she wishes.

[8] The child’s needs have also materially changed since the 2012 Order. The child has been diagnosed with several conditions that create challenges for her, particularly at school. These conditions have increased the importance of the child having stability, consistency of routine, and fewer disruptions, particularly during the school week.

[9] There has also been a material change that affects the transfer location for access. The existing order provides that pick-up and drop-off locations take place at the Nepean Police Station. This transfer location reflects the history of conflict between the parties. This transfer location was changed, on the consent of the parties, to the Elgin Street Police Station. Both parties seek to change the location for transfers. I find that there has been a material change in how transfers may take place, given that the child is older. There is a benefit to not exposing the child to a police environment at transfers, and the child’s age allows transfers to take place by other means that were not available at the time of the 2012 Order when the child was only three years of age.

[10] I do not find that Ms. Davidson has alienated the child from Mr. Stow. The parties’ relationship has been a high conflict one, with poor communication, and hostility between them. Both parties have conducted themselves, at times, in concerning manners. Despite this hostility, the child enjoys spending time with both of her parents and wants to continue to spend time with Mr. Stow. The child’s reasons for her views and preferences for access are logically connected to her special needs – school mornings are too rushed, and the one-week periods in the summer are too long. The child’s views do not support a finding of alienation or undue influence from Ms. Davidson.

Issue 2: If there has been a material change, what parenting arrangement is in the child’s best interests given that change?

[11] I have made changes to the existing schedule to reflect the material changes in circumstances, being the child’s special needs, particularly during the school year, the child’s views and preferences, and the transfer location.

The Regular Schedule

[12] I find that it is in the best interests of the child to change the regular schedule to provide for Mr. Stow to have access on alternate weekends from Friday after school to Sunday at 5 p.m. to provide more stability, routine, and consistency for the child on school nights. On long weekends, when Monday is a school holiday, the access is extended to Monday at 5 p.m.

[13] For the same reasons, I find that it is in the child’s best interests for the regular schedule to change to remove the alternate Thursday overnights and replace this with a visit on the alternate Friday from after school to 7 p.m.

[14] There shall not be a requirement that Mr. Stow is personally present at all times that the child is in his care, just as there shall not be a requirement that Ms. Davidson be personally present at all times that the child is in her care. This also applies to the “school summer access schedule.” The child’s age and the parties’ proved parenting abilities do not require this direction. Such a clause only adds to the conflict, tension, and hostility between the parties and disruption to the child.

[15] The above changes provide for Mr. Stow to have time with the child each week but remove the overnight visits on school nights, thereby avoiding the morning commutes from Gatineau, which the child finds rushed and stressful. Although the Friday afternoon visit may disrupt Ms. Davidson’s weekends, I have included this visit because it is important for the child to have weekly contact with Mr. Stow, although not on a school night. The child enjoys spending time with Mr. Stow, and it is in her best interests to maintain regular contact with him.

[16] I do not find that changing the regular schedule to extend Mr. Stow’s alternate weekends to include the Thursday overnight are in the child’s best interests. Such a change is not in the child’s best interests due to the child’s wish to avoid the morning commute to school from Gatineau, as well as to ensure that the child’s school routine continues at Ms. Davidson’s.

[17] There have been issues between the parties on when the alternate weekend access starts at the end of the “school summer vacation schedule,” which, under the 2012 Order, ends on the commencement of classes in August or September, in each year. If the parties are unable to agree otherwise, Mr. Stow’s alternate weekend access will commence on the first weekend following the commencement of school in August or September, in each year.

[18] Ms. Davidson sought an order that Mr. Stow not be allowed to cancel part of an access visit, but must forfeit the entire access period if he is unable to make part of it. Such an order is not in the child’s best interests. The child’s best interests require that requests to change the access schedule be avoided, but if a party requires a change due to unavoidable scheduling issues or the child’s needs, such requests should be accepted.

School Summer Access Schedule

[19] I find that it is in the child’s best interests to change the “school summer vacation schedule” so that the child is in the care of Mr. Stow for three periods of four days during the summer, plus one weekend from Saturday at 9 a.m. to Monday at 8:45 a.m. I make this change because of the child’s views and preferences that the current one-week periods during the summer are too long. This change is a modest reduction from the existing summer schedule [2] but still ensures that Mr. Stow has the same frequency of visits (4) with the child during the summer.

Telephone Calls

[20] I find that it is in the child’s best interests to remove the term that requires telephone calls between Mr. Stow and the child at prescribed times during the week, including during the summer.

[21] The child is older now and will have contact with Mr. Stow at least once a week under the regular schedule. I do not find that the child’s best interests require specific times for telephone calls in between the regular access visits. Requiring telephone calls at specific times is disruptive as it can interfere with activities that the child is involved in, at a time that the child does not want to communicate with a parent. The fact that in practice, these telephone calls rarely take place reflects the problems with prescribed times for phone calls. The child is at an age where she can use the phone or other communication devices to initiate communications with Mr. Stow, and Ms. Davidson should allow, facilitate, and support the child in doing so.

[22] Both parties shall ensure that the child can initiate communications with either parent when she wishes to do so. Each parent shall ensure that the child has access to a communication device (e.g., a phone or internet device) when the child is in that parent’s care, through which she can contact the other parent when she wishes to do so. Each parent shall provide the child with reasonable privacy for such communications. Such communications should only be for short durations, such as fifteen minutes or less, based on the child’s wishes. Such communications shall not interfere with the other parent’s parenting time with the child.

[23] There may be periods when Mr. Stow does not see the child weekly, such as in the summer. During these periods, the importance of maintaining contact between the child and Mr. Stow warrants an order requiring Ms. Davidson to ensure that that the child initiate some communication with Mr. Stow. Therefore, if there are periods where Mr. Stow does not have access to the child for more than 7 days in a row, Ms. Davidson shall support, facilitate, and encourage the child to initiate at least one communication with Mr. Stow during each 7-day period, and Ms. Davidson shall be responsible for ensuring that the child does so.

[24] Mr. Stow proposed that the telephone access be changed to allow him to call the child between the time that the child arrives home, at 4:05 p.m., and Ms. Davidson’s arrival home, approximately 20 minutes later. While I decline to make this specific order, this is an example of where the child, if she is home without Ms. Davidson being present, should have access to a phone or other communication device so that she can initiate communications with Mr. Stow if she wishes to do so.

[25] Ms. Davidson sought an order preventing Mr. Stow from providing a cell phone to the child, and imposing several conditions and restraints on the child’s use of internet connected devices. Whether the child will have her own cell phone or smartphone is a custodial decision, and therefore, Ms. Davidson has the decision-making authority on this issue. At the same time, I do not find, on the evidence before me, that Mr. Stow is inappropriately supervising the child when she is in his care. Accordingly, when the child is in Mr. Stow’s care, he will be responsible for making decisions on her day-to-day care (but not custodial decisions). Decisions regarding the child’s day-to-day care shall include her use of internet-connected devices while the child is in that parent’s care, including cell phones and smartphone use, and how each parent monitors that use.

Transfer Location

[26] I have found a material change that affects the transfer location for access. The existing transfer location is the Elgin Street Police Station.

[27] Ms. Davidson seeks to change this location to the Kemptville Ontario Provincial Police Detachment. She resides in Kemptville. This location is closer to her than the Elgin Street Police Station, but further to Mr. Stow, who resides in Gatineau.

[28] Under the above changes to the access schedule, the pick-ups for access on Fridays shall take place at the child’s school, at the end of the school day, if possible. Mr. Stow’s evidence is that his work schedule allows him to pick up the child from school, after school. Although Ms. Davidson has objected to this and insisted that Mr. Stow’s access only begin at 5 p.m., I do not find that this is in the child’s best interests.

[29] The transfers at the end of the alternate weekends, or on other occasions when the transfer cannot take place at the school, shall continue to take place at a neutral public location half way between the parties’ homes, which is not a police station. If the parties are unable to agree on such a location, they may return the issue to me, with their respective proposals for a location, and I will decide the issue.

[30] Pending the parties’ agreement to a new public, neutral location for transfers, or the court’s determination of this issue, the transfers shall continue to take place at the Elgin Street Police Station. However, this should be changed as soon as possible. I do not find that it is in the child’s best interests for transfers to take place at a police station, be it the Kemptville OPP detachment or otherwise. The evidence before me does not demonstrate that such a location is needed.

The Child’s Passports and Travel

[31] Ms. Davidson sought an order requiring Mr. Stow to sign the child’s passport application and other provisions for the child’s travel. Mr. Stow did not oppose this request. Accordingly, I make an order, as set out below, for the child’s passport and travel authorizations.

Communication

[32] There have been communication issues between the parties. Mr. Stow states that Ms. Davidson does not provide him with information regarding the child’s well-being, including medical care and school progress. Ms. Davidson states that Mr. Stow is aggressive and bullying to her. Mr. Stow denies these allegations and states he is scared to ask for information because of Ms. Davidson’s allegations against him. Both parties were willing to use “Our Family Wizard” for communications related to the child’s best interests and access arrangements. I order them to do so, as detailed below.

[33] Mr. Stow shall be permitted to obtain information directly from third parties including the child’s school, medical providers, and other professionals involved in her care, information regarding the child, subject only to the child’s consent once the child reaches an age where her consent to release such information is required.

Issue #3: What adjustments should be made to child support?

[34] Both parties agree that this Court needs to change the child support set out in the 2012 Order and that these changes should be retroactive. The 2012 Order provides for the parties to exchange income tax returns in each year, no later than June 1st and that they “shall make the appropriate adjustments of child support and section 7 expenses beginning July 1 of each calendar year”. It is common ground that, despite this wording, the parties did not make any adjustments.

[35] The issue of what those adjustments should be, and what amounts may be owed, including concerning s.7 expenses, is adjourned because neither party has filed a sworn financial statement in this matter. This failure to file financial statements is despite the requirement to do so under Rule 13 of the Family Law Rules. Ms. Davidson has also not provided the after-tax cost of childcare expenses that she claims, nor her income tax returns so that Mr. Stow can calculate this.

[36] Each party shall serve and file their sworn financial statements, and comply with their disclosure obligations under Rule 13 and s. 21 of the Child Support Guidelines. Upon them doing so, they may return the child support issues before me for determination.

[37] In advance of that determination, the parties shall:

• attempt to agree on what their respective incomes for child support purposes are for the years in issue. If they are unable to agree on their respective incomes in any specific year, they shall ensure that they file complete income tax returns for the year in question, and identify the issue in dispute concerning income in that year;
• attempt to agree on what child support Mr. Stow has paid for the period in issue and, if they are unable to agree, they shall ensure that they identify what payments they do not agree on, and the basis for such disagreement;
• attempt to agree on what s.7 expenses Ms. Davidson has paid for the period in issue and, if they are unable to agree, they shall ensure that they identify what expenses they do not agree on, and the basis for such disagreement;
• attempt to agree on any tax benefits, credits or deductions that reduce the amount of any s.7 expenses (such as child care) and, if they are unable to agree, they shall ensure that they identify what benefits, credits or deductions they agree on, and the basis for such disagreement;
• ensure that each party files evidence in support of any disputed issues such as receipts and communications between the parties.

Issue #4: Should a further order be made concerning Mr. Stow’s life insurance to secure his child support obligation?

[38] I do not find that Mr. Stow is in breach of his obligation to maintain life insurance to secure his child support obligation and that a further order is required on this issue.

[39] At the case conference on March 29, 2017, Mr. Stow was required to provide Ms. Davidson with proof of a life insurance policy sufficient to secure his child support obligations, showing the child as the irrevocable beneficiary. He did so, but Ms. Davidson objects to the fact that the policy shows a different address for Mr. Stow than his home address. Ms. Davidson seeks an order requiring Mr. Stow to provide evidence that his life insurance provider has his correct address and to provide permission so that she can contact the insurer to confirm the policy is in good standing. Ms. Davidson argues that the fact the policy does not have Mr. Stow’s home address may mean that the insurer would not pay out the benefits if Mr. Stow died. Ms. Davidson has not provided any evidence in support of her concern.

[40] I dismiss Ms. Davidson’s request for an order concerning Mr. Stow’s life insurance because she has not provided any evidence supporting her concern that the insurer will not pay out the benefits. Her allegation is only that the insurer “may” not honour the policy, without anything more specific.

Issue #5: Should a restraining order be granted?

[41] I dismiss Ms. Davidson’s request for an order restraining Mr. Stow from molesting, annoying, contacting or harassing her, and from attending at her home. I do not find that, on a balance of probabilities, Ms. Davidson has reasonable grounds to fear for her safety to justify such an order.

[42] The 2012 Order does not include a restraining order. Ms. Davidson alleges that a restraining order is needed because she believes that Mr. Stow is driving by and attending at her house. She contacted the police to report this belief. Ms. Davidson has installed an advanced security system at her home, with four security cameras. Mr. Stow denies these allegations.

[43] Ms. Davidson also alleges other conduct, but most of these predate the 2012 Order. Mr. Stow has denied or provided reasonable explanations for other allegations, such as the parking incident at the police station. Concerning the allegation of driving by or attending at Ms. Davidson’s home, Mr. Stow points out that Ms. Davidson had installed security cameras at her house for over eight months before he knew about this, and yet the cameras have not produced any evidence of Mr. Stow attending at her house.

Disposition

[44] Given the above reasons, I make the following orders:

1. The Final Order of Justice Polowin, dated January 13, 2012, and Order of Justice Polowin dated June 20, 2011, are hereby varied as follows: a. Paragraph 2 (regular schedule) of the Final Order of Justice Polowin, dated January 13, 2012, is changed to provide that: i. the child will be in Mr. Stow’s care on alternate weekends from Friday after school to Sunday at 5 p.m. I extend this access to Monday at 5 p.m. on long weekends when Monday is a school holiday; ii. on the weekend that the child is not in Mr. Stow’s care, from Friday after school to 7 p.m.; and iii. if the parties are unable to agree otherwise, Mr. Stow’s alternate weekend access will commence on the first weekend following the commencement of school in August or September in each year; b. Paragraph 12 of the Final Order of Justice Polowin, dated January 13, 2012, shall be deleted and the following inserted: i. there shall not be any requirement that Mr. Stow is personally present at all times that the child is in his care, just as there shall not be a requirement that Ms. Davidson be personally present at all times that the child is in her care. This also applies to the “school summer access schedule;” c. A new clause shall be inserted after paragraph 7 of the Final Order of Justice Polowin, dated January 13, 2012, to provide: i. the parties shall avoid requests to change the access schedule (or cancel all or part of an access visit) as much as possible. If a party requires a change due to unavoidable scheduling issues or the child’s needs, the party requesting the change shall provide as much notice as is possible of the requested change, and reasonable requests shall be agreed; d. Paragraph 3(b) (school summer vacation schedule) of the Final Order of Justice Polowin, dated January 13, 2012, is changed to state: i. Mr. Stow will have three separate non-consecutive periods of four days, from 9:00 a.m. to 9:00 a.m.; e. Paragraph 3(f) (school summer vacation schedule) of the Final Order of Justice Polowin, dated January 13, 2012, is changed to state: i. Mr. Stow shall be entitled to one further weekend from Saturday at 9 a.m. to Monday at 8:45 a.m., during the summer school vacation time that does not occur during the other vacation periods selected by the other party. Mr. Stow shall have the first choice for such weekends in odd years. Ms. Davidson shall have the first choice of such weekends in even years; f. Paragraph 10 (telephone contact) of the Final Order of Justice Polowin, dated January 13, 2012, and paragraph 3(e) of the Order dated June 20, 2011, are deleted and the following inserted: i. both parties shall ensure that the child can initiate communications with either parent when she wishes to do so. Each parent shall ensure that the child has access to a communication device (e.g., a phone or internet device) when the child is in that parent’s care, through which she can contact the other parent when she wishes to do so. Each parent shall provide the child with reasonable privacy for such communications. Such communications should only be for short durations, such as fifteen minutes or less, based on the child’s wishes. Such communications shall not interfere with the other parent’s parenting time with the child; ii. if there are periods where Mr. Stow does not have access to the child for more than 7 days in a row, Ms. Davidson shall support, facilitate, and encourage the child to initiate at least one communication with Mr. Stow during each 7-day period, and Ms. Davidson shall be responsible for ensuring that the child does so; iii. the issue of whether the child will have her own cell phone or smartphone is a custodial decision, and therefore, Ms. Davidson has the decision-making authority on this issue. However, when the child is in Mr. Stow’s care, he will be responsible for making decisions on her day-to-day care (but not custodial decisions). Decisions regarding the child’s day-to-day care shall include her use of internet-connected devices while the child is in that parent’s care, including cell phones and smartphone use, and how each parent monitors that use; g. Paragraphs 3(i), and 8 of the Final Order of Justice Polowin, dated January 13, 2012, are changed to state that: i. Mr. Stow shall pick-up the child on Fridays after school under the regular schedule, which shall take place at the school; ii. on other occasions, or if Friday is not a school day, transfers shall take place at a neutral public location half way between the parties’ homes, that is not a police station. If the parties are unable to agree on such a location, they may return the issue to me, with their respective proposals for a location, and I will decide the issue. Pending the parties’ agreement to a new public, neutral location for transfers, or the court’s determination of this issue, the transfers shall continue to take place at the Elgin Street Police Station. However, this should be changed as soon as possible; h. The Final Order of Justice Polowin, dated January 13, 2012, is changed to add additional clauses to provide that: i. Mr. Stow shall sign any passport applications and renewals for the child, within 14 days of receipt, and return these to Ms. Davidson. Ms. Davidson will maintain possession of the child’s passport and shall provide it to Mr. Stow when he requires it for travel with the child, after which he will return the passport to Ms. Davidson. If either party wishes to travel with the child outside of Canada, that parent shall provide the other parent with an itinerary of the trip and an emergency contact. The other party shall provide their consent to such travel, if required, by executing a travel consent provided by the traveling parent, in the presence of a witness (not notarized), and shall return the consent within 14 days. Neither parent shall withhold their consent to the other parent’s reasonable travel with the child; ii. the parties shall communicate regarding the child via www.Ourfamilywizard.com. The parties are ordered to visit the website, and each shall enroll in the program for at least a one-year subscription not later than ten calendar days from the date of this order. Neither parent shall fail to renew the annual subscription to this website without a signed consent from the other party or further court order. The parties shall communicate all information necessary for the best interests of the children, including general well-being, routines, academic issues, progress, homework or assignments, and medical information; and iii. Mr. Stow shall be permitted to obtain information directly from third parties including the child’s school, medical providers, and other professionals involved in her care, information regarding the child, subject only to the child’s consent once the child reaches an age where her consent to release such information is required.
2. The child support issues are adjourned. Each party shall serve and file their sworn financial statements, and comply with their disclosure obligations under Rule 13 and s. 21 of the Child Support Guidelines. Upon them doing so, they may return the child support issues before me for determination. In advance of that determination, the parties shall: a. attempt to agree on what their respective incomes for child support purposes are for the years in issue. If they are unable to agree on their respective incomes in any specific year, they shall ensure that they file complete income tax returns for the year in question, and identify the issue in dispute concerning income in that year; b. attempt to agree on what child support Mr. Stow has paid for the period in issue and, if they are unable to agree, they shall ensure that they identify what payments they do not agree on, and the basis for such disagreement; c. attempt to agree on what s.7 expenses Ms. Davidson has paid for the period in issue and, if they are unable to agree, they shall ensure that they identify what expenses they do not agree on, and the basis for such disagreement; d. attempt to agree on any tax benefits, credits or deductions that reduce the amount of any s.7 expenses (such as child care) and, if they are unable to agree, they shall ensure that they identify what benefits, credits or deductions they agree on, and the basis for such disagreement; and e. ensure that each party files evidence in support of any disputed issues such as receipts and communications between the parties.
3. Ms. Davidson’s request for a further order requiring Mr. Stow to provide evidence that his life insurance provider has his true address, and permitting Ms. Davidson to contact the insurance company, is dismissed.
4. Ms. Davidson’s request for a restraining order against Mr. Stow is dismissed.

Costs

[45] If the parties are unable to agree on the costs of this motion, Ms. Davidson may file submissions concerning costs on or before July 19, 2019. Mr. Stow may file submissions concerning costs on or before July 26, 2019. Cost submissions of both parties shall be no more than three pages in length, plus any offers to settle and bills of costs and shall be spaced one point five spaces apart, with no less than 12 point font.

Justice P. MacEachern

Released: July 3, 2019

Footnotes

[1] I reference two orders because the January 13, 2012 Order provides that the terms of the interim Order of June 20, 2011 became final unless varied by the 2012 Order. The 2011 Order provides for Ms. Davidson to have sole custody and primary residence.

[2] Mr. Stow has 16 days during the summer under the current Order. This change will reduce that to 14 days.