Court File and Parties
COURT FILE NO.: SC54367-19
DATE: 2019/07/24
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Stephen Christopher Burkholder, Applicant
AND:
Angela Marie Burkholder, Respondent
BEFORE: Mr. Justice R.F. MacLeod
COUNSEL: Emily Carroll, for the Applicant
Raymond Wrubel, for the Respondent
HEARD: July 17, 2019
ENDORSEMENT
[1] This is a motion advanced by the respondent, Angela Burkholder, requesting an interim order for sole custody, a limited access regime, child support, and spousal support, and a cross-motion advanced by the applicant, Stephen Burkholder, requesting an interim order for joint custody, a shared parenting regime, and for income to be imputed to the respondent. He also seeks an order that the children be enrolled in Our Lady of Fatima elementary school in Cambridge commencing September 2019.
[2] The motion was argued on affidavit evidence alone. No cross-examination or questioning has yet taken place.
Disposition:
[3] For reasons outlined below, on an interim basis, the parties shall share equal time and equal residency of the children. Child support shall be based on a shared parenting arrangement under Section 9 of the Child Support Guidelines. There will be no order for spousal support. The children will attend Our Lady of Fatima elementary school in Cambridge commencing September 2019.
Background:
[4] Angela and Stephen commenced cohabitation 2006. They were married on May 9, 2009. They separated on May 31, 2018.
[5] Stephen is 40 years of age. Angela is 36.
[6] They have two daughters. Emily Michelle Burkholder was born on August 2, 2012, and Julia Marie Burkholder was born on November 15, 2015.
[7] Stephen is employed as a security coordinator. He earned $54,474 in 2018. His employer operates out of the GTA.
[8] Angela is employed as a special project coordinator on a part-time basis for a local credit union. In 2018, she earned $27,463.
[9] During the marriage, the parties agreed that Angela would work on a part-time basis until the children each attended school on a full-time basis.
[10] The parties have been living separate and apart within the matrimonial home since separation. The home has been sold with a closing date of August 17, 2019.
[11] The matrimonial home is in Cambridge. The parties agreed and filed a consent stipulating that each would receive $100,000 from the proceeds of sale on the closing date. The balance of proceeds will remain in trust.
[12] In the 14 months that have transpired since separation, they have been unable to agree to a parenting regime for the children after the home is sold.
[13] Angela has made arrangements to move into the home of her parents in Kitchener, Ontario.
[14] Stephen supports Angela’s plan to live with her parents for the time being.
[15] Stephen has leased accommodation in Cambridge. He plans to purchase a residence in Cambridge in due course.
[16] Emily has attended Our Lady of Fatima elementary school in Cambridge for the past three years. Our Lady of Fatima is a French Immersion Catholic school.
[17] During the marriage, Stephen and Angela agreed that the children would attend a French Immersion Catholic School as Stephen attended French Immersion schools as a child.
[18] Julia will be attending school for the first time in September 2019. She will be attending on a full-time basis.
Angela’s Parenting Plan:
[19] Angela seeks temporary sole custody, with Stephen to have “usual” access of alternate weekends with perhaps a midweek overnight.
[20] Angela seeks to enrol both children in a public school 450 yards from the front door of her parent's residence in Kitchener.
[21] Angela argues that she is entitled to this relief since she has always been the primary caregiver for the children. She asserts that Stephen was not involved as a parent throughout their relationship. He did not assist when the girls were nursing. He did not assist when Emily was a colicky baby. He has never filled the children’s prescriptions. He has never booked a doctors appointment. He only took Emily to one inoculation appointment. He has never been to the dentist with the girls. He has never booked or taken the girls to a hair appointment. He rarely took the girls to their gymnastics classes. He does not read or make any entries into the communication book for school for Emily. He never takes time to read the communication book nor to communicate with the school. He has never left work early to get Emily when she has been sick from school. He has never worked with Emily on class projects in either English or French. He has never assisted Emily with her homework from school. He has only reviewed homework with her perhaps for five occasions the entire past year. He does not prepare Emily for school activities such as school spirit days. He does not purchase Emily school supplies. He has never created a Halloween costume for the children. He does not clean or wash the children’s rooms, their clothing or their bedding. He was not involved in obtaining childcare for Emily and Julia. He does not arrange for sitters during school breaks. He did not pick up the children from school other than perhaps on four or five times in the past three years. He does not bathe the children or wash their hair other than on approximately five occasions since the separation. He did not prepare breakfast, lunch or dinner for the children. He did not purchase or wrap any of the children’s gifts for their birthdays or Christmas. He does not decorate the house for Christmas, Easter or Halloween.
[22] Angela alleges a history of physical and verbal abuse by Stephen towards her. She states that they cannot communicate. She strongly denies that Stephen is entitled to sole or joint custody of the children. She states that Stephen has played a very limited role with the children, and he is not an appropriate full-time caregiver for the children. She states that the children need a stable routine and that she is the one to have provided that for them since they were born.
[23] Angela alleges that Stephen wants shared parenting solely to reduce any child/spousal support that he would owe to her.
Stephen’s Parenting Plan:
[24] Stephen seeks shared parenting.
[25] Stephen will be residing in a semi-detached, two bedroom home in Cambridge. It is located on a quiet street and has a backyard for the children to play in. It also backs onto a public park with a playground.
[26] Stephen has arranged with his employer to have flexible work arrangements, as confirmed by correspondence from his employer. This flexibility includes working from home, working staggered hours, starting work later in the day, working long hours on days when he does not have the children, and shorter hours when the children are in his care.
[27] Stephen has extensive support from his extended family members and friends.
[28] Stephen seeks to enrol the children in Our Lady of Fatima French Immersion Catholic school.
[29] Stephen asserts that throughout the relationship and post-separation he was and remains an active and involved parent to the children. His responsibilities include, but are not limited to, bathing the children, preparing meals and snacks for the children, maintaining agent seasonal appropriate clothing for the children, entertaining the children, encouraging the children’s friendships and participation in activities outside the home, transporting, or arranging transportation for the children, maintaining all aspects of the children’s routines, including sleep schedules, and disciplining the children as required.
[30] Stephen produced a Certificate of Achievement, dated November 3, 2018, from the KW Counselling Services “Connected Dads” Program.
[31] Stephen produced a Certificate of Achievement, dated November 24, 2018, from the KW Counselling Services “Strategies for Separated Parents” Program.
[32] Stephen produced correspondence dated May 14, 2019, from the service coordinator of Community Justice Initiatives confirming that he attended Conflict Coaching for Families in the spring of 2019.
[33] Stephen categorically denies Angela’s assertion that she was the primary caregiver to the children. He says the needs of the children have been met, and continue to be met, by both parties. He confirms that both Angela and Stephen provide the love, attention and care required by the children.
Discussion of the competing parenting and education plans:
[34] This discussion will draw heavily from the decision of Pazaratz J. in Coe v. Tope, 2014 ONSC 4002. The facts of that case are remarkably similar to these facts.
[35] Both cases involve parents in their mid-to-late 30s, a relationship of about a dozen years, two children of early school or preschool age, and a lengthy period of post-separation cohabitation within the matrimonial home culminating in time-sensitive litigation forced by the sale of the home.
[36] The positions of the parents in Coe also mirror the positions of the parents in this case. Mother alleged that she had always been the primary caregiver and so she should continue to be the primary caregiver. Father said that there was never any “primary caregiver.” They both took turns doing everything, at various times, not necessarily in equal or consistent proportions, but they are both equally experienced and competent to address all issues in the children’s lives.
[37] At paragraph 15c of the decision, the mother’s response to the father’s position is summarized as: “It’s not a question of whether the father is capable of doing things. He didn’t do them in the past. The children are used to mom doing everything. That should continue because we know it works.”
[38] After canvassing all of the issues raised in the competing affidavits, Pazaratz J. states at paragraph 19k:
“The bottom line: the mother says the father was never involved. The father says the mother doesn’t want him to be involved.”
[39] A summary of the law regarding interim motions for custody, access and parenting is found at paragraphs 24 and 25 of Coe:
24 But section 24 of the Children's Law Reform Act and section 16 of the Divorce Act set out the considerations the court must address in determining issues of custody, access and parenting. Those considerations are child-focussed, not disgruntled-parent-focussed. The law is well established, and the recurring theme is to promote the best interests of the child. Young v. Young (1993), 1993 34 (SCC), 49 R.F.L. (3d) 117 (S.C.C.); and Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27 (S.C.C.).
25 Parenting determinations at temporary motions are particularly challenging:
a. The material is hastily prepared, incomplete, and untested. The facts are often still evolving.
b. As in this case, elevated emotions are heightened by the fact that the parties are in a state of transition. Both parties are relocating to new homes. Even without ongoing custody litigation, that would be stressful for everyone including the children.
c. The obvious strategic dynamics associated with temporary motions cannot be ignored. Already, counsel are arguing "status quo" even before they can agree on what the status quo consists of. Temporary and even temporary-temporary orders often have long-term implications. Being fair to the parties as litigants is important. Being fair to the children is even more important.
d. In that context, temporary orders are meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will be more fully canvassed at subsequent stages in the process — quite often at a trial. Brown v. Brown (1999), 1999 15074 (ON SC), 45 O.R. (3d) 308 (Ont. S.C.J.); Neilipovitz v. Neilipovitz, 2014 ONSC 3889(Ont. S.C.J.).
e. The status quo should ordinarily be maintained until trial unless there is material evidence that the children's best interest demands an immediate change. Button v. Konieczny, 2012 ONSC 5613, 2012 CarswellOnt 12353 (Ont. S.C.J.); Grant v. Turgeon (2000), 2000 22565 (ON SC), 5 R.F.L. (5th) 326 (Ont. S.C.J.); Rifai v. Green, 2014 ONSC 1377(Ont. S.C.J.); Kimpton v. Kimpton, 2002 CarswellOnt 5030 (Ont. S.C.J.).
f. Courts must be mindful of — and actively discourage — efforts by parents to unilaterally create a new status quo through manipulation, exaggeration or deception. Izyuk v. Bilousov, 2011 ONSC 6451(Ont. S.C.J.).
g. Physical separation between parents usually entails some continuing geographic proximity — usually within the same community. Where travel time and arrangements are not a serious complicating factor, courts can determine timesharing and other parenting issues purely on the basis of "best interests" considerations. Maximum contact with both parents is presumed to be beneficial. Berry v. Berry, 2011 ONCA 705(Ont. C.A.).
h. Frequency of contact is particularly important for young children. Where parents continue to reside in relatively close proximity to one another, courts have more options to ensure a sensitive and evolutionary approach to parenting issues. Rifai v. Green (supra).
[40] Given the striking similarities between this case and Coe, the approach taken in that case is also the appropriate path for this family. The reasoning of Pazaratz, J. in Coe applies equally well here.
[41] I find that Stephen’s and Angela’s parenting arrangement while living separate and apart under the same roof is effectively a shared parenting arrangement. For clarification:
a. I am not specifically finding that the “status quo” entailed an exactly equal division of time or responsibility.
b. I am not specifically finding that the best interests of the children require an exactly equal future division of time or responsibility. There will be plenty of time to talk about specific schedules and division of authority.
c. But particularly at this very turbulent time for these two young children, I find that their best interests require a continuation of exactly equal psychological or emotional bond with both parents.
[42] This is not a finding or a prediction that an equal time arrangement is either the best or inevitable long-term solution.
[43] Neither parent has established that a primary residence designation in their favour is either necessary nor in the best interests of the children.
[44] This is not a prediction or recommendation as to the eventual custodial label, if any.
[45] On a temporary basis an equal timesharing arrangement will provide a balanced structure, and minimize disruption or diminution of parent-child relationships.
Which School?
[46] The law is outlined in Hamid v. Hamid, 2016 ONSC 5013 at paragraph 10:
10 The parties further agree that the factors outlined in the case of Askalan v. Taleb, 2012 ONSC 4746(Ont. S.C.J.) are a useful guideline in considering this issue. These factors include:
Assessing any impact on the stability of the child;
Examining how many years the child has attended his or her current school;
Whether there is any prospect of one of the parties moving in the near future;
Where the child was born and raised;
Whether a move will mean new child care providers or other unsettling features;
Decisions that were made by the parents prior to the separation or at the time of separation with respect to schooling;
Any problems with the present school.
[47] Here, the uncontested evidence is that the parents agreed, during the marriage, that the children would attend French Immersion School.
[48] Emily has attended Our Lady of Fatima in Cambridge for three years. She was accepted into this school based on a lottery. Because she was a successful applicant, her sister is automatically eligible for enrolment in September.
[49] Stephen tendered a letter from the school, not disputed by Angela, confirming that if Emily were to leave the school and enrol in another school in September 2019, then she would be ineligible to return.
[50] Angela asserts that ongoing enrolment in Cambridge is “unworkable” because of the distances involved and because of Stephen’s inability to regularly attend the school for pick-up and drop-off.
[51] Her proposed residence with her parents is approximately 30 minutes from the school. Stephen’s proposed residence is approximately 20 minutes from the school. Stephen’s residence is approximately 20 minutes from Angela’s proposed residence.
[52] Angela asserts that she will enrol the children in a public school 450 yards from her parents’ front door. The school does not offer French Immersion.
[53] Stephen asserts that he has the work flexibility to ensure that he is able to deliver and pick up the children without fail during his parenting time in a shared parenting regime.
[54] Having regard to the Hamid factors, above, and recognizing that this is an interim decision, there is little to support Angela’s plan. Emily has attended the Cambridge school for three years and there is no evidence of any problems with the school or with her interaction within the school. The parents agreed in advance that French Immersion was important to them. Removal of the children from this school, at an interim stage, would effectively render summary judgement on the topic since the children cannot be re-enrolled once they leave.
[55] The only benefit to be had by allowing Angela’s plan would be to somewhat reduce driving for the children as they would be able to walk to school from their mother’s residence when they are with her. When they are with their father, they will still need to be driven the same distance, regardless of which school they attend. This is not a benefit sufficient to determine that Angela’s plan is in the best interest of the children compared to Stephen’s plan, which is the status quo.
[56] The children shall be enrolled in Our Lady of Fatima in Cambridge for September 2019.
[57] I wish to relay a few observations regarding some of Angela’s positions.
[58] Angela asserts that Stephen is taking his positions solely out of a desire to save money. Specifically, she argues that he has been attempting to be a more involved father only in the last month or two and only to make himself appear better in the litigation, hoping to score a shared parenting support regime.
[59] Firstly, the dates of the certificates that Stephen has presented indicate that he began to actively attempt to improve himself as a parent very shortly after separation, not just two months ago.
[60] Secondly, the difference in this case in monthly child support between a primary care scenario and a shared parenting scenario is approximately $400 monthly. To undertake extensive and expensive litigation over this sum would be the height of folly.
[61] Angela may be correct. There are certainly many such cases before the court. But maybe, just maybe, Stephen is bona fide in his desire to parent these children to the greatest extent possible. If Angela can find a way to accept that possibility into her worldview, then the likelihood of negotiating a comprehensive, sensitive parenting plan will be greatly enhanced.
[62] I also wish to comment regarding Angela’s allegation of Stephen’s history of physical and verbal abuse. The only evidence provided, other than one sentence in her affidavit dated June 27, 2009, stating “there is a history of physical and verbal abuse by the applicant towards me”, is a letter from Family and Child Services, dated February 8, 2019. It is addressed to both parents. They became involved with the family after receiving a report on December 12, 2018. The report “identified that you both engaged and verbal conflict that escalated to include some pulling by each of you on your younger child Julia.” That is it.
[63] I note that Angela’s plan involves significant overnight time for Stephen and the girls. Nothing in her plan contemplates a need for supervision, safety monitoring, anger management, or any similar intervention. It must be concluded, therefore, that she has no fear for Stephen’s behaviour while he is in care and control of the children. Then why raise the issue in the first place?
[64] Such an allegation, without backup, amounts to nothing more than a smear and must not be condoned.
[65] Lastly, I wish to express concerns regarding Angela’s approach to Stephen’s involvement going forward. Two examples will suffice.
[66] Her materials make it clear that she felt no need to obtain Stephen's input when deciding to move her residence to Kitchener and to change the children’s schools. She assumed she could do so unilaterally and seems affronted by the notion that he could object to it. Had Stephen not consented to this move at the motion, she should be aware that this proposal would have received scrutiny from the court and was not a foregone conclusion.
[67] The second example is seen in paragraph 35 of her affidavit, dated July 15, 2019. In response to Stephen’s complaint that she purchased and decorated the 2018 Christmas tree with the children, but without him, she stated, “We were separated last Christmas – there was no need to involve him.” This is her statement in the context of the parents living separate and apart but under the same roof. This was the first Christmas for the young children post-separation. The Christmas tree represented an opportunity for the children to see their parents working together as parents despite their differences. To suggest that there was no need to involve the children’s father in this ritual shows a lack of understanding of the needs of the children.
[68] It is hoped that Angela will take this opportunity to “hit the reset button” regarding how she views Stephen’s ongoing role as a father.
Support:
[69] Stephen’s income for support purposes is $54,474 annually. Angela’s income for support purposes is $27,463 annually. At this interim stage, I declined to entertain arguments to impute income to Angela. Stephen acknowledged that they had agreed during the marriage that Angela would return to full-time work once the children both attended school full-time. That does not occur until September. There is no basis to impute income at this stage.
[70] On a shared parenting basis, Stephen will pay child support to Angela in the amount of $831 monthly and Angela will pay child support to Stephen on the amount of $418 monthly. The set-off is $413 monthly.
[71] Stephen’s SupportMate calculations, on the above incomes, indicate a range of spousal support from a low of nil to a high of a $173 monthly. Given that Angela will be living with her parents once the house is sold, and there was sparse, if any, evidence as to what her expenses will be at that time, I decline to make any interim spousal support award, without prejudice to her ability to bring the matter back before the court on better evidence.
Temporary Orders:
[72] The parties shall share equal time and equal residency of the children Emily and Julia.
[73] In the absence of any other agreement between the parties (confirmed in writing, in advance), timesharing shall be as follows, to be implemented upon the closing of the sale of the matrimonial home or the date upon which Angela permanently relocates to her parents’ residence, whichever is earlier:
a. For the remainder of the summer holidays, a week-about regime with exchanges to occur on Fridays at 5 p.m., with the first week being Angela’s week;
b. upon the commencement of school, the parents shall follow a two – two – five – five schedule with exchanges to occur at the children’s school.
[74] Each party shall assume responsibility and decision-making authority for the children during times when the children are in their care.
[75] Neither party may unilaterally change any of the children’s existing relationships with schools, daycare providers, medical personnel or recreational facilities.
[76] There shall be a presumption that both parties are to be equally involved with all third-party service providers. In the absence of any other mutually agreeable arrangement, the parties shall alternate attending for appointments with professionals relating to the children, so that on an overall basis each party is involved with approximately 50% of such appointments.
[77] The party shall notify one another immediately upon any urgent issue arising in either child’s life, including any medical issues.
[78] Both parties shall be equally entitled to communicate with all third-party service providers, agencies and professionals involved in the children’s lives. Each party shall keep the other fully informed of any communications with third parties in any appointments or commitments involving the children.
[79] The parties are allowed and encouraged to negotiate alternative arrangements as may be in the best interests of the children, so long as the overall timesharing remains equal.
[80] Each party shall encourage the children to have a positive, respectful attitude towards the other party, and the other party’s family and friends. Neither party shall allow the children to be exposed to any negative comments about the other party, or the other party’s family and friends.
[81] The parties are encouraged, but not ordered, to consider alternative dispute resolution options to deal with parenting issues, including mediation, parenting coordinator, or retaining an expert in child parenting issues to assist with the parenting plan.
[82] If the parties are not in agreement and cannot find common ground concerning the implementation of the two – two – five – five parenting schedule, arrangements may be made through the trial coordinator in Simcoe for me to hear or receive additional submissions on that point.
[83] Emily and Julia shall be enrolled at Our Lady of Fatima elementary school in Cambridge for the school year commencing in September 2019.
[84] Stephen will pay child support to Angela in the amount of $831 monthly based on his declared income of $54,474 annually and Angela will pay child support to Stephen in the amount of $418 monthly based upon her declared income of $27,463 annually. The set-off is $413 monthly. This will commence on September 1, 2019.
[85] Angela’s request for spousal support at this stage is dismissed, without prejudice.
[86] If costs are an issue, the parties shall file written submissions on the following timeline:
a. A party seeking cost shall serve and file submissions within 21 days. If no submissions are received within 21 days, costs shall be deemed to be resolved.
b. The responding party shall serve and file submissions within 14 days of receiving the initial cost claim.
c. Any reply cost submission to be served and filed within seven days thereafter.
[87] I would like to thank both counsel for their written and oral advocacy in this difficult matter.
R.F. MacLeod
Date: July 24, 2019