BARRIE COURT FILE NO.: FC-18-066-000

DATE: 20190829

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Christine Shank

Applicant

– and –

Bradley Saumure

Respondent

J. Craig, for the Applicant

O. Khan, for the Respondent

HEARD: June 20, 2019

JUDGMENT

Jain J.

Introduction

[1] The applicant has brought a summary judgment motion pursuant to r. 16 of the Family Law Rules.[^1] She is seeking a final order pursuant to the draft order attached to her Notice of Motion.[^2] The applicant says the draft order reflects a settlement agreed to by the parties at a settlement conference on January 30, 2019 with Vallee J. Vallee J.’s endorsement of that day indicates that the parties agreed to settle the parenting issues in accordance with the recommendations contained in the final report of a clinical investigator from the Office of the Children’s Lawyer (OCL).

[2] The respondent opposes the applicant’s motion. He denies the parties settled the matter at the settlement conference and says he is not agreeable to settle the parenting terms in accordance with the recommendations of the OCL. The respondent says the OCL recommendations were vague and the draft order does not accurately reflect the OCL recommendations. He further states that circumstances have changed since the OCL report was published. The respondent says these circumstances should be taken into consideration because they raise genuine issues requiring a trial and he should have the opportunity to cross-examine the OCL in light of these circumstances.

Issues

[3] Was there an agreement arrived at between the parties on January 30, 2019 and, if so, is the agreement enforceable? Should the applicant’s motion for summary judgment be granted?

[4] Has the applicant demonstrated a prima facie case that there are no genuine issues requiring a trial? Has the respondent demonstrated that there is a genuine issue requiring a trial that cannot be resolved by way of the additional powers set out in rr. 16(6.1) and (6.2), such that the applicant’s motion for summary judgment should not be granted?

[5] If the applicant’s motion for summary judgment is granted, what terms of the custody and access order are in the best interests of the child?

Decision

[6] For the reasons set out below, I find there was an enforceable agreement between the parties. I am granting the applicant’s motion for summary judgment as I find that it is in the best interests of the child and there are no genuine issues requiring a trial.

Background

[7] The applicant is the mother and the respondent is the father. The child, Ellyauna Chad Isabel Saumure, was born on July 16, 2014. The parties resided together briefly from approximately 2013/2014 until October 2015. After separation, the parties signed a Separation Agreement, dated October 19, 2015. Among other things, the Agreement set out the parenting terms and child support terms. It provided that the child, who was one year old at the time, would be in the mother’s full custody and reside primarily with the mother. The father would have access to Ellyauna. The visitation was to be reviewed when the child turned four years old. Upon review, the visits were to expand to include overnights “unless otherwise specified” by the mother.[^3]

[8] Both parties allege the other did not follow the Agreement. The mother says the father stopped honouring the support terms in December 2017 when he unilaterally reduced the child support payments.[^4] The father admits to signing the Agreement, however, he now disputes its validity as he did not receive legal advice and he says that he signed it because he “was simply happy to get away from the situation.”[^5] Despite the father’s dispute of the validity of the Agreement, he never filed an application and, from the time of separation, the child remained in the primary residence of the mother. Additionally, despite the terms of the Agreement not permitting overnight access, the father had extensive access.[^6]

[9] The mother commenced her Application on January 18, 2018. Among other relief, she sought an order for: custody of the child; specified access to the father; child support; and terms regarding life insurance/benefits. The father filed an Answer, dated February 23, 2018. Among other items of relief, he sought: custody, or in the alternative, joint custody; child support; and terms regarding life insurance/benefits. Due to the dispute on the parenting issues, on consent, the OCL was requested by Order of McDermot J., dated June 5, 2018. The OCL agreed to become involved. Ms. D. Mink was appointed as a clinical investigator and conducted a s. 112 investigation. She held a disclosure meeting on October 17, 2018 and filed her Report, dated October 22, 2018.

[10] Ms. Mink’s Report contains custody recommendations that “reflect the need to reduce parental conflict in decision-making and lessen the need for direct communication.” Comments in the discussion portion of the Report showed the parents provided “numerous examples of their inability to come to agreement over parenting decisions” such as the child’s school, health care providers, parenting schedules and vacation time. They even pointed to struggles with simple issues such as “haircuts, completing school forms and arranging special activities.” Ms. Mink commented that in her individual interviews with both parents, they both agreed that “one parent needs to be responsible for having final decision regarding Ellyauna and have each requested to have sole custody of her.”[^7]

[11] Ms. Mink’s Report recommended that the applicant have “sole custody” and “primary residence” of the child and the respondent have regular scheduled parenting time. She further recommended the parties share holidays and set out a schedule for same. Ms. Mink recommended that the respondent have independent access to all third-party records regarding the child, “including but not limited to academic, medical, dental, recreational and mental health.”[^8]

The Law

[12] The applicant brings this motion pursuant to r.16 of the Family Law Rules – the Summary Judgment rule. The burden of proof is on the party moving for summary judgment (the applicant). Pursuant to r. 16(4), the party moving for summary judgment shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial. The applicant in this matter served and filed an Affidavit, dated May 22, 2019, and a reply Affidavit, dated June 11, 2019.[^9] The OCL further filed their Report, dated October 22, 2018.[^10]

[13] Pursuant to r. 16(4.1), the responding party to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial. The responding party must put their best foot forward on the motion. The judge is entitled to assume that the parties have put before her or him all the evidence that they would be able to adduce at trial.[^11] The respondent in this matter served and filed an Affidavit, dated June 7, 2019.[^12]

[14] Although r. 16(4.1) sets out the obligation of the respondent to the motion to provide “in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial”, this does not shift the ultimate burden of proof. Even if the respondent’s evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial.[^13] A motion for summary judgment on custody/access issues under the Children’s Law Reform Act (CLRA) will not attract the same degree of caution as set out in Kawartha as we are not deciding to sever a parent-child relationship.

[15] The case before me is a motion for summary judgment under the CLRA. The respondent submits that the summary judgment process in a custody case should only be used in the rarest of circumstances, given the issues of credibility that are involved. He submits that the determination of the best interests of the child is a complex multi-faceted matter governed by s. 24 of the CLRA, and it can be difficult to make findings of fact in the context of conflicting affidavit evidence.[^15]

[16] I agree that it is difficult, however, not impossible, to make findings of fact in the context of conflicting affidavit evidence. It is well established that summary judgment is available in custody and access matters.[^16] The court must ensure the process is fair, and that adequate evidence is available for the court to reach a fair and just resolution applying the objectives of the CLRA, including the best interests of the child.

[17] The jurisprudence reflects an approach to the genuine issue “for trial” or “requiring trial” analysis that incorporates these considerations. The test of “no genuine issue for trial” has been referred to in a number of ways. It has been equated with “no chance of success” or that it is “plain and obvious that the action cannot succeed”. The test has also been enunciated as being when the “outcome is [a] foregone conclusion” or where there is “no realistic possibility of an outcome other than that sought by the applicant”.[^17]

[18] Rule 16(6) of the Family Law Rules provides that if there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

[19] Rule 16(6.1) provides that in determining if there is no genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be only exercised at trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

[20] In Hryniak v. Mauldin[^18], the Supreme Court of Canada set out a two-step process for determining whether summary judgment should be granted. Hyrniak sets out that the judge must first determine if there is a genuine issue requiring a trial based on the evidence without using the additional fact-finding powers set out in r. 16(6.1). If, after this initial determination, there still appears to be a genuine issue for trial, the judge may resort to the additional fact-finding powers to decide if a trial is required. There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process; (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.[^19] As the Supreme Court stated, at para. 50 of Hryniak,

…the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.

Discussion and Analysis - The Agreement of January 30, 2019

[21] Both parties agree there was no settlement reached at the OCL disclosure meeting on October 17, 2019. As a result, Ms. Mink filed a Report with the court, dated October 22, 2018.[^20] The respondent never filed a dispute of the OCL Report. A comprehensive settlement conference was then held by Vallee J. on January 30, 2019.

[22] The endorsement of Vallee J., dated January 30, 2019, reads as follows:

SC held

• parties agree to have property appraised

• father agrees to parenting in accordance with OCL’s recommendation

• parties agree to c/s guideline amount based on $70,000 income

• parties agree to use Our Family Wizard

• parties agree to review of custody and parenting when child is 10

• after appraisal received, parties to schedule TMC

• parties to file Minutes by 14B.

[23] One of the long-standing principles for the family court is the desire to generally uphold family law settlements and minimize, or even discourage, litigation. However, if a settlement is reached, it is still in the discretion of the court as to whether it is enforceable. There are a number of factors relating to this enforceability that the court should consider to determine whether a settlement was reached on the essential terms, [^21] and whether “the fact that the parties contemplated that there was to be a formal written document to the same effect as the terms upon which the parties had agreed does not alter the binding validity of the original agreement or settlement.”[^22] In this matter:

(a) The parties all had legal representation and neither party was disadvantaged during the course of the settlement conference or negotiations that took place prior to or afterwards;

(b) The endorsement of Vallee J. specifically supports the prima facie conclusion that the parties had agreed and intended to agree to settle the parenting issues in accordance with the recommendations contained in the OCL report. Vallee J. specifically wrote three comments confirming the agreement on the parenting issues: “father agrees to parenting in accordance with OCL’s recommendation;” “parties agree to use Our Family Wizard;” and “parties agree to review of custody and parenting when child is 10.”

(c) The endorsement of Vallee J. also shows that the parties agreed to settle the child support issues as well. Vallee J. had written, “parties agree to c/s guideline amount based on $70,000 income.”

(d) The endorsement of Vallee J. also clearly states that the, “parties to file Minutes by 14B.” All of these statements written by Vallee J. show that the parties had a consensus on all the essential terms of the agreement and intended that the oral representations were to be binding on them and were merely to be recorded in a final document.

(e) In addition to the above, the actions of the parties after the settlement conference show that both parties believed there was a valid agreement. Both parties had a copy of the OCL report and the endorsement of Vallee J., dated January 20, 2019. Neither party resiled from the agreement after the conference or indicated there was a mistake in Vallee J.’s endorsement. The respondent did not send the applicant a letter or message through counsel indicating that he no longer agreed. He simply refused to finalize the draft order pursuant to the Agreement.[^23]

[24] As stated by the Ontario Court of Appeal, based on all of the above, I find it very clear that “in the eyes of a hypothetical onlooker the parties appear to have reached a settlement.”[^24] I find that the respondent did agree to settle the parenting issues on January 30, 2019 in accordance with the OCL recommendations. I find there was a “meeting of the minds” on the essential terms of the parenting agreement and it was not conditional upon the execution of a formal contract.[^25] Vallee J.’s endorsement very clearly recorded there was an oral agreement on the parenting issues in accordance with the OCL recommendations.

[25] Vallee J.’s endorsement goes on to say that the oral agreement was going to be filed by way of 14B motion. It does not say that the agreement is “conditional” upon the execution of a formal contract. I find that the reference to the 14B motion shows the intention of the parties to merely record the final settlement in a final document.[^26] Summary judgment may be granted based on an oral agreement that was not reduced to writing.[^27]

[26] In the respondent’s affidavit of June 7, 2019 at paragraph 36, he states that at the settlement conference “my understanding was that I had not agreed to sole custody to the AM.” I find the respondent’s denials to be weak and self-serving. This is the second time the respondent has tried to back out of an agreement. He is contesting the validity of the separation agreement that he admits to signing, and he deflects all responsibility for it.[^28] He said he “was simply happy to get away from the situation and I ended up signing the agreement.” He provided no evidence that he disputed the agreement until the matter was brought to court by way of the applicant’s Application for custody and child support, dated January 18, 2018. I am not commenting on the validity of the separation agreement as that issue is not before me. However, I am mentioning this because it shows that the respondent may have a pattern of agreeing to things to “get away” and then denying there was any agreement only to attempt to renegotiate a different deal. This is not negotiating in good faith.

[27] At no time after the settlement conference did the respondent point out that there was an error in Vallee J.’s endorsement. Furthermore, the respondent did not dispute the child support amount or any other term in Vallee J.’s endorsement. He also never filed a dispute regarding the OCL report. All of this speaks volumes in support of the applicant’s position and weakens the respondent’s position. I find that I cannot put a great deal of weight on the respondent’s submissions on this issue. He has been inconsistent in his position on this and other issues described below.

Discussion and Analysis

Are there genuine issues for trial, and what is in the best interests of the child?

[28] In the respondent’s affidavit of June 7, 2019, at paragraph 27 and 28, he describes how he resides with his parents and works overnights from 10:30 p.m. until 7:00 a.m. and can sleep while Ellyauna is at school. He goes on to say that he has made a request to be transferred to the day shift. In paragraph 35 he discusses how the OCL makes mention of his work schedule multiple times in her report and that “it is clear that the OCL had reservations toward shared custody due to my current work schedule and living arrangements.” He further discusses the parenting conflicts between the parties that have continued since the OCL Report. He goes on to say that the “OCL should be cross-examined as to her views on the potential change to my employment and her subsequent view on the custody and access recommendations.”

[29] The respondent provided no evidence that any potential change to his work schedule was imminent during the OCL investigation or even during the motion. He attached a letter to his affidavit from his employer that made a general statement that, “when filling vacancies internally, in any instance where the skill, ability and qualification of several candidates are relatively equal, preference will be given to the candidate with the most seniority.” The letter goes on to confirm the respondent is in “good standing and is a valued member of our team.”[^29]

[30] I find that there is nothing that can be gained from the cross-examination of the OCL on a hypothetical question about the respondent’s possible work schedule and how it might impact the OCL recommendations. In fact, I find that the respondent already has the answer to this question in the OCL Report. The last paragraph of the discussion part of the Report states that, “given Ellyauna’s young age, an agreement regarding custody and access may be re-evaluated in the future, particularly if there are significant changes in work and living circumstances for Mr. Saumure and as Ellyauna grows and develops.” Pursuant to the Family Law Rules, either party may seek changes to the final order regarding custody and access by way of a motion to change if there is a material change in circumstances.

[31] I find that the respondent’s request to his employer to switch to day shifts (after the OCL Report was released) does not raise a genuine issue for trial. I find that the respondent’s current expressed unhappiness with the OCL recommendations and the continued conflict is not proof that he did not at one point agree to settle the parenting issues in accordance with them. I find the fact that the respondent never filed a dispute with the OCL also speaks to the fact that there are no genuine issues with the content or conclusions and recommendations contained therein.

The Parents Conflict and Communication Difficulties

[32] I find the respondent lacks insight regarding how the parties communicate, their level of conflict and how it effects the well-being of Ellyauna. In the OCL Report, both parents provided examples of their inability to agree on parenting decisions. However, the respondent is described as appearing, “overly critical” of the applicant and mistrustful of her. He is critical of the applicant’s “permissive parenting style” and he “questioned her honesty and had difficulty considering the possibility of alternative explanations for his expressed concerns.”[^30] In the respondent’s affidavit, he simply blames the applicant and says that she “does not effectively communicate with me.”[^31]

[33] The respondent further takes issue with some terms of the OCL recommendations, saying they are “vague” and “require additional wording to avoid later conflict.”[^32] I find that paragraph 1 of the draft order is not vague at all. It reflects exactly what the OCL recommended. The OCL recommended “sole custody” to the applicant. Paragraph 1 of the draft Order says:

The Applicant mother shall have sole custody of the child of the relationship, Ellyauna Chad Isabel Saumure born July 16, 2014. Ellyauna’s primary residence shall be with the Applicant mother.

[34] I find that the respondent’s primary issue with the OCL recommendations are contained in the applicant’s draft order at paragraph 2. Paragraph 2 of the draft order says:

The Applicant mother may make all health, education and religious decisions concerning Ellyauna, however, she shall advise the Respondent father of any medical, dental or other professional appointments.

[35] I find the first part of paragraph 2 in the draft order describes what sole custody means; a description that makes the respondent unhappy, and one he finds unnecessary. However, the second part of the paragraph actually goes on to provide the respondent with more access to information than what the OCL initially recommended. The OCL recommendation was that the respondent have “independent access to all third party records regarding Ellyauna” and required the applicant to “sign all relevant consents required” for the respondent to “access such records.” This recommendation was attempting to minimize the conflict by minimizing the communication between the parties.

[36] I find that despite the OCL recommendation, the last part of paragraph 2 of the draft order potentially increases the communication between the parties and is sufficiently vague to potentially create conflict. It obligates the applicant to advise the respondent of professional appointments for the child. It does not clarify whether the respondent is permitted to attend or participate. I agree with the respondent that the last part of paragraph 2 of the draft order does not reflect the OCL recommendation.

[37] I find that even though the last part of paragraph 2 of the draft order does not accurately reflect the OCL recommendations, the discrepancy is minor. I find this minor discrepancy, combined with the vagueness of the last part of paragraph 2, does not raise a genuine issue for trial.

[38] The child’s wishes and preferences and recommendations regarding her best interests have been provided through the OCL Report. The OCL Report was completed less than a year ago. There was no issue raised about the admissibility of the content of the OCL Report or affidavits of the parties. The applicant is seeking finality in an order that the child remain in her custody and continue to have regular specified access to the respondent. This will reduce Ellyauna’s exposure to conflict and is in the child’s best interests.

[39] Oral evidence of the parties and/or cross-examination of the OCL will add very little to assist in determining this issue. I find there is enough evidence in the record to allow me to resolve the dispute in a fair and just manner applying the objectives of the CLRA, including the best interests of the child.

Sole vs. Joint Custody and the Best Interests of the Child

[40] There is a great deal of family law conflict and litigation on the words “sole” versus “joint” custody. When someone has sole custody, they are responsible for all major decisions including the child’s health, education, religion and general welfare. It is common sense that since the child primarily resides with them, the custodial parent makes all appointments for the child, so long as they don’t conflict with the other parent’s time with the child. The custodial parent is not obligated to inform the other parent of medical, dental or other professional appointments; however, they are obligated to inform them of their decisions and the outcome of same. This imbalance in information makes the non-custodial parent feel like they are less involved or less important in the child’s life. In his affidavit, the respondent states that “education and religion are missing from what the AM should advise upon, but also the method by which she is to “advise”. Clearly the chosen method would need to be in writing and communicated before a decision is made, on all major decisions, not just medical and dental.”[^33] As stated above, the respondent feels that Ellyauna has a “right to have two parents fully involved in her life.”[^34]

[41] The respondent is seeking custody, or in the alternative, joint custody of the child. When parties share “joint custody” they are both responsible for all major decisions and this necessitates cooperation and appropriate communication. Co-parenting and joint custody are not appropriate where the parents are unlikely to achieve a sufficient level of communication, commitment and respect. Incompatible approaches and wishes for child rearing will cause the children to suffer from being caught between antagonistic forces and pressures. Where one parent is an obvious choice for custody, it is better for the court to make that choice as soon as possible.[^35] It is an error in principle to order joint custody where there is no evidence of historical cooperation and appropriate cooperation between the parties.[^36]

[42] The respondent criticizes the OCL Report for placing an “undue weight on the potential for disagreement, at the expense of Ellyauna having the right to have two parents fully involved in life.”[^37] I don’t think that too much weight can ever be put on the negative effect of a child’s exposure to conflict between their parents, especially when there is very little respectful communication or ability to resolve the disagreement involved. The OCL recommendations regarding custody reflected “the need to reduce parental conflict in decision-making and lessen the need for direct communication.”[^38] That is why the OCL recommended “sole custody” to the applicant and a set schedule of access for the respondent, as well as the respondent to “have independent access to third party records regarding Ellyauna.” These recommendations effectively minimize the potential for Ellyauna being exposed to further conflict, which is in the best interests of the child.

[43] Although potential changes to the Divorce Act and other pieces of legislation are anticipated to remove the terms “custody” and “access” from any new parenting plan, the changes have not been finalized. I must make an order using the language that is available to me. In this case, there is a long status quo since separation that supports the applicant having sole custody. There are not just one, but now two agreements between the parties that reflect the applicant having sole custody. Finally, there is a detailed report from the OCL that confirms the parties’ own evidence that they experience historic and ongoing conflict and communication issues that make joint custody inappropriate. The OCL Report recommends sole custody to the applicant. This Report has never been disputed.

[44] I find that the resolution of this matter by way of summary judgment motion is efficient, expeditious and a desirable and necessary mechanism to achieve the objectives of r.2 of the Family Law Rules. I found that the evidentiary record was sufficiently comprehensive on all other aspects of the case for me to make a fair and just determination of the issues on the merits without the need for a full trial. In this case, cross-examination of parents or the OCL or any other witnesses would add little, if any, value to the court’s analysis. I found that the summary judgment process allowed the court to make the necessary findings of fact and to apply the law to the facts. It is a proportionate, more expeditious and less expensive means to achieve a just result and end the conflict between the parents in the best interests of the child.

[45] I find that the applicant has met her onus and established, on a balance of probabilities, a prima facie case for summary judgment with respect to each aspect of the relief sought. I find the Agreement that was reached at the settlement conference, and it is enforceable. The respondent has not demonstrated that there is a genuine issue requiring a trial. I further find it is in the best interests of the child to resolve this matter by way of summary judgment.

Order

[46] For all the reasons as set out above and, pursuant to r. 16 of the Family Law Rules, I make the following final order regarding the terms of parenting:

(a) The draft order (attached) prepared by the applicant shall be finalized with the following changes:

(i) Paragraph 1 shall be amended to read as follows:

The Applicant mother shall have custody and primary care and control of the child of the relationship, Ellyauna Chad Isabel Saumure born July 16, 2014. Ellyauna’s primary residence shall be with the Applicant mother.

(ii) Paragraph 2 shall be deleted and replaced by the following:

Both parents shall be equally entitled to information and documents from the child’s doctors, teachers and any other professional or institution involved in the life of the child.

Both parents shall have independent access to all third-party records regarding the child, including but not limited to academic, medical, dental, recreational and mental health. The Applicant mother shall sign all relevant consents required for the Respondent father to access such records.

The Applicant mother shall consult with the Respondent father prior to making any major decision for the child effecting her health or education. Consultation protocol shall include the following:

1. Advising the Respondent father in advance of any non-emergency doctor’s appointments and inviting him to attend same. If the issue is urgent, the Applicant mother shall make her best efforts give the Respondent father notice. If advance notice was not possible, or the Respondent father was not able to attend the appointment, the Applicant mother shall give the Respondent father a brief written summary of the outcome/recommendations and/or treatment and/or prescriptions issued (if any);

2. Advising the Respondent father of any teacher/parent meetings and inviting him to attend same.

3. When attending any appointment together, the parents’ discussions with each other and the professional shall remain child focused.

4. If there is no agreement regarding any major decision for the child’s health, education, activities and general welfare, the Applicant mother shall make the final decision. The Respondent father shall abide by same.

[47] If the parties cannot agree on costs, I will receive written submissions commencing with the applicant serving and filing her submissions on or by September 13, 2019, followed by the respondent serving and filing his submissions on or by September 20, 2019, then the applicant’s reply submissions, if any, served and filed on or by September 25, 2019. Cost submissions shall be no more than 3 pages in length (12 pt font size, regular 1-inch margins, 1.5 spacing), exclusive of any costs outline or offers to settle. All costs submissions shall be delivered via email at: barriejudsec@ontario.ca. If no submissions are received by September 25, 2019, the issue of costs will be deemed to have been settled between the parties.

Jain J.

Released: August 29, 2019

ONTARIO

Court File Number: FC-18-66-00

Superior Court of Justice, Family Court

at 75 Mulcaster Street, Barrie, Ontario, L4M 3P2

Form 25: Order (General)

[x] Final

Applicant(s) Christine Shank 10 Black Ash trail Barrie, Ontario L4N 2S2

Lawyer: John W. Craig Family Law Barrister & Solicitor 215-60 Collier Street Barrie, Ontario L4M 1G8 Tel: 705-734-2911 Fax: 705-734-2047 jcraig@jwcfamilylaw.ca

Respondent(s) Bradley Saumure Barrie, Ontario Tel: (705)321-2847

Lawyer: Omar Khan Shank Law Professional Corporation 18 Church Street South P.O. Box 181 Alliston, Ontario L9R 1V5 Tel: (705) 435-5055 Fax: (705) 435-3055

The Honourable Judge Jain

Date of order: August 29, 2019

The court heard an application/motion made by the Applicant Christine Shank

The following persons were in court: the Applicant Christine Shank with counsel John W. Craig, the Respondent Bradley Saumure with counsel Omar Khan

The court received evidence and heard submissions on behalf of Christine Shank

THIS COURT ORDERS THAT:

1. The Applicant mother shall have sole custody of the child of the relationship, Ellyauna Chad Isabel Saumure born July 16, 2014. Ellyauna’s primary residence shall be with the Applicant mother.

2. The Applicant mother may make all health, education and religious decisions concerning Ellyauna, however, she shall advise the Respondent father of any medical, dental or other professional appointments.

3. The parents shall each enroll in Our Family Wizard, which shall be used by the parents for all non emergency communication.

4. Either parent may enroll Ellyauna in recreational activities during the times that she is in their care. The other parent is not responsible for taking Ellyauna to recreational activities on their parenting time unless the activity is of a competitive nature.

5. The Respondent father shall at all times be entitled to obtain, directly from the appropriate source, all school records, medical records or other documents, records or information concerning Ellyauna. If necessary, the Applicant mother will sign all relevant consents required for the Respondent father to access such records.

6. Ellyauna shall have access with her father as follows:

(a) Every Tuesday and Thursday after school until 7:00 p.m.. During the summer months this time shall be expanded to be from 12:00 noon to 8:00 p.m.;

(b) Alternating weekends from Friday after school until Sunday at 7:00 p.m.;

(c) When there is a long weekend created by a Professional Activity Day or holiday, access shall begin at 12:00 noon if the Professional Activity Day or holiday is on a Friday before his weekend or shall be extended to 7:00 p.m. if the Professional Activity Day or holiday is on a Monday following his weekend.

7. The access schedule shall be suspended during the Christmas break with the parents sharing the school Christmas break equally as follows:

(a) In even numbered years the father will have Ellyauna after school on the last day of school for 7 days. Ellyauna shall then be with the mother for the next 7 days leading up to the return to school. Ellyauna shall also be with her mother from 4:00 p.m. on December 24 to 2:00 p.m. on December 25;

(b) In odd numbered years the mother will have Ellyauna after school on the last day of school for 7 days. Ellyauna shall then be with the father for the next 7 days leading up to the return to school and returning Ellyauna at 7:00 p.m. on the Sunday before the first day of school. Ellyauna shall also be with the father from 4:00 p.m. on December 24 to 2:00 p.m. on December 25.

8. The access schedule shall be suspended during the March school break each year. The parent shall alternate parenting time with Ellyauna such that the mother has Ellyauna in even numbered years for March Break and the father has Ellyauna in odd numbered years for March Break.

9. The access schedule shall be suspended during Easter. The parents shall alternate parenting time with Ellyauna such that the father has Ellyauna in even numbered years from Thursday after school until Monday at 2:00 p.m. and the mother has Ellyauna in odd numbered years from Friday at 2:00 p.m. until Tuesday.

10. Each parent shall have Ellyauna for one full week of uninterrupted parenting time in each of July and August. The father shall have first choice of his week in July and the mother shall have first choice of her week in August, with each parent advising the other of their chosen week by May 15 of each year.

11. Each parent shall facilitate one telephone/internet/Face Time contact between Ellyauna and the other parent on Saturdays that is not unreasonably restricted in frequency or duration, as well as at other times during holiday and vacation times as mutually agreed upon.

12. The parents shall share the transportation associated with all exchanges of Ellyauna.

13. When either parent plans to travel overnight with Ellyauna, they shall provide to the other parent an itinerary that includes the name and address of the locations they are staying each night and general activities planned, to be provided 48 hours in advance of travel outside of the Province and 24 hours in advance of travel within the Province. The non travelling parent shall provide a signed Consent for Travel outside of Ontario within 24 hours of being requested by the travelling parent.

14. The parenting schedule set out above may be adjusted by the parents provided it is mutually agreed upon in writing.

15. The custody and access provisions set out above may be reviewed at the request of either party once Ellyauna turns 10 years of age.

CHILD SUPPORT

16. Based on the Respondent father’s 2018 income of $70,013.00, he shall pay to the Applicant mother for the support of Ellyauna the sum of $654.00 per month, which support is in accordance with the Child Support Guidelines, commencing February 1, 2019.

17. For as long as child support is paid, the payor and recipient, if applicable must provide updated income disclosure to the other party each year, within 30 days of the anniversary of this order, in accordance with section 24.1 of the Child Support Guidelines

18. This Order bears interest at the postjudgment interest rate of % per year effective from the date of this Order. A payment in default bears interest only from the date of default.

19. Unless the Order is withdrawn from the Office of the Director, Family Responsibility Office, it shall be enforced by the Director and amounts owing under the Order shall be paid to the Director, who shall pay them to the person to whom they are owed.

Put a line through any blank space left on this page.

Date of signature

Signature of judge or clerk of the court

[^1]: Family Law Rules, O. Reg. 114/99. [^2]: Applicant’s Notice of Motion, dated May 22, 2019, Continuing Record Vol. 1, Tab 18. [^3]: Affidavit of Respondent dated June 7, 2019, Continuing Record Vol. 2, Tab 4; and Affidavit of Applicant, dated May 22, 2019, Continuing Record Vol. 2, Tab 5 and Ex. A. [^4]: Affidavit of Applicant May 22, 2019, Continuing Record Vol. 2, Tab 5 at para. 7. [^5]: Affidavit of Respondent June 7, 2019, Continuing Record Vol. 2, Tab 4 at paras 12-13. [^6]: Affidavit of Applicant, May 22, 2019, Continuing Record Vol. 2, Tab 5 at paras. 8, 9, and 10 an Affidavit of Respondent June 7, 2019, Continuing Record Vol. 2, Tab 4 at para. 32. [^7]: OCL Report of D. Mink, October 22, 2018, Continuing Record Vol. 1, Tab 15, pg. 12. [^8]: OCL Report of D. Mink, October 22, 2018, Continuing Record Vol. 1, Tab 15, pg. 14. [^9]: Continuing Record Vol. 1, Tab 19 and Vol. 2, Tab 5. [^10]: Continuing Record Vol. 1, Tab 15. [^11]: Children’s Aid Society of Toronto v. K.T. 2000 20578 (ON CJ), 2000 O.J. No. 4736 (Ont. C.J.) [^12]: Affidavit of respondent, dated June 7, 2019, Continuing Record Vol. 2, Tab 4. [^13]: Kawartha Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316 at para. 80 (para 2). [^14]: Children's Law Reform Act, R.S.O. 1990, c. C.12. [^15]: S.(C.) v. K.(C.), 1996 7259 (ON SC), [1996] O.J. No. 814 (Gen. Div.) at para. 9. [^16]: Oberhoff-Woods v. Woods, 2009 ONCJ 356 (OCJ) at para 30. [^17]: Kawartha, at para. 72. [^18]: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. [^19]: Hryniak, at para. 49. [^20]: OCL Report of D. Mink, October 22, 2018, found at Continuing Record Vol. 1, Tab 15. [^21]: Harris v. Harris, [1996] O.J. No. 2430 (OCJ, Gen. Div.) at para 10. [^22]: Andrews v. Lundrigan, 2009 ONCA 160 (Ont. C.A.) at para 6. [^23]: Affidavit of Applicant, May 22, 2019, Continuing Record Vol. 2, Tab 5. [^24]: Andrews v. Lundrigan, 2009 ONCA 160 (Ont. C.A.), at para 8, quoting G.H.L. Fridman, The Law of Contract in Canada, 5th ed. (Toronto: Thomson Carswell, 2006). [^25]: Swift v. Swift, [2010] O.J. 4722 (OSCJ) at para 67 and Osmak-Bonk v. Bonk, 2007 ONCJ 330 (OCJ) at para 5. [^26]: Andrews v. Lundrigan, 2009 ONCA 160 (Ont. C.A.) at paras 8, 12. [^27]: Bogue v. Bogue 1999 3284 (Ont. C.A.) at para 13, and Lunardi v. Lunardi, 1988 Carswell Ont 491 (H.C.), at para 37. [^28]: Affidavit of Respondent June 7, 2019, Continuing Record Vol. 2, Tab 4 at paras. 12-21. [^29]: Affidavit of Respondent, dated June 7, 2019, Continuing Record Vol. 2, Tab 4, Exhibit “E” – Letter dated February 5, 2019 from K. Currier HR Manager of Oetiker Ltd. [^30]: OCL Report page 12-13. [^31]: Affidavit of Respondent June 7, 2019, Continuing Record Vol. 2, Tab 4 at para. 29. [^32]: Affidavit of Respondent June 7, 2019, Continuing Record Vol. 2, Tab 4 at page 7. [^33]: Affidavit of Respondent June 7, 2019, Continuing Record Vol. 2, Tab 4 at para 42. [^34]: Affidavit of Respondent June 7, 2019, Continuing Record Vol. 2, Tab 4 at , para 56. [^35]: Kappler v. Beaudoin, (2000) 2000 22579 (ON SC), 6 RFL (5th) 269 (SCJ) at para 21. [^36]: Kaplanis v. Kaplanis (2005), 2005 1625 (ON CA), 10 RFL (6th) 373 (Ont. C.A.) at para 11. [^37]: Affidavit of Respondent June 7, 2019, Continuing Record Vol. 2, Tab 4 at para 56. [^38]: OCL Report at Continuing Record Vol. 1, Tab 15 page 13.