COURT FILE NO.: FS-19-8837

DATE: 20190829

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Dionne Woods Applicant

– and –

Shannon Woods Respondent

On her own Behalf

Present in court but without Standing

HEARD: August 28, 2019

C. Gilmore, J.

judgment on uncontested trial

Overview and background

1The applicant mother (“the mother”) issued her Application in this matter on March 22, 2019. It was served on the respondent father (“the father”) on March 29, 2019. The father did not file an Answer.

2The mother scheduled a Case Conference for July 5, 2019 which was served on the father on June 7, 2019. The father did not appear at the Conference. The Case Conference judge acknowledged that the father had been properly served and was aware of the conference. She felt it was important to give the father an opportunity to participate rather than proceeding directly to a motion. She directed that another Case Conference take place on August 12, 2019 and that the father serve and file his Answer, Financial Statement, Form 35.1 and Case Conference brief. Notice of the new Case Conference date as well as a copy of the endorsement of Akbarali, J. was served on the father on July 5, 2019.

3On August 12, the father did not appear. To date he has not filed an Answer, Financial Statement or Form 35.1 The father appeared at this hearing. He was advised that he had no standing and could not participate without filing pleadings. The father was both hostile and rude. He stated that he had no intention of filing any documents. He was invited to remain in the court while the mother gave her evidence since the matters involved their children. The father stayed throughout the hearing. When the hearing was concluded the father made further insulting remarks towards the mother and the court and then left.

4As such, the matter proceeded by way of uncontested trial with oral evidence from the mother. As to the background facts, the mother testified that the parties were married on August 11, 2007 and separated on March 4, 2016. They have two children, K.W. aged 9 and J.W. aged 7. The children will be entering Grade 4 and Grade 2 respectively this year. The mother speaks French and the children are enrolled in a francophone school. The mother’s evidence was that during the marriage the parties agreed that the children would be enrolled in a francophone school.

5The mother seeks a divorce, sole custody, a change in the current residential schedule, and an equal sharing of ongoing and retroactive s.7 expenses. The mother does not seek child support for reasons which are set out below. The property issues in this case were dealt with in their entirety before the Application was issued.

6Following separation, the children were initially living with the mother. Over time, the parenting arrangement evolved into one where the father and mother shared time with the children. Currently, the parenting arrangement is that the mother has the children on Monday and Tuesday and the father on Wednesday and Thursday each week. The weekends are alternated but the children are returned to the mother each Sunday evening.

Custody

7The mother seeks sole custody and a change in the current parenting arrangement. She does so on the basis that she cannot co-parent with the father. She provided many examples of why she cannot co-parent with the father, some of which are listed below:

a. After agreeing to pay his share for certain s.7 expenses such as day care and extra-curricular activities, the father unilaterally stopped contributing shortly after he was served with the mother’s Application.

b. The father refused to contribute to early morning daycare which means that the mother (who is a teacher) only has 15 minutes to prepare her classroom before school starts.

c. The father insists that much of the communication about the children take place through his girlfriend. While the mother does not have an issue with the girlfriend, she feels that such communication should be between the parties directly.

d. The father agreed that the children should participate in certain extra-curricular activities but often does not take them when the children are with him. When the mother questioned him about this, he responded that he can do what he wants with the children when they are with him.

e. The oldest child has had some challenges at school. The mother has attempted to consult with the father about these challenges to come up with solutions, but the father is not interested in collaborating with her about such decisions. The mother tried for a month to arrange a meeting with the father about K.W. When she was finally able to speak to him about the issues, he told her to do whatever she wanted.

f. The children are registered in a francophone school. The father does not speak French. The mother speaks to the children in French at home. The mother needs time to support the children with their homework and language skills.

g. The children will often arrive at the mother’s home on Sunday night after a weekend with the father without their homework done. This has created stress for both the mother and the children.

h. The father will not provide the mother with his phone number.

i. The children are sometimes late or absent from school when in the father’s care.

j. The mother waited three years before issuing this Application. She tried to collaborate and consult with the father. That approach simply did not work.

k. Since separation, it is solely the mother who has taken the children to the doctor, the dentist, registered them for activities and attended parent-teacher interviews.

l. Both parties have re-partnered. The mother and her partner have offered to meet with the father and his partner to discuss child-related issues. He refuses.

m. The children informed the mother that they no longer eat meat at their father’s home. The mother is not opposed to a vegetarian diet but feels that this is the type of issue which the parties should have jointly discussed.

8The mother assured the court that she knew the father loved the children and that he was a good father, however, she cannot co-parent with him. The father is hostile and aggressive with her. She told the court that he will not communicate with her either calmly or respectfully. She was unable to say why, other than he likely blames her for the breakdown of the marriage.

9After separation, the mother hired a collaborative lawyer who drafted a separation agreement. The mother’s lawyer contacted the father, asked him to contact counsel and sent him a copy of the draft agreement. The father simply did not respond.

10The mother seeks to change the current parenting schedule such that the children are with her each week from Sunday evening to Thursday morning drop off at school. The father would have the children each Thursday night and in the alternate weeks he would have the children from Thursday after school to Sunday night drop off at her home. This proposed change would result in one less evening per week with the father.

11The mother seeks this change in order to ensure more stability in the children’s lives. She will be able to help them more with their homework and French language skills and there is a better prospect of them attending their scheduled extra-curricular activities. Allowing her sole custody would permit her to made decisions about the children without having to deal with the father’s hostility and non-responsiveness.

Analysis

12The mother was a credible and articulate witness. I accept her reasons for asking for a change in access and custody are solely related to the children’s best interests. There is no doubt that the father loves the children and is a good parent. That, however, is different from being a good co-parent.

13The father’s abdication of his responsibility to consult with the mother to his girlfriend is unacceptable. His hostile attitude towards the mother was not a fabrication. His behaviour in the court room was aggressive and insulting towards both her and the court. It certainly gave a flavour of the difficult position in which the mother is put when she must consult with the father about the children. It is clear that the father has little respect for the mother and views her Application as a negative commentary on his parenting ability when in reality may be seen as a form of plea to the court for help.

14I accept that the mother has been, in many ways, already acting as the primary parent given the father’s attitude. She has been the one to register them in daycare, activities, is proactive with their homework and healthcare, deals with their teachers and ensures enhancement of their French language skills.

15Despite the father’s apparent attitude that he can act as an island when the children are in his care, that is not in their best interests. The mother should have the ability to make decisions, ensure attendance at school and activities and provide continuity and stability in the children’s lives. As the father has no interest in collaborating with her on these things, she must be given the legal authority to do so on her own. If the result is a change in the parenting schedule, then that is also in the children’s best interests.

Support and Section 7 Issues

16The mother seeks a retroactive and ongoing contribution to section 7 expenses. Her evidence was that the father agreed to share the cost of daycare, gymnastics, soccer and swimming. On April 1, 2019 the father unilaterally ceased paying for s.7 expenses. His reasons for this were not known other than his attitude towards the commencement of this Application.

17I accept the mother’s evidence concerning the following retroactive s. 7 expenses:

Gymnastics – June 2019, $391.50

Soccer – April 2019, $550

After school care for the 2019/20 school year - $999.50

Morning daycare – $440 x 6 months - $2,640

Swimming and gymnastics – Fall 2018 - $522

18The mother’s income is $99,000. She testified that the father’s income was in the range of $80,000. The parties had previously agreed on sharing the cost of s.7 expenses. However, based on the parties’ incomes, the father’s proportionate share would be 45%.

19The mother seeks an ongoing contribution to s.7 expenses for daycare and swimming. She will pay for any other activities in which she decides to enroll the children.

20The mother does not seek child support. She takes this position out of a concern related to the father’s already hostile attitude towards her. She is concerned that if he is ordered to pay support, he would be become even more hostile.

21However, under the new schedule the father will spend 4 out of 14 nights with the children every two weeks. The children have a right to receive support from the father who is earning a reasonable income. While the mother is concerned about the ramifications of asking for support, the court has an obligation to ensure that reasonable arrangements are made for the children and that they benefit from both party’s obligation to support them. It is not reasonable for the court to withhold ordering support simply because the father chooses to be disagreeable. Further, section 3 of the Child Support Guidelines is presumptive and requires that support be paid for minor children. Support is the right of the children and must be paid where the obligation exists.

Orders

22Given all of the above, I make the following orders:

23The applicant shall have final sole custody of the children K.W. born May 6, 2010 and J.W. born June 14, 2012.

24The children shall reside with the mother each week from Sunday at 7:00 p.m. to Thursday drop off at school. In week one, the children shall reside with the father from Thursday after school until Friday morning school drop off. In week two, the children shall reside with the father from Thursday after school to Sunday return at 7:00 p.m.

25The children shall share time with their parents on all school holidays except for March Break which shall be alternated between the parties, with the father having the children for March Break in even years commencing March 2020.

26The mother shall keep the father advised of the children’s progress, well-being, and her decisions in relation to the children’s education and health.

27The father shall be entitled to attend any school concerts or other events to which parents are invited.

28The father shall take the children to any swimming lessons which take place during his parenting time with them.

29The father shall ensure the children are not late for school on Friday mornings when in his care.

30The parties shall always provide a current phone number and email address to one another.

31The father shall forthwith pay retroactive s.7 expenses totaling $2,296.35 (being 45% of $5,103).

32The father shall pay 45% of ongoing daycare and swimming lessons for the children. The mother shall provide receipts for same to the father and the father shall pay his proportionate share within seven days of receiving the receipt.

33The father shall pay child support of $1,211 per month for both children commencing September 1, 2019.

34The parties shall exchange income tax information each year by June 30th commencing in 2020. Child support and the parties’ respective contributions to s.7 expenses shall be revised based on this disclosure.

35SDO to issue.

36No costs of this Application were sought.

37The divorce in this matter was previously severed from the corollary relief and may now proceed given that child support issues have been finalized.

C. Gilmore, J.