COURT FILE NO.: FC-18-2224

DATE: 2019/11/28

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sylvie Anne Marie Wylie, Applicant

AND

Kirk Wylie, Respondent

BEFORE: Justice Engelking

COUNSEL: Tanya Davies, Counsel for the Applicant

Yvette Viroc, Counsel for the Respondent

HEARD: August 29, 2019

ENDORSEMENT

[1] The Respondent, Mr. Wylie (“Kirk”) brought a motion with respect to an increase in access to the parties’ third child, Emilie. He later amended his Notice of Motion to include specific relief with respect to the parties’ other two children, Sam and Ben. Specifically, Kirk seeks a temporary order for:

1. Shared parenting time with Emilie on a 2-2-5-5 schedule, with Sylvie having Emilie every Monday and Tuesday, him having the child every Wednesday and Thursday, and weekends alternating;

2. Maintenance of the 2-2-5-5 schedule in place for Sam and Ben;

3. Emilie to be in Kirk’s daytime care during the duration of his parental leave;

4. Sam to be enrolled in the Ottawa-Carleton District School Board special needs program for January 2020;

5. Sam to attend Avalon Public School commencing in the fall 2019 school year;

6. Ben to attend Avalon Public School commencing in the fall 2019 school year;

7. In the alternative, Ben to be in Kirk’s daytime care during the duration of his parental leave; and,

8. Costs.

[2] The Applicant, Ms. Wylie (“Sylvie”) brought a cross-motion in which she seeks a temporary order for:

1. Ben to attend Arc-en-ciel French Catholic School commencing in the fall 2019 school year;

2. Sam to attend Arc-en-ciel French Catholic School commencing in the fall 2019 school year;

3. Kirk to pay Sylvie $1,722.50 in retroactive child support;

4. Kirk to continue to contribute his share of Emilie’s child care costs;

5. Kirk to reimburse Sylvie for 50% of the post-separation mortgage expenses;

6. Kirk to reimburse Sylvie’s parents for an outstanding loan;

7. Kirk to reimburse Sylvie for 50% of the expenses related to the preparation of the matrimonial home for sale;

8. Kirk to reimburse Sylvie for 50% of the post- separation furnace and air conditioner rental fees;

9. The child support payable by Sylvie be based on her actual income as opposed to her CRA Line 150 income;

10. Child support not to be varied while both parties are on parental leave;

11. Kirk to pay Sylvie $95 for outstanding 2018 summer camp fees;

12. Kirk to pay Sylvie $120 for outstanding 2019 summer camp fees;

13. Kirk to reimburse Sylvie $1,146.20 for one half of her contribution to her Pension and Supplementary Death Benefit taken during her maternity leave; and,

14. Costs.

[3] The motion and cross-motion were heard by me on August 29, 2019, at which time I reserved my decision. At that time, I ordered that on a temporary and without prejudice basis, Sam and Ben attend Arc-en-ciel French Catholic School pending my reserved decision. It was conceded by Sylvie at the motion that item numbers 3, 5, 6, 7, 8 and 11 through 13 of her Notice of Cross-Motion were not properly to be decided on a temporary motion and required a trial. This is, thus, my endorsement on Kirk’s motion and the remaining issues in Sylvie’s cross-motion.

[4] The issues for the motion are:

1. What parenting regime is in the best interests of Emilie?

2. What school should Sam attend?

3. What school, if any, should Ben attend?

4. Should Emilie attend daycare or be in Kirk’s daytime care during his paternity leave? If the answer is daycare, what should Kirk’s contribution to the cost of daycare be?

5. Should there be some retroactive adjustments to child support?

6. Does Kirk owe Sylvie any money for outstanding 2018 and 2019 summer camps?

[5] For the reasons that follow, I decline to make a temporary order varying Kirk’s parenting time with Emilie, I find that Ben and Sam shall attend Arc-en-ciel French Catholic School, that Emilie shall continue to attend daycare and that Kirk shall pay his proportionate share of her daycare costs, and that Kirk owes Sylvie $85 for 2018 summer camps and $120 for a summer 2019 daycare expense.

Background Facts

[6] The parties were married on September 25, 2010 and separated on September 7, 2017. Three children were born of the marriage, Samuel Wylie, born March 25, 2013 (now 6), Benjamin Wylie, born on July 29, 2015 (now 4), and Emilie Wylie, born on January 14, 2018 (1 year, 11 months).

[7] At the time of separation, the parties essentially traded partners with another couple, Mike and Aggy. Mike moved into the Wylie’s matrimonial home with Sylvie, who was pregnant with Emilie at the time, and Kirk moved in with Aggy.

[8] As of December 2017, Kirk and Sylvie entered into a shared parenting arrangement with Sam and Ben.

[9] Emilie was born in January of 2018. Sylvie remained at home on a maternity leave until January of 2019, when she returned to work. At that time, Emilie began to attend daycare with Sophie. Access to Emilie by Kirk occurred on a graduated basis (or by “phased approach”). Between January and June of 2019, the parties participated in extensive negotiations, both directly and through counsel, about the graduated schedule, with Kirk’s objective being to have Emilie in his care during the same times that the boys were in his care. As of July 3, 2019, a schedule was agreed to and implemented which had Kirk was seeing Emilie on Wednesdays and Thursdays over night as well as Saturday to Sunday overnight on week one and Monday overnight and Wednesday to Friday overnight on week two.

[10] In August of 2019, Aggy gave birth to her and Kirk’s son, Liam. Kirk had confirmed with his employer (the Federal Government) that he would be taking a parental leave as of September 2019, at which time he wished for Emilie to also be in his care during the day, rather than in the care of her daycare provider, Sophie. Sylvie was not in support of this proposal, feeling that 1) Sophie provided a measure of stability to Emilie and 2) she did not want to risk losing Sophie’s daycare spot at the time when both she and Kirk needed to return to work.

[11] The parties’ child, Sam, was diagnosed with special needs; specifically, he was diagnosed with Global Developmental Delays and Hypotonia (low muscle tone). Sam has frequent appointment with specialists. He sees a developmental pediatrician, a speech pathologist, an occupational therapist and an orthopedic surgeon.

[12] Kirk played an active role in parenting the boys, Sam and Ben, having taken parental leave after each of their births. As indicated above, he continues to be in a shared parenting regime with Sam and Ben.

[13] While the parties were still a couple, Sam was registered in École élémentaire catholique Arc-en-ciel in Orleans. He commenced attending there in 2017. At the time, the matrimonial home, which has since been sold, was in the school’s catchment area. After separation, Kirk did some research into school boards and the programs they offer for children with special needs. He identified two suitable boards, the French Catholic School Board, which has one school which offers a special needs program commencing in Grade 3 and the Ottawa-Carleton District School Board, which offers specialized programs commencing in Grade 1. In April of 2019, Kirk proposed to Sylvie that Sam being enrolled in Avalon Public School for the 2019-2020 school year. Sylvie did not agree, believing that continuity is important for Sam. She wants him to remain in his current school, Arc-en-ciel. Currently, neither parent lives in the catchment area for Arc-en-ciel, and Sam attends there based on an exception. Sylvie’s home is within the catchment area for Avalon. Ben commenced Junior Kindergarten in September of 2019; Kirk want his to also attend Avalon, while Sylvie wants him to attend Arc-en-ciel.

Analysis

[14] Kirk’s materials in relation to all of the issues were, in my view, preoccupied with what he wants, as opposed to what is or may be in the best interests of the children. Those of Sylvie, on the other hand, were preoccupied with what was actually in the best interests of the children.

[15] As it relates to parenting time for Emilie, for example, Sylvie’s materials were focused on how Emilie was managing longer periods of access with Kirk, and what would be best for her in terms of gradually getting to equal time with Kirk. Kirk’s materials were about Emilie needing to be in his care for the same time and under the same regime as her brothers were. Although both parents appear to be working towards a 2/2/5/5 with Emilie consistent with that of Sam and Ben, Kirk was insistent that it should happen immediately, largely because he has it with Sam and Ben, while Sylvie was focused on it happening at a pace which Emilie could readily manage.

[16] Similarly, Sylvie was very focused on what is best for Emilie as it related to her daycare situation. Sylvie has since had a child with Mike, who was born in July of 2019. She is, thus, also on a maternity leave currently with her new child. Sylvie has, nevertheless, elected to have Emilie continue in daycare. She has done so for two reasons; the first is that it is her routine and it provides a measure of stability to Emilie and the second is that she does not wish to risk losing Emilie’s spot with Sophie when both she and Kirk must return to work. Kirk’s perspective is simply that he spent time with Ben and Sam when he took paternity leaves after their respective births, and he should be able to spend time with Emilie as well. He was also of the view that the expense of daycare would be eliminated if Emilie was in his care during the day. Kirk did not address anything about the disruption to Emilie or of Sylvie’s concern that her daycare spot with Sophie could be lost.

[17] The motion was heard at the end of August, and it is indeed possible that the parties have moved on to the next “phase” of the gradual integration. If they have not, I expect that they will shortly be doing so. As this is the case, and because the intention of the parties is to get there, I see no need to make an order imposing a regime on Emilie which she may or may not be ready for. The relief sought, moreover, is that which Kirk seeks in the Application proper, and if it is not in place by trial, it can be dealt with at that stage. It is properly an issue for trial. I, therefore, dismiss Kirk’s motion as it relates to either increasing time with Emilie in the immediate sense, or requiring Emilie to be in his daytime care while he is on a parental leave. The parties will continue to share the cost of Emilie’s daycare proportionate to their respective incomes.

[18] With respect to the issue of Ben and Sam’s schooling, I find, again, that Kirk’s “evidence” was based on what he wants to happen for the children, Sam in particular. Kirk’s major concern, which he did not have while the parties were together, was that École Arc-en-ciel is a French school and that his own ability to receive information or communicate with the school staff is hampered. Kirk’s position was that Sylvie was using the French language to distance him and limit his participation in the children’s schooling. Although Avalon Public School, or indeed the Ottawa-Carleton District School Board, may be Kirk’s preference, I was provided with no evidence that École Arc-en-ciel was not meeting Sam’s needs and would not meet Ben’s. Although it is recommended that Sam repeat kindergarten at Arc-en-ciel, due largely to his developmental delays, he has been attending that school since September of 2017. It is an environment that is familiar to him, where he has friends and knows that teachers and support staff. He is also accustomed to attending school in French, which is not something that should be disrupted to meet Kirk’s needs. It is beneficial for Sam to remain in Arc-en-ciel, so long as he can. It is also beneficial for Ben to attend the same school as his brother. I, therefore, dismiss Kirk’s motions in respect of the boys schooling.

[19] With respect to the issue of retroactive child support adjustments, Sylvie has provided confirmation from her employer at Exhibit “H” of her affidavit sworn on August 23, 2019 of the incomes she would have received for 2016, 2017 and 2018 “if she had not experienced issues with Phoenix” in the case of 2016 and 2018, and “if she had not experienced issues with Phoenix or received back pay as a result of the Collective Agreement negotiation”. These sums are different that are contained in her Line 150 incomes from her Income Tax Returns or Notices of Assessment and/or her T4’s for the years in question. I am, however, uncertain from the documentation provided as to what the breakdown is in relation to the problems with Phoenix in any of the years, or how much or to what time period her back pay was attributed in 2017. This, however, is not an insurmountable problem. The child support and proportional s. 7 expenses that Sylvie is required to pay for the children from separation onwards should be based on her actual income. With some clarification, the parties should be able to come to an understanding of what that is. Based on the information before me, I am not inclined to do it on a temporary basis. Again, if this problem is not solved by the time the parties expect to have a trial, it can be dealt with at that time with proper evidence from Sylvie’s employer as to her actual income. I dismiss Sylvie’s cross-motion for a retroactive adjustment of child support (though, as I have indicated, one will have to eventually be made based on her actual incomes for the years in question).

[20] With respect to Sylvie’s cross-motion for reimbursement of s. 7 expenses for summer camp, the evidence before me is that Sam was in summer camp at “Coccinelle” for five weeks in the summer of 2018, for which Kirk paid $200 of the $295 he agreed to pay if the cost of the camp was split 50/50. Kirk, therefore, owes Sylvie $95 for 2018. In 2019, there was an outstanding balance of $500 owed by Kirk for the Ben’s daycare. Kirk objected to paying for daycare as he had enrolled Ben in two extra weeks of summer camp, and in his view, daycare was not necessary. Sylvie, however, still had to pay the daycare because the two weeks were not the same two weeks as the daycare provider was on holidays. Sylvie also ultimately agreed to pay for one half of Ben’s camp as she considered that he would benefit from it, notwithstanding the extra two weeks not being required. Sylvie is looking for a reimbursement of the $500 owing my Kirk, less her half of Ben’s camp of $380 for a total of $120. Kirk will be required to pay $120 to Sylvie for 2019.

General Comment and Costs

[21] This is, in my view, a motion that ought not to have been brought. Some, if not all, of the relief requested is that which is requested in the application itself. Indeed, these people ought not to be litigating. It is clear from the volumes of exchanges filed by both that Kirk and Sylvie are capable of communicating with each other, albeit not without a certain degree of frustration at times. It is my hope that they, and their counsel, will take a step backwards and seek to find a way to resolve the matters which remain in dispute between them.

[22] Although Sylvie was the more successful party on most of the issues addressed in this hearing, a not insignificant portion of the time was spent on a request by Kirk to have portions of Sylvie’s materials struck for impropriety, which motion was granted in part. Additionally, Sylvie’s Notice of Cross-Motion contained many requests for relief that were not proper for the motion but pertained to some of the unresolved financial claims for trial (such as equalization). Finally, the volume of the materials provided by both Sylvie and Kirk in this “motion” was completely disproportionate to the issues that need to be decided. Based on all of the above, there will be no order as to costs, and each party will bear their own.

Justice Engelking

Date: November 28, 2019

COURT FILE NO.: FC-18-2224

DATE: 2019/11/28

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Sylvie Anne Marie Wylie, Applicant

AND

Kirk Wylie, Respondent

BEFORE: Justice Engelking

COUNSEL: Tanya Davies, Counsel for the Applicant

Yvette Viroc, Counsel for the Respondent

ENDORSEMENT

Engelking J.

Released: November 28, 2019