Court File and Parties
Court File No.: FC-18-82-00 Date: 2019-12-03 Ontario Superior Court of Justice
Between: Shannon Hogg, Applicant – and – Kyle Pedersen, Respondent
Counsel: Chris Severn, for the Applicant Self-Represented (assisted by Jackie Archibald), for the Respondent
Heard: November 27-29, December 2, 2019
Reasons for Judgment
Eberhard J.
[1] During the course of the trial it became abundantly clear that the parties were agreed on almost all the legal issues. I therefore tasked them to record their points of agreement with the aid of our Minutes of Settlement forms and calendars for December 2019, and 2020 and 2021 to make very clear their points of agreement and expose any issues in which the details of their understanding of their agreement didn't quite match. The result is the Exhibit A, Minutes of Settlement and calendar attached hereto as Schedule 1 to form part of my order.
[2] The legal issue in dispute was whether the parenting schedule would be
- week about for the whole year;
- or week about in the summer, an equal share of holidays and primary care of Noah with the mother during the school week and the father’s care of the child on alternate weekends Friday after school to Monday drop off at school together with a Wednesday evening.
Child support would then be determined based on which parenting schedule is put in place.
[3] The test is of course the best interests of the child. But the evidence at trial steered the question towards having me decide who is at fault for the way things are and to decide whether the Respondent Father deserves to have week about parenting.
[4] Imbedded in this question is the state of the Respondent Father’s mental health in earlier days when Noah came into the Applicant Mother’s primary care and now.
[5] Also imbedded into this question is the perceived symbolism of a court order for equal shared parenting as it may bare on the parent’s sense of themselves as a full parent or as a parent on the sidelines excluded from decisions and participation and influence in Noah’s upbringing.
[6] So, since they asked me, I will make findings of fact from the evidence and presentation that unfolded before me. A trial has as a basic purpose the finding of facts. What follows are the facts as I have interpreted the evidence. Neither parent will agree I have it right. But, like Richard III after Shakespeare writes about him or Alexander Hamilton after Lin-Manuel Miranda’s interpretation, the real history will be obscured and facts recorded hereafter will be your story as determined by trial:
[7] Shannon and Kyle met young. She was in high school when they began dating. They soon lived together with Kyle’s family members who one by one moved out so that Shannon and Kyle then lived alone as a couple.
[8] Pregnancy was unplanned but both anticipated the birth happily. Kyle’s family had celebrations. Shannon’s family didn't attend. Noah was born August 23, 2013.
[9] When Noah was born however, the couple’s apartment wasn’t suitable so they accepted an invitation to live in the maternal grandparents’ house already crowded with other family. Shannon had been on the outs with her mother for a time. Back in the house together there were tensions. Shannon and Kyle moved to their apartment on Daphne Cres. In Barrie where they resided together until March 2017 and where Kyle still resides.
[10] Kyle moved from one employment to another as young people do to form a career path. They considered what occupation might be right for Shannon. Both got behind the idea of her return to school to qualify as a welder. Her grandparent helped by co-signing a line of credit so she could buy a vehicle to drive to school in Midland but they soon paid that off with Shannon’s OSAP loan. Kyle dropped off and picked up Noah, then from daycare.
[11] From Kyle’s perspective the relationship was terrific. If he had occasional jealousy issues from Shannon being in such a male dominated environment at welding school, he says he raised his concerns and dealt with it as couples do. Then, and when Shannon began to work in Newmarket, he was included in some of their class social gatherings and felt they got along fine.
[12] When Shannon and Kyle were both on the same shift in this early period of employment, Kyle’s mother cared for Noah 2 weeks on 2 weeks off but the parents tried to be there to see Noah at breakfast time. Kyle’s mother and extended family enjoyed having Noah in their lives for easily arranged get togethers.
[13] Things were changing for Shannon however. Newly employed and with friends at work, her world was opening up. She demonstrated less interest in Kyle and, looking back, he is suspicious about a Boots and Heart concert weekend she arranged to attend with his family but they came home at night and she didn't. Arthur, her best buddy at work, seemed to Kyle to be the cause of their break up when he looks back on it.
[14] There were a lot of disagreements. Mean things were said by both. Thankfully there were no physical altercations.
[15] On March 17, 2017 she left their cohabitation. She didn't make contact for a few days but by the time Kyle’s work rotation had come round its two week cycle she was set up for Noah in her parents’ home. They agreed immediately to a two week on/two week off parenting schedule to accommodate Kyle’s work.
[16] As narrator I pause here to note that everyone (everyone in family court) has broken up somehow. It’s never pretty or pleasant. One or both are hurt. Usually, neither is at their finest. So, generally details of the break-up make not the slightest difference in the application of family law principles relating to parenting, support or property. It makes no difference to me, as judge of the law in this case.
[17] But it made a big difference to Kyle. He had a vision of an ideal family life that was shattered by Shannon leaving. He still loved her madly. He had a life’s goal not to let his children down as his own father had. He wanted a family of his own to fit into the traditions of his extended family: celebrations, Spaghetti Mondays, cross generational loyalties.
[18] Meanwhile, Shannon was ready to move on.
[19] The two week about parenting schedule went well enough for 4 year old Noah until the issue of school placement arose. Kyle had an ideal vision of Noah remaining in the same daycare near the house where he still resided, with Noah attending the neighbourhood school where his extended family had good experience. For Shannon the school in the neighbourhood where she now resided was more practical. Negotiations were fruitless until the need for both to sign documentation to get a daycare subsidy persuaded Kyle to sign. Noah started school in Shannon’s neighbourhood.
[20] After months of no communication Kyle was interpreting the resumption of civil discussion and a meal at a restaurant with Noah and Shannon as a hopeful sign that reconciliation could be possible though Shannon consistently refused his invitations to dinners and home visits. She was growing tired of every discussion about Noah shifting to another rehash of relationship issues and finally on the morning of December 7, 2017 she told Kyle in clear terms that their relationship was never going to resume.
[21] As narrator I pause again to remark that everyone in family court has broken up somehow. For Kyle the pain of it was prolonged by his hope for another chance. For Shannon the relationship talk was getting in the way of focus on the challenge co-parenting Noah.
[22] As judge I pause to emphasize that to this point there is no judgment except to say these are two good people trying their hardest but from different places on the continuum of beginning their new lives as separated individuals. Nothing in the narrative attracts attention in a consideration of future parenting. Both were managing to parent Noah in the two week on/two week off schedule they had agreed.
[23] On the night of December 9, 2017 Kyle’s disappointment erupted into an incident of concern for the potential harm it might cause Noah. Even on his own telling, his emotions had gotten out of control. In the most benign telling of the story, Kyle lost his focus on his responsibility to care for Noah. Without really being able to tell us how much Noah was aware of he, overturned a living room table, left the apartment and raised sufficient ruckus outside to generate a neighbour’s call to 911. Police tasered him 3 times before they felt they had gained control. There was ambiguous information from Kyle about drug use. Even supposing that police response was overreaction, it was the information upon which the CAS and the Applicant Mother and the court responded.
[24] Although he discharged himself from emergency without mental health treatment as he was calm and slept there, several subsequent Psychiatric differential diagnoses queried the event as a manic presentation in the context of bi-polar disorder.
[25] As judge, I observe that this was not a question of the Applicant Mother keeping the child from his father. Interrupting the Respondent Father’s care of Noah was an absolutely essential response to a wild event that Noah should not be exposed to.
[26] The proper and necessary result was that the child was parented by his mother until it could be determined whether it was safe for his father to have care of the child.
[27] The narrative continues. During the time that followed his December outburst Kyle commenced efforts to demonstrate his fitness to parent. Unfortunately as he responded, to judicial comment about the potential contribution of marijuana to his psychiatric condition, by abruptly stopping all use though he had smoked marijuana of unclear potency for many years.
[28] On May 12, 2018, after sleepless nights, he drove himself to work, lost consciousness and hit a guardrail, realized he was having problems and sought help at his workplace. He was observed banging on his car in the parking lot at his work, was judged to be incoherent and was taken to hospital. He made false statements about drug use.
[29] He was kept in hospital a few days until he discharged himself against advice and was, in that time seen by several psychiatrists. Each commented on mania, likely bi-polar disorder based in part on the family history he gave them and queried a drug induced mood disorder.
[30] The second episode was a set back for Kyle in his desire to resume unsupervised parenting.
[31] As a judge I observe that in child protection matters, a parent whose conduct raises concern about mental health or drug dependency must demonstrate not only the steps taken towards overcoming those difficulties but also a sustained period of stability.
[32] The story continues that in the year and a half following the second episode, Kyle has engaged in assessment and supportive programming, he has followed advice to obtain his marijuana through a reputable source which provides controlled amounts and a product that has reduced THC.
[33] Kyle has arranged a transfer in his employment to allow him a firm schedule of days.
[34] Psychiatrist Dr. Craig Livermore first saw Kyle about a year ago as follow-up to the May 2018 hospitalization. He paid scant attention to the December 2017 episode which Kyle reported to him and which did not result in a psychiatric assessment. With the benefit of time and the presentation of a patient not in crisis who gave him a different family history and more detailed account of his drug use, Dr. Livermore rejects bipolar disorder and diagnoses the May 2018 event as mood disturbance from abrupt withdrawal of heavy use of marijuana.
[35] He opines that reoccurrence is no more likely than in the general population. Key among his observations is the now prolonged period of stability. This accords with the protective mandate of the court. Furthermore, he offered the view that there could be signs of looming crisis, particularly inability to sleep, which would allow Kyle to recognize some risk in his caring for a child and self report that to avoid problems. After the acute difficulty was addressed it would be reasonable to resume parenting without the lengthy interruption cause by Kyle’s first two episodes. In fact, Dr. Livermore suggested, a person who has had such experiences may have more insight than others in how stress, upset, and consequent lack of sleep can spiral out of control requiring intervention.
[36] As a judge I recognize that Kyle’s current stability allows him to provide for the care of his child. Indeed, this is clearly inherent in the agreement the parties have reached to share parenting time in all holiday periods.
[37] Now, back to the narrative: When Kyle’s conduct raised concerns for Noah’s physical and emotional safety, Shannon took on the parenting role full time. She already had suitable living arrangements and a relationship with the school Noah had been attending from September 2017 up to the December incident.
[38] Shannon, with the help of family members in her household, absorbed Noah’s fears, worry about his dad and no doubt the child’s sense of loss over his regular involvement with Kyle whom he loves.
[39] Shannon built a rich array of activities and facilitated the development of first friendships.
[40] All evidence describes a child who is thriving. Lots of kids have bit of trouble with reading but all the adults are on it.
[41] It was a pleasure to listen to Shannon describe her time with Noah. She laughed freely and exuded her pride and joy. She demonstrated an intimate insight and understanding of what makes Noah tick. Her enthusiasm was so infectious I have no doubt that Noah feels it every day.
[42] As a judge I observe that Shannon is a remarkable mother of a quality I am not lucky enough to see often in the family court environment.
[43] Of particular note is the care she has taken to keep Kyle informed of the child’s activities and events. Kyle probably cannot know how rarely that is observed. On occasion he has joined her family group, at their invitation, at such events. However, he continues to be uncomfortable when the group of friends and family includes someone Shannon is dating.
[44] If I see one problem in the mother’s presentation as being her tendency to enthrall about “my” child and how blessed “I” am to have him; I see on Kyle’s side a continued obsession about Shannon dating or having “sleepovers” with her current boyfriend.
[45] After almost 4 years of separation there is an expectation that parents will move on in their independent lives including re-partnering. Absent careless introduction of a parade of new partners to a child before he is ready, this is not a negative at all.
[46] What I see is Kyle offering a wide and interested extended family who adore Noah and provide rich traditions of celebration. Although he lives alone there is no problem with offering that as a parenting model.
[47] On Shannon’s side she has a stable and suitable family household perhaps more prone to spats in a family of sisters but supportive of her parenting. I see Shannon’s propriety in introducing new partners, and Shannon’s considerable strengths as a parent who has insight and plans in place to handle what kids need. I have faith that as her circumstances develop and she finds her own premises or chooses to reside with a new partner she will continue to put Noah’s needs first.
[48] So, I have told the story to find the facts that were in dispute about their history. I have found that the Applicant Mother’s primary care began two years ago for valid and necessary concerns. I have found that the Respondent Father has now, with the passage of time, demonstrated the stability that was in doubt after two episodes of highly concerning conduct.
[49] I find as a fact there is no bad guy here. Both parents are capable of providing care. They have both done what they needed to do in response to two episodes of conduct that were, by what occurred, inconsistent with providing for Noah’s safe physical and emotional care.
[50] That phase is over. With the agreement for shared holiday parenting there is plenty of opportunity for Kyle to parent and build relationship. With certainty of schedule there is no reason why Noah will miss out on the rich and celebratory extended family life Kyle can offer. He has full opportunity, as he has had, to attend Noah’s activities and events, interact with Noah’s school and providers of medical and dental care and access all information about Noah’s well-being.
[51] I return to where I started:
[52] The legal issue in dispute was whether the parenting schedule would be week about for the whole year; or week about in the summer, an equal share of holidays and primary care of Noah with the mother during the school week and the father’s care of the child on alternate weekends Friday after school to Monday drop off at school together with a Wednesday evening. Child support would then be determined based on which parenting schedule is put in place.
[53] The test is, I repeat, the best interests of the child. But the evidence at trial steered the question towards having me decide who is at fault for the way things are and to decide whether the Respondent Father deserves to have week about parenting. That I have now done.
[54] Imbedded in this question is the state of the Respondent Father’s mental health in earlier days when Noah came into the Applicant Mother’s primary care and now. That I have now answered.
[55] Also imbedded into this question is the perceived symbolism of a court order for equal shared parenting as it may bare on the parent’s sense of themselves as a full parent or as a parent on the sidelines excluded from decisions and participation and influence in Noah’s upbringing.
[56] It is on this question of symbolism that the Respondent Father’s case is weak. I have found that he has not been prevented by the Applicant Mother from interaction with the school. Although it has been more practical for Shannon to book medical and dental appointments, there has been nothing preventing Kyle from direct interaction with those services. That he does not know the teacher’s name is an example of his remaining on the sidelines, but not that anyone put him there.
[57] Kyle now asserts that he does not wish to alter the services Shannon has put in place for Noah and that he would mirror her routines.
[58] I am not persuaded that putting Noah into Kyle’s care on weekdays presents any advantage for Noah. The principle of maximum contact is not the same as saying week about no matter what. It is not the same as saying maximum contact must mean week about because a parent deserves equal time. In fact, as a generation of children who experienced week about, in the era when courts were introducing and promoting this model for maintaining real relationship with both parents, reaches adulthood, research is beginning to emerge describing what a burden it can be for the child to juggle their time between households. This is particularly so when parents are obsessed with deserving equal time and cannot show flexibility to facilitate the child’s sensibilities.
[59] Kyle has not presented as being capable of much flexibility and he has certainly demonstrated obsession.
[60] Meanwhile, Shannon has talked the talk and walked the walk. She will take care of Noah’s overarching needs, and has, whether Kyle does his part or not.
[61] So, I am declining an order for week about in the school year.
[62] The weekday parenting schedule during the school year with Noah in the care of the Applicant Mother shall continue with the Respondent Father’s access shifting (now that the Respondent Father is not on a two week work schedule,) to alternate weekends from pick up after school on Friday until drop off at school on Monday with the next Wednesday (after weekend access) visit from pick up after school to 8pm.
[63] I am ordering that the parties shall have joint custody, but the Applicant Mother shall have final decision making authority on major issues.
[64] Major decisions shall include only such issues as may raise a significant ongoing impact on the child’s life and well being such as:
- Health: elective surgery, controversial medical intervention or medication, extraordinary dental care, controversial mental health intervention or therapies.
- Education: school or school board placement; extraordinary educational programming such as an IEP
- General welfare: relocation of the child’s residence outside the catchment area of his current school or the high schools into which it feeds
[65] The Applicant Mother shall give 60 days written notice of major decisions concerning Noah’s education, health and general welfare, and attempt to consult with the Respondent Father about such decision. If the parties have not reached agreement and the Respondent Father has not obtained leave to bring the matter before the court for decision by urgent motion, the Applicant Mother shall have final decision making authority.
[66] I direct that the Respondent Father shall self monitor his emotional state for signs of looming crisis, particularly inability to sleep or a change in drug use, to recognize some risk in his caring for a child, to self report that to avoid problems and to make other arrangements for Noah’s safe care during his parenting time. After the acute difficulty is addressed it would be presumptively reasonable for Kyle to resume parenting unless the evidence at the time demonstrates risk that constitutes a change of circumstances.
[67] That said, I turn to the agreement between the parties for their resolution of the support issue: I note that the Minutes of Settlement which I am ordering in full contain the provision that the Respondent Father shall pay $492 /month commencing Dec 1, 2019 based on 2018 income of $53,296 and also that there shall be no support paid in the months of July and August when the parenting schedule is week about. This arrangement is Child Support Guidelines compliant and acceptable to the court.
[68] The parties may address costs by submitting written argument of no more that 2 pages, together with any offers and a bill of costs, to the judicial secretary in Barrie by email to Kim.Fleet@ontario.ca. The Applicant Mother by January 6, the Respondent Father by January 20 and any reply by January 24, 2020.
Eberhard J. Released: December 3, 2019