Court File and Parties
COURT FILE NO.: FS-12-380806 DATE: 20200110 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
JEREMY DAVID TUDOR PRICE Applicant – and – SABRINA SALHIA TUDOR PRICE Respondent
Self-represented and acting in person Self-represented and acting in person
HEARD: December 16, 17, 18, 19, 20, 2019 and January 6, 2020
REASONS FOR DECISION
DIAMOND J.:
Overview
[1] The parties commenced cohabiting in the fall of 2005 and were married on August 11, 2007. Their only child, Dylan, was born on July 23, 2011 and is now eight years of age. In June 2012 (when Dylan was approximately 11 months old), the parties separated. The respondent left the matrimonial home in downtown Toronto and relocated with Dylan to Oakville to live with her parents until she was able to afford her own home.
[2] This proceeding was commenced in late August 2012. Subject to a potential question of child support (canvassed in further detail hereinafter), the parties were able to resolve all of the financial issues between them, and should be commended for those efforts.
[3] The trial of this proceeding was completed over six days. As the trial judge, I was asked to decide the two outstanding issues:
(a) what is the appropriate custody order for Dylan; and
(b) whether equal parenting time with Dylan is appropriate (which, if ordered, would impact the existing child support arrangements).
[4] During this trial, I heard viva voce evidence from the parties, some of their respective family members, and their friends. No expert evidence was called by either party. No direct evidence from any professionals, teachers, or doctors was tendered at trial.
[5] At the conclusion of the trial, I took my decision under reserve. These are my Reasons for Decision.
[6] As set out later in these Reasons, both parties currently live in Oakville as the applicant moved there in or around March 2018.
[7] Pursuant to the Order dated October 12, 2012 of Justice Perkins, the applicant (living in downtown Toronto at the time) had access to Dylan every Tuesday from 10:30 am to 3:30 pm, and every Saturday from 10:30 am to 5:30 pm. As the applicant does not drive or own/use a car, the parties made use of the GO train for pick up and drop off purposes.
[8] In late 2013, the respondent opposed the applicant’s request for overnight access with Dylan, causing the applicant to bring a motion. By Order dated December 19, 2013, Justice Stevenson increased the applicant’s access to every Tuesday and Friday from 9:30 am to 3:30 pm, and every other Saturday overnight from 10:30 am (Saturday) to 12:30 pm (Sunday).
[9] In the fall of 2014, the respondent brought her own motion to vary the parenting schedule to have Dylan reside with the applicant every Tuesday from 9:00 am to 7:30 pm, and every other weekend (from Friday at 3:00 pm to Sunday at 4:30 pm). This proposed new schedule would ensure that the respondent did not have to leave work early every Friday to pick up Dylan from the applicant’s residence in downtown Toronto. By Order dated September 9, 2014, Justice Backhouse found that the parenting schedule as ordered by Justice Stevenson was no longer working ideally for Dylan, and granted the respondent’s request.
[10] The terms of Justice Backhouse’s Order continued for several years. As stated, in March 2018 the applicant relocated from downtown Toronto to Oakville. At that time, he was still working in downtown Toronto but then lost his job in September 2018. He subsequently obtained full time employment as the manager of marketing and communication for SB Partners in Oakville (approximately 10 kilometers from both his and the respondent’s residences).
[11] By consent Order dated August 30, 2019, Justice Myers increased the applicant’s access whereby Dylan now resides with the applicant every other Tuesday from 9:00 am to Wednesday at 4:00 pm, and every other Friday from 9:00 am to Tuesday at 4:00 pm.
[12] This agreed upon arrangement has been in place for the four months leading up to trial. It is this current parenting schedule which the applicant now seeks to vary as he requests that the parties be granted equal parenting time with Dylan on a week on/week off basis commencing every Friday.
Issue #1: What is the appropriate custody order for Dylan?
[13] Throughout this proceeding, the parties have shared interim, joint custody of Dylan. The respondent asks that I grant her sole custody of Dylan. The applicant requests that I continue the status quo and grant both parties joint custody of Dylan. They are entrenched in their respective positions.
[14] Section 16(1) of the Divorce Act, R.S.C. 1995, c. 3 allows the Court to make “an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.”
[15] Pursuant to section 20 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, both parties are equally entitled to custody of Dylan. The only test I must apply in determining custody is the best interest of the child. That test is a flexible one, with numerous criteria available for the Court’s consideration.
[16] In V.K. v. T.S., 2001 ONSC 4305, Justice Chappel set out an extensive and helpful review of the legal principles to be considered and applied by the Court:
“As this is a divorce case, the legislative principles that apply are those set out in section 16 of the Divorce Act. Section 16(1) of that Act provides that a court may make an order respecting custody of or access to a child of the marriage on application by a spouse or any other person. Section 16(4) of the Act clarifies that in making an order under section 16, the court may grant custody and/or access to more than one person. Section 16(6) of the Act gives the court a broad discretion to include any terms, conditions or restrictions in a custody and access order that it considers to be fit and just.
Section 16(8) of the Divorce Act specifies that the sole criterion for determining custody and access issues under the Divorce Act is ‘the best interests of the child of the marriage, as determined by reference to the conditions, means, needs and other circumstances of the child.’ The Supreme Court of Canada has held that these interests must be ascertained from the perspective of the child rather than from the parents’ perspective; parental preferences and rights do not play a role in the analysis except to the extent that they are necessary to ensure the best interests of the child.
Sections 16(9) and (10) of the Divorce Act set out additional principles that the court must apply in carrying out the best interests analysis. Section 16(9) stipulates that the court may not take into consideration the past conduct of a person, unless the conduct is relevant to the ability of that person to act as a parent of the child. Section 16(10) provides that in making a custody and/or access order, the court “must give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child”. To that end, the court is required to consider the willingness of each spouse who is claiming custody or access to facilitate such contact. The goal of maximum contact with each parent is not absolute, but the legislation is clear that maximum contact can only be restricted to the extent that contact conflicts with the best interests of the child.
Unlike many provincial and territorial statutes dealing with custody and access, the Divorce Act does not spell out a lengthy list of other factors for the court to consider in assessing the best interests of the child. The flexible and imprecise nature of the best interests test set out in the Divorce Act renders a measure of indeterminacy inevitable, but recognizes the paramountcy of the child’s needs and interests over the interests of expediency and predictability.
In an effort to obtain some assistance in applying the best interests test, courts across the country have decided that provincial and territorial legislation setting out criteria to consider in carrying out the “best interests” analysis may be referred to as guides in deciding cases under the Divorce Act. The relevant statutory provision in Ontario is section 24 of the Children’s Law Reform Act, which provides as follows:
Merits of application for custody or access
- (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).
Best interests of child
(2) The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10.
Past conduct
(3) A person’s past conduct shall be considered only,
(a) in accordance with subsection (4); or
(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1).
Violence and abuse
(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,
(a) his or her spouse;
(b) a parent of the child to whom the application relates;
(c) a member of the person’s household; or
(d) any child. 2006, c. 1, s. 3 (1).
(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse. 2006, c. 1, s. 3 (1).”
[17] In Barnes v. Parks, the Court of Appeal for Ontario held that in resolving custody disputes, emphasis must be placed upon the critical importance of bonding, attachment and stability in the lives of young children.
[18] When determining whether joint custody of a child is appropriate, the comments of the Court of Appeal for Ontario in Kaplanis v. Kaplanis are important and helpful:
“Family law cases are, by their nature, fact-based and discretionary. It is unnecessary to address this court’s prior jurisprudence regarding the issue of joint custody to resolve the issue of custody in this appeal.
As in any custody case, the sole issue before the trial judge was the best interests of the child. The fact that both parents acknowledged the other to be “fit” did not mean that it was in the best interests of the child for a joint custody order to be made. The evidence before the trial judge should have revealed what bonds the child had with each of her parents and their ability to parent the child. In addition to detailing the mother’s current arrangements respecting the care of the child, the evidence should also have indicated what practical plan to care for the child the father proposed to make when he had the child with him and the benefits to the child of such an arrangement. The trial judge had no evidence to this effect. Indeed, as the trial judge acknowledged at the time she made her order, the child had never spent an overnight with the father alone.
The fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered. On the other hand, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody. There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another. No matter how detailed the custody order that is made, gaps will inevitably occur, unexpected situations arise, and the changing developmental needs of a child must be addressed on an ongoing basis. When, as here, the child is so young that she can hardly communicate her developmental needs, communication is even more important. In this case there was no evidence of effective communication. The evidence was to the contrary.”
[19] In Loncar v. Pendebury, 2015 ONSC 3026 Justice Lococo held that joint custody may be appropriate in three main types of situations:
a) when both parents agree to joint custody, although such an agreement is not a pre-requisite to the court making such an order;
b) when neither parent has disentitled him/herself to custody, and where there is a positive history of co-operative parenting and effective, appropriate communication between the parent with respect to the child, and
c) where a parent’s relationship with the child ought to be preserved in cases where the parent who is the primary caregiver objects to joint custody without just cause, particularly where there is a risk where the objecting, primary caregiver parent will try to marginalize and limit the other parent’s involvement with the child.
[20] The first Loncar situation is not applicable here. While the parties have shared interim joint custody of Dylan pending trial, there is no agreement between them that a final joint custody order is appropriate.
[21] With respect to the second Loncar situation, the respondent was adamant at trial that both she and the applicant have consistently experienced and suffered through poor parenting communication, especially during the last 12-18 months, and as a result Dylan’s best interests simply cannot be fostered since they are unable to communicate and cooperate in making decisions that affect Dylan.
[22] As Justice Gray commented in Warcop v. Warcop, 2009 ONSC 6423 “a standard of perfection is not required, and is obviously not achievable…the issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interest of the child can be ensured on an ongoing basis.”
[23] Most of the various “family and friends” witnesses called at trial gave their (arguably inadmissible) respective, lay opinions of both the applicant and the respondent as parents. While such testimony was of marginal relevance, this evidence was not particularly helpful in terms of assessing the parties’ ability to communicate and cooperate in making decisions that impact Dylan. To the extent that some of the witnesses (such as the respondent’s sister Yasmene Salhia) gave evidence that she found the applicant to be controlling, and sometimes conniving and untruthful, this evidence was in part based upon information imparted by the respondent herself.
[24] The parties have been separated for 90% of Dylan’s life. The issues which led to the breakdown of the marriage continue to run deep within both parties. Indeed, the respondent’s closing submissions were emotional, and replete with the frustration she tried to hide during the balance of the trial. The extent of the respondent’s concerns and complaints about the applicant can basically be summarized into two main points:
(a) the applicant consistently employs an overly cautious and inherently adversarial approach due to his desire not to incur additional expenses; and,
(b) the applicant “overanalyzes” every single issue thereby extending the process and precluding the parties from making decisions when they are necessary, sometimes with a view to achieving the result he seeks.
[25] Admittedly, in listening to the testimony of the parties and reviewing their post-separation email and text message exchanges, I did see examples of both the above concerns. As an example, the parties (and in particular the respondent) are and have always been keen to foster, promote and support Dylan’s interest in playing soccer, and in particular his affinity for anything to do with the FC Barcelona Football Club. The respondent has consistently tried to register Dylan in soccer leagues, camps and tournaments. While the applicant is also supportive of Dylan’s interest in soccer, and attends games and tournaments when he can, there were several examples of the applicant being somewhat reticent in committing to certain after school leagues/programs due to his concern about the associated costs, and whether it was “practical”.
[26] In addition, there is some evidence that Dylan may have been in need of a tutor and/or therapist arising from (a) time management issues at school and (b) regression in his handwriting skills. According to the respondent, rather than simply agree with hiring the tutor she found for Dylan, the applicant insisted on exhausting all available resources at Dylan’s school, including scheduling additional meetings with school staff. No doubt this left the respondent quite frustrated.
[27] For his part, the applicant pointed to several examples (by way of email and/or text message exchanges) of the respondent failing to respond to his requests in a timely manner, or on occasion, delivering her own last minute requests which prevented the applicant from fully appreciating or responding to those requests. This also no doubt created some frustration for the applicant.
[28] Both parties, and in particular the respondent, highlighted the difficulties they experienced on occasion in arriving at mutually agreeable solutions. However, there is also evidence that they worked together when it mattered, and specifically during the summer of 2018 when the respondent required more of the applicant’s assistance due to her taking up a job overseeing a summer camp, something which the respondent described as her life long passion finally coming true. A review of the written communications between the parties discloses that during that summer (and in the weeks leading up to it), they indeed communicated successfully and in a manner which took not only Dylan’s interest into account, but their respective interests as well. There were little to no problems in scheduling pick-up, drop-off, family events and/or vacation time. While I appreciate that this progress occurred during the summer months when Dylan was not in school, both parties were still employed during that time, and the respondent was starting brand new employment about which she was quite excited. Dylan enjoyed increased time with the applicant during that summer, something which likely buoyed the applicant’s interest in further extending his parenting time.
[29] There is an underlying conflict between the parties which has reared its head on occasion. However, the parties were able to shelter Dylan from that conflict and put his interest ahead of their own when it was necessary. Post-separation communication can be inherently awkward, disjointed and infected with the issues that led to the breakdown of a marriage. As held in Warcop, it is rare if even possible for post-separation parents to achieve communication on a standard of perfection. Yet that should not mean that parents should not strive for it, or something closer to it. The road to cooperative and respectful communication is inherently bumpy, but with all roads, avoiding those bumps is the key to staying on course.
[30] In my view, there is a sufficient positive history of cooperative parenting and communication between the applicant and the respondent, and I believe that they can and will repeat that past success going forward. Both parties are fit and able to meet Dylan’s general and specific needs. As held by the Court of Appeal for Ontario in Rigillo v. Rigillo, 2019 ONCA 548, joint decision-making authority assists in assuring that a parent’s relationship with a child is not marginalized. To allow the respondent sole decision-making authority could risk her marginalizing the applicant and in my view that would not be in Dylan’s best interest. Dylan will benefit from the involvement of both parents in the decision making on all substantive issues. The parties have previously put aside their feelings of mistrust and accepted their mutual interest in ensuring that Dylan’s best interests are met in all areas. I believe that they can and will achieve those goals again.
[31] Accordingly, I order that the applicant and the respondent share joint custody of Dylan.
Issue #2: Is equal parenting time with Dylan appropriate?
[32] The applicant seeks equal parenting time by way of a week on/week off schedule commencing, effectively, now. The respondent opposes the applicant’s request, and asks that the current parenting schedule set by Justice Myers in his Order of August 30, 2019 remain until Dylan completes Grade 6.
[33] It is trite to state that the Court will always give effect to the principle that a child should have as much contact with each parent as is consistent with the best interest of that child. This maximum contact principle is codified in section 16(10) of the Divorce Act.
[34] Dylan enjoys a strong bond and relationship with both the applicant and the respondent. Most of the witnesses called at trial confirmed this observation. The respondent’s mother Birgit Salhia stated on cross-examination that the applicant attends many of Dylan’s events, and has never been negative when he is with Dylan. The respondent’s sister Susan Salhia testified that she sometimes runs into the applicant in Oakville, and while there can be tension if the respondent is also present, the parties conduct themselves civilly and cordially.
[35] The respondent testified that she did not believe that it was in Dylan’s best interest to employ the maximum contact principle in the circumstances of this case. What the respondent in fact meant was that in her view, the current parenting schedule achieves the goals of the maximum contact principle and there is no need to vary that scheduled.
[36] I am of the view that for both substantive and practical reasons, it is not in Dylan’s best interest to order an equal parenting schedule at this time. To begin, the applicant has worked at several jobs during the marriage and post-separation. He has now secured employment in Oakville, but he has been employed there for barely over one year. While the applicant gave evidence that his work hours can be flexible, he does not own a car and does not drive, preferring to take Uber or other ride sharing options.
[37] I respect that the applicant wants more time with Dylan. However, the current parenting schedule has only been in place for approximately four months, and the terms of Justice Myers’ Order already changed an existing schedule which had been in place for nearly five years. To implement the week on/week off parenting schedule would mean that Dylan’s current schedule to which he is just becoming accustomed would be uprooted again, and this time in an even more significant way.
[38] Dylan is obviously in school on a full time basis, and needs to be taken to and picked up from school every weekday. When under the care of the applicant, Dylan will likely be required to stay in after school programs on several weekdays and unfortunately the applicant’s family does not reside in the greater Oakville area and cannot provide assistance.
[39] Each weekday may prove different as the flexibility purportedly offered by the applicant’s employment would likely vary on a day to day basis. The applicant gave evidence that some days he may be able to work from home, while other days he may have to put in additional time to make up for coming to work late or leaving work early. There is an admitted unpredictability associated with the parenting schedule sought by the applicant, and it is in Dylan’s best interests to avoid such unpredictability. The applicant’s inability to provide a consistent regime for Dylan will likely create a confusing patchwork week of parenting time. At this time in his life, Dylan needs stability and consistency. In my view, it is not the time to force another significant change upon Dylan, and I decline to order the equal parenting time sought by the applicant.
[40] The parenting schedule set out in Justice Myers’ Order is hereby continued on a final basis. As such, I also order that paragraphs 1 through 12 of Justice Myers’ Order (i.e. the interim child support payment obligations) are continued on a final basis pending further agreement between the parties or the Court subsequently finding a material change in circumstances.
Vacation Schedule
[41] Both parties have proposed vacation schedules going forward which are very similar, and differ in only minor areas. It is surprising that they were not able to arrive at a mutually agreeable resolution of the vacation schedule, but in any event I have reviewed their respective proposals and am content to make the following order:
- For all of the P.A. days for each school year, the applicant shall have the first option to spend each P.A. day with Dylan. If a P.A. day falls on a Friday, then the applicant will have Dylan from Thursday at 4:00 pm until Friday at 4:00 pm. If the P.A. day falls on a Monday, then the applicant shall have Dylan from Monday at 9:00 am until Tuesday at 9:00 am.
- Dylan will reside with the applicant during March break in every odd numbered year, and with the respondent with every even numbered year. March break commences from the end of school on the Friday and lasts until his return to school the subsequent Monday morning.
- Dylan will reside with the applicant during Easter weekend in every odd numbered year, and with the respondent with every even numbered year (following the same times set out above dealing with March break).
- If Dylan is not otherwise with the respondent on Mother’s Day weekend, Dylan will be with the respondent on Mother’s Day from Saturday at 4:00 pm until his return to school on Monday morning. Likewise, if Dylan is not with the applicant on Father’s Day weekend, Dylan will stay with the applicant from Saturday at 4:00 pm until his return to school on Monday morning.
- With respect to summer vacation, if either party wishes, Dylan may reside with that party for two consecutive weeks during Dylan’s summer vacation. The parties shall advise each other by April 15th of each year of their chosen weeks if they so wish to spend the two week period with Dylan during his summer vacation, with the respondent having the first choice in odd numbered years and the applicant having first choice in even numbered years.
- With respect to Thanksgiving, Dylan will be with the applicant during Thanksgiving weekend in every even numbered year and with the respondent with every odd numbered year from Thursday at 4:00 pm until his return to school after the weekend.
- With respect to Halloween, Dylan will spend Halloween with the parent with whom he is scheduled to be with on that day.
- With respect to Christmas break, the parties will share Dylan equally. Dylan will reside with the respondent for the first half of the Christmas break in every even numbered year and the last half of Christmas break in every odd numbered year. Conversely, Dylan will reside with the applicant for the first half of Christmas break in every odd numbered year and the last half of Christmas break in every even numbered year.
- With respect to the Christmas holiday itself, regardless of the specific Christmas break schedule, Dylan will be with the respondent on Christmas Eve from 12:00 pm until Christmas Day until 12:00 pm and with the applicant from 12:00 pm on Christmas Day until 12:00 pm on Boxing Day, in every even numbered year. This schedule is reversed in every odd numbered year.
- With respect to Dylan’s birthday, unless otherwise agreed between the parties, his birthday shall not be chosen by either party as a vacation or travel week whereby Dylan is out of town. Dylan will spend the overnight before and morning of his birthday (i.e. 4:00 pm the day before until 1:00 pm the day of his birthday) with the applicant in every even numbered year and with the respondent with every odd numbered year, and then spend the afternoon and overnight of his birthday until 4:00 pm the following day with the respondent in every even numbered year and the applicant in every odd numbered year.
- With respect to the parties’ respective birthdays, Dylan will celebrate birthday overnights with the birthday parent regardless of the regular schedule and without the need to replace the overnight stay to the other parent. In the event a party’s birthday falls on the party’s weekend, the full weekend shall be swapped with another regular weekend to be mutually agreed upon by the parties.
Divorce
[42] Finally, the parties have requested a formal divorce and I see no reason to withhold that relief. I order that the parties’ divorce is hereby granted.
Costs
[43] In my view, success has arguably been divided between the parties. In the event either or both of them take a different position, and they are unable to agree upon the costs of this proceeding, they may serve and file written submissions (totalling no more than five pages including a Costs Outline) in accordance with the following schedule:
(a) the applicant’s costs submissions to be served and filed within 10 business days of the release of these Reasons; and,
(b) the respondent shall thereafter have an additional 10 business days from the receipt of the applicant’s costs submissions to serve and file her responding costs submissions.
Diamond J.
Released: January 10, 2020