COURT FILE NO.: 16-034
DATE: 20200821
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
D.E.M.
Allen Wilford, for the Applicant
Applicant
- and -
C.L.W.
Carol A. Allen, for the Respondent
Respondent
HEARD: August 10, 11 and 12, 2020 in Owen Sound
REASONS FOR JUDGMENT
MANDHANE J.
INTRODUCTION
[1] The parties, D.E.M. (the “Father) and C.L.W. (the “Mother”), have one child, B.J.M. who is five years old (the “child”). They were never married. The parties ask this court to determine custody, access and child support.
[2] The parties met in 2013 and moved in together in the Spring of 2014, residing at the Mother’s home near Miller Lake in the North Bruce Peninsula. The couple did not plan on getting pregnant but where excited when they found out they were expecting.
[3] The stress of caring for a newborn, coupled with the Father’s conduct while drinking, caused strife in the relationship and the parties permanently separated on February 11, 2016. After separation, the Mother and the child went to a friend’s house in Lion’s Bay for a few months, before moving into a temporary women’s shelter in Wiarton.
[4] The Mother and child now permanently reside in Owen Sound where the Mother works at a golf course and the child attends a local Montessori school. The Mother and child visit her family in the United States approximately four times per year. The Mother has no family in Grey-Bruce County.
[5] After separation, the Father moved back in with his parents on their farm in the Miller Lake area. Since 2019, the Father has been studying to be an early childhood educator.
[6] As of the date of trial, there was no custody order in place. Since separation in 2016, the Mother has been the de facto custodial parent, making all major decisions regarding the child’s health and education. The child has been residing primarily with the Mother, with the Father accessing the child at least three weekends per month, and for two to three weeks in the summer.
[7] Access exchanges have been fraught, with each party accusing the other of using exchanges as an opportunity to enhance their litigation position. Given that it takes about one hour to drive between the parties’ homes, there is also conflict over the exchange location.
[8] The Father seeks sole custody and primary residency of the child, with regular access by the Mother. He seeks a further order that the Mother only be permitted to travel with the child to the United States twice per year and for no more than ten days per visit. He also seeks child support.
[9] The Mother opposes the Father’s application. She seeks sole custody and primary residency of the child, with regular access by the Father. She seeks an order that she be able to travel with the child after providing the Father with notice. She also seeks child support.
[10] For reasons that follow, I order that the Mother have sole custody and primary residency of the child, that the Father have regular access to the child, and that the Father pay child support.
FACTS
The Proceedings
[11] The Father commenced this application in February 2016. The same month, the court put in place a temporary, without prejudice access schedule.
[12] In August 2016, the court endorsed Minutes of Settlement that varied the interim access schedule.
[13] In April 2017, the court put in place an interim, without prejudice order related to access by the Father and travel to the United States by the Mother.
[14] The court also requested that the Office of the Children’s Lawyer complete a clinical investigation and ordered, amongst other things, that the parties be assessed for mental health disabilities and addictions. I have reviewed the related records filed with this court. Overall, the professionals that assessed the parties did not indicate any serious or ongoing issues that would impede custody or access for either party.
[15] In October 2017, the matter was set down for trial on a single issue, namely, whether the Mother could relocate with the child to the United States. In November 2017, after a three-day trial, Conlan J. denied the Mother’s request.
[16] Between 2018 and 2019, the parties executed Minutes of Settlement and the court endorsed variations in the interim access schedule including, for example, allowing the Father to have summer access.
[17] On January 2020, the issue of custody and access was set down for trial. A trial was held between August 10 and 12, 2020 in Owen Sound. The Father filed affidavit evidence and business records. The also court received testimony from the Father, paternal grandmother, and Mother, all of which was subject to cross-examination.
The Father’s Evidence
[18] Based on the totality of the evidence, I find that the Father is a committed and capable caregiver, and is genuinely interested in being involved in the child’s life on a regular and ongoing basis.
[19] The Father lives with his mother and stepfather on their hobby farm near Miller Lake. When the Father has weekend access with the child, they stay on the farm and explore nature. The grandparents see the child during these access visits.
[20] During weekday access, the Father and child often stay in Owen Sound and visit local attractions or the child’s paternal uncle.
[21] I accept the Father’s evidence that he would like to celebrate Christmases and birthdays with the child. While he was raised as a Jehovah’s Witness, I accept that the Father no longer identifies with that faith.
[22] The Father was employed at a daycare for approximately five years. He is now studying to be an early childhood educator. His 2019 annual income was approximately $20,000. The Father’s past employer says that he is caring and hardworking. He does not have a criminal record and he has worked directly with children for many years. There are no credible allegations of abuse or neglect.
[23] That all being said, the Father had relatively little to say about why it would be in the child’s best interests to leave his Mother to live with him. He provided no specific information about the child’s daily routine, or medical and educational needs. While he claimed that he did not agree with the Mother’s decision to enroll the child in a private Montessori program in Owen Sound, he struggled to explain why.
[24] The overriding impression left by his viva voce testimony is that the Father is pursuing sole custody mainly because he cannot communicate effectively with the Mother. Despite using a communication book and corresponding by email and text, the Father cannot resolve simple administrative matters without attempting to bait or annoy the Mother. To the extent that she has failed to consult him about decisions regarding the child, I find that this is largely because of the Father’s own difficult conduct.
[25] While the Mother’s unilateral move to Owen Sound certainly complicated the Father’s access, I accept the Mother’s evidence that Owen Sound offered her more employment opportunities and less isolation, and that she thought that a move to a larger urban centre was in the child’s best interests. I also note that Owen Sound is the closest major city to the Father’s residence in a remote part of the North Bruce Peninsula.
[26] At points, the Father’s evidence bordered on paranoid. He adduced very little cogent evidence to support his fear that the Mother was planning to abduct the child by moving away without his consent. On the contrary, the evidence establishes that the Mother consistently advised the Father regarding her moves and sought court orders each time she contemplated travelling to the United States.
[27] And while the Mother may have technically breached the February 19, 2020 court order to remain in North Bruce Peninsula, I place considerable weight on the fact that she has never moved outside of Grey-Bruce County and that the Father has had regular access to the child throughout the four-plus years since separation.
[28] The Father says that the Mother lacks appropriate judgment in relation to the medical care of the child, and on this basis seeks sole decision-making authority in relation to the child’s health care. Again, there was very little evidence to support his assertion.
[29] The fact that the child experienced diaper rash, pinworms and tummy troubles while in the Mother’s care hardly establishes parental neglect or inadequacy. These are common ailments that affect healthy and well-cared-for toddlers.
[30] The Father further claims that the mother subjected the child to unnecessary medical testing because she took him to an allergist in relation to rashes. Rather than being unnecessary, I find that pursuing such testing was entirely appropriate and consistent with the child’s best interests. There was much time wasted at trial on the issue of delayed vaccination, even though both parties agree that the child is fully vaccinated and will be receiving all necessary vaccines in the future.
[31] While the Father admitted that the Mother sometimes facilitated additional access to child, he spent inordinate time recounting incidents in which the Mother denied an additional 15 to 60 minutes of access. The fact that she did not agree to every request for extra time is hardly indicative of blocking access to the child. There was no credible evidence that the Mother failed to facilitate court-ordered access.
[32] Overall, I am concerned that the Father has lost sight of the child’s best interests and is overly focused on controlling the Mother’s actions under the guise of this litigation. He admitted to threatening the Mother by telling her that she would never see her family in the United States again, and sought court orders to limit her ability to travel to the United States or move outside of his remote community. I accept the Mother’s evidence that he has situated himself outside her home to monitor her actions, followed her and so on. He misinterprets benign actions as somehow calculated to thwart his relationship with the child, even though the Mother has consistently facilitated access to the child since separation.
The Paternal Grandmother’s Evidence
[33] The paternal Grandmother, M.M. (“Grandmother”), also gave evidence.
[34] The Grandmother clearly adores the child and is willing to say just about anything to support the Father’s claim for custody. For example, when asked about the Father’s drinking, she testified that she had no concerns, even though the Father later testified that it was she who had suggested that he get counselling in relation to his alcohol use.
[35] The Grandmother also blindly accepted the Father’s accusations regarding the Mother’s care of the child. For example, she testified at length about the child being delivered for a single access visit without shoes and implied that this was indicative of the Mother being unfit to take care for him. (The Mother denied the incident.)
[36] In advance of the previous trial, the Grandmother admitted to contacting the Mother’s prospective employer in the United States and inappropriately opining about the Mother’s qualifications and fitness for the job. It is clear that her intention was to deprive the Mother of gainful employment in the United States so that she would be less likely to be allowed to move with the child.
[37] Overall, I am left with the distinct impression that the Grandmother is a driving force behind the Father’s request for sole custody and primary residency. The Grandmother lives on a large property in a remote community. Her husband has mobility issues. She would likely benefit from having the Father and child around to keep her company and help out on a day-to-day basis.
[38] In the end, however, it is the Father who is seeking custody and it is the Father who would be responsible for the day-to-day care of the child. It is possible that he will eventually re-partner and decide to leave the farm. Therefore, I do not place significant weight on the Grandmother’s evidence.
The Mother’s Evidence
[39] The Mother provided viva voce evidence and I found her credible and reliable. The Mother has a deep bond with the child and has been responsible for his day-to-day care since birth. She talked at length about their daily routines, the child’s interests, his progress in school, and his personality. She spontaneously and joyfully recounted anecdotes about the child’s interactions with teachers and cousins.
[40] The Mother lives in Owen Sound in a basement apartment that includes a large living space, a separate bedroom for the child, and access to a backyard. She testified that she intends to stay in Owen Sound for the foreseeable future, since it allows her to access programs at the local YMCA and library, and because the child’s Montessori school is close by.
[41] While the trial took place during the COVID-19 pandemic, the Mother testified that she is regularly employed at a local golf course and that she expects to return to that employment after pandemic-related restrictions are lifted. She earns approximately $15,000 per year.
[42] The Mother has made sound educational and medical decisions regarding the child. She spoke at length about the positive attributes of the private Montessori school he attends, his progress, and her plan to keep him enrolled there. She is willing to pay 100% of the tuition and fees.
[43] She also spoke about her rationale for pursuing allergy testing and her concerns and efforts to resolve the child’s rashes. She noted that the child’s rashes have mostly resolved as he has grown up.
[44] When she sought counselling for the child on the advice of the child’s pediatrician, the Father refused to provide his consent. In his testimony, the Father offered no reason for his refusal.
[45] The Mother’s family is in the United States. She has travelled with the child to visit them for Christmases, holidays and birthdays. These are special times for the child and a necessary break for the Mother. I accept that the Mother has no plans to move to the United States because she understands that doing so would jeopardize her custody of the child.
[46] Notably, the Mother did not express any concerns about the Father’s ability to care for the child and agreed that it was important for the child to have a meaningful relationship with both parents. For the most part, she has abided by court orders in relation to access, including facilitating make-up time. She has also offered the Father additional Wednesday access and has been agreeable to his requests for additional access time. Where the Mother has denied the Father’s requests for additional access, I found her explanations to be reasonable.
[47] I accept the Mother’s evidence that the relationship between the parties broke down because of the Father’s drinking and his verbal and emotional abuse. She has not and does not allege physical abuse. A CAS record that was filed with the Court indicates that her allegations of emotional abuse were “verified.” I also accept her evidence that, post-separation, the Father would sometimes park outside her house or follow her. This made her feel unsafe and precipitated her move to the Wiarton women’s shelter.
[48] The Mother testified to the significant communication difficulties between herself and the Father. She stated that the communication book did not work after the Father failed to return it after one of his visits. She found that email and text were effective for communication about logistical matters but not for substantive discussions.
[49] Where there were substantive issues that required resolution, the Mother relied on counsel or the Courts to resolve them. When there were logistical issues that were time-sensitive, she called the police to ensure that matters did not escalate and that there would be an independent paper record of her efforts to facilitate access.
[50] At many points in her evidence, the Mother expressed frustration at not being able to effectively problem-solve with the Father, noting that he would immediately get defensive and angry when challenges arose, such as her move to Owen Sound or proposed travel to the United States. Over the years, she has made decisions alone because she has given up on trying to communicate with the Father. I accept her evidence as it is consistent with my own impressions. There were many times during cross-examination when the Father was asked straightforward questions and would answer in an argumentative and less-than-straight-forward fashion.
ANALYSIS
[51] In determining custody and access, the only consideration is the best interests of the child. The child’s best interests are determined based on the non-exhaustive list of factors set out in s. 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C. 12.
Custody
[52] Both parties agree that joint custody is not desirable or workable in this case. The high-conflict nature of these proceedings and the clear inability of the parents to communicate regarding the child necessitates the court ordering sole custody [Roy v Roy, 2006 CanLII 15619 (ON CA), 27 R.F.L. (6th) 44, [2006] O.J. No. 1872 (C.A.)].
[53] Having determined that an award of sole custody is in the child’s best interests, I must now consider which party should be granted sole custody
[54] Applying the factors set out in s. 24(2), I find that it is in the child’s best interests for the Mother to have sole custody, to reside primarily with the Mother, and for the Father to have regular access.
[55] While both parents expressed genuine love for the child, he has lived with the mother without interruption since birth. The Mother has always been the child’s primary caregiver and she has been responsible for making all decisions about the child—however big or small—often without consulting the Father. The child is happy and progressing well.
[56] After the separation, it took the Mother some time to find stable housing. However, throughout this period, her overriding concern was ensuring her and the child’s safety and security. Since moving to Owen Sound, the Mother has established a stable and predictable routine with the child, enrolling him in preschool and keeping him actively engaged with various activities and play dates. I accept that she plans on residing in Owen Sound for the foreseeable future.
[57] The Mother has shown sound judgment in relation to decisions about the child’s schooling and healthcare. While the Father did not always agree with her decisions, he could not point to any negative impact on the child. He agreed that the child was happy and curious, doing well in school, and in good health. He seemed to imply that this was despite the Mother’s care rather than because of it.
[58] The Mother’s plan for the child is clear insofar as it involves maintaining the status quo: the child will reside with her and she will make all decisions a regarding his care.
[59] The Father’s plan is to fundamentally disrupt the status quo by uprooting the child, moving him to the farm, and sending him to public school in North Bruce Peninsula. This seems like a drastic departure from the status quo absent any evidence that this would be beneficial to the child. Instead, it is likely that changing the child’s primary residence and schooling would be quite traumatic given his young age.
[60] Finally, I note that the Mother is willing to provide generous access to the Father because she recognizes that doing so is in the child’s best interests. She is also willing to facilitate an ongoing relationship between the child and his maternal family, which is in the child’s best interests given that he has regularly seen them for his whole life.
Access
[61] Having determined the issue of custody and residency, I turn to access, again based on the child’s best interests. In this case, given their mutual attachment to the child, if the parents lived closer together and had a more amicable relationship, I would have considered ordering nearly equal parenting time.
[62] However, given the ongoing issues with access exchanges and the travel time between the parties’ residences, it is in the child’s best interests that the Father have regular weekend access, as well as summer and holiday access.
[63] This arrangement will ensure stability and predictability in the child’s week-day routine, while allowing him to have a consistent and ongoing relationship with his father and paternal grandparents.
Support
[64] As the Mother has sole custody and primary residency of the child, she is entitled to receive child support from the Father based on his 2019 income and consistent with the amounts outlined in the Child Support Guidelines.
CONCLUSION
[65] The following orders made pursuant to the Children’s Law Reform Act are final and replace all previous orders of the court.
Custody
[66] Based on the foregoing, the Mother shall have sole custody and primary residency of the child. The Mother shall not change the residence of the child from Owen Sound unless the move results in her new residence being closer in proximity to the Father.
[67] The Mother shall be entitled to make all decisions regarding the child, except where a medical emergency arises while the child is in the Father’s care. In that case, the Father shall make any emergency medical decisions in accordance with the child’s treating physician and shall immediately notify the Mother of the same. The Mother shall notify the Father of any medical emergencies the occur while the child is in her care.
[68] The Father shall be entitled to receive copies of all medical, dental, educational and other reports related to the child. The Mother shall provide all required consents so that the Father may obtain relevant records directly.
Travel
[69] The Mother shall be permitted to travel with the child to the United States upon providing the Applicant with at least 7 days advance notice of the dates of travel (except in the event of an emergency), the address at which the child will be staying and contact information. The Mother shall make up any missed access time with the Father. The Mother shall not travel during the Father’s access time during summer, March break or Christmas, unless there is a family emergency.
[70] The Mother is authorized to apply for a passport for the child without the consent or signature of the Father.
Access
[71] The Father shall have access to the child as follows:
(1) During the school year, the first three weekends every month from Friday at 6:00 p.m. to Sunday at 6:00 p.m., extending to Monday at 6:00 p.m. for Family Day, Easter Monday, Victoria Day, and Thanksgiving Monday.
(2) Alternating March breaks.
(3) Alternating Christmas vacations, with the child spending the last five days of the vacation with the parent who did not have access for Christmas day.
(4) The first three weeks of August, with access commencing on the first Friday of August at 6:00 p.m. and ending on the third Sunday at 6:00 p.m. The Father shall provide the Mother with updates on the child’s well-being twice per week via email.
(5) Father’s Day shall be spent with the Father, and Mother’s Day shall be spent with the Mother, regardless of the access schedule.
(6) The child shall celebrate his birthday with the parent who has access on that date. The other parent shall have telephone or video contact with the child on his birthday.
(7) The parties shall facilitate telephone or video contact between the child and the other parent when he is in their respective care, as frequently as the child requests but at least a minimum of three times per week.
(8) Such further access as the parties may agree to in writing.
[72] Access exchanges shall take place at the police station in Wiarton.
[73] The parties shall not consume alcohol or drugs while the child is in their care.
[74] The child’s health card shall travel with him between the parents’ residences.
[75] The parties shall communicate by email. They shall communicate by text message for emergencies only.
Child Support and Section 7 expenses
[76] The Father shall pay the Mother child support in the amount of $163.00 per month commencing September 1, 2020 and on the first day of each month thereafter. The amount of child support is based on the Father’s 2019 income of $20,236 and is in accordance with the Child Support Guidelines.
[77] The parties shall provide their annual Notice of Assessment on or before June 1 of each year for the purposes of adjusting child support.
[78] The parties shall agree in advance to any non-medical section 7 or extraordinary expense; and consent shall not be unreasonably withheld. The parties will share equally the cost of any section 7 and extraordinary expenses for the child, except that the Mother shall pay all associated costs of the child attending Montessori school.
[79] Unless the support order is withdrawn from the 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. A support deduction order will be issued.
[80] The Father shall provide to the Mother and the Director of the Family Responsibility Office notification of any change in address or employment, including full particulars about the change, within ten (10) days of the change taking place.
Costs
[81] Given her success at trial, the Mother is entitled to costs. I strongly encourage the parties to come to an agreement on costs. However, if they are unable to do so, the parties shall provide me with their Bill of Costs, any relevant offers to settle and costs submissions (3 pages, double-spaced, maximum) by August 31, 2020.
Mandhane J.
Released: August 21, 2020
COURT FILE NO.: 16-034
DATE: 20200821
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
D.E.M.
Applicant
- and -
C.L.W
Respondent
REASONS FOR JUDGMENT
Mandhane J.
Released: August 21, 2020