COURT FILE NO.: FC-20-702

DATE: 2020/09/01

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Amanda Brandi Nicole Cameron, Applicant AND William Craig Vincent, Respondent

BEFORE: Justice M. O’Bonsawin

COUNSEL: J. Alison Campbell for the Applicant Kerry Fox for the Respondent

HEARD: August 28, 2020

DECISION

Overview

[1] On July 24, 2020, Master Kaufman permitted the Respondent, Mr. Vincent, to proceed with an urgent motion regarding the issues of parenting time, mobility and choice of school. In his motion, the Respondent seeks the following Orders:

• an interim parenting schedule on a 50/50 week on/week off basis;
• the Applicant must return with the child to the City of Ottawa;
• the child shall be registered at W.O. Mitchel School in Kanata for the upcoming school year;
• the appointment of the OCL;
• daily calls with the child while in the care of the other party;
• both parties are entitled to access the child’s teachers, extracurricular leaders, health care providers, counsellors, and other such persons involved in providing care and guidance;
• both parties are entitled to access the child’s school, extracurricular, medical, and counselling and all other records;
• the Applicant shall advise the Respondent of all doctors’ appointments for the child by e-mail and the Respondent shall be entitled to attend all appointments;
• the Applicant shall provide a copy of the child’s health card, birth certificate and any other identification to the Respondent; and
• costs.

[2] The Applicant, Ms. Cameron, also filed a Motion seeking an adjournment of the parenting issue to a later date when the family counsellor, Ms. Rekha Chagarlamudi, can provide a recommendation with regard to the reunification process and parenting schedule. In the alternative, she seeks supervision of the Respondent’s access. In addition, the Applicant seeks the following Orders:

• the method and frequency of the Respondent’s communication with the parties’ child be as per the recommendations of Ms. Chagarlamudi;
• the Applicant and the child shall reside in Burnstown, Ontario, pending further Order of this Court or agreement of the parties;
• the child shall attend school at McNab Public School, or another such school in the Burnstown/Renfrew region, for the 2020-2021 school year.
• child support should be based on the Respondent’s income pursuant to the Child Support Guidelines;
• child support shall automatically increase on the 1^st day of the month after the parties’ second child is born, in accordance with the Child Support Guidelines, to the amount for two children;
• the Applicant and Respondent shall pay special and/or extraordinary expenses (s. 7 expenses) for the child(ren) of the marriage on a pro rat a basis;
• a dismissal of the Respondent’s request for the appointment of the Office of the Children’s Lawyer;
• both parties and the child shall proceed with family counselling with Ms. Chagarlamudi, and shall co-operate fully with same, unless both parents agree otherwise, or a further Order of this Court is made;
• the Respondent shall maintain medical and dental coverage for the Applicant and the child(ren) of the marriage until such further order of this Court or agreement of the parties;
• the Respondent shall request from his employer within 14 days that they provide copies of his employment record and his mental health files. The Respondent shall provide proof of this request within the 14-day period. All documents provided by the employer, and any further communication with regards to this issue, shall be provided to counsel for the Applicant, with 14 days of receipt;
• the parties shall be able to speak to, and request information directly from, the child’s teachers, extracurricular leaders, health care providers, counsellors;
• the Applicant shall advise the Respondent of all doctors’ appointments for the child by e­mail and provide a summary of any updates within 48 hours of the appointment;
• the Applicant and Respondent shall both be entitled to attend parent-teacher interviews, without the presence of the child, and without the presence of the other;
• the Applicant shall provide the Respondent with a copy of the child’s health card and birth certificate; and
• costs.

Facts

[3] The parties began living together on August 1, 2009 and separated on February 1, 2020. They have one child, HC, born June 5, 2011. The Applicant is pregnant with the parties’ second child and she is expected to deliver in October 2020.

[4] The Applicant commenced an Application in June 2020 seeking sole custody, primary residence and access to the Respondent. In his Answer, the Respondent seeks joint custody with a 50/50 time sharing parenting regime on a week on/week off basis.

[5] The Respondent has not had any access to the child since February 21, 2020. The Applicant alleges the Respondent has been abusive to her and the child is now afraid of him. The Respondent denies these allegations.

[6] After separation, the Applicant moved with the child into her mother’s home in Burnstown, Ontario. It is located approximately one hour from Ottawa.

[7] The Applicant has been diagnosed with a high-risk pregnancy. Consequently, she requires the support of her mother.

[8] The Respondent has made child support payments in the amount of $697.35 and has contributed to the child’s special and/or extraordinary expenses.

[9] The parties retained Ms. Chagarlamudi to provide family counselling.

Issues

[10] The issues in this matter are as follows:

• What is the appropriate parenting schedule for the child?
• Should the Applicant be granted permission to remain living with the child in Burnstown, Ontario?
• What school should the child attend?
• Is the Applicant entitled to receive child support payments and the Respondent’s pro rata share of the child(ren’s) special and extraordinary expenses in accordance with the Child Support Guidelines?
• Is the Applicant entitled to the Respondent’s employment and mental health records?

Analysis and Conclusions

What is the appropriate parenting schedule for the child?

[11] Section 19 of the Children’s Law Reform Act, RSO 1990, c C.12 (“CLRA”) sets out the purposes of the custody, access and guardianship provisions. One of the purposes is to ensure that applications to the courts in respect of custody, incidents of custody, access to and guardianship for children will be determined based on the best interests of the children.

[12] Section 20(1) of the CLRA provides that the mother and the father of a child are equally entitled to custody of that child.

[13] Both the Divorce Act, RSC 1985 c. 3 (2^nd Supp) at s. 16(8), and the CLRA, at s. 24(1), require the court to consider the best interests of the child as the sole criterion in matters of custody and access.

[14] Section 24 of the CLRA states that when considering what is in a child’s best interests:

(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, including a parent or grandparent, 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) any familial relationship between the child and each person who is a party to the application.

[15] Section 16 of the Divorce Act states that where an Application is made for custody of or access to children, the court may make an interim order pending determination of the Application, with such terms, conditions or restrictions that it thinks is fit and just. Section 16 also states that when making an Order under this section, the court shall take into consideration the best interests of the child as determined by reference to the condition, means, needs and other circumstances of the child, and that the child should have as much contact with each spouse as is consistent with the best interests of the child, and for that purpose, the court shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[16] The parties agreed to use the services of Ms. Chagarlamudi in order to perform family counselling. She has met with both parties, has met with the child on two occasions and will meet with her again on September 2, 2020. Unfortunately, Ms. Chagarlamudi has not been able to provide the parties with her views.

[17] It would be very helpful to this court to receive Ms. Chagarlamudi’s views about contact between the child and the Respondent and how that contact should be gradually be reinstated, if at all. That is, if Ms. Chagarlamudi is prepared to do so. The parties both agreed to retain Ms. Chagarlamud not only to assist the child but to also provide family counselling. This process can be very beneficial to the parties and the child.

[18] I find that it would be of assistance to this court to wait to receive Ms. Chagarlamudi’s views prior to determining an appropriate parenting schedule. It is in the best interests of the child for the court to receive the views of the counsellor that treats the child and her family. Consequently, I order the parties to reappear before me by way of conference call prior to October 2, 2020. A period of approximately four weeks provides Ms. Chagarlamudi with sufficient time to provide the court with her views, if she choses to do so. During this conference call, the parties can advise the court whether Ms. Chagarlamudi is willing to provide her views and input and provide an update on the Respondent’s access to the child. Afterwards, the parties can proceed with a motion.

[19] I find it concerning that the Respondent has not had any access to the child since February 2020. This is not beneficial for their relationship and the longer access is denied by the Applicant, the more difficult it will be for the Respondent to reintegrate the child’s life.

[20] Furthermore, I find it is in the best interest of the child that she has contact with the Respondent. He must have access to the child in the interim. I order that the Respondent can have videoconference access visits with the child every second Tuesday and Saturday for one hour beginning on September 8, 2020.

Should the Applicant be granted permission to remain living with the child in Burnstown, Ontario?

[21] Another purpose set out in s. 19 of the CLRA is to discourage abduction of children as an alternative to the determination of custody rights by due process.

[22] In Gordon v. Goertz, [1996] 2 SCR 27, the Supreme Court of Canada determined that the ultimate question in every case, including cases involving mobility issues, is what is in the child’s best interests, in all the circumstances. The focus is on the best interests of the child, not the interests or rights of the parents. At para 49, the court summarizes the law as follows:

a) there is no legal presumption in favour of the de facto custodial parent;

b) the focus is on the best interests of the child and not the wishes of the parent;

c) the court should consider the existing parenting arrangement;

d) it is desirable to maximizing contact with both parents;

e) the views of the child;

f) a custodial parent’s wishes to move are only considered if they are relevant to their ability to meet the needs of the children;

g) the disruption to the child by changes in school, community and family they have come to know.

[23] In L. (N.D.) v. L. (M.S.), 2010 NSSC 68, 289 N.S.R. (2d) 8 (N.S. S.C.) at para. 10, the court provided a helpful list of additional factors to be considered when applying the framework from Gordon . They are as follows:

• the number of years the parents cohabited with each other and with the child;
• the quality and the quantity of parenting time;
• the age, maturity, and special needs of the child;
• the advantages of a move to the moving parent in respect to that parent’s ability to better meet the child’s needs;
• the time it will take the child to travel between residences and the cost of that travel;
• feasibility of a parallel move by the parent who is objecting to the move;
• feasibility of a move by the moving parent’s new partner;
• the willingness of the moving parent to ensure access or will occur between the child and the other parent;
• the nature and content of any agreements between the parents about relocations;
• the likelihood of a move by the parent who objects to the relocation;
• the financial resources of each of the family units;
• be expected permanence of the new custodial environment;
• the continuation of the child’s cultural and religious heritage; and
• the ability of the moving parent to foster the child’s relationship with the other parent over long distances.

[24] As noted by Audet J. in Trudel v. Ward, 2019 ONSC 5047, this court must be mindful of the fact that this decision, which is interim in nature, is likely to establish a status quo that will be very difficult to change in the context of a trial that might only take place in likely over a year from now (assuming that it will be pursued by the parties). Consequently, at the interim stage, the following considerations are also relevant in deciding a mobility issue:

• the court will be more reluctant to upset the status quo on an interim basis and permit the move when there is a genuine issue for trial;
• there can be compelling circumstances that might dictate that a judge ought to allow the move. For example, the move may result in a financial benefit to the family, which will be lost if the matter awaits a trial or the best interests of the children might dictate that he commences school at a new location; and
• although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong possibility that the custodial parent’s position will prevail at trial (Plumley v. Plumley, [1999 CarswellOnt 3503 (Ont. S.C.J.)] (Trudel v. Ward, at para. 10).

[25] The Applicant argues that the Respondent consented to her move with the child to Burnstown, Ontario. The Respondent submits that he did not consent to the move. In a CAS note to file dated February 7, 2020, regarding a worker’s face to face visit with the Respondent, it is noted: “Amanda told him if they were to separate that she would need to move to Renfrew to be closer to her family. [The child] would have to change schools. [The Respondent] advised that he is not opposed to moving to Renfrew if that is where Amanda goes. He just wants to be where [the child] is.”

[26] In addition, the Applicant provided a letter dated July 7, 2020, from Dr. David Caloia, her obstetrician. Dr. Caloia advises that the Applicant’s pregnancy is a high-risk pregnancy. She has had a previous complicated pregnancy and has a history of anxiety. “Family support from her mother is a key element this pregnancy. Being able to keep living with her mother is beneficial for reducing anxiety and for help during and after pregnancy”. The Applicant also provided a letter from Dr. Sadha Karim, her family physician. Dr. Karim advises that the Applicant has chronic knee pain and recommends that she avoid repetitive climbing of stairs. “[A]s I understand she has the ability at the moment to live with her mother at a home without stairs and so it is ideal that she be allowed to continue to do so”. The Respondent offered the Applicant the possibility to move back into their Kanata house until she finds alternative living arrangements. I was advised that this house has many stairs.

[27] Based on the evidence, I find that the Respondent consented to the Applicant’s move to Burnstown, Ontario, with the child. It is important to note that the Applicant has the support of her mother during her high-risk pregnancy and currently resides in a house that meets her medical restrictions. In addition, the Applicant has resided with the child in Burnside, Ontario, for the past five months. I find these are compelling reasons to permit the Applicant to remain in Burnstown, Ontario, with the child.

What school should the child attend?

[28] During the hearing, both parties agreed that the child could attend school virtually. During the last school year, the child attended W.O. Mitchel School in Kanata. The Applicant seeks the child attend school virtually because of her high-risk pregnancy and then there will be a newborn baby in the household as of October 2020.

[29] I find that it would be in the best interests of the child to attend the same school as she attended the last school year. This would permit her to maintain contact with her school friends and it is possible to do so virtually. Consequently, I order that the child attend W.O. Mitchel School in Kanata virtually. If at a later date the parents decide to send the child to school in person, this issue can be revisited.

Is the Applicant entitled to child support and the Respondent’s pro rata share of the child(ren’s) special and extraordinary expenses in accordance with the Child Support Guidelines?

[30] Section 3 of the Child Support Guidelines deals with child supports orders. It states as follows:

3 (1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is

(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and

(b) the amount, if any, determined under section 7.

[31] Section 7 deals with special or extraordinary expenses. Section 7(1) and 7(2) state as follows:

7 (1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation:

(a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;

(b) that portion of the medical and dental insurance premiums attributable to the child;

(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;

(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;

(e) expenses for post-secondary education; and

(f) extraordinary expenses for extracurricular activities.

(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.

[32] The Respondent has met his child support obligations since separation. In addition, he has also contributed to special and/or extraordinary expenses. He currently pays $697.35 for one child based on his income of $74,676. Once the second child is born in October, he must make child support payments for two children in the amount of $1,134.00 as per the Child Support Guidelines. This will begin on the 1^st day of the following month of the child’s birth. The Respondent must also continue to contribute to special and/or extraordinary expenses for the child(ren).

Is the Applicant entitled to the Respondent’s employment and mental health records?

[33] The Applicant alleges from January 31 to February 6, 2020, the Respondent was very volatile. Consequently, she contacted his Padre or Chief Warrant Officer. The Respondent submits the Applicant regularly threatened to alienate him at his workplace by spreading false information to his leadership and colleagues. The Applicant seeks the disclosure of the Respondent’s employment and mental health records. Given the allegations by both parties, I find it is appropriate to order the disclosure of the Respondent’s employment and mental health records from August 2009 to present.

Other Issues

[34] The parties agree that they are each entitled to direct access to the child’s teachers, extracurricular leaders, health care providers, counsellors and other such persons involved in providing care and guidance. They are also in agreement that they are each entitled to direct access to the child’s school, extracurricular, medical, counselling and other records. Lastly, they agree that the Applicant will provide the Respondent with a copy of the child’s heath care, birth certificate.

[35] The parties disagree regarding the attendance at the child’s doctor’s appointments. I find that it is in the best interest of the child for the Applicant to advise the Respondent of all doctor’s appointments for the child by e-mail and provide a summary of any updates within 48 hours of the appointment.

[36] The Applicant seeks an Order that the parties are both entitled to attend parent-teacher interviews, without the presence of the child and without the presence of the other. This is reasonable and in the new virtual school environment, is easily manageable.

[37] Lastly, with regards to the appointment of the Office of the Children’s Lawyer, I find it is premature at this time since Ms. Chagarlamudi is already involved with this family and the court expects to receive her views.

[38] I remain seized of all motions in this matter.

Costs

[39] There is split success on these motions. If the parties cannot agree as to costs, they may provide brief written submissions on costs not exceeding three pages, exclusive of the Bill of Costs. The Respondent will have 10 days from the date of this Endorsement to provide his submissions and the Applicant will have 10 days thereafter to do the same. The Respondent will be allowed a brief reply if deemed necessary, of no more than one page which shall be provided within the next 5 days.

Justice M. O’Bonsawin

Date: September 1, 2020

COURT FILE NO.: FC-20-702

DATE: 2020/09/01

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Amanda Brandi Nicole Cameron, Applicant

AND

William Craig Vincent, Respondent

BEFORE: Justice M. O’Bonsawin

COUNSEL: J. Alison Campbell for the Applicant

Kerry Fox for the Respondent

decision

Justice M. O’Bonsawin

Released: September 1, 2020