Court File and Parties
COURT FILE NO.: FC-19-FS-7
MOTION HEARD: 2020/11/16
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Eric Phillip Taylor, Applicant
AND:
Shannon Colleen Mulligan, Respondent
BEFORE: Turnbull, J.
COUNSEL: James Battin, Counsel, for the Applicant
Edward Kiernan, Counsel, for the Respondent
HEARD: December 2, 2020.
Reasons for Order
[1] The applicant has brought a motion to set aside the order of MacLeod J. dated August 7th, 2020 and to re-instate the custody and access provisions of the order made by Gordon J. dated December 19, 2020. That order of MacLeod J. granted sole custody of the child of the parties’ marriage to the respondent. That changed the order of Gordon J. dated December 20, 2019 which had granted 50/50 access to each parent. It appears that the change in living arrangements for the child made by Gordon J. were based on a report of the Office of the Children’s Lawyer clinical investigator Mr. Butt in December 2019.
[2] Prior to the order of Gordon J., the child was residing full time with the applicant father.
[3] When the order was granted by MacLeod J. on August 7th, 2020, the applicant was not present.
[4] In February 2020, when the ink was barely dry on the order of Gordon J., the respondent brought a motion to vary the order of Gordon J. based on a series of allegations concerning the applicant’s behaviour. These are itemized in her supporting affidavit dated Februrary 4, 2020. In due course, these were refuted by the applicant in his affidavit of November 24, 2020.
[5] The motion was adjourned as the applicant’s lawyer at that time had indicated to counsel for the respondent, Mr. Kiernan, that he was going to bring a motion to remove himself as solicitor of record.
[6] With the onset of Covid 19, the respondent’s motion did not proceed and it was put in abeyance until the courts partially re-opened in June 2020.
[7] On June 29th, 2020, because the applicant’s former solicitor was still shown as the solicitor of record, Mr. Kiernan contacted him about arranging a date for the return of the respondent’s motion. The lawyer gave his former client’s email address to Mr. Kiernan so that he could contact him directly.
[8] Using that email address, Mr. Kiernan sent Mr. Taylor a message on July 13, 2020 that the matter was back in court the next day, July 14th, for rescheduling. Mr. Taylor never replied nor attended.
[9] He swore in his affidavit filed to set aside the order of MacLeod J. that he changed his email address in 2019 and consequently he had no idea of the re-continuation of the court proceedings.
[10] On July 14, 2020, the motion was adjourned to July 29, 2020. On that day, Sloan J. adjourned it again to August 7, 2020 at 3:30pm for argument.
[11] The matter was heard by Zoom Conference call on August 7, 2020 before MacLeod J. Mr. Kiernan sent another email to the applicant about one half hour before the hearing to determine if he was going to attend. There was no response.
[12] MacLeod J. granted the order sought by the respondent and the child has lived solely with his mother since that time. He also ordered that applicant pay the respondent $1500 in legal costs for the motion.
[13] When Mr. Taylor learned of MacLeod J’s order, he retained Mr. Battin to move to set it aside. The matter was heard by me on November 13, 2020. In a written endorsement dated November 16, 2020, I granted the applicant’s motion to entertain his motion to vary the order of MacLeod J. upon certain conditions, including payment of the costs order made by MacLeod J. Those conditions have been met.
[14] On the return of the motion before me on Monday November 30, 2020, the court was engulfed by a flurry of lengthy, contradicting affidavits filed by both parties. Suffice it to say, they are clear evidence of the personal acrimony which exists between the parties. Unfortunately, their son Taegan Taylor-Mulligan, born January 1, 2008, is the centre of the storm.
[15] Counsel agreed that on the return of the motions before me, I was mandated to deal with the following motions:
a. the motion of the applicant to set aside the order of MacLeod J. and to re-instate the order of Gordon J. Dec. 2019.
b. the motion of the respondent to make the temporary order of MacLeod J. a permanent order.
c. the motion of the respondent re child support and arrears of child support.
[16] When court opened, I advised counsel that because of the volume of contradictory affidavit material, it was imperative that I know what Taegan’s wishes were. Unbeknownst to me, an affidavit from Jennifer Hodgkinson, a Child Protection Worker employed with the Children’s Aid Society of Haldimand and Norfolk, had been prepared and it was presented to the court. It was an immense help to me and is evidence of the caring and concerned efforts of the Society to look out for the best interests of a child such as Taegan.
[17] In her affidavit, Ms. Hodgkinson stated her intention was to share with the court the child’s wishes as it pertains to access with his parents. She detailed regular and consistent visits with Taegan while he was in the care of each of his parents. She summarized eight different private visits she had with Taegan from October 7, 2019 to November 4, 2020. In that last interview with him, he told her that he was enjoying the living arrangements he was experiencing at that time and that it was “working well” for him. He advised her that he did not want to change anything. After saying that, he did indicate that he would like to spend more time with his dad. He did not want to go back to the former schedule included in the order of Gordon J. of 2-2-5-5 but wanted to see more of his father when he was off work.
[18] After reading that affidavit, I indicated to counsel that it probably would not be necessary for me to interview Taegan as I had initially suggested. After discussing the issue with their clients, both parties asked me to interview him. As a Judge, I recognize this should only be done in exceptional circumstances but the totality of the record and the recommendations of both parents convinced me it was appropriate to do so in this case.
[19] Taegan was brought to the courthouse and I interviewed him alone in an adjacent jury room in the presence of a reporter. I told him the gist of what he wanted would be communicated to his parents and counsel but not all the details. He was understandably shy and somewhat intimidated at first, but as the discussion proceeded, he was able to express his wishes with respect to his living arrangements, his school arrangements and his wish to have time with both parents.
[20] When I returned to the courtroom, I advised his parents of the following:
He wishes to live with his mother.
He wants to have weekend visits with his father at his discretion.
He wishes to have extra time with his father at the Christmas school break, at the school spring break and during the summer school break.
[21] I then urged counsel to meet with their clients to try to settle the matter of custody and access or alternatively, to prepare their submissions.
[22] The parties instructed counsel present submissions of their positions to the court.
Position of the Applicant Father
[23] Mr. Battin for the applicant submitted that the court ought to grant the parties joint custody with Taegan’s primary residence to be with his mother. He urged that parenting time occur with the applicant father each weekend from Friday 5:00pm to Sunday at 7:00pm and that it be extended to Monday at 7:00pm if Monday is a non-school day or a statutory holiday, all in accordance with Taegan’s wishes. He further submitted that parenting time with Mr. Taylor be permitted one half of the time that Taegan is not in school during summer vacation, Christmas holidays and spring break, all in accordance with Taegan’s wishes.
[24] Mr. Battin submitted that all decisions involving Taegan’s health, education, registration for extra-cirricular activites, travel and other matters of significance be discussed with him by communication by email and/or text and if the parties are not able to agree, the decision of the respondent mother shall be determinative of the issue.
Position of the Respondent Mother:
[25] Mr. Kieran submitted that an order be issued granting his client sole custody of Taegan. He urged the court to look at page 3 and 4 of Mr. Butt’s Voice of the Child report which shows how the acrimony between the parties has spilled over to the child.
[26] In his view, because of this inability of Mr. Taylor to co-operate and to act respectfully to the respondent, an order of joint custody would spell a formula for continued difficulties for Taegan.
Analysis:
[27] While it seems almost trite to say it, the sole consideration in making such a decision is the best interests of Taegan. His views and preferences are important in making that decision, but there are a multitude of other factors the court must also consider.
[28] Taegan has expressed his desire to have both his parents fully involved in his life. He indicated that to Mr. Butts, to Ms. Hodgkinson. He has indicated that he likes the present arrangement by which he resides with his mother during the week when he is at school and then visiting his father’s residence if he wants to, on the weekends. He enjoys having that discretion.
[29] Since the order of MacLeod J. in August, 2020, the visits with his father appear to have gone very well.
[30] The history of this matter is of some import to my decision as well. During the period 2017 to 2018, the parties had a shared parenting arrangement. In October, 2018, Taegan began living solely with his father and had having very little contact and access with his mother. In October, 2019, Ms. Mulligan obtained a court order and began having weekend visits with him and also on Wednesdays for a short period.
[31] After the report of Mr. Butts was received, the parties signed Minutes of Settlement in accordance with the recommendations of that report, whereby Taegan was to have 2-2-5-5 alternating stays with his parents. As noted, that regime did not work out well according to Ms. Mulligan.
[32] Her affidavit sworn on February 4th, 2020 urged a change of Gordon J.’s order to give her sole custody. Among her major concerns was regularity of Taegan’s school attendance and lack of telephone contact with him during visits with his father. Mr. Taylor denies such things in his responding affidavit sworn November 24, 2020.
[33] With Taegan living primarily with his mother during the school week, the concerns over school attendance will be reduced. It will not be so critical for her to have telephone contact with her son if he is visiting his father for just a day or two on the weekends. For longer visits such as in the summer, a specific arrangement will have to be negotiated or ordered by the court for both parties.
[34] Ordinarily, where there is a difficulty communicating between parents, joint custody is not recommended. In this case, the relationship of the parties is rife with conflict. The police have been involved when Taegan was present. The Children’s Aid Society has had to become involved. Mr. Taylor has clearly involved Taegan in the conflict in the parties as exhibited in the remarks of Mr. Butts at pages 3 and 4 of his report. In one of the text messages he sent to his son, Mr. Taylor said “your mother is nuts”. Mr. Taylor has moved his residence a number of times and now most recently, has rented a two bedroom apartment about three months ago. The affidavits indicate that his lawyer was unable to contact him. The CAS worker stated that she had had difficulty contacting him which Mr. Taylor denied in one of his affidavits.
[35] Taegan has seen enough conflict between his parents. He is happy with his life the way it is right now. He is settled in school and has nice friends he has met. He is able to catch the bus right outside the front door of his mother’s residence and easily arrive for school on time. The conflict during the weekend visits has virtually disappeared.
[36] In my view, it is in the best interests of Taegan that the respondent have sole custody of Tagaen.
[37] Parenting time shall occur with the applicant father each weekend from Friday 5:00pm to Sunday at 7:00pm and it shall be extended to Monday at 7:00pm if Monday is a non-school day or a statutory holiday, all in accordance with Taegan’s wishes.
[38] Parenting time with Mr. Taylor shall be permitted one half of the time that Taegan is not in school during summer vacation, Christmas holidays and spring break, all in accordance with Taegan’s wishes.
[39] The respondent mother is to keep the applicant advised of all health providers, treatment and plans and issues involving Taegan, educational issues including report cards, school teacher interviews at which he should be permitted to attend, extra-curricular activities and schedules associated with those activities so that the applicant may attend if possible, travel plans involving Taegan, and other matters related to his health and well-being.
Conclusion:
[40] The applicant’s motion to set aside the order of MacLeod J. dated August 7th, 2020 and to re-instate the custody and access provisions of the order made by Gordon J. dated December 19, 2020 is dismissed.
[41] The Respondent’s motion to make the order of MacLeod J. a permanent order is granted is granted subject to the following
This court orders that the order of MacLeod J. dated August 7th , 2020 is set aside and is replaced with the provisions hereinafter ordered.
This court orders that the Respondent Shannon Colleen Mulligan shall have sole custody of the child Taegan Taylor-Mulligan born January 1, 2008 and the child’s primary residence shall be with Shannon Colleen Mulligan.
This court orders that the Applicant Eric Phillip Taylor shall have parenting time each weekend with Taegan, in accordance with Taegan’s wishes, from Friday at 5:00pm to Sunday at 7:00pm and that shall be extended to Monday at 7:00pm if Monday is a non-school day or a statutory holiday.
This court orders that the Applicant Eric Phillip Taylor shall have parenting time with Taegan, in accordance with Taegan’s wishes, equivalent to half of the duration of the Christmas school break, the spring school break and the summer school vacation.
This court orders that the Respondent is to keep the applicant advised of all health providers, health treatment and plans and issues involving Taegan, educational issues including report cards, school teacher interviews at which the Applicant should be permitted to attend, extra-curricular activities and schedules associated with those activities so that the applicant may attend if possible, travel plans involving Taegan, and other matters related to his health and well-being.
This court orders that the information required according to the provisions of paragraph 5 of this order, shall be provided to the Applicant by email or text or What’s Ap messages or such other electronic communication method as they may both agree, so that a record of the dialogue between the parties is available for review by the court in the event that such a review is necessary. The notification given to the Applicant about any of the issues identified in paragraph 5 of this order shall be within 24 hours of the Respondent becoming aware of the issue or event.
This court orders that neither parent shall enroll the child in any extra-curricular activity during the parenting time of the other parent without the prior written consent of the other party and unless the other party agreed to participate in transporting Taegan to and/or from the activity.
This court orders that, in accordance with the consent of the parties filed that during the Christmas school break each year, Taegan Taylor-Mulligan shall divide parenting time with the Applicant and Respondent as follows, and in accordance with his wishes:
a. Eric Taylor from December 24 to December 25 at noon.
b. Shannon Mulligan from December 25 at noon to December 26, and,
c. the balance of the Christmas school holiday to be divided equally, subject to the child’s wishes.
[42] This matter is adjourned to Friday December 18, 2020 at 2:00pm for further submissions from counsel on issues relating to access, child support and costs of this Application.
Turnbull, J. (Signed Electronically)
Turnbull, J.
Released: December 8, 2020
COURT FILE NO.: FC-19-FS-7
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Eric Phillip Taylor, Applicant
AND:
Shannon Colleen Mulligan, Respondent
REASONS FOR order
Turnbull, J.
Released: December 8, 2020