COURT FILE NO.: FC-18-FO-00413
DATE: 2020-02-10
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Stephanie Teeple
Alex Toolsie, Counsel for the Applicant
Applicant
- and -
Mark Millington
Sheena Naidoo, Counsel for the Respondent
Respondent
HEARD: September 19, 20, 23, 24, 25, 26, 27 and 30, 2019
THE HONOURABLE MADAM JUSTICE WALTERS
REASONS FOR JUDGMENT
INTRODUCTION
[1] Stephanie Teeple is 34 years old. Ms. Teeple is the Applicant and will be referred to as the “mother”.
[2] Mark Millington is 31 years old. Mr. Millington is the Respondent and will be referred to as the “father”.
[3] The parties lived together on an unmarried basis commencing in May 2015. They separated in May 2018 when the Applicant removed the Respondent’s belongings from the home.
[4] The parties have one child together, named, Arra Laine Millington, and will be referred to as the “child”. The child was 3 years old when this matter went to trial.
[5] The central issue before the court is whether the mother should have sole custody of the child or whether the parties should share joint custody. The remaining issues of parenting time, decision making, child support, section seven expenses and costs were also raised in the trial and shall each be addressed following the issue of custody.
WITNESSES
[6] The mother testified and called, as witnesses, her mother, Christine Pearson, her aunt who is also the child’s daycare provider, Jan Kolotyliuk, and a friend, Tony Jerome Sobczak.
[7] The father testified and called as witnesses, his mother, Joanne Millington and Amber Boekhorst, the mother of the father’s two other children, Wyatt and Zane.
Important Dates and Events
[8] I will chronologically outline some of the relevant dates and events.
[9] In May 2015 the mother and the father began their relationship and two weeks later they began to live together.
[10] In August 2016 the child was born 14 weeks premature weighing 1.8 pounds.
[11] After the child’s birth she was transferred from Grand River Hospital to McMaster Children’s Hospital due to her fragile medical condition. She remained there for approximately five months.
[12] The mother and the father were provided a home at Ronald McDonald House in Hamilton, Ontario, while the child was hospitalized at McMaster Children’s Hospital.
[13] In December 2016 the child was discharged from hospital and went home with the parties for the first time.
[14] In February 2018 the parties moved to a home in Cambridge, Ontario.
[15] In May 2018 the mother removed the father’s belongings from their home and the parties separated.
[16] In June 2018 the mother commenced legal proceedings seeking sole custody of the child.
[17] Following the father’s removal from the home, he did not see the child for 6 weeks despite many requests to the mother to see the child.
[18] In the summer after the parties’ separation, the child developed pneumonia and was hospitalized. The father learned of the child’s illness and attended at the hospital, seeing the child for the first time since separation.
[19] Following the child’s hospitalization for pneumonia, the father had access with the child in the mother’s home.
[20] The father`s access was sporadic from July 2018 until October 2018.
[21] October 19, 2018, a temporary Order was put in place by Justice Oldham setting out an access schedule between the father and the child. Access was Sunday, October 21, 2018 from 8:00 a.m. to 8:00 p.m. Commencing October 27, 2018, access was ordered for alternate weekend overnights from Saturday at 9:00 a.m. to Sunday at 8:00 p.m. Commencing November 24, 2018, access expanded to alternate weekends from Friday at 6:00 p.m. to Sunday at 8:00 p.m.
[22] In January 2019, the father began to have overnight access alternate Wednesdays with the child. Eventually, the alternate Wednesday evenings were expanded to include each Wednesday.
[23] The mother cancelled the Wednesday overnight visits by a letter dated May 15, 2019, from her lawyer. The visits were later reinstated and were in place at the commencement of trial.
Mother’s position
[24] It is the mother’s position that she should have sole custody of, and provide primary residence to, the child. In support of her position, she relies on the following:
a) She has been the child’s primary caregiver since birth;
b) She quit her job following the child’s birth and remained at Ronald McDonald House while the child was hospitalized;
c) She has been responsible for attending all medical and therapy appointments for the child;
d) The father has not regularly attended the child’s medical appointments;
e) The parents do not communicate well;
f) She has regularly parented the child.
Father’s position
[25] The father seeks joint custody and equal parenting time for the following reasons:
a) The child is closely bonded with her father and her brothers;
b) He has always wanted equal time with his daughter but was denied that time by the mother;
c) The mother created the status quo post-separation by denying the father access with the child;
d) The mother does not always act in the child’s best interests, as evidenced by her not allowing access when the parties first separated and frustrating access when the Wednesday evening access was cancelled on short notice;
e) The father wants to be involved in the decisions related to the child;
f) The parties have been able to communicate on issues of the child’s medical health and other issues when it matters most.
SOLE VERSUS JOINT CUSTODY
[26] In Jackson v. Jackson, 2017 ONSC 1566, 278 A.C.W.S. (3d) 572, Chappel J. summarized the law with respect to custody. At paragraph 65, Chappel J. held that the decision as to whether an order for sole custody or joint custody is in the child’s best interests is ultimately a matter of judicial discretion. However, several general principles have emerged from the jurisprudence to assist the court in the decision-making process. These can be summarized as follows:
a) There is no default position in favor of joint custody. Each case is fact-based and discretion-driven.
b) Joint custody should only be considered as an option if both parents are fit parents and able to meet the general needs of the children. This is a threshold issue before the court considers the question of whether the parties are able to effectively communicate on issues relating to the children.
c) The quality of past parenting and decision-making, both during the parties’ relationship and post-separation, is a critical factor in determining whether joint custody is appropriate.
d) However, the mere fact that both parents acknowledge that the other is a “fit” parent does not mean that it is in the best interests of the child for a joint custody order to issue. The decision regarding the appropriate decision-making arrangement must take into consideration all factors relevant to the child’s best interests.
e) Although some measure of communication and cooperation between the parties is necessary to support a joint custody order, the court is not required to apply a standard of perfection in assessing the parents’ ability to work together.
f) The fact that one party insists that the parties are unable to communicate with each other is not in and of itself sufficient to rule out the possibility of a joint custody order. The question to be determined is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis.
g) There must be a clear evidentiary basis for believing that joint custody would be feasible.
h) In cases involving very young children, the court must take into consideration the fact that the child is unable to easily communicate their physical, emotional, developmental and other needs. Accordingly, the need for effective communication between the parties in a joint custodial arrangement will be particularly pressing in such circumstances.
i) The wishes of the child will also be relevant to the decision respecting the appropriate custodial disposition in cases involving older children.
j) Evidence as to how an interim custody and access order has worked, and in particular, whether the parties have been able to set aside their personal differences and work together in the best interests of the child, will be highly relevant to the ultimate decision regarding the appropriate custodial regime.
k) In analyzing the ability of the parties to communicate, the court must delve below the surface and consider the source of the conflict. The Ontario Court of Appeal has clearly stated that one parent cannot create conflict and problems with the other parent by engaging in unreasonable conduct, impeding access, marginalizing the other parent, or by any other means and then justify a claim for sole custody in their favor on the basis of lack of cooperation and communication.
l) There has been an increasing willingness in recent years to order joint custody rather than sole custody where such an order is considered necessary to preserve the balance of power between the parties, particularly in cases where both parties are caring and competent parents but one party has been primarily responsible for the conflict between the parties.
[27] I find that both parents are fit and able to meet the general needs of the child.
[28] There is no doubt that the child’s medical condition at birth caused a lot of stress in the parties’ relationship. The mother gave up her job and moved to Ronald McDonald House in Hamilton in order to be close to the child. The child remained in hospital for five months.
[29] The father became the sole breadwinner in the family during those five months. He had to support the mother and child who were residing in Hamilton while also commuting back and forth to Kitchener to be with his two boys.
[30] The father shares custody of his two boys (Wyatt and Zane) with Amber Boekhorst on a week about basis. These boys are half siblings to the subject child.
[31] The text communication between the mother and father in 2016 demonstrates the toll the child’s illness played on their lives. I have given limited weight to those messages as it was three years ago when the family was dealing with the very stressful reality of a sick child and the added stress of making ends meet financially.
[32] The mother acknowledged that since court has started, communication between the parties has improved. While the mother takes the position that the communication involves her telling the father information, I agree with the father that the parties are able to communicate and cooperate when it counts, especially when it comes to the child’s medical issues.
[33] There is no reason why the parents cannot decide what is best for the child. The mother has been advising the father of the child’s appointments and various programming that she believes would be good for her. The father’s evidence was that he wants to be involved in the child’s life and he wants to be consulted on issues that are important to her. His own mother testified that although he was not a great father in the beginning of the child’s life, he has improved, and the child looks for reassuring hugs from him when they are together.
[34] Decision-making authority assists in ensuring that a parent’s relationship with his or her child is not marginalized: Rigillo v. Rigillo, 2019 ONCA 548, 306 A.C.W.S. (3d) 567, at para. 12, (“Rigillo”).
[35] Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard of perfection is not required, and is obviously not achievable: Griffiths v. Griffiths, 2005 ONCJ 235, 141 A.C.W.S. (3d) 265. The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, such that the best interests of the child can be ensured on an ongoing basis: Warcop v. Warcop (2009), 178 A.C.W.S. (3d) 617 (Ont. S.C.), at para. 94.
[36] This child will benefit from the involvement of both parents in the decision-making on all issues.
[37] This is a case that is appropriate for joint custody.
PARENTING TIME
[38] There was no dispute that the mother has been the child’s primary caregiver since birth. There is a dispute about the amount of parenting time that should be allocated to the father.
[39] The father’s position is that when the parties were together he could see the child every day. Although the mother took the lead for the medical follow-up, the father also participated in the child’s day to day care by preparing her meals and driving her to daycare or picking her up.
[40] When the parties separated, the mother did not permit the father to see the child at all in the first six weeks. Numerous text messages were filed as evidence showing the father`s repeated requests to the mother to see the child. Some of the texts were responded to and some were not. The mother testified that she did not always respond to the father when he texted her.
[41] I accept the father’s position that the mother controlled whether he was able to see the child or not and she was not focused on the child’s best interests.
[42] The mother commenced the litigation in June of 2018. The father was unable to get an Order for access until the Order of Justice Oldham dated October 19, 2018. His parenting time with the child up until that Order was at the mother’s behest.
[43] Based on the evidence before me, I accept the father’s position that access with the child has been difficult for him. The mother denied the father access with the child, despite his repeated requests following their separation. It was only when the father discovered that the child was in hospital for pneumonia in late June and early July 2018 that he was able to see her.
[44] The mother’s lack of insight into the impact the father’s absence in the child’s life would have on her at this young age is concerning. The mother testified that the child was not impacted at all by not seeing the father.
[45] There is further evidence that the parties agreed to adding a midweek overnight visit between the father and the child. Following a court attendance in May 2019, a letter was sent to the father from the mother’s counsel advising that his Wednesday access was suspended. This type of high-handed behavior demonstrates that the child is being used as a pawn for the mother to get what she wants.
[46] Section 24 (2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, requires the court to consider all of the child`s needs and circumstances including:
a) The love, affections 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 be 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.
(a) Love, Affection and Emotional Ties
[47] Based on the evidence before me, I believe that the child loves, has affection for and is emotionally tied to both of her parents.
[48] While the mother’s witnesses were aligned with her and did not have a positive thing to say about the father, the father’s witnesses were balanced in their testimony.
[49] The paternal grandmother was the most compelling witness in terms of testifying to both parents’ ability to parent. The paternal grandmother acknowledged that the mother is a good mother not only to the subject child but also to the father’s two boys. She also acknowledged that the father was not a very good father in the beginning, but his parenting has improved. She went on to say that when the child is over at her house for supper on Sundays that she has observed that the child struggles when the father is out of her sight. She testified that the child seeks out the father and requests reassuring hugs from him.
[50] The paternal grandmother also testified to the importance of the boys in the child’s life. She stated that the child follows the boys around everywhere they go.
[51] Both the father and Ms. Boekhorst testified to how attached the child is to her brothers. They also both expressed a concern for a lack of contact between the child and her brothers, and the impact this has had on all the children.
(b) Child`s Views and Preferences
[52] The child’s views and preferences are not available to the court. The child is too young for her views and preferences to be given any weight even if they were before the court.
(c) Length of time the child has lived in a stable home environment
[53] The child has resided primarily with the mother since her birth. While it is the mother’s evidence that the child remains in her same room that she has had since the family moved into that home in February 2018, it was her decision to separate by removing the father’s items from the home. The separation was not the father’s choice.
[54] There is no evidence that the mother intends to move from the home the child has been in since February 2018. The parties occupied a few homes before they were able to move into the townhome that the mother and child currently occupy.
[55] Following the separation, the father resided with his parents before finding a home of his own in Kitchener. The child has had overnight access there for the past year and there is no evidence before the court that that home is not appropriate.
[56] The father did testify that it is his intention to find a home in Cambridge closer to the mother and the child’s home, as all of the people important to him (including the boys) reside in Cambridge.
[57] For these reasons, I find that the mother has the stable home environment.
(d) 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
[58] The child is a remarkable little girl whose life is a true miracle. She is just three years old. She was born 14 weeks premature and only weighed 1.8 pounds. While she has had a rough start to life requiring two heart surgeries, today she is engaging in play and activities the same as other children her age.
[59] She will require further heart surgeries as she grows and she is being followed by a cardiologist but otherwise, the evidence is that she is on track developmentally and she has no current special needs.
[60] Both parties are willing and able to provide the child with guidance and the necessaries of life.
[61] Both parties have participated in her medical care (although it is clear that the mother has taken the lead for the child’s medical care) and are capable of ensuring that her needs are met.
[62] Both parties are aware of the child’s needs and her progress in the programming required to improve her life (occupational therapy is one example).
(e) The plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing
[63] Each parent has proposed that he or she is able to care for the child and has put forward his or her plan regarding parenting.
[64] The mother’s plan is rooted in the status quo. Examples include:
a) The mother seeks sole custody and primary residence for the child with her;
b) She proposes alternate weekend access from Friday until Sunday for the child with the father and one midweek visit for a few hours;
c) She will continue to reside in the townhome;
d) She will work full-time;
e) While the mother works the child shall attend daycare at her aunt Jan’s home close by;
f) She will take the child to medical appointments or activities as needed;
g) She would like the child to be baptized Catholic and attend Catholic school when the time comes for the child to attend school.
[65] The father’s plan seeks a more equal division of time for the child with each parent. Examples include:
a) The father seeks a gradual increase in his access schedule to include 5 overnights out of 7 in week one and two overnights in week two;
b) Increasing the father’s time for the child allows for her to spend greater time with her brothers in week one, and one-on-one time with the father in week two;
c) The father is proposing that any increase in access from the current schedule occur over two to three months;
d) The father is proposing that he will move from Kitchener to Cambridge in order to be closer to his children and cut down on driving time;
e) The father is proposing that the child remain at Aunt Jan’s daycare when it is his access time as that is where the child is comfortable;
f) The father is proposing that he pay half of the daycare costs directly to the daycare provider;
g) The father is currently in a relationship with Justine Dawson. Ms. Dawson has two children and although they do not live together currently, they do spend time at each other’s homes. Ms. Dawson and her children are also a part of the father’s plan in that all of the children will be spending time together.
(f) The permanence and stability of the family unit with which it is proposed that the child will live
[66] Both parties gave evidence that they have resided in a number of homes and held a number of jobs. They also both have extended families who are involved in the child’s life.
[67] The mother has resided in the same home with the child since February 2018 and she does not have any plans to move. She moved to that location as it is close to her Aunt Jan, who is the child’s daycare provider.
[68] She also recently obtained employment in the insurance industry which is a step up from her previous work. That job has provided her with the ability to work dayshifts and it was her evidence that she intends to stay in that position.
[69] When the parties separated the father was forced to find a new place to live. In order to find a place quickly he moved to a place in Kitchener. The father acknowledged that living in Kitchener is not ideal as his children and his job are in Cambridge. He stated that it is his plan to move to Cambridge in the future.
[70] The father is connected to his family and they are a support to him. When he has the three children with him, he takes them to his parents’ home for Sunday dinner.
[71] The mother’s life has been stable.
[72] The father’s life has been less stable, as he was forced to find a new home when the parties separated. However, once he found a home he has remained there. He has also maintained access with his boys and has also been consistent in requesting access and exercising access to the subject child.
(g) The ability of each person applying for custody of, or access to, the child to act as a parent
[73] The most important aspect of being a parent is making sacrifices for your child in order to put her interests before your own. There is no doubt that both parents did just that in the first five months of the child’s life.
[74] The mother testified that she is the better parent as “she put in time” and as a result the father should not have a say in what services she accesses for the child. The mother has, however, continued to communicate with the father about recommendations for the child’s care. Both parents have attended the medical appointments for the child.
[75] One concern is the mother lacks insight into how her behavior can impact the child. The court is concerned that the child will be negatively impacted if a strict parenting schedule is not put in place that reflects the importance of both parents in the child’s life.
(h) Any familial relationship between the child and each person who is a party to the application
[76] The child has one mother and one father. Both parents have been through more in the first three years of this child’s life than most parents should have to endure in a lifetime.
[77] Children deserve to have both parents in their life and that is particularly true for this little girl.
ANALYSIS AND THE LAW
[78] In allocating parenting time, I must consider the principle that a child should have as much contact with each parent as is consistent with the child’s best interests. In this case, I find that it is in the child’s best interests to have a schedule that proposes shared time with each parent. In that respect, I accept the father’s proposal for an expansion of access.
[79] In arriving at this decision, I have reviewed the maximum contact principle as set out in the cases of Rigillo, and Kagan v. Brown, 2019 ONCA 495, 306 A.C.W.S. (3d) 790. Although these decisions are dealt with in the context of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), the Children’s Law Reform Act contains a similar principle. Section 20 states that both parents are equally entitled to custody of a child.
[80] Courts will order joint custody rather than sole custody where such an order is considered necessary to preserve the balance of power between the parties, particularly in cases where both parties are caring and competent parents but one party has been primarily responsible for the conflict between the parties: Roloson v. Clyde, 2017 ONSC 3642, 280 A.C.W.S. (3d) 801, at para. 59.
[81] To restrict the father’s time with the child as the mother suggests is not in the child’s best interests.
[82] Given the mother’s limited insight and her failure to include the father in the child’s life without a court order, I conclude that the need for equal parenting time is in the child’s best interests.
CHILD SUPPORT
[83] Based on financial statements filed, the mother’s 2018 income is $50,275 and the father’s 2018 income is $58,046.
[84] Since separation the child has remained in the primary care of the mother with access to the father. Some support has been paid by the father to the mother.
[85] Most of the evidence led focused on who should have custody of the child. I do not have enough evidence before me regarding the quantification of child support.
[86] Now that the timesharing arrangements have been identified, I am adjourning the issue of child support to give counsel an opportunity to resolve that issue on their own or submit further evidence in relation to sections 7, 9 and/or section 10 of the Federal Child Support Guidelines.
ORDER
[87] I make the following Order on a final basis:
[88] The Applicant, Stephanie Teeple and the Respondent, Mark Millington shall share joint custody of the child, born August 3, 2016.
a) The Applicant shall maintain the primary residence of the child and the Respondent shall be noted as maintaining the secondary residence of the child with all third parties such as the child’s school and medical service providers.
b) In the event of a dispute with respect to medical care, the parties shall share decision making responsibility but shall be guided by the recommendations of health care professionals.
[89] The Respondent, Mark Millington shall have parenting time with the child, on reasonable notice including:
a) Week one shall coincide with the father’s access with his boys. The father’s timesharing in week one shall be from Wednesday at 5:30 p.m. to Monday morning drop off at daycare or school and shall commence within 4 weeks of this order;
b) Week two shall coincide with when the father does not have access with his boys. The father’s timesharing in week two shall be Wednesday overnight from 5:30 p.m. to drop off Friday morning at daycare or school and shall commence within 4 weeks of this order;
c) The father’s week one and week two access shall alternate thereafter such that the father shall share 14 overnights with the child in 28 days.
d) Pick up and drop off to take place at daycare or school, or if there is no daycare or school then morning exchanges to take place at 8:00 a.m. and evening exchanges to take place at 5:30 p.m.;
e) Holiday access to include alternating Christmas Eve 6:00 p.m. to Christmas day at 2:00 p.m. with the Respondent in even numbered years, commencing in 2020 and the Applicant in odd numbered years, commencing in 2021 with the remainder of the Christmas break to be shared equally;
f) The child shall spend Mother’s Day with the Applicant and Father’s Day with the Respondent from 8:00 a.m. until 8:00 p.m. should the day fall on the other party’s weekend;
g) All other holidays to be shared equally or alternated as agreed;
h) Such further and other access as the parties may agree.
[90] Both parties shall maintain the child on any available medical, extended health and dental coverage available through their employer.
[91] The parties shall maintain the daycare arrangements in place, unless otherwise agreed or the child no longer requires daycare.
[92] Either party may travel with the child with the written consent of the other party, such consent not to be unreasonably withheld. The travelling party shall provide an itinerary with full contact details and sign any necessary travel consent at least ten days prior to departure.
[93] The parties shall cooperate in maintaining and renewing the child’s government documents including passport and health card.
[94] The Applicant shall be the custodian of the child’s original identity documents, except that the health card shall travel with the child and the passport shall be provided to the Respondent when needed for travel.
[95] Each party shall provide the other party with 120 days’ notice of any intention to relocate their ordinary residence outside of the Kitchener, Cambridge, Waterloo area, with full particulars as to the new residential arrangements, and with an explanation as to the moving party’s position as to whether the intended relocation will have any impact on the child or the parenting schedule.
[96] The parties shall enroll the child at the same school as her siblings, Wyatt and Zane unless the parties agree otherwise in writing.
[97] The issue of ongoing child support and sections 7, 9 and/or 10 expenses shall be adjourned to a date to be set by the Trial Coordinator.
[98] The issue of costs is also adjourned to a date to be set by the Trial Coordinator.
“J.D. Walters”
J.D. Walters, J.
Released: February 10, 2020
COURT FILE NO.: FC-18-FO-00413
DATE: 2020-02-10
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Stephanie Teeple
Applicant
- and -
Mark Millington
Respondent
REASONS FOR JUDGMENT
J.D. Walters J.
Released: February 10, 2020