Superior Court of Justice - Ontario
COURT FILE NO.: 534/19
DATE: 2021-07-05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Kyle Vincent James Rogers
Applicant
– and –
Amber-Lee Porga
Respondent
COUNSEL:
P. Sangwan, Counsel, for the Applicant
K. Junger, Counsel, for the Respondent
HEARD: July 2, 2021
JUDGMENT
The honourable Mr. Justice A. Pazaratz
[1] They have shared parenting but vehemently disagree about really important medical, developmental and educational issues for their six-year-old son.
[2] They agree there’s a serious problem.
[3] They don’t agree what kind of problem.
[4] They haven’t been able to work together to address the problem.
[5] They contact professionals independently of one another.
[6] They are selective about which professional recommendations should be followed.
[7] They argue bitterly about the best solution.
[8] They communicate through nasty emails and lawyers. Or they don’t communicate at all.
[9] They have equal decision-making authority, but without a “tie-breaking vote” they are at an impasse.
[10] They keep getting angrier at one another. More frustrated and more accusatory.
[11] Meanwhile, the child’s progress is jeopardized. He could miss out on potentially life-changing therapeutic opportunities if adults don’t get their act together.
[12] So now a judge has to clear the paralysis by way of urgent motion. (Tellingly, they can’t even agree if the motion is urgent.)
[13] Which raises the question: Why did they consent to a shared parenting order in minutes of settlement, if they are so utterly incapable of making it work?
[14] And of course a broader question: As the pendulum seemingly swings toward a presumption of shared parenting, are we losing sight of the potential harm we can cause to children – and entire families – by ordering what amounts to a feel-good label in situations where, in reality, it is doomed to failure?
[15] The Applicant father and the Respondent mother have two children, Vincent, age six, and Skylar, age two. Today’s dispute is about Vincent.
[16] Their consent final order dated November 12, 2019 includes the following terms:
The parties shall share parenting of the children...They shall make decisions affecting the health, education and general welfare of the children together. In the event of ·a disagreement, the parties shall attend mediation prior to litigation.
The children...shall be in the care of the Applicant Father on a revolving four-week schedule, as follows...
a. For three weeks, from Friday after school/daycare or (3:30 pm if it is not a school day) until Monday drop off at school/daycare or 1 :00 pm if it is not a school day, commencing Friday November 1, 2019; and
b. Fourth week, from Monday after school/daycare or (3:30 pm if it is not a school day) until Thursday drop off at school/daycare or 1 :00 pm if it is not a school day, commencing Monday November 18, 2019.
The parties shall share time with the children on a week about basis commencing the Monday immediately following the completion of the school year and ending Labour Day, subject to each party having the right to share additional time with the children to accommodate a vacation.
The Applicant Father shall pick up the children at school/daycare at the start of his time with them and drop them off at school/daycare at the end of his time with them. The Applicant Father shall be responsible for access transfers which do not take place at school or daycare by picking up/dropping off at the Respondent Mother's residence. Only the Respondent Mother and Applicant Father (or their pre-arranged designate) shall be present during transfers of the children such that third parties' shall not interfere with the peaceful transfer of the children.
The child, Vincent...shall attend Janet Lee Elementary School starting in September 2019.
Neither party shall make unilateral decisions affecting the children's health, education, general welfare or appearance.
The parties shall keep each other advised as to appointments they make for the children, on an ongoing basis and the other party shall be at liberty to attend the children's appointments. Only the parties will attend the appointments if the other party is attending, which shall be confirmed in advance, in writing.
Should the parties have contact at an appointment, school event or anywhere else with the children present, the party who has care of the children shall allow the children to be at liberty to be with the other party.
The parties shall endeavour to maintain a consistent routine for the children while in their care. including diet, bedtime and discipline. Each party shall advise the other of the children's feeding and sleeping routines and any other information to allow the other party to maintain the same routine, to the extent possible.
The parties shall utilize the Talking Parents App for communication of non-urgent information about the children.
[17] Within a year the parties disagreed about parenting issues.
a. In August 2020 they attended mediation (about a different dispute) without success.
b. In November 2020 the mother commenced a motion to change, seeking sole decision-making authority and primary residence.
c. In response, the father also wants to change timesharing (but leave shared parenting in place).
d. The parties had a Case Conference scheduled for April 29, 2021. Unfortunately that conference had to be rescheduled as a result of the two-week suspension of court operations at the end of April 2021, in relation to the COVID pandemic.
e. The parties now have a Case Conference scheduled for August 26, 2021.
[18] But there’s one issue that can’t wait for late August.
a. The consent order specifies that Vincent is to attend Janet Lee Elementary School, which is in the mother’s catchment area. The boy has been attending that school since September 2019 and just completed Senior Kindergarten.
b. The mother has brought a motion to permit Vincent to attend Templemead School for his grade one school year commencing September 2021 – and that the father be required to ensure that the child attends that school during his scheduled parenting time.
c. Templemead is in neither parent’s school catchment area.
d. The mother says Templemead offers a highly recommended speech and language program which is perfectly suited for Vincent’s needs. It’s only a one-year program, and thereafter Vincent would return to Janet Lee for grade two.
e. The father opposes Vincent changing schools, even for one year. He thinks the disruption for the child will outweigh any benefit. He feels better alternatives are available.
[19] This dispute stems from a fundamental disagreement between the parents about the nature of Vincent’s problems.
a. The mother says the boy’s main problem is speech, although there may be a hearing component.
b. The father says the boy’s main problem is hearing, although there may be a speech component.
c. A distinction without a difference?
d. The mother says the Templemead program will help Vincent with his speech problem, but she can’t make the arrangement without the father’s permission.
e. The father says he won’t consent to Templemead because it’s not designed to deal with hearing problems.
f. To add a further layer of complexity - and delay - the father suggests getting the Office of the Children’s Lawyer (“OCL”) involved, to help figure things out.
g. I thought “shared parenting” was about promoting good decisions – not indecision or delegation.
[20] From my review of the affidavits and the medical and educational information submitted by both parties, I have no hesitation in concluding that the mother’s proposal is logical and in the best interests of the child.
[21] The mother’s materials include the following:
a. Since 2016 Vincent has struggled with speech and language skills, as well as hearing.
b. In 2016 he had his first surgery on his ears, implanting tubes to address a fluid buildup.
c. During his first assessment his hearing was rated as poor.
d. However since then the professional reports submitted by the mother set out that his hearing has improved considerably. It has been rated as within normal limits, except for minimal hearing loss at low frequencies.
e. Vincent attended speech therapy at the Ron Joyce Centre twice per week from September 2019 until the summer of 2020.
f. A speech pathologist speculated that he has a “speech disorder”.
g. In February 2021 Vincent was referred to Speech and Language Services by the Hamilton Wentworth District School Board due to concerns about his speech, pronunciation and expressive language skills.
h. During an assessment which took place in February and March of this year Vincent presented “well below average speech (pronunciation)” and in the “low average” range of spoken language.
i. The recommendations from the assessor included Vincent attending a school-based rehabilitation service referral so that he can receive speech therapy.
j. On May 3, 2021 the mother received a phone call and email from the school board speech pathologist, providing information about the program they recommended Vincent should attend in grade one. The program is not available at his current school Janet Lee. It is only offered in grade one, and only at one of two schools in Hamilton: Templemead School and Queen Victoria School. They attempt to place the child in the program closest to the child’s home or home school. In Vincent’s case that would be Templemead. For grade two Vincent would return to Janet Lee.
k. Vincent will receive an Individual Education Program for speech and language and follow all other grade one curriculum.
l. There will be a speech-language pathologist present in the classroom two days per week for group and individual sessions.
m. Daily bus transportation is provided to and from the school.
n. All of this is free.
[22] The mother says she contacted the father explaining this school recommendation and requesting his consent. She says he delayed his response and ultimately suggested that he would be prepared to consider changing Vincent’s school to a location closer to his residence – a change which wouldn’t address either speech or hearing. But he wasn’t agreeing to Templemead.
[23] On May 18, 2021 the school principal e-mailed both parents regarding “the exciting news that Vincent has met criteria to attend the Speech and Language class at Templemead School!”. The principal stated she was happy that Vincent would be able to access this “intensive programming” to improve his language skills. She requested confirmation of acceptance into this program by May 25, 2021. But the father stopped communicating with the mother or the school on the topic.
[24] The mother obtained an extension from the school board while she brought this motion.
[25] While some aspects of the father’s uncertainty about Templemead may be understandable, on balance I am unable to conclude that his adamant opposition is either logical or child-focussed.
[26] The father complains that the change in the location (and start time) of Vincent’s school would interfere with his morning routine and work schedule.
a. But based on the existing timesharing schedule, and other arrangements in relation to Skylar (who doesn’t attend school) the impact on the father would actually be minimal.
b. The children are with the mother most weekdays anyway.
c. Vincent attending Templemead would require that the father slightly change his morning routine no more than three days per month. That’s not a major sacrifice.
[27] The father’s strongest argument is that he took Vincent to an ear, nose and throat specialist who provided a second opinion that the child’s main problem might be hearing rather than speech. But there are a couple of problems with this “second opinion”.
a. The father didn’t discuss getting a second opinion with the mother. He didn’t advise the mother he was taking the child to a new specialist. He says he acted unilaterally because the mother doesn’t always keep him informed. But he provided no evidence that the mother had concealed the identity or involvement of any of the array of professionals already in Vincent’s life. He has always been able to contact all of the people helping Vincent. Introducing the child to a new doctor is not only potentially disruptive for the child, but it is specifically inconsistent with paragraph 12 of the consent order which stated: “The parties shall keep each other advised as to appointments they make for the children, on an ongoing basis and the other party shall be at liberty to attend the children's appointments.”
b. In his affidavit, the father appears to misinterpret (or mis-state) the “second opinion” as concluding that “Vincent has a speech delay due to the issues surrounding his hearing not a speech disorder.” But a December 17, 2020 report the father relies on, concludes: “speech/articulation deficit needs ongoing SLP via school, not in place as yet. Will need audiology and ENT assessment for retracted ear drums...will engage mother in discussion once school information and scoring available.” Elsewhere in the reports presented by the father there is discussion about both speech and hearing problems.
c. While the father provides professional evidence indicating Vincent has a hearing problem, he provides no evidence refuting the conclusion of multiple experts that Vincent has a profound speech problem. The father is needlessly trying to turn this into an “either/or” debate, when in reality the speech and hearing issues are not mutually exclusive.
[28] The father suggests that to the extent that Vincent may indeed have a speech problem, he would still prefer that the parents arrange private speech therapy rather than sending the boy to the Templemead program.
a. In his affidavit he suggested Vincent could attend one of two speech services in Niagara. (He lives in Niagara, the mother lives in Hamilton.) He offered no details, other than listing two website addresses.
b. He provided no specific information about either of the programs; their qualifications; Vincent’s eligibility; or the suitability of any such private program for this six-year-old’s specific needs.
c. He provided no information about when such private speech therapy might start; how long it would take; or why he hadn’t suggested it prior to this Templemead proposal arising.
d. He provided no comparison of the benefit that Vincent would receive from any private service, compared to the highly specialized Templemead program strongly recommended by the people who know Vincent best.
e. He gave no indication that he actually investigated the Templemead program before rejecting it.
f. Surprisingly, he offered no information as to the cost or affordability of private speech therapy. He had no proposal as to the apportionment of that unknown cost. These are parties of modest means, and there have already been disputes about relatively minor section 7 expenses.
g. It is hard to understand the father’s insistence that the family should reject a free, highly reputable, intensive speech therapy program, in favour of some unknown private service which may or may not be available; may or may not help; and will definitely cost money the parties can’t afford.
[29] The father expresses concern about the disruptive effect on Vincent if he has to leave the familiarity of Janet Lee Elementary school for one full school year.
a. But school officials – who presumably know Vincent’s school experiences better than anyone – strongly favour the Templemead proposal as an “exciting” opportunity which is very appropriate to meet the child’s specific needs.
b. Indeed, life may actually be a bit easier for Vincent by attending a school with a dedicated speech language program. He’s less likely to be stigmatized in a setting where other children are experiencing similar problems.
c. And the father’s concern about Vincent leaving Janet Lee for a year needs to be put in context: In other discussions, the father has proposed that Vincent should permanently transfer to a school closer to his residence, simply as a matter of geographic convenience.
[30] To a certain extent the father’s resistance to the Templemead proposal reflects an unfortunate competitiveness which undermines the spirit and viability of shared parenting.
a. There’s still a lot of anger between these parties. Tension about a lot of things that have nothing to do with the best interests of their children. Those unresolved emotions subvert the level of communication and cooperation which is a pre-requisite to a successful shared parenting arrangement.
b. The father’s immediate and unwavering rejection of Templemead appears to reflect his perception that it is “the mother’s idea” – so his instinctive reaction is to oppose it.
c. In reality, it’s not “the mother’s idea”. The Templemead recommendation was clearly initiated by therapeutic professionals who have been working with Vincent for a very long time. Those professionals are trying to safeguard the best interests of the child – which, not coincidentally, is what both of these parents should be doing.
d. The mother didn’t initiate the idea. She simply agreed with it because it made sense.
e. Shared parenting is not intended to be a competition. It’s not a zero-sum game where you can’t let the other parent “win”, because that means you “lose”.
[31] The bottom line:
a. Clearly Vincent has serious problems.
b. For sure, he has a speech problem.
c. He probably also has a hearing problem.
d. He needs professional help with all of his problems, whatever they may be, and in whatever proportions they may exist.
e. It is foolish and unproductive to engage in bitter litigation trying to “rank” his problems. Or to insist we limit ourselves to one solution, to the exclusion of others.
f. The best available response for Vincent’s speech problem is the Templemead proposal.
g. The father has provided no evidence that it’s not a good plan, or that there’s a better option.
h. The father has provided no evidence that the Templemead speech proposal would interfere with or be inconsistent with any professional response to any hearing issues.
i. Templemead will help and it can’t hurt. So what’s the problem?
j. Enlightened parents acting in good faith wouldn’t pick and choose their preferred health issues. They’d desperately want to help their child in every possible way.
[32] In this case, the failure of shared parenting resulted in Vincent experiencing a near-miss.
a. He was extremely lucky to be accepted into a unique speech therapy program tailored precisely to his needs.
b. The parents needed to confirm acceptance by a certain deadline.
c. The father’s lack of responsiveness and cooperation resulted in the deadline being missed.
d. That could have been the sad end of the story. But fortunately the school board extended the deadline.
e. The mother had to scramble to bring an urgent motion to meet the extended deadline.
f. The father actually contested the motion, adding more complication and expense to the decision-making process.
g. Ultimately, the mother’s motion was successful. It wasn’t even a close call.
h. So, despite some needless uncertainty, Vincent will now get the help he needs and deserves.
i. But none of that detour from rationality was in the best interests of the child.
[33] The issue is not which parent was right and which parent was wrong.
a. Parents are allowed to legitimately disagree.
b. Shared parenting does not require instant consensus.
c. Indeed, children are often better served if parents thoroughly and even vigorously explore all options.
d. And on many issues there will be no single or preferred solution.
e. Parenting is an ongoing struggle to get it right. The more thought that goes into it - the more constructive discussion - the better.
[34] The issue is whether the decision-making designation benefits the child by creating a reliable mechanism for appropriate decisions to be made in an efficient, productive, civil and timely manner.
[35] With recent legislative changes, our court system has taken pride in our enlightened terminology.
a. We no longer use “custody” or “access” because those labels were regarded as provocative, polarizing and unhelpful to the resolution of family disputes.
b. We promote more neutral and conciliatory labels like “shared parenting” because they promote mutual respect and parental involvement; and because children are better off when both parents are actively and beneficially involved in all aspects of their lives.
[36] But just as outdated labels are to be avoided because they conveyed the wrong message – we have to ensure that our currently-favoured parenting designations convey the right message.
a. Shared parenting is not a prize. Or a reward. Or a badge of entitlement.
b. It’s not about rights. It’s about responsibilities.
c. It’s not an acknowledgement of past parenting. It’s a commitment about future parenting.
d. It’s not about soothing adult egos (although that’s a helpful side-benefit).
e. It’s about creating precious opportunities.
f. Opportunities for both parents to maintain a meaningful role in their children’s lives. To make enlightened and important decisions in a mature, selfless, cooperative, child-focused manner.
g. Opportunities for children to have the best of both worlds. To benefit from the love, guidance, involvement, insight, culture and commitment of each parent. Even if the parents aren’t together. Even if the parents don’t like each other anymore.
h. Opportunities for parents to solve problems.
i. But not opportunities for incessant argument and obstruction.
[37] Shared parenting may be desirable or aspirational. But it’s not automatic. And it’s definitely not to be taken for granted.
a. In some families it’s inevitable.
b. In some families it’s achievable.
c. In some families it’s worth a try.
[38] But as this court stated in Izyuk v Bilousov 2011 ONSC 6451 (SCJ) (prior to the amended legislation):
In the wrong family circumstances, a joint custody order can perpetuate hostilities, indecision, and power struggles. Children – particularly children already exposed to the upset of family breakdown – look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully.
[39] Shared parenting:
a. It’s not exactly “Use It or Lose It”.
b. More like “Abuse It and Lose It”.
[40] The mother’s motion is granted.
[41] The child Vincent shall be permitted to attend the speech and language program at Templemead School for his grade one school year commencing September 2021. The father shall ensure that the child attends this school program on time during the father’s scheduled parenting time.
[42] During submissions, both counsel asked that I consider requesting the involvement of OCL, to assist with other (unspecified) issues. That option can be discussed at the Case Conference.
[43] If the parties are unable to resolve the issue of costs, written submissions are to be filed on the following timelines:
a. Mother’s written submissions (no more than two pages, plus maximum five pages of attachments, plus bill of costs) by July 19, 2021.
b. Father’s written submissions (same size limitations) by August 3, 2021.
c. Any reply submissions by mother (one page with no more than two pages of attachments) by August 13, 2021.
d. These deadlines cannot be extended without my order.
Pazaratz J.
Released: July 05, 2021
COURT FILE NO.: 534/19
DATE: 2021-07-05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Kyle Vincent James Rogers
Applicant
- and -
Amber-Lee Porga
Respondent
REASONS FOR JUDGMENT
The Honourable Mr. Justice A. Pazaratz
Released: July 05, 2021