Court File and Parties

COURT FILE NO.: FC-2019-50-0003

DATE: 2021/12/16

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Samantha Paige Mayer Graham Applicant

– and –

Nathan Jacob Desgagne Respondent

Anna E. Sundin for the Applicant

Gonen Snir for the Respondent

HEARD: November 24, 2021

REASONS FOR DECISION

Respondent’s motion

O’BONSAWIN J.

Background

[1] On November 18, 2021, Pelletier J. deemed this matter urgent. The father brings a motion to have parenting time with the children from December 18, 2021 to January 1, 2022. According to his Notice of Motion, the father seeks the following Order:

• the father shall make his best efforts to obtain assistance from his employer to secure discounted round-trip flights between Montreal and Winnipeg. If the father does not secure a military flight, he shall buy round-trip flight tickets for himself and the children;

• the mother shall bring the children to the airport in Montreal on the day of the departure and will meet the father two hours prior to the departure;

• the mother shall pick up the children from the Montreal airport on the day of arrival at the time that will be advised by the father;

• the cost of the trip shall be shared equally between the parties;

• the mother shall reimburse the father for the expenses of the trip within 30 days of request;

• if the mother does not reimburse the father, the father will be allowed to deduct the mother’s share in the trip expenses from his child support obligation in the year 2022 in six equal installments; and

• the mother will be allowed to call the children and to have a video conference every other day between 6:00 p.m. to 7:00 p.m. CST.

Facts

[2] These are my findings of facts based on the evidence provided in the parties’ Affidavits. I relied mostly on the contemporaneous documents attached as exhibits to the parties’ Affidavits. The parties were married on April 27, 2016. They have two children, D.D., born on June 19, 2014, and B.D., born on September 11, 2015. In January 2007, the father joined the Canadian Armed Forces (“CAF”). In April 2018, the father was transferred by the CAF to Winnipeg, Manitoba. The parties separated on June 20, 2018. On March 21, 2019, the mother brought an Application to this court and it resulted in a Final Order by Pelletier J. dated June 27, 2019. The parties consented to the Final Order that states as follows:

1. The children [D.D. and B.D.] will reside with the Respondent as follows:

a) June 28, 2019 to August 21, 2019.

b) Every summer from July 2 to August 22.

c) Every other Christmas vacation from school (2 weeks) with every odd numbered year with the Applicant and even numbered years with the Respondent.

d) Every other spring school break with every odd numbered years with the Applicant and even numbered years with the Respondent.

e) Other reasonable times on at least 4 weeks notice.

4. At the Applicant’s option, the parties shall share the cost of transportation between the parties as follows:

a) share the cost equally; or

b) meet halfway between the parents’ residences and exchange the children.

The Applicant mother will inform the Respondent father in writing by May 30 each year of her choice. After such date, the Respondent father will make the decision.

[3] From July 2019 to August 2019, the children spent time with the father in Winnipeg. Due to the pandemic, the parties agreed that the children should not travel to Winnipeg to see their father for the summer of 2020.

[4] On March 25, 2021, the father sent a message to the mother advising her that he wanted to see the children for the summer. He also told her that the CAF was not permitting travel unless it was work-related. If the kids travelled to see him, she would have to travel them. He also wrote: “If and when restrictions let up there is also a chance of me being sent off for course. So things are still up in the air”. The mother responded that they could work out travel. She did not want the children to go to Winnipeg if he went on a course. The visit would have to be postponed if that happened. The mother asked the father to keep her in the loop because she wanted a plan in place by the end of April.

[5] On May 16, 2021, the mother messaged the father and advised him that the children did not want to go see him for more than one month. As parents, they had to respect the children’s wishes because they were old enough to make such a decision. If the father could not respect that, the children would not go see him at all.

[6] On May 18, 2021, the mother messaged the father and told him she needed an answer in the next few days to book her days off of work. He responded that his course ended on July 12 and his two weeks of self-isolation brought him to July 26. In addition, the father told the mother that he, like other Manitoba residents, was not allowed to leave the province. The mother asked him if he wanted the children in August instead. She also told the father that she could not afford to take enough days off to drive them all the way to Winnipeg and back. The father responded that the CAF was not allowing him to travel and that she would have to do all the travelling. The mother advised that she could not afford to take that many days off, but she was willing to drive the children to the halfway point. The father replied that if his unit said that he could not travel, he was not going to travel. The mother replied that the children would not go see the father because she could not take over a week off of work.

[7] On May 23, 2021, the mother messaged the father and told him that she had to book her days off and this was going to be the last time she was going to ask him before writing a formal email to state what was happening. She was willing to travel the children to the halfway point. Shane had checked and found out that the CAF could not withhold the father from travelling to pick up his children. Custody was not like travelling for a vacation. The mother was willing to let the children go visit their father for August or from the date of the end of his self-isolation until a week or so before school started. The mother’s boss was being lenient and gave her a few extra days to work it out with the father. If she did not hear back from him in the next few days, she would not have any days off to take the children.

[8] On May 28, 2021, the father responded that due to his unit’s discretion, he was unable to travel outside of Manitoba, but he still wanted to take the children for the summer 2021. The best he could do was to meet her near the Manitoba border to exchange the kids. The mother replied that she had already explained to him that she could not travel that far since she could not afford to take that much time off from work. She reminded him that the Final Order said they would do 50/50 travel. If he could not do so, the summer visit would not take place. The father suggested that they could look into flying the children for this year since it could possibly be easier. The mother said that she could not afford the flights. She reminded him that as per the Final Order, she was to decide how the children would travel and she decided that would be done by driving.

[9] On May 30, 2021, the mother messaged the father the following:

As per our conversations over Facebook Messenger during the month of May in reference to the children’s summer visit, due to your lack of availability to travel, the summer visit will not be happening this year. I have given ample opportunity and options for travel and timeframe, offering to drive the children to the halfway point of White River either on July 2nd and pick them up on July 30th or to drive them to the halfway point of White River at the beginning of August and pick them up a week before school begins, in order to work around your schedule with your upcoming course in July. Neither of these options have worked for you, and we were unable to come to a solution. Due to these reasons, the children will not be travelling to Winnipeg for the summer of 2021, and we will re-assess travel options for the upcoming holidays of Christmas 2021 and Spring Break 2022.

[10] On July 23, 2021, the father messaged the children stating: “You guys can still come out this summer if you would like. Daddy would really like to see you guys”. The mother responded:

If you’re gonna say that to them you’ve gotta call me so we can work that out...I offered different options for months when it came to the kids going there this summer. All of which you said no to. We are at the tail end of July and it is far too late for me to take time off to travel halfway to take them to you. It was extremely irresponsible for you to say that to the kids without consulting me at all. You do not make decisions on your own as a parent, and you do not get to make it seem like I’m the bad guy for saying no. I explained to them that you made the decision in May that you would not be able to have them and that they won’t be going this summer as it’s extremely last minute and I can’t make it happen. From now on, all of those messages need to come to me first, you’re playing mind games with your children and it’s disgusting. I will not allow it.

[11] On July 28, 2021, the father obtained permission from the CAF to travel to the halfway point in Ontario. His counsel, Mr. Snir, sent a letter to the mother advising her that she was in breach of the Final Order dated June 27, 2019 because, without valid reason, she did not provide access to the father. It was proposed that on July 30, she would drive the children to the hallway point for the exchange and the exchange of the children would be no later than August 1.

[12] On August 3, 2021, the mother sent an email response to Mr. Snir. She advised that after several weeks of discussions with the father, she offered multiple options for the summer visit. The father expressed that he was unable to “make the visit happen” and on May 30, 2021, she told the father what travel plans she could work out. The father did not reply to her after that point and due to his lack of response, the summer visit did not take place.

[13] On August 8, 2021, Mr. Snir sent another letter to the mother. He reminded her of certain terms of the Final Order and that his client had made every effort to facilitate the exchange. Mr. Snir advised the mother that she was in contempt of the Final Order and she was not acting in the best interest of her children.

[14] On August 9, 2021, the father messaged the mother and told her he wanted to have the children “immediately for my summer visit. As per our court agreement I will meet you halfway and cover my half of the travel only. Are you able to do this yes or no.”

[15] On September 8, 2021, the father filed a motion to change.

[16] On November 17, 2021, a Case Conference was held with Pelletier J. The parties did not come to an agreement regarding this issue. Both parties discussed what occurred during the Case Conference in their Affidavits. That is not appropriate. Therefore, I will not make reference to the information provided.

[17] On November 19, 2021, the father made travel arrangements for the children to travel to Winnipeg on December 19, 2021 and to return to Ottawa on January 1, 2022. Since the children are not yet at the age of flying on an “unaccompanied” status, the father bought a round-trip ticket to fly with them. He states in his Affidavit that the ticket cost him $4,054.62. If he is granted a military flight, the cost would be much less. This is the reason he bought refundable tickets.

[18] The parties agreed that the children would spend Christmas 2021 with the father notwithstanding it is not his year. There is a disagreement regarding who will pay the costs associated with transporting the children from Ottawa to Winnipeg.

Positions of the Parties

[19] The father argues that the mother should share equally in the costs of the flights as per the Final Order dated June 27, 2019 since meeting halfway was not an option.

[20] For her part, the mother argues there is a pattern where the father does not provide her the relevant information for her to fulfill the terms of the Final Order. The father should have booked the tickets earlier at a more reasonable price. She should not be responsible to pay for half of the tickets.

[21] The mother is prepared to consent to the following Order:

• the father shall have parenting time with the children from December 18, 2021, to January 3, 2022. The exact date will be determined once he obtains flight tickets for the children;

• the father shall make his best efforts to obtain assistance from his employer to secure discounted round-trip tickets between Ottawa-Winnipeg or Montreal-Winnipeg;

• the father shall fly with the children. The mother will transport the children to the airport for departure and pick them up from the airport;

• the father shall be entitled to keep the unpaid child support from July and August 2021 in the amount of $920.00 and use this to pay for the mother’s share of the cost of the Christmas flights, provided it is a commercial flight and not a military flight. This would be the mother’s full contribution to the travel costs for Christmas 2021;

• the father shall communicate the travel arrangements, including the tickets and receipts for the flights and the time and date of departure and return by no later than November 25, 2021;

• the mother shall be entitled to a video call with the children every second night from 6:00 p.m. to 7:00 p.m. CST, including on Christmas day.

Analysis

[22] Justice Pelletier’s Final Order clearly states “At the Applicant’s option, the parties shall share the cost of transportation between the parties as follows: a) share the cost equally; or b) meet halfway between the parents’ residences and exchange the children.”

[23] I will start off by making a few comments regarding the summer access. The father argues the mother unreasonably withheld his summer access with the children. He also submits that the mother has refused to abide by Pelletier J.’s Final Order. The evidence supports quite the opposite for the summer access. The evidence demonstrates that the mother’s selected option was to meet the father halfway to exchange the children. She also informed him of her choice to travel by driving and meet the father halfway to exchange the children prior to May 30, as required by the Final Order. More specifically, she sent the father messages to discuss the exchange of the children for his summer access on many occasions in May 2021. She specifically advised the father she needed an answer from him about organizing the exchange of the children to book her days off of work. Due to his work schedule, he advised that he could not travel outside of Manitoba. The mother was clear and advised the father she could not afford to take that many days off, but she was willing to drive the children to the halfway point. The father was not flexible. Notwithstanding the issue of the father’s required self-isolation due to his taking a course, the mother was willing to let the children go visit him for August or from the date of the end of his self-isolation until a week or so before school started. I find this was a reasonable position for the mother to take given the father’s responses.

[24] When the father suggested to the mother that they could look into flying the children for this year, the mother clearly responded that she could not afford the cost of flights. She rightfully reminded him that as per the Final Order, she was to decide how the children would travel and she decided that would be done by driving.

[25] I find it was inappropriate for the father to have messaged the children on July 23, 2021 telling them they could still visit him during the summer if they wished to do so. He did not respect paragraph 4 of the Final Order and tried to indirectly put pressure on the mother to change her mind with regard to the exchange of the children.

[26] On July 28, 2021, the father obtained permission from the CAF to travel to the halfway point in Ontario. By that time, it was too late for the mother to request time off of work to meet the father halfway to exchange the children. This was not her fault.

[27] As for the Christmas access, the mother has agreed that the children can spend Christmas 2021 with the father even if it is not his year. On November 19, 2021, the father unilaterally made travel arrangements for the children to travel from Ottawa to Winnipeg on December 19, 2021 and to return from Winnipeg to Ottawa on January 1, 2022. Since he must accompany the children, the father bought himself a round-trip ticket to fly with them. He states in his Affidavit that the tickets cost him $4,054.62 but he did not provide evidence to support his claim. At the hearing, I asked Mr. Snir to provide my office with copies of the tickets that the father purchased. Mr. Snir provided the tickets. The tickets show that he purchased them on November 19, 2021 and the flights are as follows:

• father’s ticket o December 18, 2021 – Winnipeg to Toronto – Toronto to Ottawa o January 1, 2022 – Ottawa to Toronto – Toronto to Winnipeg o Total cost = $954.27.

• father’s ticket o December 19, 2021 – Ottawa to Winnipeg o January 1, 2022 – Winnipeg to Toronto – Toronto to Ottawa o Total cost = $1,033.45

• D.D.’s ticket o December 19, 2021 – Ottawa to Winnipeg o January 1, 2022 – Winnipeg to Toronto – Toronto to Ottawa o Total cost $1,033.45

• B.D.’s ticket o December 19, 2021 – Ottawa to Winnipeg o January 1, 2022 – Winnipeg to Toronto – Toronto to Ottawa o Total cost $1,033.45

[28] The parties agreed that the children would spend Christmas 2021 with the father notwithstanding it is not his year. There is a disagreement regarding who will pay the costs associated with transporting the children from Ottawa to Winnipeg. This leads me to return to the wording in the Final Order. Based on paragraph 4a), I find that the parties must share the costs to travel the children from Ottawa to Winnipeg equally.

Conclusion

[29] For the reasons noted previously, I make the following Order:

a) the father shall have parenting time with the children from December 18, 2021, to January 1, 2022;

b) although the father has already purchased the flights, the father shall continue to make his best efforts to obtain assistance from his employer to secure discounted round-trip tickets between Ottawa-Winnipeg and Winnipeg-Ottawa;

c) the father shall fly with the children;

d) the mother shall transport the children to the airport in Ottawa for their departure and pick them up at the airport after their arrival in Ottawa;

e) the father shall communicate the travel arrangements, including providing a copy of the flight tickets and receipts, by December 17, 2021;

f) each party is responsible to pay half of the cost of $4,054.62 for for the father, D.D. and B.D.’s flights. Should the father purchase cheaper tickets, the parties will each be responsible to pay half of that cost;

g) the mother must reimburse the father the amount noted in paragraph 29(f) within 30 days of his request; and

h) the mother shall be entitled to a video call with the children every second night from 6:00 p.m. to 7:00 p.m. CST, including on Christmas day.

Costs

[30] I strongly encourage the parties to agree to the issue of costs. If the parties cannot agree as to costs, they may serve and file brief written submissions on costs not exceeding three pages, exclusive of the Bill of Costs. The father will have ten days from the date of this Decision to serve and file his submissions and the mother will have ten days thereafter to do the same. The father will be allowed a brief reply if deemed necessary, of no more than one page which shall be served and filed within five days thereafter. The submissions are to be e-mailed to the L’Orignal Trial Management.

Justice M. O’Bonsawin

Released: December 16, 2021

COURT FILE NO.: FC-2019-50-0003

DATE: 2021/12/16

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Samantha Paige Mayer Graham Applicant

– and –

Nathan Jacob Desgagne Respondent

REASONS FOR DECISION

respondent’s motion

O’Bonsawin J.

Released: December 16, 2021