COURT FILE NO.: FC-21-1850
DATE: 2022/08/19
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Cassondra Elyse Vallee
Applicant
– and –
Christopher Evan Inglis
Respondent
Marc Coderre, for the Applicant
Respondent, Self-Represented (in default)
HEARD: August 18, 2022
REASONS FOR DECISION ON UNCONTESTED TRIAL
PARENTING
Somji j.
Overview
[1] The parties married on May 18, 2012, and separated on May 16, 2020. They have one child together C.I. who is presently 11 years of age (“child”). The mother brought an Application to Family Court for a parenting order. The father was noted in default and the matter proceeded to an uncontested trial.
[2] The issues to be decided at trial are:
a. Have the grounds for an uncontested trial been established?
b. What parenting order is in the best interests of the child?
Analysis
Issue 1: have the grounds for an uncontested trial been established?
[3] Rule 10(1) of the Family Law Rules, O. Reg. 114/99 (“FLR”), provides for 30 days in which a Respondent may serve and file an Answer, failing which “[t]he consequences set out in paragraphs 1 to 4 of subrule 1 (8.4) apply” pursuant to r. 10(5). One of those consequences is the option to proceed to an uncontested trial of the case.
[4] An “uncontested trial” is defined at r. 2(1) as “a trial at which only the party making the claim provides evidence and submissions.”
[5] The mother brought her Application on September 2021 with the Superior Court of Justice, Family Court. It was properly served on the father on October 25, 2021. The father did not respond in the requisite 30 days as per the FLR. On December 21, 2021, the Honourable Justice Shelston noted the father in default and authorized the mother to proceed by way of an uncontested trial. On April 12, 2022, I issued an endorsement indicating that further to Justice Shelston’s order, the matter should be scheduled for an uncontested hearing for today’s date.
[6] Affidavit evidence may be relied on at an uncontested trial unless the court directs that oral evidence be given: r. 23(22) FLR. In support of her position, the mother relies on her Affidavit dated January 28, 2022, and supporting exhibits. I have also considered the mother’s materials filed in support of her Application.
Issue 2: Is it in the best interests of the child to grant the parenting orders requested?
[7] The best interests of the child is the primary consideration in determining a parenting plan: Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 24 (“CLRA”). Section 24 of the CLRA endorses a child-centered approach in determining parenting orders: Young v Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at pp. 62-63, per L’Heureux-Dubé J.; Knapp v Knapp, 2021 ONCA 305, at para. 34.
[8] The best interests of the child requires primary consideration of the children’s physical, emotional and psychological safety, security and well-being: CLRA, ss. 24(1)-(2). Section 24(3) CLRA lists additional factors that must be considered. The CLRA provisions read as follows:
Best interests of the child
24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section. 2020, c. 25, Sched. 1, s. 6.
Primary consideration
(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. 2020, c. 25, Sched. 1, s. 6.
Factors
(3) Factors related to the circumstances of a child include,
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. 2020, c. 25, Sched. 1, s. 6.
[9] In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person, unless the conduct is relevant to the exercise of the person’s decision-making responsibility, parenting time or contact with respect to the child. S. 24(5) CLRA.
[10] In this case, the mother seeks a parenting plan that provides a) sole decision-making for the child to her; b) that the child live primarily with her; and c) that the father have parenting time with the child on alternate weekends during the school year and on a 50/50 parenting schedule during the summer.
[11] Upon review of the mother’s affidavit, I find it is in the best interests of the child to grant the terms of the parenting order requested. In arriving at my decision I have considered all the best interests factors. Below, I refer to the ones that are most pertinent to the matter.
Primary residence and parenting time
[12] The mother is supportive of the child’s continued relationship with her father, but given recent changes she seeks to have the child reside primarily with her with the father having parenting time on alternate weekends during the school year and on a week on/week off basis in the summer months for the following reasons.
[13] First the mother lives in Ottawa while the father lives in Rockland. The child attends school in Ottawa (Orleans). The father does not have a driver’s licence because of an impaired conviction. Therefore, he is not in a position to guarantee pick up and drop off for the child while she is in school. I find that given the child’s age, stage of development, and need for stability, it is in her best interests to reside with her mother during the school year to ensure timely attendance at school: s. 24(3)(a) CLRA.
[14] Second, the mother was the primary caregiver following the parties’ separation in 2020 and the child had residence with her. When the child moved to remote learning during the COVID-19 pandemic, the parents were agreeable to shared parenting for a short period of April to the summer of 2021. However, since the September 2021, the parents have returned to the child residing with the mother during the school year and having alternate weekends at the father’s residence. This parenting arrangement has worked to date. I find the history of the child’s care warrants a continuation of the existing parenting arrangement: s. 24(3)(d) CLRA.
[15] Third, each party is in a new relationship. The mother support the child’s relationship with the father and his new girlfriend. She is agreeable that during the summer months when there is no school, the parents share the child on a week on/week off basis. I find the mother has demonstrated her willingness to support the development and maintenance of the child’s relationship with the other parent and this favours the parenting order requested: 24(3)(c) CLRA.
[16] Finally, the father has not participated in these proceedings having had opportunity to do since October 2021. He has not offered any alternate plan of care. The mother has proposed a plan that is consistent with the status quo and takes into consideration the child’s present age, schooling, and personal circumstances. I find the mother’s plan of care warrants the order requested: s. 24(3)(g) CLRA.
[17] There will be a Final Order that the child will have primary residence with the mother during the school year with the father having parenting time every second weekend from Friday after school until Monday morning. During the summer school holiday, the parents will have equal parenting time on a week-on week off basis.
[18] School and statutory holidays will be shared equally by the parties as proposed in the mother’s draft Order. Parenting time during any school holidays that are not set out in the parenting Order will be determined upon agreement of the parties.
Decision-making responsibility
[19] The mother seeks sole decision-making responsibility for the child on the grounds that the father has exercised poor judgment with respect to decisions around the child. As an example, she reports that the child had suffered an accident resulting in severe burns while riding a gas powered dirt bike while in the father’s care in August 2021. The father only informed the mother of the accident on the following day and failed to take the child to see a doctor after being requested to do so from the mother. The mother eventually retrieved the child the following day, had her medically treated, and paid for all prescriptions. An infection had commenced by the time the mother got the child the necessary medical treatment. Furthermore, the child reported to the mother that the father had taken her to a shooting range that same day to operate handheld guns rather than get medically treated and also told her not to tell the mother about the injury.
[20] The father has not responded to this proceeding to challenge the account nor has he presented an Answer outlining his involvement with the child and his ability to make decisions for her.
[21] The mother is 32 years of age. She works as a director of child care. She has been the primary caregiver for the child. Her responses to the incident of August 2021 demonstrate that she is able to make sound medical decisions relating to the child.
[22] Based on the pleadings filed and having considered the best interests factors, in particular s. 24(3)(a), (d), (g), and (h), I find it is in the best interests of the mother to have sole decision-making responsibility for the child on all matters after reasonable consultation with the father. The mother should inform and consult with the father of any major decisions she seeks to make with respect to the child. Should there be any disagreement, the mother is entitled to make the final decision.
[23] Furthermore, while each parent in whose care the child is would normally be responsible for day to day decisions, there will be an additional order that when the child is in the father’s care, he will inform the mother immediately if the child’s health is at risk.
Other issues
Divorce
[24] The mother seeks a divorce. The mother has filed the requisite documents in support of the divorce application. There will be an order for divorce pursuant to the Divorce Act. The terms of the parenting Order described above will be included as part of the Order.
Child support and s. 7 expenses
[25] Counsel for the mother stated that he did not originally seek child support on behalf of the mother as the parents were previously under a shared parenting regime for a period of time. Residency during the school year has since changed, and the mother now seeks ongoing child support. Counsel informed the court that the mother understood the father to be working but has recently learned that he may now be earning disability income.
[26] The father has neither participated in these proceedings nor provided any financial disclosure to the mother to confirm his financial situation.
[27] Leave is granted for the mother to amend her pleadings to seek child support and s. 7 expenses going forward. The amended application shall be served on the father and filed with the court. Should the father wish to respond on the issue of child support and s. 7 expenses, he may do so upon filing his own materials within the requisite 30 days.
[28] The issue of child support and s. 7 expenses is adjourned to a hearing date this fall. Counsel for the mother will obtain a date from the Trial Coordinator for 1 hour in October 2022 before me, and inform the father accordingly of the next court date. Otherwise, the matter shall proceed as a continuation of the uncontested trial on the remaining support issues.
Costs
[29] The mother seeks costs for the uncontested trial. Total billings related to the motion are $3,322.97. This amount does not include counsel’s additional costs for the Application of $2,405 nor does it include costs for counsel’s attendance at the hearing today.
[30] Upon review of the Bill of Costs, I find the amount charged of $370/hour was reasonable given counsel’s 30 years of experience. Counsel spent time preparing affidavits, pleadings and supplementary submissions, all of which was appropriate considering the complexity of the issues on the motion. Counsel’s billings are reasonable.
[31] In considering a costs award, I must consider the financial means of the parties, their ability to pay, and the effect of any costs ruling on the parties and children: Fyfe v Jouppien, 2012 ONSC 97, 10 R.F.L. (7th) 371 at para 11; M(A.C.) v M (D.) (2003), 2003 CanLII 18880 (ON CA), 67 O.R. (3d) 181 (C.A.) at para 45. In this case, I have been informed that the father is presently on disability.
[32] Having considered that the mother is the successful party, the father’s conduct in that he has failed to respond to these proceedings which could have been resolved on agreement, the complexity of the issues, the reasonableness of the costs request, and the father’s ability to pay, I find that a costs award to the mother in the fixed amount of $2,000 for the uncontested trial on the issue of parenting alone is fair and reasonable in this case.
[33] A costs award for $2000 against the father payable to the mother will be issued following the disposition of the remaining matters of child support and s. 7 expenses in the fall of 2022. The mother is entitled to seek additional costs for those proceedings. Should child support be ordered, consideration will be given to having the entire costs award from both proceedings form part of a support deduction order.
Order
[34] There will be a Final Order pursuant to the Divorce Act on the following terms and conditions:
The parties are divorced. The divorce shall take effect 31 days from the date of this Order.
The applicant shall have sole decision-making responsibility for the child, C.I. born July 3, 2010, on all matters, including health and education, after reasonable consultation with the father.
The child, C.I., born July 3, 2010, shall have her primary residence with the applicant during the school year running from September to the end of June.
During the school year running from September to the end of June, the child, C.I., born July 3, 2010 shall have parenting time with her father every 2nd weekend from Friday after school until Monday morning.
During the summer school holiday running from the start of July to the end of August, the parents will have equal parenting time on a week-on week off basis.
When the child is in the father’s care, the father will inform the mother immediately if the child’s health is at risk.
Unless the parties agree otherwise, the parties shall share the holidays mentioned hereunder on the terms set out in this Order:
a. The child will be with her mother on Mother’s Day Sunday;
b. The child will be with her father on Father’s Day Sunday;
c. The child will be with her mother during March break in even-numbered years. March break shall be the period running from Friday after school until the Sunday before the children return to school;
d. The child will be with her father during March break in odd-numbered years. March break shall be the period running from Friday after school until the Sunday before the children return to school;
e. For Easter in each and every year, the child will be with her mother on Easter Sunday and Easter Monday and with her father on Easter Friday and Easter Saturday;
f. During the child’s summer school holidays corresponding to the Ontario school holidays for children, the child will be with her parents on a one week on one week off basis, the exchange day being on Fridays at 4 PM;
g. For Christmas in even-numbered years, the child will be with her mother from December 24 at noon until December 25 at noon and with her father from December 25 at noon until December 26 at noon;
h. For Christmas in odd-numbered years, the child will be with her father from December 24 until December 25 at noon and with her mother from December 25 at noon until December 26 at noon.
[35] Parenting time during any school or statutory holidays that are not set out in this parenting Order will be determined upon agreement of the parties.
Somji J.
Released: August 19, 2022
COURT FILE NO.: FC-21-1850
DATE: 2022/08/19
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Cassondra Elyse Vallee
Applicant
– and –
Christopher Evan Inglis
Respondent
REASONS FOR DECISION ON UNCONTESTED TRIAL
PARENTING
Released: August 19, 2022