Thompson v. Phillips, 2011 ONCJ 96

Brampton Registry No. 874-09 DATE: 2011·II·22 CITATION: Thompson v. Phillips , 2011 ONCJ 96 ONTARIO COURT OF JUSTICE BETWEEN: ELLIOTT THOMPSON, Applicant, — AND — COLLEEN PHILLIPS, Respondent. Before Justice Juliet C.

Baldock Heard on 15 February 2011 Reasons for Judgment released on 22 February 2011 CUSTODY OF CHILD — Form of order — Joint custody — Grounds — Ability of parties to co-operate — Each parent was totally devoted to daughter (now 5½ years old), but mother was primary caregiver since they separated 3½ years ago — Instead of working with mother to resolve any issues, father tended to magnify them and to seek intervention of authorities (such as children’s aid society or police) or to rush to court on “emergency” ex parte motions, all of which proved to be without justification — He also failed to appreciate that this “shoot first” response might have adverse effect on child — Fact that parties were no longer able to arrive at joint decisions for daughter doomed prospect for joint custody — Court therefore had no choice but to give decision-making power to one parent and found that mother had greater level of maturity and understanding of child’s needs and was in best position to make decisions for girl’s future — Nevertheless, father was to enjoy generous access and to have every opportunity to communicate with girl’s teachers and others involved in her education, health and welfare.

STATUTES AND REGULATIONS CITED Family Law Rules , O. Reg. 114/99 [as amended], clause 14(6) ( e.2 ) and Form 14B. Applicant father, Elliott Thompson ....................................................................... on his own behalf Respondent mother, Colleen Phillips ................................................................... on her own behalf [ 1 ] JUSTICE J.C. BALDOCK:— This is an application for custody of one child, Ishay Amara Thompson (“Ishay”), born on 28 June 2005. [ 2 ] The father commenced the application in June 2009.

At that time, he also brought an emergency motion on an ex parte basis for shared custody, non-removal and a restraining order. An order was granted preventing either party from removing the child from the Province of Ontario and the applicant’s motion was otherwise dismissed. [ 3 ] The matter was returned to court on 30 July 2009 at which time the father renewed his motion citing concerns with respect to the mother’s care of the child. Justice Manjusha B.

Pawagi’s endorsement of that date includes a notation that, if the father believed the child to be at risk, he should contact the children’s aid society. [ 4 ] An order was made requesting the involvement of the Office of the Children’s Lawyer. [ 5 ] In September 2009, the case was again before Justice Pawagi, at which time the children’s aid society had reported that there were no protection concerns and that the allegations made by the father were not verified.

[ 6 ] On 20 October 2009, the applicant father brought a “14B” motion under clause 14(6)( e.2 ) [procedural, uncomplicated or unopposed matters] of the Family Law Rules , O. Reg. 114/99 [as amended], via Form 14B, seeking to have his motion for interim custody heard at the upcoming case conference date, citing “extreme urgency”. On reviewing that motion, Justice Pawagi found that there was no evidence to support the claim of urgency. The matter then proceeded to case management on the scheduled date of 30 October 2009, by which time the Office of the Children’s Lawyer had declined to become involved.

Justice Pawagi noted that the Peel children’s aid society reported no protection concerns with respect to the mother, but did raise concerns that the child could be at emotional risk due to the conflict between the parties. [ 7 ] A temporary and “without prejudice” order was made for Ishay to have her primary residence with the respondent mother with a

schedule of access to the applicant father. [ 8 ] There were several further adjournments to address financial issues and disclosure. On 12 July 2010, the father brought another “Form 14B” motion requesting a date for a motion for custody on an urgent basis.

This was dismissed as urgency was not demonstrated. [ 9 ] The interim arrangement ordered in October, 2009 continued in place through several further adjournments, most of which were to allow for financial disclosure until this trial. [ 10 ] Both parties, who were unrepresented by counsel, testified as did three other witnesses for the applicant (a cousin, a friend and a teacher) and one (the maternal grandmother) for the respondent. [ 11 ] One issue has been contentious throughout and that is: Who has historically been the primary care giver? [ 12 ] The applicant testified that he still lives in the same apartment where Ishay has resided “since she was born”.

It was his evidence that, on separation, the respondent essentially left Ishay in his care. According to him, the arrangement was that the mother took Ishay to her school-daycare early in the morning and he would pick her up in the afternoon and keep her until the mother came to collect her, often late at night. He would also have her on alternate weekends. [ 13 ] To some extent, this was confirmed by the respondent who was, for a time, working an afternoon shift as a courier driver.

However, I accept that she generally picked up Ishay by 9.30 p.m. and was only later if delayed by weather, traffic or a delivery that took her some distance away. [ 14 ] This arrangement did not, however, continue as the mother found different employment. The mother also testified that, after Ishay was born, she resided with her own mother in Ajax and, although she did spend extended periods of time with the applicant, she did not in fact move into his residence until Ishay was approximately 10 months old.

The parties only resided together until June 2007 a period of just over a year. [ 15 ] I accept the father’s evidence that he has been very involved in Ishay’s life. It was very clear to me from his evidence that he delights in his daughter’s company and is truly devoted to her. He is clearly very proud of Ishay and her accomplishments. He reads with her, takes her swimming, spends time with her on the computer and involves her in his love of music and other activities.

He is adamant that he is the better parent and that, as a result of their close bond, he should have custody. [ 16 ] The applicant also expresses his concerns regarding the mother’s care. He alleges that she does not always dress the child properly and that Ishay’s level of hygiene is poor. In support of his position, he called as a witness Ms. Pamela D’Mello a teacher at the private school that Ishay attended for a time. [ 17 ] When asked whether he had complained about Ishay’s condition when he picked her up, Ms. D’Mello noted that her clothing was sometimes dirty when the father returned her to school.

The applicant asked her whether he had not pointed out that these were the clothes that the respondent had provided, to which Ms. D’Mello responded that, as the child had been with him all weekend, he could have provided clean clothing. [ 18 ] The respondent testified that the father had made reports to the children’s aid society and to the police regarding her care of Ishay. All of these allegations were investigated and none were found to give rise to any concerns. [ 19 ] The applicant was generally critical of the mother for failing to respond promptly to certain incidents that occurred at Ishay’s school.

One of these was when a boy of about the same age lifted up her clothing.

I am satisfied that, once she became aware of the incident, the mother took reasonable steps to address the matter by speaking with the teacher and the boy’s mother. [ 20 ] Similarly, when Ishay was inadvertently scratched by a teacher who was removing a food item from the child’s mouth, the mother’s reaction, once she had become aware of the matter, was entirely reasonable and proportionate to the nature of the event. [ 21 ] I am troubled by the fact that father has been quick to involve authorities such as the children’s aid society and the police when these kinds of incidents, which are common and to be expected in the life of any small child, occur.

It is not in the child’s best interests to be interviewed numerous times over relatively trivial matters that are better handled by the parents themselves. That of course presupposes that the parents can in fact communicate regarding their child, which, sadly, is not the case here. [ 22 ] The witnesses in support of the father’s claim all confirmed that Ishay is a happy, intelligent, confident and agreeable child who does not pose any problems in terms of behaviour or discipline. The applicant’s cousin, Terrence Thompson, spoke warmly about Ishay and her excellent relationship with the applicant.

His friend, Donald Marson, was somewhat vague and unfocused in his evidence, which I did not find very helpful. [ 23 ] The maternal grandmother, Annette Phillips, confirmed that, following Ishay’s birth, the respondent mother lived with her and the baby for several months. She recalled it as being about a year, but I accept that, as stated by the respondent, it was in fact approximately 10 months.

[ 24 ] Both parties testified in a straightforward manner and, although they have somewhat different perspectives regarding the history of events, I conclude that they each have a close, loving and positive relationship with Ishay. [ 25 ] Whatever the arrangement immediately post separation, Ishay has, for some time now, been residing with the mother. She attends senior kindergarten at a nearby Catholic elementary school. The mother has married and her household includes her husband and their three-month-old daughter. [ 26 ] She is reportedly doing very well in school and has a lust for life and learning.

The time that she spends with her father is important to her and the mother is supportive of that relationship, although she does express some concerns that the applicant is undermining her own role by speaking derogatorily about her residential neighbourhood, her husband, etc . The applicant was not asked any questions in this regard so he was not given an opportunity to deny the allegations. However, he did, in his evidence in chief, mention that he thought the respondent’s residence was not in a good area.

In any event, if such comments are being made, they must cease as it will only cause fear and anxiety in the mind of Ishay. The mother testified that the father became less co-operative and engaged in some stalking behaviour when he realised that she had moved on with her life and was in a permanent relationship with someone else. [ 27 ] The mother is currently at home full time as she is on maternity leave. Her plan is to return to work in the fall. Ishay will then be in school full time but would require day care before and after school.

She is content for the father to have access on alternate weekends and one night a week as he does now, as well as additional time in the summer and other holidays. [ 28 ] Ishay is currently enrolled in dance and enjoys summer camp and other activities. The mother would like her to take piano lessons as well. [ 29 ] Overall, I found the mother to have a greater level of maturity and understanding of Ishay’s needs. Although the father is clearly devoted to Ishay, he appeared to lack insight as to how his behaviour could adversely affect her.

Although he may have genuinely believed that there were issues requiring the intervention of the authorities, he failed to work with the mother in resolving them and was quick to involve outside agencies when it was not necessary. He also failed to appreciate that there might be a negative impact on Ishay. [ 30 ] Fortunately, this little girl seems to have weathered these intrusions unscathed, but it is important that she not be afraid to report problems for fear of the outcome. [ 31 ] I find that the parties essentially shared the care of Ishay following their separation.

It was an arrangement that was necessary at the time to allow the respondent mother to work at her job with its difficult hours. She did move residences a number of times as she did not have funds to pay for an apartment. However, she is now well established and Ishay enjoys a stable home environment. [ 32 ] This is a situation where joint custody would be an attractive prospect were it not for the fact that the parties are unable to make joint decisions for Ishay. In these circumstances, there is no alternative but to give the decision-making authority to one parent.

I am satisfied that the respondent mother has responded to Ishay’s needs and is in the best position to make decisions for her in future. This is not to say that the applicant father should be excluded from any aspect of her life and he will have generous access and will certainly have every opportunity to communicate with her teachers and others involved in her education, health and welfare. [ 33 ] As to the financial issues, the mother is entitled to receive support and a contribution to extraordinary expenses.

The father states his income to be approximately $23,000.00 from his business as a dealer in scrap metal. He is self-employed and his taxable income is not therefore an accurate reflection of his income for support purposes. He owns his own truck and is able to deduct various expenses that have a personal component. [ 34 ] Unfortunately, the applicant has not provided a copy of any year-end business statement or other evidence from which one could accurately determine his true income for guideline purposes.

I therefore impute an income of $28,000.00, having regard to the nature of his business and the available write-offs. [ 35 ] Final order to issue: 1. The respondent mother shall have sole custody of the child Ishay Amhara Thompson, “the child”, born on 28 June 2005. 2. The applicant father shall have liberal and generous access to the child to include: (

a) Regular schedule: (

i) Alternate weekends from Friday after school until Monday morning when she is to be returned to her school. If the Monday is a statutory holiday, then the visit is extended to Tuesday when the child shall be returned to her school. (ii) One evening per week (which, unless otherwise agreed, shall be Thursday) wherein the applicant shall collect the child from school and return her to the respondent at 7.00 p.m.; (

b) Summer vacations: the applicant shall have the child for two non-consecutive weeks during the summer school holidays; such weeks to be selected by 30 April each year. If no selection has been made by the applicant by this date, the respondent may

schedule her own vacation time, summer camp or other activities for the child and shall notify the applicant of such arrangements as soon as they are known. (

c) School Break: the applicant shall have the child for one half of the spring school break each year commencing 2011. If the applicant’s regularly scheduled weekend access falls at the end of the school break, he shall have the child from 3.00 p.m. on the preceding Wednesday until the usual return time of 7.00 p.m. on Sunday. If the applicant’s regularly scheduled access weekend falls at the beginning of the school break, his weekend shall be extended to 7.00 p.m. on the Wednesday. There shall be no other overnight visit during that week.

(

d) Christmas: the applicant shall have the child for Christmas on an alternating basis commencing 2011 and every odd-numbered year thereafter being from 1.00 p.m. on 24 December to 1.00 p.m. on 25 December and, commencing 2012 and in every even-numbered year thereafter, from 1.00 p.m. on 25 December to 1.00 p.m. on 26 December. (

e) Father’s Day: the applicant shall have the child for Father’s Day each year, from 10.00 a.m. to 7.00 p.m., regardless of the regular schedule. (

f) Additional time: The applicant shall have the child for such additional or alternate time as the parties may agree, having regard to: (

i) the parties’ own schedules; (ii) special events; (iii) the changing needs of the child; and (iv) unforeseen circumstances. (

g) Exceptions to the schedule: the regular

schedule of access set out above shall be suspended ( i.e. , not made up) to allow for the following: (

i) The mother’s vacation time with the child, not to exceed 18 consecutive days, or 28 days in total (ii) Mother’s day. If this falls on the applicant’s regularly scheduled weekend, the child shall be returned to the respondent at 10.00 a.m. and shall remain with her overnight. (

h) Cancellations: in the event that the applicant father cancels or curtails an access visit, it shall not be made up. In the event that the respondent mother cancels an access visit for any reason other than the child’s illness, it shall be made up as soon as possible. 3. The applicant father is entitled to communicate directly with, and receive information from the child’s schools, day-care providers, health care practitioners and any other professional persons involved in her care, education, health and welfare. 4.

The respondent mother shall keep the applicant father informed as to the names, addresses and contact numbers for those persons described in paragraph 3 hereof and shall provide him with a copy of the child’s health card. 5. The respondent mother shall not change the residence of the child from within the Regional Municipality of Peel without the applicant father’s consent or further court order (such consent not to be unreasonably withheld). 6. The respondent mother is entitled to obtain, renew and retain a passport and other travel documents for the child without the consent of the applicant father. 7.

The respondent mother is entitled to travel with the child, or authorize her travel within or outside Canada for vacation purposes, not to exceed 18 days, without the respondent’s consent. 8. For any proposed trip with the child outside Canada exceeding 48 hours, the respondent mother shall provide the applicant father with a detailed itinerary to include: destination, contact information, dates and mode of travel. 9. The parties shall each refrain from saying or implying anything negative about the other to, or in the presence of, the child. 10.

The applicant shall pay to the respondent for the support of one child the sum of $246.00 per month, commencing on 1 March 2011, based on an imputed income of $28,000.00 per year. 11. The applicant shall pay 30% of any day-care expenses incurred by the respondent to commence when she returns to full time employment. The respondent shall provide the applicant with receipts for the expense and he shall pay his share within 30 days thereof.

In the event of any default in payment, the respondent may seek to have such payments enforced by the Family Responsibility Office by filing an affidavit of arrears with receipts attached with that office. 12. Each party may enrol the child in one or more extracurricular activity at his or her own expense but shall not do so for the purpose of limiting the other party’s time with the child.

The parties are to co-operate with one another in providing information as to such activities including advance notice of any games, recitals, etc. , that may be open to parents or the public and each is at liberty to attend. 13. There shall be no order as to costs.