Pajunen v. St. Pierre, 2010 ONCJ 759

Sault Ste. Marie Registry No. 148/2007 DATE: 2010·XII·01 CITATION: Pajunen v. St. Pierre , 2010 ONCJ 759 ONTARIO COURT OF JUSTICE BETWEEN: ) ) DAVID PAJUNEN ) David Pajunen, ) On his own behalf ) ) — AND — ) ) ) LISA St. PIERRE ) Romuald F. Kwolek, for Lisa St. Pierre ) ) ) ) ) ) Heard on 10-12 May 2010 [ 1 ] JUSTICE J. KUKURIN:— Geography plays a major role in this contested case involving claims for sole custody of the child Nathaniel (age eight) by each of his parents, Lisa and David. Lisa lives in Thunder Bay. David lives in Sault Ste. Marie. These cities are close to 900 kilometres apart.

The transportation links are by air, which is pricy, or by road, which is long and tedious — and also somewhat pricy. Neither parent owns an automobile. Both are of rather modest means. 1: BACKGROUND [ 2 ] Nathaniel lives with his mother Lisa in Thunder Bay and has done so since early July 2007. His relationship with his father, David, has, since that time, been fostered primarily through access visits, both in Thunder Bay, as well as in Sault Ste. Marie. [ 3 ] The story of David and Lisa is unremarkable. It is a sad story that plays out in every generation. Their relationship started in late 2001.

By early 2002, they were living together, but not very happily. David was at the point of pulling the plug on their relationship when Lisa told him that she was pregnant. They talked about adoption and abortion. What each of them may have said at the time depends on who one is inclined to believe. They chose neither. Nathan was born. David and Lisa remained together. Neither recounts many happy times as Nathan was growing up, but their recollections are undoubtedly pejoratively skewed by the fact that they are now locked into an emotional battle for custody of their son. [ 4 ] Lisa’s family is from Thunder Bay.

David moved to Thunder Bay in 1999. He is from Sault Ste. Marie. They started cohabiting in early 2002 in Thunder Bay. Nathan was born in October 2002. By July 2003, David and Lisa separated. I infer from the evidence that Nathan remained in Lisa’s care at the time. The separation was brief. They reconciled within a month. In September 2003, David, Lisa and Nathan moved to Sault Ste. Marie. This move resulted from David’s insistence. It is evident that he was not happy in Thunder Bay. His relationship with Lisa’s family was not particularly amicable. He was not working after Nathan was born.

The relationship with Lisa was tenuous, even following the reconciliation. His mother lived in Sault Ste. Marie. He had roots there, although he had not actually lived there in well over a decade. [1] It seems, in retrospect, that the move may have been seen as a new start. Lisa agreed to relocate, but not enthusiastically. [ 5 ] Unfortunately, Sault Ste. Marie did not provide a venue for domestic bliss for either party. Both Lisa and David worked at various jobs while residing in Sault Ste. Marie.

Like any young couple, they were trying to make ends meet and juggling work schedules with childcare responsibilities. There were many stresses. The relationship between David and Lisa did not thrive. Lisa did not form an attachment to Sault Ste. Marie. She missed her hometown of Thunder Bay. She missed her family. She made few, if any, close friends in Sault Ste. Marie. The relationship between David and Lisa was not one of mutual support. It was, in retrospect, dysfunctional, and doomed to fail. They did not solve their problems. They carried them along when they moved to Sault Ste.

Marie. [ 6 ] In fact, their problems escalated in quantity and in gravity. One problem arose with respect to Nathan. Eventually, he became old enough to start school where he was identified with social difficulties and with some atypical behaviours. He was referred for an Autism Assessment, a process that spanned a year from May 2008 to May 2009. The ADOS [2] scores suggested that Nathaniel was in a range indicative of an Autism Spectrum Disorder. Direct assessment and observation of Nathaniel’s presentation was highly suggestive of an Autism Spectrum Disorder.

However, the diagnosis of this disorder is based on several criteria, one of which includes reports from both parents of the child. David maintained that Nathaniel’s presentation, when in his care, was “remarkably and totally different” than what was observed in the assessment process. In addition, it was unclear to what extent Nathaniel’s domestic situation, caught between warring parents, was impacting on this presentation. As a result, no formal Autism Spectrum Diagnosis was made.

[ 7 ] Although Nathaniel’s assessment took place in 2008-2009, the signs of a potential problem started earlier and became another concern for his already stressed parents. The parental relationship became more caustic and more toxic. It became only a matter of time. [ 8 ] That time was early July 2007. Following one of many verbal exchanges, Lisa left the family home taking Nathaniel with her. She went first to Women in Crisis, a Sault Ste. Marie agency providing shelter services for women. She stayed there for two days, July 6 to July 8. She then left with Nathaniel and went to Thunder Bay.

David was at work when she left the home. He did not know where she and Nathan were. She didn’t leave a note. She didn’t contact him. 2: HISTORY OF COURT PROCEEDINGS [ 9 ] Evidently, David suspected she might go to Thunder Bay. He started this proceeding in this court at Sault Ste. Marie. His application is dated July 7, 2007, the day after Lisa left their home. It was filed with this court on July 9, 2007. One of his claims is for an order that Nathaniel not be removed from Sault Ste. Marie. This application was not served on Lisa in July, only because David could not find her to do so.

Eventually, he obtained an order in late August 2007 permitting him to serve Lisa by mail at her mother’s address in Thunder Bay. [ 10 ] However, Lisa was not simply hiding. On arriving in Thunder Bay, she very quickly saw a lawyer and started her own application in this court at Thunder Bay. At the same time, she brought a motion, without notice to David, for interim custody of Nathaniel, for interim child support, and for a restraining order against David to prohibit him, among other things, from “communicating” with both Lisa and Nathaniel. All her initial documents were dated July 11, 2007.

Her application and motion were filed on July 11, 2007. [ 11 ] On July 12, 2007, an ex-parte [3] interim order was made by the court in Thunder Bay. It gave interim custody to Lisa. It included a restraining order against David to remain in force until August 27, 2007, the first return date of Lisa’s application. [ 12 ] David became aware of this interim order and of the application in Thunder Bay. He retained a Thunder Bay lawyer and brought a motion to dismiss Lisa’s application, or alternatively to transfer it to the court in Sault Ste. Marie. That motion was heard on September 14, 2007.

The Thunder Bay court transferred Lisa’s case to Sault Ste. Marie. It maintained in force the interim custody order “subject to review” by the Sault Ste. Marie court. [4] It provided for paternal access two weekends per month, with each parent to transport the child for one of these monthly visits. It also included a police assistance order. [ 13 ] On October 17, 2007, the parties agreed that the twice per month exchanges for access would take place at the Supervised Access Centres in each city.

An order requesting OCL services was also made. [5] David retained a local counsel and amended the claims in his application. A case conference was held. A date was set for February 19, 2008 to argue interim relief claims. [ 14 ] That hearing resulted in the order of Humphrey J. dated February 19, 2008 confirming the interim custody of Lisa, giving David reasonable access on reasonable notice to Lisa, and, for clarification and certainty, vacating the prior interim restraining order against David.

The reasons of Humphrey J. were set out in a lengthy endorsement which made it quite clear that the “reasonable” paternal access contemplated was “no less and no different” than the twice a month access that was already in place, augmented by extended periods of special occasion access and other reasonable access that might be agreed upon by the parties. Humphrey J. also ordered that costs of the motions he heard were to be reserved to the trial judge. [6] [ 15 ] It is worthwhile to examine just what was argued before Humphrey J.

For the Thunder Bay case, the motions outstanding at February 19, 20089 were the following:

(1) Lisa’s motion at Tab 1 (initially brought without notice);

(2) David’s motion at Tab 5;

(3) David’s motion at Tab 9. In the Sault Ste. Marie case, the motions outstanding at February 19, 2008 were the following:

(1) Lisa’s motion at Tab 6;

(2) David’s motion at Tab 9. [ 16 ] There were multiple claims made by each

part in their motions. The only order that resulted was for interim custody, interim access and (reserved) costs. None of these motions was further adjourned. Accordingly, it is a reasonable inference that whatever other claims may have been included in these motions, they were dismissed. There was no judicial reference to any of such other claims. [ 17 ] This interim custody order has remained basically unaltered. It was not appealed by David. The two cases proceeded in tandem in Sault Ste. Marie court. A motion in the summer of 2008 dealing with access exchanges was resolved on consent.

The cases proceeded through settlement and trial management conference stages. The most recent motion resolved a dispute relating to paternal access over the Christmas 2009 season. By time of trial, the father David was self-represented. The mother Lisa had counsel from Sault Ste. Marie at trial. 3: THE INTERIM CUSTODY ORDER MADE WITHOUT NOTICE

[ 18 ] This chronological review is necessary because of the reasons for my decision. Much of the father’s argument related back to the original ex-parte order of July 11, 2007, an order that he maintains should never have been made and should never have continued. His contention is that this court, at trial, should ignore that order as creating a status quo for Nathaniel. The proper status quo, he insists, is residence of Nathaniel in Sault Ste. Marie. Any analysis of Nathaniel’s best interests is to be made with the underlying premise.

I am not sure, however, if this argument asks the court to ignore the factual reality of what has been Nathaniel’s life since July 6, 2007 in its consideration of custody and access. If so, I cannot do this as it precludes a consideration of what the court is statutorily mandated to consider. [ 19 ] This case illustrates a problem that is not uncommon. Cases started in two territorial jurisdictions almost simultaneously following a separation, each seeking some interim relief, usually interim custody.

There is a significant strategic advantage to the party who is first off the mark and obtains a custody order, even an interim, or even an interim-interim order. These orders acquire the imprimatur of judicial approval and often have significant longevity in the litigation in which they were made. It becomes more and more difficult, as time goes by, to consider that the status quo before any case involvement started was the factual situation in place prior to the interim order. The interim order often changes the status quo in many ways.

In effect, it creates a new status quo, one that may skew the playing field between the parties. [ 20 ] Sometimes, there is little choice but to make some kind of interim order. A factual situation may demand some judicial intervention of the sake of stabilizing a situation that is too volatile to continue.

Generally, courts are more inclined to make temporary custody orders where the facts indicate that the health or safety of a child who is the subject of the litigation is at risk. [ 21 ] There are rules that apply to family cases in this court. [7] One of these is entitled “Rule 5: Where a Case Starts and is to be Heard”. Subrule 5(1)(

b) requires that a case that deals with custody or access shall be started in the municipality where the child ordinarily resides. [8] In fact, the clerk of the court is required by the Rules to refuse to accept for filing an application for custody or access unless the subject child ordinarily resides in the municipality where the application is presented for filing. [9] Notwithstanding Rule 5, the mother, Lisa, was not only permitted to file her application in the court at Thunder Bay, she was also able to obtain an interim custody order.

How was that possible? [ 22 ] Firstly, subrule 5(3) assumes that the court clerk polices the “ordinarily resident” requirement. I do not believe that this happens. If it does, I am not sure where a court clerk obtains information as to the ordinary residence of a child. The standard application form – Form 8 Application (General) – has pre-printed portions that prompt an applicant to provide certain information.

With respect to a child involved in the case, the form requires residency information as follows: Resident in (Municipality and Province) [ 23 ] In the present case, the mother completed this portion of her application by filling in: “Thunder Bay, Ontario” This was technically not untrue with respect to Nathaniel on July 11, 2007 as he was, by then, residing in Thunder Bay so far as his mother was concerned. However, she clearly was not including this information as a response to where Nathaniel was ordinarily resident.

If she had done so, she would not have had an application in Thunder Bay court and almost certainly would not have obtained an interim custody order from that court. As it turned out, two court dates later, the Thunder Bay court ordered: “Jurisdiction is within the Ontario Court of Justice in Sault Ste. Marie and the matter is transferred forthwith.” [ 24 ] In my view, Form 8 is faulty in failing to request applicants to provide information as to where a child is ordinarily resident.

It is even more faulty in not requesting information as to the date when such ordinary residence commenced. [ 25 ] There are not many places in the Rules that give specific directions to court clerks to do or refuse to do something. I infer that where this is done, the Family Rules Committee intended its direction to be complied with fairly rigorously. To comply with the direction in subrule 5(3)(

b) court clerks must have information as to ordinary residence of a child. The current Form 8 is deficient in not requiring that information to be provided. As a result, the court clerk is unable to comply with this very fundamental gate keeping directive. [10] Alternatively, court clerks may be doing so on information they are misinterpreting. [ 26 ] The greater contributor to the problem, by far, is the litigant and/or that litigant’s counsel who inserts residency information onto Form 8 that does not reflect the true “ordinary residence” of the child.

To say that the form doesn’t ask for ordinary residence, ergo, there is no obligation to provide this information, is adhering to the letter of the law rather than the spirit. This may get the application accepted for filing. However, it is a clear violation of the mandatory requirement of all litigants in Rule 5(1)(b). [ 27 ] The mother’s commencement of her case in the improper court location was the step that enabled her, or at least facilitated, the presentation of her motion without notice there.

This was unquestionably a motion under Rule 14 seeking an interim order. [11] More precisely, it was a motion brought under Subrule 14(12). [12] There is no indication in the judicial endorsement as to which of the four clauses under Rule 14(12) provided the justification for bringing of such a motion. This motion was also heard before a case conference was held in the case. This was contrary Subrule 14(4). [13] However, in some circumstances, there is an exemption from the prohibition in Subrule 14(4).

These circumstances require the motion applicant to show a situation of urgency or of hardship, or that a case conference is not required for some other reasons in the interests of justice. [14] Again there is no judicial endorsement as to which of these three judicial findings were made to justify entertaining this motion before a case conference. Finally, orders made on motion without notice are required to be made in the Form 14D. The one in this case was not. It was in Form 25.

Moreover the “matter” in which such order was made is required to come back to the court, preferably to the same judge, within 14 days or on a date chosen by the court. [15] It did not come back to the same judge. It did not come back within 14 days. It was not next scheduled until 46 days later. While it was within the power of the court to choose a distant date, it leaves unanswered why an adjournment more than three times longer than that suggested in the subrule was chosen.

[ 28 ] In

summary, and with the acuity of hindsight, I conclude that the mother did what she did in Thunder Bay to gain an advantage in litigation. It worked. At least for a time. And timing is said to be everything. This certainly worked out well for Lisa. 4: THE ORDER OF JUSTICE HUMPHREY DATED 19 FEBRUARY 2008 [ 29 ] It is difficult not to sympathize with the plight of the father, David, in the early stages of the litigation with Lisa. She was in the wrong court, getting court orders without any notice to, much less input from, him. For over two months, he was without any rights of access to his son.

For one and a half months, he was not even allowed to communicate with him. These are rather draconian consequences of an order that, as he has often repeated, ought not have been made in the first place. Even worse, this order created a new status quo that he claims, with some justification, resulted in considerable prejudice to him and his case. [ 30 ] However, sympathy disappears as the circumstances changed. Firstly, he retained legal counsel to represent him both in Thunder Bay and in Sault Ste. Marie proceedings. The Thunder Bay case was transferred to Sault Ste. Marie court where it properly belonged.

He was served with the mother’s application and her evidence, and was able to put his own evidence before the court. He was given access rights so that he might spend time with Nathaniel. In short, the inequities and prejudice to him abated considerably. [ 31 ] By February 19, 2008, both sides were legally represented. A case conference had been held. Each had multiple interim relief claims before the court. Each had filed whatever evidence he or she felt was needed for a proper hearing of the motions that were set for hearing. The Thunder Bay and Sault Ste.

Marie proceedings were “combined” and both were before the court in Sault Ste. Marie on that date. Whatever procedurally created unfairness may have existed in July 2007, it had effectively dissipated. [ 32 ] It is a certainty that Humphrey J. dealt with the claims of interim custody and interim access on February 19, 2008. However, he also had before him other claims including a claim by the father, David, that (the residence of) Nathaniel be returned to Sault Ste. Marie in the event that his mother Lisa was awarded interim custody.

The order of February 19, 2008 did not order Nathaniel to be returned to Sault Ste. Marie, nor did it adjourn this claim to another day. I conclude that this claim was dismissed albeit not expressly so. Humphrey J. had before himself evidence from both proceedings. Both sides had ample opportunity to present their arguments fully. He was aware of the manner in which these cases had unfolded procedurally and what prior orders had been made. [ 33 ] It was at the hearing on February 19, 2008 that the father’s arguments about procedural unfairness or improper procedure should have been made.

Perhaps they were, as no record was produced of what was argued. The results of what was argued at that time is very clear in both the order of February 19, 2008 as well as in the lengthy judicial endorsement released February 22, 2008 which provided the rationale for that order. Any dissatisfaction with that order was proper to address by way of an appeal.

Neither party appealed. [ 34 ] Accordingly, while the procedural history of the litigation between David and Lisa is a factor for this court to consider, I do not agree that it is appropriate to conclude, for the purposes of making a final order of custody and access after trial, that the proper status quo insofar as Nathaniel’s place of residence is concerned is his home in Sault Ste. Marie. That status quo may have been artificially changed to Thunder Bay in July 2007, and perhaps improperly so. However, there was a new status quo created on February 19, 2008 and this involved custody in Thunder Bay.

This court cannot now ignore that Nathaniel’s court sanctioned residence for well over two and a half years has been in Thunder Bay and not in Sault Ste. Marie. Nor can it be blind to the fact that he has been living in the custody of his mother in that time. 5: DETERMINATION OF CUSTODY [ 35 ] The parties confirmed at the start of trial that their primary claims were for sole custody of Nathaniel.

There were alternate claims, and secondary claims as well, but most of these were contingent on the outcome of the custody issue. [ 36 ] It is always advisable to remind oneself of the statutory framework [16] within which courts must make determinations of custody. The starting point is that the mother and father of a child are equally entitled to custody of the child. However, that equal entitlement contemplates that a family unit exists involving father, mother and child. This equal entitlement can be changed by many things.

One thing that first springs to mind is the court order that awards custody in a way that is inconsistent with equal custody between bioparents. In this case, Lisa and David had equal custody of Nathaniel while they lived together. When Lisa left on July 7, 2007 with Nathaniel, she did so unilaterally, without David’s knowledge, without his consent, and quite impulsively. This act was totally inconsistent with the concept of equality of custodial rights. While David was thereby deprived of his ability to exercise his equal custodial right, he did not lose his entitlement to those rights.

He did not agree to Lisa having sole custody. He did not acquiesce in the de facto custodial situation. He ceased to have these equal custodial rights only when a court order gave Lisa sole custodial rights. To date, the court orders that have done so have been interim orders only.

Even though three years and more have elapsed, the determination of which parent should have custody of Nathaniel remains one that the court must yet decide. [ 37 ] The statutory criterion for judicial decisions relating to custody and access has long been established as the best interests of the child. [17] In applying this test, the court must consider all of the child’s needs and circumstances, and must consider a number of specifically listed factors to the extent that they apply in a particular case. [18] [ 38 ] In many custody battles fought out within a courtroom, it is difficult to keep the evidence focused on the best interests of the child.

The parties are usually antagonist to each other. The adversarial nature of the proceeding does little to reduce any animosity. There is almost always an unhappy history between the parents. Each feels compelled to let the court know how badly the other has behaved in the past. This is a natural human reaction of those who have been emotionally hurt by another.

[ 39 ] Unfortunately, much of the disparaging information a party may wish to adduce with respect to the other parent’s past conduct hinders the proper determination of the issue before the court. The problem is that some of this evidence may be very relevant to that determination. It is for this reason that section 24(3) and (4) of the Children’s Law Reform Act (CLRA) were enacted. [19] Even with such guidance, however, it is often very difficult to decide whether a particular conduct does or does not affect a person’s ability to parent.

This case, like many others, has presented a great deal of evidence on both sides about past conduct of the opposing party. Not surprisingly, I am hard pressed to find even a couple of passages in the evidence of either parent that paints the other in a favourable light. [ 40 ] On the other hand, these two parents are able to concede, albeit somewhat reluctantly, that the child Nathaniel has benefited in the past from his relationship and interaction with each of them. More importantly, each parent acknowledges the desirability, from the child’s perspective, of having a positive relationship with each of them.

This is quite optimistic. The parties are not so polarized that either wants to cut off, or drastically curtail, the relationship that the child has to the other of them. [ 41 ] This case presents itself as a classic custody contest where each party wants an order of sole custody. However, the applicant does have an alternative claim for joint custody with the primary residence of the child to be with the father in Sault Ste. Marie. It is preferable to deal with this alternative claim first. [ 42 ] I would not consider joint custody with this mother and this father.

The law with respect to joint custody is far from settled. However, the prevailing judicial view, which I follow, is that there is no default position in favour of joint custody between separated parents. Joint custody orders should be based on actual evidence that the parties communicate effectively, that they work together, and that they put the interests of their child ahead of their own. Simply acknowledging that the other party is a competent parent does not justify a joint custody order if the parents do not agree on joint custody.

Where there is deeply imbedded parental conflict, a joint custody order is contraindicated. [ 43 ] The facts of this case do not support a joint custody regime. What I consider as the key component has never been present. The ability to communicate effectively as parents has been singularly lacking in the lives of David and Lisa. I do not foresee any significant improvement in the future.

Moreover, while geographic remoteness of parental residences doesn’t preclude joint custody, it certainly does not enhance the prospect that joint custody will be viable. [ 44 ] This leaves the issue of sole custody squarely before this court. Ultimately, only one of the parties can be a sole custodial parent. The corollary is that the other will necessarily be an access parent. This way of looking at things has been criticized somewhat in modern times because of the unpalatable connotations it carries. For example, it suggests that there is a winner and a loser on the issue of custody.

It creates a hierarchy between custodial parent and access parent with the former clearly much superior to the latter. It is seen as stripping the non-custodial parent of parental rights that are inherent in being a parent. [ 45 ] There is some merit in the criticism of the perception that the custody and access paradigm evokes. However, that is the way it looks because more often than not, that is the way it is.

When each of two very polarized parents demand a judicial sole custody determination, it is hardly a surprise that this is what they are going to get, and even more foreseeable that one of them is not going to be the custodial parent. That is what they are going to have to live with. [ 46 ] The “best interests of the child” criterion not only sounds reasonable but also has a ring of righteousness to it. It sounds principled, and respectable, and ethical; an appropriate benchmark for judges to decide between competing claims for custody or access.

Unfortunately, the practical application of this best interest test is not usually a simple matter. Simple matters rarely get to trial. Often, what does get to the point of a judicial application of this test is the case where the parties each present good evidence and persuasive arguments that what each proposes meets the best interest test. [ 47 ] Section 24(2) CLRA provides a list of specific considerations that, if they apply in a particular case, must be taken into account by the court in applying the best interest test.

These are certainly helpful in providing some guidance to litigants, in terms of what evidence they should be presenting, and to judges, in terms of the areas that have been legislatively decided to impact upon the best interests of the child. However, many of the same considerations may reflect favourably on the sole custody claim of both of the litigants. For example, the very first consideration is the love, affection and emotional ties between the child and the persons claiming custody. In this case, there is little to choose between Nathaniel’s love, affection and emotional ties to either of his parents.

I have no doubt that each of them love him, have affection and emotional ties to him and that these are reciprocated in kind. The same can be said for blood relationship. Each of the parents are on par in this regard. [ 48 ] Even if one or the other of these parents came out ahead in one of these mandatory considerations, there is no guidance as to how this should count. Do some of these mandatory considerations deserve more weight than others? If the parties score well on different considerations, do they cancel each other out, or should they be set off, and if so, to what extent?

At the end of the day, is the custody contest winner simply the one with the higher mark obtained on these listed circumstantial considerations? [ 49 ] There is a great deal of subjectivity inherent in the “best interests of the child” test. What may be critical to one judicial officer may be much further down the list of importance to another.

At times, one has to wonder whether custody or access determinations are simply made from a gut feeling, and the section 24(2) CLRA considerations are used to buttress whatever decision is made. [ 50 ] Never to be forgotten are the opening words of section 24(2) CLRA which mandate a judicial consideration of: “... all the child’s needs and circumstances ...” which permits the court to hang its decision on just about anything as long as it can somehow be connected to the child. [ 51 ] My decision in this case is to grant sole custody of Nathaniel to his mother Lisa. There are several reasons for my doing so.

[ 52 ] Firstly, she has, by this time, a lengthy history as the sole custodial parent. That is a fact regardless of how it came about. Over this time, she has parented well. She has not messed up. She has more than adequately addressed Nathaniel’s needs, both his basic physical needs for food, clothing and shelter as well as his emotional and developmental needs. The proof is not only in her say so. It is reflected in the child. David, on the other hand, is not able to present a similar history of sole custodial parenting. It is not his fault that he cannot.

However unfair that may seem to him, it is a circumstance that is relevant to a custody determination. In short, why change something that seems to have worked quite well for the child for several years now? [ 53 ] Closely connected to this is the desirability of avoiding the disruption that would be an inevitable consequence for Nathaniel should there be a change in custody. In this case, a custodial change involves drastic consequential changes. It is not like a move across town.

It means the disruption of his school environment, his friends, his routines, his extended family and most importantly, his primary caregiver. Why put this child through all of this? Is it because his father can parent better than his mother? Is it because Sault Ste. Marie offers him something better than Thunder Bay? I don’t think so. I make neither of these findings on the evidence presented. For Nathaniel, there is even more of a reason to be very cautious in avoiding disruption.

The evidence supports an inference that he functions better where there is structure, stability, predictability and familiarity in his environment. While he is not formally diagnosed to be a child with Autism Spectrum Disorder, I am satisfied from the evidence that he is extremely close to being so. [ 54 ] Thirdly, the constellation of significant persons in Nathaniel’s environment has to be a major factor that cannot be overlooked. His mother and father are the most important by far but they are not the only two persons in his universe.

In comparing the maternal and paternal extended families, I find that the members on the mother’s side have more, and more significant, relationships with Nathaniel than do members on the father’s side. This same pattern applies to non-relatives. Lisa, for example, has a best friend, Leanne, in Thunder Bay whose child Amelia is a playmate of Nathaniel. Lisa has a boyfriend, Marty, and their relationship appears to be healthy and growing. Marty has become a positive adult male figure for Nathaniel. Lisa’s mother and sister reside in Thunder Bay. All of these friends and relatives appear to be unobjectionable.

They form a support network for Lisa that is beneficial for her parenting. In contrast, David presents as more of a loner. He does not seem to have a best friend or even a close circle of friends. While he has female friends, his relationships with them appear to be more casual rather than committed, and they don’t seem to play a role in Nathaniel’s life. He has a sister in Toronto who has very infrequent contacts with the child, generally at Thanksgiving and at Christmas.

His brother and his family reside in White River but the evidence suggests that they have never been frequent visitors, nor have they become involved in Nathaniel’s life except as occasional visiting relatives. David’s mother is probably the most significant paternal extended family member in Nathaniel’s life after David himself. She played a very intimate role as a caregiver when Nathaniel was a toddler and into his two’s, three’s and four’s. This is a very established positive relationship with Nathaniel which would almost certainly be rejuvenated by a change in custody, since David does reside with his mother.

However, there is some evidence that this grandmother may have health problems and that she is not as vibrant as she once was. There is not a great deal known about her from the evidence. She was not a witness at trial nor was any evidence from her presented. Prior to Nathaniel’s birth, David had not even spoken with his mother for five years. No explanation was ever provided for this. What her role would be if Nathaniel were to live with his father was not well fleshed out. Nathan’s maternal grandmother is an equally significant caregiver.

Nathaniel has spent an overnight almost weekly with her and this is an ongoing pattern. [ 55 ] A fourth consideration is the track record of the parents. David appears to be Lisa’s first significant relationship as far as can be determined. She was not his. He had at least two prior relationships. In the case of one, he had a child, now age 12 or 13, with whom he has had no relationship, whom he had not even seen for well over a decade. Clearly the relationship he had with the mother of that child went nowhere.

He had another relationship which resulted in a pregnancy, and an abortion decided upon unilaterally by the mother. Another relationship that was unsuccessful. The relationship with Lisa was the third which involved a pregnancy. This relationship went south very early on. As of the dates of trial, David’s relationships with female partners were casual, sexual and multiple. This history inspires little optimism that David will have a positive and healthy relationship with a female partner.

The implication of this is that awarding custody of Nathaniel to David likely means Nathaniel will be raised in a single-parent family. It also means that probably, he will be around if and when his father engages in new relationships which, if history has any predictability, will not be positive. David’s past also involves other elements that are somewhat disquieting when considering parenting ability. There was a tendency to be peripatetic at least in the 1990’s. The only explanation for his very significant moves was with respect to Thunder Bay where he went for employment.

In Vancouver, he became involved in abusing illegal drugs. During these years is when he had his prior unsuccessful relationships and when did not speak with his own mother for several years. It is not a hard inference that he was also distant from his siblings during this time. Considerably less is known about Lisa’s past. She grew up in Thunder Bay and lived there for most of her life, apparently unremarkably. Her family ties have always remained intact and she has kept her best friend over two decades. Her life appears to have been much less unsettled than was David’s.

I gauge her prospects for finding a suitable life partner much better than David’s. I find her ability to maintain beneficial relationships as greater. All of this does have relevance to Nathaniel. Parents control the lives of their children (at least to their teen years) and parental actions and relationships impact in a very direct way on the lives of the children. [ 56 ] A fifth consideration is a practical one. Nathaniel has the normal needs of an eight year old, as well as the special needs of an exceptional child on the border of mildly autistic behaviour.

There is contradictory evidence as to who met his needs while David and Lisa were still together. Both parents worked at different jobs at various times. At other times, they were not employed and were able to be stay-at-home parents. There is no profit in dissecting retroactively the relative degree of parenting that went on in the family. I am satisfied that both parents were engaged in parenting Nathaniel.

That is evident not only from the fact that he presents, at his age, a reflection of a child who has been fairly well parented, but also a child who has developed a healthy attachment to, and has a very good relationship with, both of his parents. I am satisfied that both parents pulled their own weight in bringing home the bacon for the most part, within their respective limits. Neither was indolent. Not so since separation however. The brunt of the task of meeting Nathaniel’s needs has fallen on Lisa’s shoulders. A great deal of that has been voluntarily assumed by Lisa.

David could hardly be expected to maintain his level of hands-on parenting when she moved Nathaniel over 500 miles away. However, David could have provided some financial assistance to Lisa for Nathaniel. Certainly in the three and a half years that he has been in Thunder Bay. That does not seem to have happened. Lisa has met almost totally the economic needs of the child. Frankly, David has limitations that impact on ability to parent. He owes a fair amount of money borrowed for legal fee. He has still has a student loan outstanding on which he apparently is not making any payments.

He seems to always have some kind of income but never a great deal of it. Despite having some college qualifications, his employment has been in unrelated areas. While he is not shy about finding employment, his work history shows that he does not have much longevity in any position. He does not have a life career and does not show any signs of wanting to pursue one.

His plan as a single parent is to work on a

schedule that will maximize the time he will be able to parent Nathaniel, with his mother as his primary alternate caregiver. While his job at time of trial afforded flexibility, it is, in my view, highly unlikely that he will have this same job even six months hence. David lives on a “just enough to get by” level. Even without paying any child support, he has difficulty financing expenses incurred for access visits. He has no personal vehicle, nor apparently access to one. He has no home of his own. He lives in his mother’s apartment. The prospects of any significant change in his lifestyle are remote.

This is what Nathaniel will get if moved to his father’s care and custody. Lisa has been on social assistance for a good part of the past three and a half years. Ostensibly, this is a step, or even two, below the level at which David lives.

But is this truly the case? [20] It is arguable that Lisa, as a social benefits recipient with a child, is in as good as, if not better, position to parent that child than is the parent who is employed at, or slightly above, minimum wage. [ 57 ] One of the statutory considerations is the relative merits of the plans of the claimants for custody for the care and upbringing of the child. Lisa’s plan is a reasonable one that has the advantage of being the least disruptive for Nathaniel.

He will have the advantage of Lisa’s extended family, her friend Leanne, and her boyfriend, Marty, providing practical hands-on support (childcare/transportation/instruction/encouragement/activities) as well as moral and emotional support for both mother and son. Nathaniel will move to “middle school” which is immediately beside his present primary school. His circle of friends and classmates will remain fairly constant. He will maintain his present healthcare providers (doctors/dentists/assessors) who are familiar with him and his condition.

Lisa has ambitions to pursue a college education and her plan for alternative care for Nathaniel when needed is a viable one. Fundamentally, Lisa’s plan has elements of security, stability and similarity of environments and routine to those to which Nathaniel has become accustomed. Any changes she proposes seem to be designed to minimize disruption to existing patterns. David also has a plan. He has an alternative caregiver in the person of his mother. However, this is only one person, compared to several that Lisa can count upon, and is a caregiver whose physical health is questionable.

David did not have any particular school in mind. He said nothing about having consulted any doctor, dentist or other healthcare providers to provide services for Nathaniel. His plan is chock full of disruptions from what is, for Nathaniel, normal, stable and comfortable. [ 58 ] I do not make a finding of violence or abuse on the part of David, and this is not a factor in my assessment of his ability to parent. Lisa alleged physical abuse, verbal abuse, and emotional abuse in her evidence to support her initial ex-parte motion.

She also stated that David had been convicted of uttering death threats for which he had received a conditional sentence. This latter was untrue and in later evidence, Lisa had to backtrack. At trial, Lisa did not formally withdraw or abandon her abuse allegations, but she did not support them with any credible evidence. My inference is that she made these allegations rashly and to secure a tactical advantage in litigation. Emotional abuse is very subjective. The range of behaviour that may fall within emotional abuse is very broad. That is why evidence should be factual and detailed in this area.

For example, to say “he emotionally abused me” has little evidentiary value, especially if denied. By contrast, to say “he called me a stupid bitch in front of my friends at Christmas” has substantially more evidentiary impact, especially if one of the friends confirms this. I believe David and Lisa both engaged in language and conduct that was unkind, mean and intended to hurt. If it had crossed over the line into verbal and emotional abuse, I find it was mutual. There is no evidence of any specific incident on July 6, 2007 that I would find was abuse that justified leaving the home with Nathaniel.

What took place was a domestic argument between two persons whose relationship was in very bad shape. 6: PATERNAL ACCESS [ 59 ] A sole custody award to one parent does not eclipse the parental role of the other parent. In fact, it is important to support the continued parent-child relationship of the non-custodial parent. That is typically done through an order for access. While access includes the right to visit with the child and to be visited by the child, [21] there is much more to the non-custodial parent-child relationship than is suggested by the word “visit”.

In fact, what happens during periods of access is “parenting” of the child. It is desirable, in most cases, for the relationship of the child with the access parent to be continued to be fostered. The right of access, while phrased as the right of a parent, is more the right of the child. A consideration of access can affect the determination of custody.

A parent who may otherwise qualify as a good custodial parent could forfeit that role if he or she engaged in alienating the child from the other parent, or by being too ridgid and inflexible with respect to access arrangements, or by maintaining a hostile and confrontational attitude with the other parent. In this case, Lisa has not done any of these things. She acknowledges the benefits to Nathaniel of a continued and meaningful relationship with his father. She is not niggardly in the kind of access she proposes.

Limits on paternal access here arise less because of maternal reluctance than as a result of practical realities of school, distance, transportation and finances. [ 60 ] Factoring in these external limitations, and considering the desirability of maximizing the time that the child spends with his father, the result is fairly clear.

Larger but less frequent blocks of time when the child is not in school, supplemented by regular contact by telephone or other means that fall short of face-to-face time together, but still promotes the parental-filial relationship. [ 61 ] I find the mother’s proposal of seven full and continuous weeks during the summer months, each March break, and for one week over the Christmas break (including Christmas day in alternating years) to be a fair one that attempts to minimize travel and provides for paternal care and parenting at appropriate times during the year.

This proposal anticipates that this access will take place where the father David resides. Should the father wish to spend some time with his son where the son resides, this should be encouraged as well, within limits, and with appropriate notice. Should the places of residence of either parent change, a change in the structure of paternal access may become desirable. [ 62 ] Transportation of Nathaniel at the beginning and at the end of access periods is a problem. He is too young to travel unescorted.

It seems fair that each parent should share in addressing this necessity, and that the sharing should be relatively equal. This does not necessarily require that the parents themselves do the transporting although that would be the most desirable from the child’s point of view. [ 63 ] This regime of custodial time and access time does not mean Nathaniel’s relationship with the parent he is not with is put on hold. Nor is Nathaniel’s relationship with significant other persons that are connected with that other parent.

Accordingly, there should be opportunity for Nathaniel, wherever he may be at any given time, to have the right and the ability to have contact with the other parent or with significant other persons. Telephone contact is the most obvious method and it should be at the expense of the one being contacted by Nathaniel.

[ 64 ] There appears to be a community misunderstanding as to the legal right of a non-custodial parent to obtain information from others who may be providing services or interacting with the child. David, like other non-custodial parents is, and will remain Nathaniel’s parent. He should know what is happening in every aspect of Nathaniel’s life. Optimally, both David and Lisa will keep each other informed of any and all information about Nathaniel, just as they would have shared prior to their separation.

This may require some boosting up of their communication, or it may mean taking a fresh look at their communication modalities. [22] The access order will contain a provision for the right to speak with third party service providers, and to have access to third party records relating to Nathaniel. It will also include an obligation on each parent to notify the other of all significant information relating to the child, and this includes immediate notification as to any emergency matters. 7: CHILD SUPPORT [ 65 ] The issue of child support appropriately awaits the decision on custody and access.

The only claim in issue here is for a Child Support Guideline table amount sought by Lisa from David. [ 66 ] If there is a claim by the mother for judicial imputation of a greater annual income to the father by reason of under- employment, I dismiss this claim. The reason is that there is inadequacy of evidence to support such finding. [ 67 ] By the same token, I dismiss the claim of the father for a judicial finding of undue hardship. The reason is the same.

Inadequacy of the evidence to show the ratio of respective household standards of living as a precondition to such a finding, and, more importantly, failure to show that there is hardship at all, and that it is undue hardship. [ 68 ] Just what is the father’s annual income is not that easily determined. Part of the reason is that the father didn’t file copies of his annual tax returns (not only for the three years prior to the start of this case, but also for the years that this case has been ongoing). [ 69 ] His 2006 Notice of Assessment shows an annual income of $28,622.

His 2007 annual income was elusive to quantify. The father believed it was $20,380. His 2008 income was, he feels, less than $20,000 and more in the range of $16,000 to $17,000. His 2009 income, a combination of EI and OW benefits he estimates was $17,080. The most recent income about which he testified was from employment as a baker which brought him $390 per week gross pay, an amount that annualizes to $20,888. I have no difficult with the evidence, in arriving at a judicial determination of annual income of $20,000.

This would yield a table amount of child support of $172 per month. [23] [ 70 ] The access structure contemplated by this decision does not bring into play

section 9 of the Child Support Guidelines . [24] The Family Law Act is structured in such a way as to constrain this court when dealing with child support claims. [25] Departures from the Child Support Guidelines are not permissible unless they fall within some statutory exception, in which case, reason must be given why the evidence justifies the departure. There is no basis for departure in this case. An order may be for a different amount than set out in the Child Support Guidelines tables, yet still be an order pursuant to the Guidelines .

The most frequent example of this is a reduction of the table amount due to a finding of undue hardship, [26] often on account of the high cost associated with the exercise of access. There is certainly evidence to suggest that high access costs is a significant factor in this case. However I have already ruled against any undue hardship claim so there will be no reduction of the table amount on this account. There are other ways to achieve fairness and equity.

In this case, I have allocated half of the transportation responsibilities to the mother which is only fair as she created many of these costs by relocating. [ 71 ] As for commencement of child support, the claim was made in 2007. The father, David, has paid nothing by way of child support for the three years of so that this case has been litigated in the court. The Family Law Act statutorily codifies in section 31(1) [27] the joint obligation of parents to provide support for their children. Parents do not need legislative enactments to tell them this.

It should have been apparent to David that he had this obligation, regardless of where Nathaniel has been living. It should have become increasingly more obvious to him when he saw Lisa’s claim for a child support order. Awaiting the outcome of the custody issue did not mean that David was entitled to a child support holiday. Nor did the fact that Lisa did not push for an interim support order.

Of some significance is the fact that during the course of this litigation, David saw fit to voluntarily provide a fairly generous allowance (equivalent to $108 per month) to an adolescent son in London, while he knew full well of the outstanding claim for child support for Nathaniel. The order for child support shall commence January 1, 2008. The support for 2008, 2009 as well as for 2010 will be based on an annual income of $20,000 for each of those years. Unfortunately for David, the child support order will create immediate arrears.

While my sympathy for the difficulty this may create in his personal life is about nil, I do recognize that unlimited enforcement of arrears may well impact on his financial ability to fund access visits. For this reason, there will also be a provision requiring the payment on the arrears created by my order to be limited to $100 per month. [ 72 ] David had claims for orders prohibiting a change of residence of the child from Sault Ste. Marie, prohibiting removal of the child more than 50 kilometres from Sault Ste.

Marie without his consent, for a police assistance order, and for undue hardship if Nathaniel is to live in Thunder Bay. For reasons already stated, all of these claims are dismissed. David confirmed that he withdrew any claims for costs prior to the start of trial. [ 73 ] Lisa had claims for an order for

section 7 expenses (dental) by way of child support. I cannot recall any evidence that satisfies me of the

section 7 requirements for making such an order. Nor did Lisa provide any evidence to establish any quantum. She wishes an order prohibiting the change of Nathaniel’s residence from Thunder Bay. This is superfluous in view of my decision on custody and would only be a hindrance to her if she wished to move. I do not believe a police assistance order is necessary to enforce either custody or access rights, at least on the present evidence. All of these claims are dismissed. Lisa has already withdrawn any claims for an order relating to access exchange, or prohibiting David from removing Nathaniel from Thunder Bay.

She long ago withdrew her claim for a restraining order. Her remaining claim is for costs. [ 74 ] If she wishes to pursue a claim for costs, she must do so by a notice of motion served on David and filed with proof of service within 30 days of release of these Reasons, failing which there will be an order of no costs in her favour. Such motion, should

there be one, should be adjourned to me for directions for hearing of submissions thereon. [ 75 ] I am indebted to counsel for the mother, and to the father for their comprehensive and thorough written arguments submitted following the trial evidence. In the case of the father, who was self-represented at trial, he was very appropriate, for the most part, in his conduct despite his lack of formal legal training and unfamiliarity of procedure. It is always a potentially difficult situation when a self-represented litigant cross-examines the opposing party, particularly in a family law case.

In this one, he remained within the bounds of propriety. It is evident that he did his homework in preparing for all aspects of this trial. 1 December 2010 Justice John Kukurin Ontario Court of Justice (

b) if the case deals with custody of or access to a child, in the municipality where the child ordinarily resides, except for cases described in, (

i) section 22 (jurisdiction of an Ontario court) of the Children’s Law Reform Act , and (ii) subsection 48 (2) (place for child protection hearing) and subsection 150 (1) (place for adoption proceeding) of the Child and Family Services Act ; (

b) the case deals with custody of or access to a child and is started in the municipality where the child ordinarily resides; 1. A temporary order for a claim made in an application. 2. Directions on how to carry on the case. 3. A change in a temporary order. (

a) the nature or circumstances of the motion make notice unnecessary or not reasonably possible; (

b) there is an immediate danger of a child’s removal from Ontario, and the delay involved in serving a notice of motion would probably have serious consequences; (

c) there is an immediate danger to the health or safety of a child or of the party making the motion, and the delay involved in serving a notice of motion would probably have serious consequences; or (

d) service of a notice of motion would probably have serious consequences. (

a) the love, affection and emotional ties between the child and, (

i) each person 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 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) the relationship by blood or through an adoption order between the child and each person who is a party to the application. (

a) in accordance with subsection (4); or

(

b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1) . (

a) his or her spouse; (

b) a parent of the child to whom the application relates; (

c) a member of the person’s household; or (

d) any child. 2006, c. 1, s. 3 (1) . (

a) the amounts set out in the applicable tables for each of the parents or spouses; (

b) the increased costs of shared custody arrangements; and (

c) the condition, means, needs and other circumstances of each parent or spouse and of any child for whom support is sought.