Hick v. White, 2011 ONCJ 429

Brampton Registry No. 545/06 DATE: 2011·VIII·22 CITATION: Hick v. White , 2011 ONCJ 429 ONTARIO COURT OF JUSTICE BETWEEN: STACEY-ANN HICK, Applicant, — AND — MICHAEL WHITE, Respondent. Before Justice Juliet C.

Baldock Heard on 19 August 2011 Reasons for Judgment released on 22 August 2011 CUSTODY OF CHILD — Best interests of child — Plan of care — Concrete strategy — Within months of birth of son (now 5½ years old), parents agreed on joint custody with mother’s home as child’s primary residence — Then, about year ago, mother realized that she had changed addresses too often, that her home was unfit for child’s upbringing, that she was immature and generally unable to meet son’s needs and that she was too often relying on input from maternal grandmother — Parties therefore consented to have father’s home in Alberta as boy’s primary residence for at least 1 year — During that year, however, mother failed to exercise any access to her son, even though father was willing to help with expense (but not willing to have her stay over at his Alberta home where he was cohabiting with another woman) — About 7 weeks ago, father brought boy to Ontario for extended summer visit with mother who promptly applied to court for sole custody — Compared to father’s plan with its clear vision for boy’s upbringing and education, mother’ plan was tentative and woefully incomplete — She was hoping for significant reduction in her work hours with serious impact on her income but there was no evidence that her employer would agree to such reduction in her duties — If employer rejected her request, boy would need after-school day care until 8:00 p.m. and would be spending weekends in care of her new partner or with grandmother — Under mother’s plan, court had no reliable evidence that boy would be primarily cared for by his mother and was concerned that, despite some progress, mother’s situation was still plagued by shortcomings that existed year ago — Court was troubled by mother’s plea for “second chance” to parent her son because it suggested that she was putting her needs ahead of those of her child — Court made order of joint custody with father’s home in Alberta as child’s primary residence but spelled out terms of access and responsibilities for access expenses.

Applicant mother, Stacey-Ann Hick ..................................................................... on her own behalf Bonnie A. Caplan-Stroeder .......................................................... counsel for the respondent father [ 1 ] JUSTICE J.C.

BALDOCK:— The parties are the parents of one child, Brody Terence Hick, born on 29 December 2005, now five years of age (“Brody”). [ 2 ] In July 2006, the parties agreed that they would have joint custody of Brody and that his primary residence would be with the applicant mother. [ 3 ] In May 2010, the parties filed a consent motion to change, which provided that Brody’s primary residence would be that of the respondent father in Alberta.

Brody moved to Alberta in July 2010. [ 4 ] It was agreed that the move would be reviewed after one year, i.e. , in July 2011. [ 5 ] The child was brought to Ontario on 7 July 2011 by the respondent father, so that he could spend time with the applicant mother during the summer. [ 6 ] She has now brought a motion seeking sole custody and for the child to remain in Ontario.

[ 7 ] The respondent father argues that the child is thriving with him in Alberta. [ 8 ] He wants to enrol Brody for the start of the school year in September. [ 9 ] To determine whether Brody should now reside with the mother in Ontario, the court must consider: • the circumstances that lead to the prior agreement for Brody to move to Alberta with his father; • whether these circumstances have changed; and if so • whether a change in primary residence is in the overall best interests of the child. [ 10 ] The applicant mother in her motion is also seeking an order for the Office of the Children’s Lawyer to be involved, as well as for child support. [ 11 ] I decline to make any order with respect to the Office of the Children’s Lawyer as there is insufficient time for the referral and report given that Brody must be registered in school for September. [ 12 ] The issue of child support will in any event be determined on the outcome of the custody issue. [ 13 ] The mother frankly admits that, prior to May of 2010, she was not in a position to parent Brody. [ 14 ] She has historically relied on her own mother, Wendy Hick, for assistance and support in caring for her child. [ 15 ] She acknowledges that she changed residence several times, that her home was not maintained in a condition appropriate for a young child and that she was immature and generally unable to meet Brody’s needs. [ 16 ] She also maintains that she was pressured into consenting to Brody’s move to Alberta. [ 17 ] On the evidence before me, I conclude that the mother may have felt pressured and agreed to the plan in large part because both families supported it, and she was not in a position to offer any realistic alternative. [ 18 ] I do not find, however, that she was in fact pressured by the respondent, his counsel or anyone else.

The agreement that resulted in the consent order was independently witnessed and the mother had adequate time between its execution and Brody’s travel, some six weeks later, to take action if she had a change of heart. [ 19 ] It is unfortunate that there was no access by the applicant mother between July 2010 and July 2011. I accept that the respondent was prepared to assist with the expense but not to have the applicant stay at his home. [ 20 ] At the time, he was in another relationship and clearly that would have been problematic. [ 21 ] The applicant mother is employed full time as a personal support worker.

I have received no evidence with respect to any support paid by the mother. She should therefore have been able to fund one or more access visits, if it had been a priority for her. [ 22 ] Clearly housing has been an issue for the respondent mother. I accept, however, that she now has suitable accommodation for Brody to stay with her. She resides in a four-bedroom apartment with her spouse, Jason Arsenault, and his two children aged 5 and 7. [ 23 ] Her work hours are from 9:00 a.m. to 8:00 p.m. five days per week, which currently includes weekends.

She proposes to make an arrangement with her employer such that she would only work to 2:00 p.m. and would be off on alternate weekends. This would be a very drastic reduction in her hours and income. She did not provide the court with information from her employer confirming that there is any willingness to accommodate that request. [ 24 ] As it now stands, if Brody were to live with the applicant mother, he would require day care for each day after school until 8:00 p.m. and would have to spend weekends, or at best, alternate weekends, in the care of Mr. Arsenault or Ms.

Wendy Hick. [ 25 ] In short, there is no reliable evidence that Brody would be primarily cared for by the applicant mother. [ 26 ] The applicant’s mother, Ms. Wendy Hick, has been something of a rock in providing help and stability, but Brody’s care should be provided by one or both his parents who are ultimately responsible for him. [ 27 ] There is no dispute that Brody has done well in school. There was a behavioural incident in March 2011 and the respondent father was contacted by the school as a result.

The father alleges that this was the “fall out” from a telephone conversation Brody had with his mother. [ 28 ] I give little weight to this incident or the reasons for it, as such events are not unusual in the life of a child, particularly when he is the subject of a custody dispute. [ 29 ] The parents should, however, be vigilant in ensuring that Brody is not exposed to any form of disparagement of one parent by the other. [ 30 ] On the evidence before me, I conclude that, although the applicant mother has made some significant adjustments in her life, for which she is to be commended, some of the issues that gave rise to the May 2010 agreement remain — in particular the applicant’s need to rely on her mother in caring for Brody. [ 31 ] Ms.

Wendy Hick’s support and willingness to help out is laudable but, as mentioned above, the primary responsibility is that of the parent.

[ 32 ] The applicant mother asks that the court “give her a second chance” to parent Brody. I find this somewhat troubling, as it suggests that the applicant’s needs are being put before those of the child. [ 33 ] I have no doubt the applicant cares very much for her son but I am not persuaded that she is always able to put his interests first. [ 34 ] I also find that Brody has done well in his father’s care and I conclude that, provided he has adequate time with his mother, which can be arranged, he will be best served by remaining in his father’s care. [ 35 ] For these reasons, I make the following order: 1.

The parties shall continue to have joint custody of the child Brody Terence Hick, born on 29 December 2005. 2. The child shall have his primary residence with the respondent father, Michael White, in Alberta. 3. The child shall spend the following time with the applicant mother, Stacey-Ann Hick: (

a) a minimum of six weeks during the summer school vacation, in Ontario; (

b) for March (spring) school break each year; (

c) for one week during the Christmas school vacation period; (

d) such further and other time as the parties may agree. 4. The respondent father is responsible for transporting the child to and from Ontario for the summer access period. 5. The applicant mother may exercise all other access either in Ontario or in Alberta at her cost. 6. The applicant mother shall have telephone access to the child each Sunday at 7:00 p.m. 7. The respondent father will do all things reasonable to ensure that the child is available to receive the mother’s call but, if this is not practicable, he will arrange for the child to telephone the mother as soon as possible thereafter. 8.

The respondent father shall each year provide the applicant mother with one or more school photographs of the child at his expense. 9. The applicant mother shall pay no child support, having regard to the high cost of exercising access. However, if the applicant mother does not in fact exercise physical access beyond the summer vacation period, the respondent father is at liberty to seek an order for child support. 10. Neither party is required to pay the cost of any extra expense incurred by the other for the child while in that party’s care.