Wardell v. Perreault, 2011 ONCJ 288

North Bay Registry No. FO18-10 DATE: 2011·V·12 CITATION: Wardell v. Perreault , 2011 ONCJ 288 ONTARIO COURT OF JUSTICE BETWEEN: PAUL WARDELL, Applicant, — AND — KATHIE PERREAULT, Respondent. Before Justice Gregory P.

Rodgers Heard on 15 and 17 February 2011 Reasons for Judgment released on 12 May 2011 CUSTODY OF CHILD — Best interests of child — Separation of siblings — Parents of twins (now almost 5 years old) had lived in rural community northeast of North Bay — Seventeen months ago, with rapid decay of relationship, mother and children moved to her parents’ home in tiny settlement in south-western Quebec, about 75-minute drive away — Separation had embittered parents who barely spoke to each other — Six months after separation, mother gave birth to third child whom father had not seen and to whom he had not sought access — About 8 months ago, court made interim order directing that twins live with father and have access to mother on weekends — Purpose behind this arrangement was to let twins attend French junior kindergarten in North Bay (there being no junior kindergartens in Quebec) — Moreover, it was assumed that mother would soon be moving to North Bay, at which time twins would reside with each parent on week-about

schedule — Now, however, it was clear that mother had no intention of ever moving to North Bay — But in meantime, twins had to rise early to spend about 3½ hours per day on school buses (embarking on 3 buses to get to school and 3 more to get home), 5 days per week, often leaving them exhausted at home and school — On Friday afternoons, they endured further 75-minute drive to mother’s home in Quebec for weekend access — Ironically, father was unilingual anglophone and could not assist twins in their schoolwork or understand any written correspondence from their school — Furthermore, because of his work schedule, he rarely saw them during work week and not at all on weekends — Worse yet, objective of this arrangement was failing for, despite their attendance at French school, twins were not becoming fully bilingual — Although youngest child was not involved in this case, she did influence its outcome because of generally respected proposition that siblings should, ideally, be raised in same home where they could enjoy each other society — It would require extremely compelling evidence before judge would ever make order that would separate children in their formative years — In this case, court could find no compelling reason why 4-year-old twins should not reside in home with their 1-year-old sister — Having rejected joint custody, court indicated that re-unification of siblings was factor more than any other that tipped scales in favour of mother as custodial parent.

CUSTODY OF CHILD — Form of order — Joint custody — Grounds — Ability of parties to co-operate — Parents of twins (now almost 5 years old) had lived in rural community northeast of North Bay — Seventeen months ago, with rapid decay of relationship, mother and children moved to her parents’ home in tiny settlement in south-western Quebec, about 75-minute drive away — Separation had embittered parents who barely spoke to each other — Six months after separation, mother gave birth to third child whom father had not seen and to whom he had not sought access — About 8 months ago, court made interim order directing that twins live with father and have access to mother on weekends — Purpose behind this arrangement was to let twins attend French junior kindergarten in North Bay (there being no junior kindergartens in Quebec) — Moreover, it was assumed that mother would soon be moving to North Bay, at which time twins would reside with each parent on week-about

schedule — Now, however, it was clear that mother had no intention of ever moving to North Bay — But in meantime, twins had to rise early to spend about 3½ hours per day on school buses (embarking on 3 buses to get to school and 3 more to get home), 5 days per week, often leaving them exhausted at home and school — On Friday afternoons, they endured further 75-minute drive to mother’s home in Quebec for weekend access — Ironically, father was unilingual anglophone and could not assist children in their schoolwork or understand any written correspondence from their school — Furthermore, because of his work schedule, he rarely saw them during work week and not at all on weekends — Worse yet, objective of this arrangement was failing for, despite their attendance at French school, twins were not becoming fully bilingual — Court-ordered assessment had recommended joint custody whereby twins would alternate residence on yearly basis — But court rejected notion of annual changes in residence because switching from Quebec educational system to Ontario educational system and vice versa would

wreak havoc on continuity of their education, to say nothing of being uprooted yearly and having repeatedly to find new friends —Twins would always be playing “catch up”, both academically and socially — At more fundamental level, parents’ refusal tocommunicate with each other was fatal to any prospect of joint custody — Court was also greatly concerned over separation of siblingsand could find no reason justify it any longer — Court found that awarding sole custody of twins to mother (subject to father’s access)would best serve twins’ best interests — Reunification of siblings was major consideration in mother’s favour — Residence with motherwould also offer twins greater chance to become bilingual — As access parent, father might actually have more recreational time withchildren who could also enjoy more time with father’s extended family —Finally, by attending school in Quebec, duration of school busride would drop to 20 minutes.

STATUTES AND REGULATIONS CITED Child Support Guidelines, O. Reg. 391/97 [as amended]. Children’s Law Reform Act, R.S.O. 1990, c. C-12 [as amended],

section 30. CASES CITED Hurdle v Hurdle (1991), (ON SC), 31 R.F.L. (3d) 349, [1991] O.J. No. 657, 1991 Cars​well​Ont 247 (Ont. Gen. Div.). Kaplanis v. Kaplanis, , 194 O.A.C. 106, 249 D.L.R. (4th) 620, 10 R.F.L. (6th) 373, [2005] O.J. No. 275, 2005 Cars​-well​Ont 266 (Ont. C.A). AUTHORS AND WORKS CITED Brownstone, Harvey: Tug of War: A Judge’s Verdict on Separation, Custody Battles, and the Bitter Realities of Family Court (ECWPress: Toronto, 2009). Catherine E. Mathias McDonald ...................................................... counsel for the applicant father Michael J.

Doupe ....................................................................... counsel for the respondent mother [1] JUSTICE G.P. RODGERS:— This case focuses on the best interest of two children, Raymond Alexander Wardell(Alex) and Olivia Yvonne Wardell. They are twins who were born on 12 July 2006. Kathie Perreault is their mother. She lives inLaniel Quebec and seeks an order for joint custody of both children with her home as their primary residence. Paul Wardell is theirfather. He resides in Redbridge, Ontario.

He seeks an order for the sole custody of the twins. [2] Presently, pursuant to a temporary order, the children reside with their father in Redbridge. They attend juniorkindergarten at a French school in North Bay. They have access to their mother every weekend. The existing temporary order of 30September 2010 appears to be premised on the assumption that Ms. Perreault would imminently be moving to North Bay at which timethe children would reside with each parent on a week-about schedule. It is now clear that Ms. Perreault has no intention of relocating toNorth Bay. 1: BACKGROUND [3] Mr. Wardell and Ms.

Perreault met in January 2005 when they were both employed as truck drivers. He lived inRedbridge, a small rural community a few kilometres northeast of the City of North Bay where Ms. Perreault resided. They began acommon law relationship in April 2005 when she moved into his home. [4] By the end of that year, Ms. Perreault was pregnant with Alex and Olivia. The pregnancy was not planned. They wereborn on 12 July 2006. Both children were healthy. [5] Their parents’ relationship, however, was not so robust. There was much tension following the news that Ms. Perreaultwas pregnant. Money was tight as Ms.

Perreault stopped working outside the home to become the primary caregiver for the children. In2008, Mr. Wardell stopped driving truck so he could spend more time with his children. He began working in a warehouse in NorthBay. His income was reduced. [6] In addition to experiencing marital tension over finances, Mr. Wardell was embittered by his belief that Ms. Perreaulthad become pregnant on purpose without his consent. He did not want children at this time. He did not believe that they could afford toraise a family. [7] This generally unhappy relationship became even more strained in late 2009 when Ms.

Perreault disclosed that she wasagain pregnant. She testified that, in response, Mr. Wardell treated her with contempt and stopped communicating with her except to beverbally abusive. Mr. Wardell admits that he was angered to learn of the second pregnancy. [8] By December 2009, Ms. Perreault found her situation to be intolerable. On 22 December 2009, she left the familyhome with the twins. She re-located with them to her parents’ home in Laniel, Quebec. Laniel is a tiny settlement in southwesternQuebec.

It is approximately 1¼-hour drive from Redbridge. [9] A series of motions have been brought by both parties culminating in a temporary order in September 2010 whereby thechildren began to reside in Redbridge with their father and have access to their mother every weekend. Ironically, this was to permit the

children to attend junior kindergarten in the French language. Ms. Perreault insists that the children be educated in the French language. She remains opposed to English education or French immersion. There is no junior kindergarten program in the province of Quebec. [10] On 17 June 2010, Ms. Perreault gave birth to a daughter, Emily. Mr. Wardell is the biological father of Emily. He hasnever seen that child. He initially questioned paternity. He has not taken any significant steps to obtain access.

He maintains that hisenergies and resources are focussed on this litigation and eventually, he will attempt to obtain access to Emily. This court has nojurisdiction in matters relating to baby Emily. [11] At first, Ms. Perreault may have indicated to Mr. Wardell and his family that he was not Emily’s father. It is clear thatshe is resistant to his playing a role in her life. Ms. Perreault says that she does not trust Mr. Wardell to treat Emily well. She remainsbitter that he was so angry about the pregnancy. Both parents now acknowledge that Mr.

Wardell is indeed Emily’s biological father. [12] Presently, the twins attend a French school in North Bay. They attend junior kindergarten all day. They take three busesto get to school and three more buses to get home. These four-year olds are often exhausted at school and at home and frequently fallasleep on the school bus. They get up at 6 a.m. to get on a bus at 7 a.m. They spend approximately 3½ hours each day on buses fivedays a week. On each Friday, in addition to three and a half hours on the bus, they are driven to Laniel. This adds another hour and aquarter of travel time on those days.

This was considered to be a temporary situation until Ms. Perreault relocated back to the North Bayarea. [13] Mr. Wardell is unilingual English. He cannot read any written correspondence from the school that the twins attend as itis in the French language. He cannot help with any homework. Mr. Wardell would prefer that they go to English school. There is anEnglish public school in Redbridge. They would have one short bus ride to school. The children gets off the bus 1½ hour before thefather gets home from work. They are cared for during this time by their paternal grandmother, Agnes Wardell, who lives nearby.

Theyoften have supper at their grandmother’s house. Typically supper is around 7 p.m. They are then bathed and put to bed. They spendeach weekend in Laniel with their mother. The maternal grandparents live close by. French is spoken at Ms. Perreault’s home and at herparents. The children seem to understand but respond in English. [14] No one is happy with the present arrangement. Mr. Wardell gets to spend little time with the children. He has noweekends or recreational time and only sees the children briefly each day.

That time is devoted to getting them up and off to school inthe early morning and then getting them bathed and off to bed at night. The children are only four years old and are often exhausted bytheir full school days, which include a minimum of three hours of bussing each day. 2:

SECTION 30 ASSESSMENT [15] An assessment was ordered in March 2010 pursuant to

section 30 of the Children’s Law Reform Act, R.S.O. 1990, c. C-12, as amended. The assessment was completed by 1 June 2010. It determined that both Olivia and Alex have strong healthyattachments to each parent. The assessors found that the homes of both parents were appropriate. Both Mr. Wardell and Ms. Perreaultwere considered to be good parents committed to the needs of their children. The assessment recommended joint custody with the twinsalternating between each residence on a yearly basis.

For reasons that I will provide below, I will respectfully find that joint custody isnot a viable option in this case. [16] I am also certain that the proposal that the children change residences, and necessarily schools, on a yearly basis is not intheir best interest. The children would have little continuity in education. They would have to cope with switching from the Quebeceducational system to the Ontario educational system. Alex and Olivia would be uprooted yearly and would have to find new friendsrepeatedly.

I am concerned that they would always be playing “catch up”, both academically and socially. 3: JOINT CUSTODY [17] Ms. Perreault seeks an order for joint custody. Joint custody was also recommended by the

section 30 assessors. TheOntario Court of Appeal has long directed that joint custody requires a high degree of communication and co-operation between theparents, especially when the children are young. This was re-affirmed in Kaplanis v. Kaplanis, , 194 O.A.C. 106, 249D.L.R. (4th) 620, 10 R.F.L. (6th) 373, [2005] O.J. No. 275, 2005 Cars​well​Ont 266 (Ont. C.A), where Appeal Justice Karen M. Weilercommented on joint custody: [11] . . . There must be some evidence before the court that despite their differences, the parentsare able to communicate effectively with one another. . . .

When, as here, the child is so young that shecan hardly communicate, her developmental needs communication is even more important. . . . [18] Justice Harvey Brownstone of this court in his book Tug of War: A Judge’s Verdict on Separation, Custody Battles, andthe Bitter Realities of Family Court (ECW Press: Toronto, 2009), put it in this way at page 96, Joint custody is all about the way decisions are made. Parents with joint custody are required to makedecisions together as co-parents. They must be able to communicate and co-operate with each other in acalm, civilized, mature way. [19] Mr. Wardell and Ms.

Perreault have little capacity to co-parent Olivia and Alex. They do not communicate at all. Neitheris capable of compromise. They are both in their own ways stubborn and inflexible with each other.

No where is this more apparentthan in their standoff with each other over the child Emily. (Although this court has no jurisdiction regarding Emily, the parents areencouraged to resolve this issue so that Emily can have the benefit of two loving parents and two extended families just like her siblings.) [20] They have resorted to litigation repeatedly since separation over issues that they could not resolve on their own. In the

last year, they have quarrelled in court over interim custody, access, summer access, child support, disclosure, education, language andeven jurisdiction. [21] These parents refuse to communicate with each other. Mr. Wardell still harbours resentment over his belief that Ms.Perreault became pregnant deceptively and with little regard to their financial situation. Ms. Perreault continues to resent the way Mr.Wardell treated her during the course of their relationship. Neither parent seems capable of moving on from their feelings of hurt andbetrayal.

It is highly improbable that they would be able to put aside their differences and come to any agreement regarding theirchildren’s best interest. Joint custody will not work. 4: THE SIBLING ISSUE [22] The youngest child Emily is not subject to these proceedings, but she does factor into any determination of this case. Emily is a full sibling of Alex and Olivia. Ideally, siblings should be raised in the same home. Justice B. Thomas Granger of theOntario Court of Justice (General Division) commented in Hurdle v Hurdle (1991), (ON SC), 31 R.F.L. (3d) 349,[1991] O.J. No. 657, 1991 Cars​well​Ont 247 (Ont. Gen.

Div.), at page 352 [R.F.L.]: In my view, a court, whether on an interim motion or at trial, should strive to ensure that siblings areraised together in order that they can enjoy the company of their brothers and sisters. The evidenceshould be extremely compelling before a judge should grant a judgment or order that would separate thechildren in their formative years. [23] In this case, I find that there is no compelling reason why four-year-old twins should not reside in a home with their one-year-old full sister Emily. 5: THE LANGUAGE ISSUE [24] Alex and Olivia are presently attending junior kindergarten.

They both have speech delays — Alex more so than Olivia. They attend a French school in North Bay. They are struggling in school at the junior kindergarten level. They have difficulty speakingFrench at school. On weekends, their mother and maternal grandparents speak to them in French. They seem to comprehend French butalways respond in English. [25] I find that it would be to the children’s benefit to be fully bilingual.

So far, that is not occurring, notwithstanding the factthat they attend a French school. 6: CONCLUSION [26] I find that it is in the best interest that the children reside with their mother in Laniel and enjoy typical access with theirfather (i.e., every second weekend). The benefits of such a custody and access framework are as follows: 1. This will allow them to be raised in the same home as their full sister Emily. This consideration more than any helps to tipthe scale in favour of Ms. Perreault as the custodial parent. 2.

This will allow them a greater opportunity to become bilingual and to be able to function in the respective first language ofeach of their parents. 3. As an access parent, Mr. Wardell may actually have more recreational time with the children. They will have a greateropportunity to enjoy time with the extended Wardell family who have always been supportive. 4. It will drastically reduce their travel time to school. They will be attending school in the town of Fabre, Quebec, whichwill require a bus ride of approximately twenty minutes. [27] The final order shall contain these terms: 1.

Kathie Perreault shall have custody of the children Olivia Yvonne Wardell and Raymond Alexander Wardell, bornon 12 July 2006. 2. Paul Wardell shall have access to the children every second weekend from Friday at 7 p.m. to Sunday at 6:30 p.m.and any extra day because of a long weekend or professional development day. Exchanges shall occur at an agreedlocation in Temiskaming, Quebec. 3. Mr. Wardell shall have telephone access every second night when the children are not in his care. Ms. Perreaultshall have telephone access every second night when the children are not in her care. 4.

There shall be week-about access during the summer. 5. Christmas and March breaks shall be shared equally. 6. The parties may agree to any additional or alternative access. 7. The children are to engage in speech therapy. Both parents shall contribute equally to any costs arising for suchtherapy. 8. Mr. Wardell and Ms. Perreault shall use a communication book to travel with the children on exchanges. It shallcontain information required by the other parent to properly care for the children. It shall not be used as place tolodge complaints. All entries shall be constructive and respectful. 9.

Health cards shall travel with the children. 10. Mr. Wardell shall pay child support in the amount of $540.00 per month for both children commencing on 1 July2011 based on an annual income of $ 36 900.00 pursuant to the Child Support Guidelines, O. Reg. 391/97, asamended.

11. Either parent may attend any school activity or sports activity or event regardless of the access schedule. They shall notify each other in advance of such opportunities. 12. The children shall be enrolled in school for the fall of 2011. [ 28 ] This order shall come into force at the end of this school year (June 2011) when summer access commences. They will remain in their father’s care for the first week of summer access. [ 29 ] There shall be a support deduction order. [ 30 ] I am indebted to counsel for their assistance in this matter.