Phan v. Lam, 2011 ONCJ 151

Toronto Registry No. DFO 10 10895 A4 DATE: 2011·III·08 CITATION: Phan v. Lam, 2011 ONCJ 151 ONTARIO COURT OF JUSTICE BETWEEN: THI KHANH NGOC PHAN, Applicant, — AND — LONG DUC LAM, Respondent. Before Justice Ellen B. Murray Heard on 3 March 2011 Reasons for Judgment released on 8 March 2011 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 24, clause 24(2)(c). CASES CITED Curri v. Curri (1981), (ON SC), 34 O.R. (2d) 429, [1981] O.J. No. 3141, 1981 Cars​well​Ont 1189 (Ont. H.C., Mast.). Chung Calvin Huong ..................................................................... counsel for the applicant mother Shawn M. Philbert ....................................................................... counsel for the respondent father [1] JUSTICE E.B. MURRAY:— The applicant is the mother and the respondent the father of Jadon, who is 3½ years old.

They separated on 30 September 2010, when the mother left the family home with Jadon. [2] The mother immediately commenced an application seeking custody of the child. The father responded with an answerand cross-claim seeking custody and, in the alternative joint custody, with the child’s primary residence with him. On 31 January 2011,the parties agreed at a case conference to a temporary “without prejudice” order providing that the mother have custody and that Jadonreside with the father each week from Friday at 4:30 p.m. to Saturday at 9 p.m.

This was not the order requested by either party, but acompromise arrived at until a motion could be argued. 1: POSITIONS OF THE PARTIES [3] On this motion, the father seeks a temporary order for joint custody and an order that the child spend 50% of his timewith each parent, either on a “week on/week off” schedule, or on a

schedule whereby Jadon switches residences every 2-3 days. Jadon isto start school in September and the father does not wish any order for 50-50 residence to extend beyond the summer. The father made itclear that he saw an order providing for 50-50 residence as a “trial period” that will demonstrate that the child will do well living in hiscare for extended periods of time.

The mother submits that the hearing of this motion should be delayed, until after receipt of the reportof the clinical investigator of the Office of the Children’s Lawyer (OCL) assigned to this case. (The parties received notification that therequest for assistance from the OCL had been granted only on the day that the motion was argued.) If an order is to be made now, themother seeks a continuation of the order of 31 January 2011, with a slightly earlier return time on Sundays.

[ 4 ] The mother seeks an order for child support in a table amount. The father submits that, assuming that a 50-50 residential

schedule is ordered, that he should pay the set-off amount to the mother. 2: EVIDENCE [ 5 ] Prior to the separation, the parties and Jadon lived in an apartment in a home in west end Toronto owned by the paternal grandmother. The grandmother, father’s brother, his wife, and their two children, aged 10 and 12, occupy a separate unit in the home, which also has other tenants. [ 6 ] The mother and father work at the same company. They do not work weekends. At the time that Jadon was born, the mother was working the day shift (7 a.m. to 3 p.m.) and the father was working the afternoon shift (3 p.m. to 11 p.m.).

In early 2008, the afternoon shift in the father’s department was eliminated. The parties switched shifts, so that the father worked the morning shift and the mother worked the afternoon shift. Each parent was responsible for caring for Jadon when he or she was at home. There was a period from about 2-4 p.m. each weekday when each parent would be out of the house, and the paternal grandmother would provide care for the child. The paternal grandmother is now over 70 years old. The father’s brother is disabled; he and his wife work in the early morning delivering newspapers, and then sleep into the afternoon.

It does not appear that they had a regular role in caring for Jadon. [ 7 ] The mother and Jadon now live with an aunt and the aunt’s 18-year-old son in a home about a 30-minute drive from the former family residence. The aunt does not work outside the home and cares for Jadon while the mother is at work. [ 8 ] The mother applied for a shift transfer at the time of separation.

Although her 3-11 shift meant that she has been able to spend mornings and early afternoons with the child during the week, come September when Jadon starts school, that shift would mean that her time with the child would be drastically reduced. Shortly before this motion was argued, the mother was advised that her request for a shift change was granted.

She starts work on the day shift on 14 March 2011. [ 9 ] As with many motions heard at the beginning of a case, there is a dispute about a number of issues that cannot be resolved based on the conflicting evidence before me. • The mother alleges that the father abused her. She alleges one incident of physical violence in April of 2010 (no further particulars are given), followed by accelerating verbal abuse. The mother says that she did not contact police because she was afraid of reprisals from the father and his family.

The father flatly denies any allegations of abuse. • The mother alleges that she left the home because the paternal grandmother ordered her out. In fact, she says that, when she left, the grandmother screamed abuse at her in front of the basement tenant of the home, Ms. Yen. The father denies this allegation. The grandmother did not file an affidavit. • The mother alleges that the father is attempting to scare the child about living with her. She says that, since the alternate weekend access

schedule started at the end of January, Jadon has returned from visits saying that the father has told him that there are “scary monsters” in the mother’s home. The mother says that the child takes this story seriously and is now anxious about his living situation and has been reluctant to walk in the door upon his return from visits. The father denies that he has told the child stories about “scary monsters”. • The mother is concerned that, with her absence from the family home, the father, who she says likes to gamble at casinos, will shift much of his care giving responsibility to the paternal grandmother.

She says that the grandmother is too old to have responsibility for the child for extended periods. The father does not deny gambling on occasion, but states that he does not frequent casinos and is adamant that he is directly responsible for all Jadon’s care when the child is with him and he is not working. • The mother alleges that the child was injured once when in the father’s care and that the father did not know what to do and called her. She had to leave work, come home and take the child to the hospital.

The father responds that this incident was an accident and that Jadon has had accidents in the mother’s care, too. He denies that the mother took the child to the hospital. • The mother says that, during the marriage, she was the parent who played with and spent time with Jadon on weekends. She says that the father had little interaction with the child on weekends, preferring to watch TV or go to the casino.

The father denies this and states that he enjoyed many leisure activities with the child. 3: ARGUMENT [ 10 ] The mother’s counsel submits that she is caring for the child well, that there were concerns raised in her material about the father’s ability to care for the child and that any extension of access beyond that provided for in the order of 31 January 2011 should not be made until the court had the benefit of the report from the clinical investigator for the OCL. [ 11 ] The father’s counsel submits that two factors should lead the court to favour the father’s plan: 1.

The mother’s failure to facilitate appropriate contact between Jadon and the father since separation. 2. The fact that the father’s plan will return Jadon to an environment and

schedule that is similar to that which pertained pre-separation. Prior to separation, each parent was responsible for the child during the work week for 50% of the time each day; on the father’s proposed schedule, the child will be with each parent “week on/weekoff”. [ 12 ] The father says that, after separation and prior to the case conference of 31 January 2011, the mother only allowed him to see Jadon at her home in the evenings when she was at work and her aunt was present. The frequency of those visits is not clear; they appear to have occurred at least weekly.

The mother says that this arrangement reflects their agreement after the separation. That may have been the initial agreement, but there are letters from the father’s lawyer to the mother’s lawyer starting in November 2010

requesting more time with the child, with no restrictions on where that time was spent. The mother’s lawyer did not respond to thoseletters. [13] The father’s lawyer submits that the father’s plan offers Jadon the stability of the home that he had prior to separation,where he enjoyed and will continue to enjoy his relationship with extended family. The father’s lawyer argues strongly that the fact thatJadon has lived with the mother for the past 5 months should be disregarded, as the mother has created a status quo that is unfair to thefather, who is “entitled” to equal access to Jadon.

In essence, counsel submits that this court should disregard the fact that Jadon hasbeen in the mother’s primary care since separation, despite the direction in clause 24(2)(

c) of the Children’s Law Reform Act, R.S.O.1990, c. C-12, as amended, to consider “the length of time the child has lived in a stable home environment” when determining a child’sbest interests. 4: ANALYSIS AND ORDER [14] I have considered all the factors relevant to this decision, as set out in

section 24 of the Children’s Law Reform Act. Ihave no doubt that each parent loves Jadon. [15] I also accept on the basis of the evidence before me that each parent appears to be able to provide the child with adequateinstrumental care. Each of them was primarily responsible for caring for Jadon prior to separation while the other was working his orher shift. There are no allegations of serious neglect or mistreatment of the child. [16] I might have considered ordering a

schedule approaching an equal division of the child’s time with his parents if thefather had been proposing this arrangement as a plan that would continue beyond the summer. However, he is not. His plan involves avery significant

schedule change now and another very significant change in September. [17] I agree with the father’s submission that a parent’s willingness to facilitate appropriate access between a child and theother parent is a relevant factor in a decision on a temporary residential schedule. At this point I am not persuaded, despite allegations ofeach parent to the contrary, that the other parent will fail to facilitate contact between the child and him or her.

The mother’s restrictiveattitude on access to the father prior to the case conference might have been misguided, but she agreed to more appropriate access at theconference and does not ask today that that access be significantly reduced. There is no allegation that the mother has failed to complywith the access order of 31 January 2011. [18] The father’s counsel cited for my consideration the case of Curri v. Curri (1981), (ON SC), 34 O.R.(2d) 429, [1981] O.J. No. 3141, 1981 Cars​well​Ont 1189 (Ont.

H.C., Mast.), in support of the proposition that the mother should not“benefit” from the residential status quo created by virtue of the separation, when she left the family home with Jadon. The Curri v.Curri case dealt with a temporary custody motion, a motion heard only 16 days after the parties’ separation. Master S. David Cork foundthat the mother had before the separation surreptitiously planned a move from Markham to Ottawa with the children. The husbandarrived home one day to find them gone and discovered that the children were already enrolled in school in Ottawa.

Master Cork heldthat mother should not benefit from her unilaterally-created status quo and that the “real status quo” for the children was in thematrimonial home in Markham. [19] The situation before me is far different than the situation in Curri v. Curri. I am hearing a motion 5 months after theparties’ separation. In this case, the mother did not move from Toronto to Ottawa — she moved just a few miles away from the formerfamily home. Otherwise, the circumstances of the separation are not clear.

The move may have been precipitated by an order frompaternal grandmother, who owns the home. [20] Every separation involves some disruption of the status quo that existed prior to separation. Orders on temporarycustody-and-access motions usually necessarily involve some change to that pre-separation status quo. [21] My focus in this decision is on Jadon’s best interests, not on what is “fair” to either parent. The child has lived primarilywith his mother for 5 months, a long time in a 3-year-old’s life. The Act recognizes that both disruption to an

schedule that a child hasenjoyed for some time and the stability and permanence of any new

schedule proposed are important factors in making a decision abouta child’s residential schedule. I am not inclined to order a 50-50 residential schedule, which, both parents agree, would have to bechanged again within another 6 months. [22] I intend for the time being to preserve the child’s primary residence with the mother and to provide increased time for thechild with the father, pending receipt of the report of the clinical investigator of the OCL. Because of the early hour at which each partymust leave for work each day, neither seems to think that mid-week overnight visits are workable.

I order on a temporary basis thatJadon’s primary residence shall be with the mother and that Jadon shall reside with the father each week from Friday at 4:30 p.m. toSaturday at 9 p.m., and each Wednesday from 4 p.m. to 8 p.m. The father shall be responsible for the child’s transportation. [23] The mother’s material raised a concern that the father is a heavy smoker and exposes the child to smoke. The father’sresponse is that this concern has “no merit”.

I was left uncertain whether the father denied smoking in the child’s presence or whether hedid not deny the allegation but thought that such behaviour was unrelated to the proper care of Jadon. The father’s lawyer assured methat the father would abide by any condition that I placed on him related to the child’s residential schedule. In my view, the dangers ofsecond-hand smoke to health are not open to question.

I order that that father shall not smoke in his residence or car or any otherenclosed space while Jadon is in his care. [24] I am not satisfied that these parties have the level of communication necessary to implement a workable joint system ofdecision-making. On the other hand, I do not wish to prejudice the father’s case by allowing the mother over the next few months tomake any major decisions about Jadon’s upbringing that are not necessary. Fortunately, it appears that no major decisions will berequired. Neither parent proposes to move.

The parties agree that the child should continue to see the same paediatricians and familydoctor. It is not necessary to register the child for school within the next three months.

[ 25 ] I order that the mother shall have temporary custody of Jadon, subject to her consultation with the father about any major issues concerning the child’s upbringing. That consultation shall, except for emergencies, take place by e-mail.

I order further on a temporary basis that: • Neither parent shall register Jadon in school for the September term without further order of this court or prior written agreement of the parties. • The mother shall not move Jadon’s residence outside the City of Toronto. • Neither party shall take Jadon outside the City of Toronto on an overnight trip without the prior written approval of the other parent. [ 26 ] I order that the father pay to the mother temporary child support in a table amount (under the Child Support Guidelines , O.

Reg. 391/97, as amended) of $512 based on his 2010 income of $56,912 commencing on 1 January 2011, with credit for funds already paid pursuant to my temporary “without prejudice” order of 31 January 2011. [ 27 ] This case will come before me next on 17 June 2011, for a settlement conference.