Child Access

Arrangements - Revisited

In this case the Applicant filed a Motion to Change a 2007 order and sought to change the access schedule between the two parents.

Applicant's Position:

The Applicant sought an order for the following:

• That the 5km restriction be lifted, so that she could move the children into a better neighbourhood;
• That access with the children’s father would occur every second weekend instead of every weekend;
• An order that the respondent shall pay the child care costs arising from his failure to exercise his access visits.

Respondent's Position:

The Respondent claimed that it had been the children’s routine for almost a decade now to see their family as much as access is granted. He opposed the Applicant’s attempt to reduce access and claimed that the Applicant was trying to eliminate even more time with the children, including the time they spent with the children’s grandmother and cousins on their dad’s side of the family.

Background

The Applicant and the Respondent began living together in 2001 and separated in 2003. There were 3 children from the relationship. Custody, access and child support were resolved in a court proceeding with a final order in June 2007. The parties had joint custody of their three children with the primary residence of the children being with the Applicant mother and generous access with the Respondent father.

The Respondent father began missing several access visits whereby the Applicant mother would be dropping off the children to his home only to find that he was not at home. This would result in long periods of waiting, followed by finding a babysitter on short notice so that the Applicant could go to work.

The Applicant sought to have access occur every second weekend instead of every weekend.

This request was based on the fact that the children spend all of the weekends during the school year with the Respondent. When the 2007 order was made the children were toddlers. Because of the fact that the Applicant now works and the children are now in school, the only significant time available to the children and the Applicant to spend time together is during the weekends. Changing the access would allow the children to spend half of the weekends in each month with the Applicant.

The Applicant sought the removal of the 5 kilometre mobility restriction for the following reasons:

• The children and the Applicant resided in a co-op apartment in Orangeville when the order was made in 2007. The distance from their former home to their new home is about 14 km.
• The children and the Applicant outgrew the co-op apartment. However, the rent was geared to her income and she could not afford to move. The rent-geared-to-income caused a problem for her because her income was defined to include the child support from the Respondent but he was habitually behind by several months in his child support. Her rent was therefore higher than she could comfortably consistently pay because her actual income was lower than what the rent was based on.
• In the area the children and the Applicant used to live, criminals and drugs were major problems. For example,
  • They lived next to a man who had just got out of prison for helping his brother cut up the brother’s wife’s body;
  • They could smell marijuana through the windows day and night;
  • Her car and garage were broken into on a regular basis;
  • The children in the neighbourhood were a bad influence, and there was a gang mentality among the other children. Swearing and damaging property was commonplace; and
  • There was a police presence in the neighbourhood almost daily.
• Their new neighbourhood was much safer. The area was excellent for kids. There was more freedom for them because they could move around the neighbourhood in safety. The new home was located on a ½ acre property in a neighbourhood surrounded by farms. It was simply a much better environment for them to grow up in.

Results of the Final Order varying the Order of 2007:

• The children’s primary residence remained with the Applicant. The applicant was permitted to reside with the children at the new residence, but no farther from the respondent’s residence than the distance of her current residence from the respondent’s residence without leave of the court or the respondent’s consent.
• The Respondent was given reasonable access, including overnight access, with the children and a share of the children’s holidays, upon reasonable notice to the Applicant. However, the Respondent was now responsible for the pickup of the children from the Applicant’s home and for the return of the children to the Applicant’s home at the end of access visits.