Court File and Parties

Court File No.: D53637/11 Date: 2013-02-04

Ontario Court of Justice

Toronto North Family Court

Between:

BERNADETTE BOKOR Applicant

- and -

PETER HIDAS Respondent

Counsel:

• Richard H. Parker, for the Applicant
• The Respondent, Acting in Person

Heard: February 1, 2013

Justice: S.B. Sherr

Reasons for Decision

Part One – Introduction

1The parties are the parents of three children, a six-year-old boy and twin girls, who are four years old.

2Both parties seek sole custody of the children. The applicant (the mother) proposes that the respondent (the father) have access to the children on alternate weekends from Thursday evening until Sunday evening and on specified holiday time.

3The father seeks equal parenting time with the children. He also asked the court to make orders requiring the mother to send her own mother (the maternal grandmother) back to Hungary and for the mother to obtain a psychiatric assessment.

4The mother asks for an order that the father pay child support arrears that have accumulated under the temporary order of Justice Marvin Zuker, dated June 28, 2011. She also asks that the father pay ongoing child support, based on his current annual income of $80,333.

5The father asks the court to make no child support order and to rescind his outstanding child support arrears.

6The case management judge, Justice Ellen Murray, ordered that the direct evidence on this trial be given by affidavit evidence, with the right of the parties to cross-examine the other. Both parties did this. At the trial, the father was given permission to provide additional oral evidence.

Part Two – Background Facts

7The parties are both 42 years old. They began their relationship in 1998 in Hungary. They moved in together in 1999 and lived in Hungary until they moved to Canada and were married on June 7, 2006.

8The parties bought a home together in Oakville, Ontario in June of 2009.

9The parties physically separated on December 21, 2010. The mother took the children and moved to Toronto.

10The mother issued her application on March 21, 2011. She amended that application on April 7, 2011. The father issued his answer/claim on May 5, 2011.

11On June 3, 2011, Justice Harvey Brownstone granted the mother temporary custody of the children and the father access on alternate weekends from Friday evening until Sunday evening. He also ordered police enforcement of the order, if requested by the mother. He ordered the father to pay costs of $1,500. These costs have gone unpaid. He invited the mother to bring a motion for temporary child support.

12On June 28, 2011, Justice Zuker ordered the father to pay temporary child support of $800 per month to the mother, as well as special expenses of $800 per month, starting on July 1, 2011. He based this on the father's annual income being $41,640 and the mother's annual income being $37,000.

13On December 21, 2011, Justice Zuker granted the father winter holiday access and changed the temporary support order to terminate the special expense payments as of September 1, 2011.

14The father brought two motions to change his temporary child support obligations based on a reduced income. He did not obtain this relief.

15Since February of 2012, based on an informal agreement between the parties, the father's access has taken place on alternate weekends from Thursday evening until Sunday evening.

16The father brought a motion to take the children to Hungary during the summer of 2012. On May 25, 2012, Justice Zuker granted the father's motion on terms, including a term that he post security of $5,000.

17Both parties now live in Toronto. The mother lives with the children and the maternal grandmother. The mother is employed full-time and earns about $41,300 per annum. The maternal grandmother cares for the children when they are not in school and the mother is at work.

18The father is an accountant. He presently works as a project coordinator for what he described as a global anti-laundering department for a major bank. He earned about $80,300 in 2012.

19The father has not paid any child support since October 1, 2012. A statement from the Family Responsibility Office, filed at trial, sets out that as of January 1, 2013, the father was in support arrears of $6,684.31 pursuant to the temporary child support order. The father agreed that this statement was accurate.

Part Three – Parenting

3.1 Legal Considerations

20The test for determining the issues of custody and access is what is in the best interests of the children. In making this determination, the court has considered the "best interest" factors set out in subsection 24(2) of the Children's Law Reform Act (the Act), as well as all other relevant considerations.

21The children should have maximum contact with both parents if it is consistent with their best interests. See: Gordon v. Goertz, [1996] 2 S.C.R. 27.

3.2 Analysis of Mother's Evidence

22I found that the mother presented her evidence in a calm, cohesive and reasoned manner. She did not resort to hyperbole. Her focus was on the best interests of the children and moving forward with her life. She was flexible about parenting arrangements and appeared committed to the children having a positive relationship with the father, despite her challenges in communicating with him. She did appear somewhat beleaguered from having to deal with the father and this court process. For reasons that I will set out, I found that very understandable. I found the mother's evidence to be reliable and preferred it when in conflict with the father's.

23The mother described a difficult relationship with the father prior to their separation in 2010. She said that he was not working, there were financial pressures on the family and he spent much of his time on-line gambling. She testified that he would fly into rages and become verbally abusive. [1] She described one incident, just prior to the separation, where a child was trying to get the father's attention. The father was irritated and asked her to remove the child. She did, but the child shortly returned to the father with a toy. She said that he flew into a rage, spit out food he had in his mouth, pushed back from the table, took the child's toy and flung it across the room, yelling at the mother"why don't you listen to me, I told you to keep her away from me!" The mother testified that she was becoming increasingly afraid of the father.

24The mother described the father as very demanding. She said that he would continuously "argue and argue" until she finally had to give him his own way. This description is consistent with how the father presented during the trial.

25The mother had health issues after the birth of the twins. She said that she was diagnosed with gestational diabetes. She said that for many months after the birth of the twins she was exhausted and frustrated by her condition. She said that this is now well-controlled and she receives regular medical attention for it. She said that her medical condition has no impact on her parenting.

26The mother has been working since the start of 2011 on a full-time basis. The maternal grandmother has come from Hungary to help her with the children. The children appear to be doing well in her care. [2]

27The mother expressed concerns about the father's parenting. She said that he has over-held the children in the past. On June 1, 2011, she had to obtain an order from Justice Geraldine Waldman for the father to return the children to her care. Justice Waldman also granted her a police enforcement order. She is worried because the children report that the father tells them that both she and the maternal grandmother are bad and are lying to them. The children report to her that the father tells them about lawyers, how she is trying to keep them away from him and how she owes him money. The father, she is told, tells the children not to trust her.

28The mother also deposed that the father is aggressive in his communications with her.

29The evidence shows that the mother has acted reasonably in this case, in difficult circumstances. She has been flexible around access, granting more than set out in the court order. She has proposed a generous holiday schedule for the father. She is certainly not greedy as portrayed by the father. She is only seeking to increase the father's child support obligation starting on February 1, 2013, despite having strong grounds to ask that this increase start on January 1, 2012, when the father's income dramatically increased. She is also not seeking an order that child support begin prior to the July 1, 2011 date ordered by Justice Zuker.

30The mother's flexibility is commendable in a context where the father has been difficult to deal with and has not met his financial responsibilities to the children.

3.3 Analysis of the Father's Evidence

31The father deposed that he was very involved in raising the children prior to the separation. He took paternity leave after the birth of the twins. The court accepts that he took on a significant parenting role at that time, particularly when the mother was struggling with her health.

32The father alleged that the mother was mentally unstable. He was unable to meaningfully expand on this allegation, despite being given several opportunities. The court was left with the impression that the basis of this allegation was that she had to be mentally unstable to leave him and cause (according to the father) a financial catastrophe for the family.

33The father also alleged that the maternal grandmother is mentally unstable. He cited an incident in February of 2012, where he alleged that she assaulted him at the children's school. No criminal charges were laid. No other evidence was led about her mental instability or parenting.

34It was remarkable in listening to the father give evidence for several hours, that he rarely mentioned the children, despite being reminded that this was what the case was about. The father was unduly focused on the fact that he felt that the mother was not justified in separating from him, and then taking the children to Toronto in 2010. The father never discussed who his children were, the nature of his relationship with them, his plans for the children or why it would be in their best interests that he have equal parenting time with them. They appeared to be an after-thought in this case.

35Instead, the father gave the court the impression that the reason he wanted equal parenting time with the children was strictly financial. He was acutely aware of the percentage of parenting time he presently spends with the children. The father appeared to sincerely believe that he cannot, in his words"pay a dime of child support at this time or for the next two years" (despite earning over $80,300 per annum). In his world-view, if the court structures the parenting arrangement so that he has no child support obligation to the mother, the children will be better off. He expressed considerable frustration that the mother and her counsel could not understand, what appeared to him, to be an obvious and logical solution to their financial problems.

36The father offered little evidence that would convince the court to change a parenting arrangement that has, for the most part, worked for the children. [3]

37Several concerns about the father emerged during the trial. He presented to the court as demanding and inflexible. He was argumentative. He was insulting to the mother and her counsel, scoffing at their ignorance. He totally externalized all blame to the mother and her counsel for what has happened to the family. He demonstrated absolutely no insight into his role in the breakdown of his marriage. He sincerely believes that the mother has destroyed the family. He believes that the future of his children is bleak. He set out that the mother has cost them over $110,000. He blames her for all of the legal and real estate fees incurred by both of them. He says that his failure to pay the court-ordered child support is a small part of the bigger picture, when one looks at how much money the mother has cost the family by leaving him.

38The court has little doubt that the father has shared his beliefs about the mother and the maternal grandmother with the children. This is very troubling. The children are far too young to process such information. It is undoubtedly confusing and destabilizing for them. This behaviour by the father is highly inappropriate. It needs to stop, or the children's long-term emotional welfare will be compromised.

39The father presented as having a controlling personality at trial. He asks that the court require the mother to send the maternal grandmother back to Hungary. He asks that the mother be required to obtain a psychiatric assessment. He said that the litigation would continue if the court continued the existing orders and he would present evidence of the mother's unfitness at trials in the future. [4] The father also intimated that he would consider returning to Hungary if the court made an order that created financial difficulty for him. This is consistent with an email sent by the father to the mother on November 5, 2012. In this email he tries to convince the mother to waive child support and threatens her financially. He writes:

….I'd rather submit a financial statement to court and request to discharge me from paying support in order to have realistic balance of expenses. If the court grants this, we will survive, if not then I have nothing to in Canada anymore.

Don't forget if I leave Canada from necessity, even a good paying job in Hungary is about $25,000 annually; you can only count on a child support of about $500/month IF I am willing to pay at all and have a legitimate job in Hungary after an unfair situation like this. Then you can try applying here for all kinds of social assistance and a better paying job in order to support the children……and there is no way back…..

Think about this, because it does not matter that you are attractive and young looking, another man will not take you and take responsibility for your 3 kids….men just want free sex, not looking after children!!

I won't go into more details, I hope you have the picture and start thinking about all of this.

40The evidence also demonstrated that the father has little regard for court orders. He has over-held the children. He has not complied with the child support order of this court and has paid no child support since October 1, 2012. His response was that it was not logical for him to comply with a court order that was not appropriate. He has not paid the costs order made by Justice Brownstone. This evidence supports the mother's evidence that the father does whatever he wants to do.

3.4 Factors in Subsection 24(2) of the Act

41The following paragraphs comment on the best interest factors set out in subsection 24(2) of the Act.

(a) The love, affection and emotional ties between the child and each person entitled to or claiming custody of or access to the child, other members of the child's family who reside with the child, and persons involved in the child's care and upbringing

42The court received little evidence about the nature of the children's relationships with the parents. The mother's behaviour, though, has been child-focused, reflecting sensitivity towards the children's interests. The father's demands appear to be more rights-based. His failure to properly provide financial support for the children and his veiled threats to return to Hungary if he doesn't get his own way causes the court to question his commitment and connection to his children.

(b) The child's views and preferences, if they can reasonably be ascertained

43The court received no evidence about the children's views and preferences. In any event, the children are too young for this to play a significant factor in this decision.

(c) The length of time the child has lived in a stable home environment

44The mother has been the children's primary caregiver since December of 2010 and has provided them with a stable home environment. She plans to continue this. The children appear to be functioning well in the existing parenting arrangement.

(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

45The mother has demonstrated that she can provide the children with guidance and education and the necessaries of life. The father has been unable to separate his own needs from those of the children. He undermines the children's relationship with the mother and the maternal grandmother. He has failed to meet his responsibility to financially support his children – a very important parental responsibility.

(e) Any plans proposed for the child's care and upbringing

46The mother has provided a sound plan to care for the children. The mother receives parenting assistance from the maternal grandmother. This plan is working. She recognizes the importance of the father in the children's lives and has proposed expanded access. The father provided scant detail about a how a shared parenting plan would work.

(f) The permanence and stability of the family unit with which it is proposed that the child will live

47The mother's plan has proven to be permanent and stable. The court wonders how stable the father's plan would be. It appears that if developments don't meet with his satisfaction that he is quite prepared to leave Canada and go back to Hungary.

(g) The ability of each person applying for custody of or access to the child to act as a parent

48I have already set out in detail the ability of the parents to act as parents. The mother has acted in a child-focused manner. The father has not consistently done this.

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

49This is not a factor.

3.5 Concluding Analysis

50The evidence is overwhelming that it is in the best interests of the children to grant sole custody of them to the mother and, for the most part, implement the parenting schedule proposed by her. The court has provided for an equal division of parenting time during the winter school break, as this was omitted from the mother's plan, and such an order appears to be consistent with the balance of her plan. The court has also clarified travel terms for the parties.

51Neither party sought joint custody in this case. Such an order would not be in the best interests of the children. The father has a controlling and dominating (if not abusive) personality and has significant difficulty separating his own interests from those of the children. He demonstrates blatant disrespect for the mother and for court orders. The mother cannot be expected to parent jointly with him.

An equal time parenting plan is also not in the children's best interests. This would just create a platform for the father to control the mother and the children. Such a plan would also require a high-level of communication and coordination between the parties, particularly given that the children are very young. The parents would have to coordinate schooling, medical appointments and extra-curricular activities for the children. The evidence indicates that implementing such a plan, given the dynamics between the parties, would be an invitation to conflict and chaos, and would be destabilizing for the children.

52While the court will implement the parenting plan proposed by the mother, it remains concerned about the level of the father's anger, his controlling behaviour and his inappropriate comments to the children. [5] It would be helpful if the father obtained counseling to deal with his emotions, but given his lack of insight, the court is skeptical that the father would positively engage in such a process. This means that the fundamental problems identified above will remain unaddressed. If the father continues his pattern of behavior, the mother should seriously consider moving to the court to place restrictions on the father's contact with the children. The father is put on notice that this will be a real possibility if his behaviour does not change.

Part Four - Child Support

53Justice Zuker made a temporary order on June 28, 2011 that the father pay child support of $800 per month starting on July 1, 2011. This was based on his 2010 income of $41,640. The father was also required to pay $800 per month for special expenses for July and August of 2011.

54The father did not provide a copy of his 2011 income tax return at trial. He did provide a pay stub showing that he had earned gross income of $22,781 as of December 5, 2011. The father said that he began work on March 7, 2011. This income, pro-rated, comes to $24,534 to the end of 2011. The father also said that he was on employment insurance benefits at the start of 2011 until he found work. He did not provide evidence of the benefits received. He believed that he received gross payments of $1,900 every two weeks, and then changed that amount to $1,600 every two weeks. [6] This would add about $6,500 to the father's 2011 income, to a total of $31,034.

55However, any child support adjustment that the father might be entitled to in 2011 [7] is more than offset by the fact that he earned over $80,300 in 2012, while his support obligation was calculated on an income of only $41,640. [8] Further, the mother did not seek to have support paid from the date she made the request for support in her amended application (May of 2011) – she only asks the father to pay the temporary support that the court has ordered.

56The father should consider himself very fortunate. If requested by the mother, the court would not have hesitated to adjust his support obligation, based on his actual income, starting on May 1, 2011. It is a sad reality of this case that the father is unlikely to view this as a positive gesture by the mother.

57Although not pleaded, the father made reference to undue hardship during the trial. He didn't come close to meeting the legal test to establish undue hardship set out in section 10 of the child support guidelines (the guidelines). See: Matthews v. Matthews, [2001] O.J. No. 876 (SCJ). He earns over $80,300 per annum. He has one credit card debt of $24,000. [9] He has no one else in his household. He claims to spend $900 per month for food. The mother earns about $41,300 per annum and has herself, her mother and the three children in her household. Requiring the father to pay the child support guideline table amount of child support is not an undue hardship. His standard of living far exceeds the mother's. Lastly, as the court has not adjusted his support in accordance with his actual income since July 1, 2011, the father has already received a substantial financial benefit.

58The records of the Family Responsibility Office reflect that when the father has paid child support, he has done so sporadically. Many of the payments collected have been through federal diversions. No support payments have been made at all since October 1, 2012.

59The court will set the father's child support arrears as of January 1, 2013 at $6,684.31. The court will leave it to the Family Responsibility Office to determine how these monies will be collected.

60The guideline table amount of child support for three children at the father's income of $80,333 per annum is $1,535 per month. The father shall be required to pay this amount to the mother on the first day of each month, starting on February 1, 2013.

61The mother also made a claim for a pro-rata division of future special expenses incurred pursuant to section 7 of the guidelines. There currently are no such expenses and the court declines to make a prospective order. The mother can make an application for the father to pay such expenses if they are incurred in the future.

Part Five – Final Order

62A final order shall go on the following terms:

a) The mother shall have sole custody of the children.

b) The father shall have access to the children on alternate weekends from Thursday evenings at 7 p.m. until Sunday evenings at 7 p.m. (the regular schedule), plus whatever other access the parties agree to.

c) The father shall have additional holiday access with the children:

i) On the Father's day weekend, if it is the mother's regular weekend with the children, the children shall be with the father from Saturday at 7 p.m., until they return to school on Monday morning. On the Mother's Day weekend, if it is the father's regular weekend with the children, the children shall be with the mother from Saturday at 7 p.m. until they return to school on Monday morning.

ii) In odd-numbered years, starting in 2013, the children shall be with the father on Victoria Day and Thanksgiving Day, with the children to be with the mother on these days in even-numbered years, starting in 2014.

iii) The children shall spend Family Day with the father in even-numbered years, starting in 2014, and spend this day with the mother in odd-numbered years, starting in 2013.

iv) The children shall spend the month of July each year with the father and the month of August each year with the mother.

v) Easter will be split equally between the parties. In odd-numbered years, starting in 2013, the father shall have the children with him on Good Friday and Saturday and the mother shall have the children with her on Sunday and Easter Monday. This schedule shall be reversed in even-numbered years, starting in 2014.

vi) The March Break is 7 days long and shall be equally divided. In odd-numbered years, starting in 2013, the father shall have the children with him on the first three days and the mother shall have the children with her on the last 4 days. This schedule shall be reversed in even-numbered years, starting in 2014.

vii) The winter school break of two weeks shall be equally divided. In odd-numbered years, starting in 2013, the children shall be with the mother during the first week of the winter school break and with the father during the second week of this break. This schedule shall be reversed in even-numbered years starting in 2014.

viii) The children shall spend time with the father on his birthday and time with the mother on her birthday.

ix) The regular access schedule is suspended during the specified holiday access times set out above.

d) The parties may take the children outside of Canada during their designated summer holiday month for vacation with the written consent of the other party (such consent not to be unreasonably withheld), or by court order. Should either party wish to take the children outside of Canada, they will provide the other with an itinerary of their trip, at least 30 days in advance of the vacation, contact information for the children and permit the other parent frequent communication with the children during the vacation. The traveling parent will be solely responsible for the cost of the trip.

e) The child support arrears accumulated under the temporary order of Justice Zuker dated June 28, 2011 are fixed at $6,684.31 as of January 1, 2013.

f) The father shall pay the mother the guideline table amount of child support for three children, based on his income of $80,333 per annum, in the sum of $1,535 per month, on the first day of each month, starting on February 1, 2013.

g) The father shall annually, by June 1st, provide the mother with complete copies of his income tax returns and notices of assessment.

h) A support deduction order shall issue.

63The mother may serve and file written costs submissions by February 18, 2013. The father shall then have until March 4, 2013 to serve and file any written response. The submissions should not exceed three pages, not including any offer to settle or bill of costs.

Justice S.B. Sherr

Released: February 4, 2013

Footnotes

1The mother emphasized that the father never physically abused her or the children, but feared that it would happen soon if she didn't take action.

2There was very little evidence presented about the children in this trial.

3He did complain that the mother had not adequately attended to the dental care of the children in 2011 and made unspecified allegations that she did not attend appropriately to their medical care.

4The court kept reminding the father that this was the trial where he was expected to present his evidence.

5The mother has clearly given the details of her plan careful consideration and has balanced the benefits of the children's contact with the children against the parenting concerns set out. The court is prepared to trust her judgment on this issue.

6This actually seemed to the court to be a high amount for employment insurance benefits.

7Based on an income of $31,034 the father would pay $615 per month, instead of $800 per month, a savings of $1,110 ($185 per month x 6 months) over the six months child support was payable in 2011. There would also be a slight adjustment to his two-month special expense contribution in 2011.

8If support was adjusted as of January 1, 2012, the father would have to pay $1,535 per month instead of $800 per month for a 13-month period. The difference in his support obligation would have been $9,555 ($735 x 13 months).

9The evidence showed that most of this debt is due to the legal fees that the father has incurred for this court case.