Court File and Parties
Ontario Court of Justice
Between:
Jennifer Amanda Cox Applicant
— And —
Jason John Lewis Respondent
Before: Justice M.A. McSorley
Heard on: February 24, 25, and 26, 2014
Reasons for Judgment released: March 3, 2014
Counsel:
- Jennifer Amanda Cox: Mr. Grant Rayner
- Jason John Lewis: On his own
McSorley J.:
Introduction
1The matter before the court involved an amended application brought by the mother for custody of and support for the child Zoe Ella Lewis born November 28, 2011, with no access to the father, and for a restraining order against the father. In his answer, the father sought joint/shared custody of the child, a prohibition that the child not be moved from Ingersoll, Ontario, that the child not travel out of the province of Ontario without court order, and for a police enforcement clause related to his access to the child. The father also sought an order that the applicant provide him with a copy of the child's long form birth certificate.
Background
2The parties met in August 2010 and began dating. The mother indicated that neither of them were honest with each other about their past. Initially, the mother did not tell the father that she was engaged to a man who lived outside of the country. The father did not tell the mother that he was married or about his extensive criminal record. Despite this the parties started to live together in December 2010. In early 2011, the mother discovered she was pregnant. Zoe was born in November of that year.
3The parties remained together until the end of July/beginning of August 2012. Although both parents agree on the timing of the separation, they disagree on what caused the separation. The mother's evidence was that things were fine until she got pregnant. At that time she stopped attending social events where drinking was occurring, but the father would go out alone to bars and would come home with ripped shirts and bloody lips. In August 2011, she discovered that the father had been involved in an assault causing bodily harm. Shortly thereafter, the parents received indirect threats of revenge from the victim's family. This resulted in their moving. It also resulted in the mother being afraid when she was alone at night with the child. The mother also testified that the father and his friends would bring drugs into the house, which she disapproved of after the child was born. Finally, the mother testified that in July 2012, she witnessed the father punch another person on a dance floor and indicated that the attack was completely unprovoked. This together with the other issues, convinced the mother that she and the father should separate.
4The father's evidence was that after the mother became pregnant he learned that she had been engaged to someone else. She apparently lied to him and told him she was travelling to Spain for a handwriting analysis course. In fact, she travelled to Washington state to break off her engagement. She was in Washington for two weeks. The mother testified that she travelled to Washington before she and the father started living together. The father testified that she went to Washington in April or May 2011. According to the father, their relationship became strained at that time. He said he held out through the pregnancy and later because Zoe had been born and he did not want to leave her. Eventually, however, he found the relationship to be too strained and he decided to leave, with the agreement of the mother.
5Immediately following the separation, the mother started her application. On October 15, 2012, an interim order was made granting custody of the child to the mother and providing access to the father each Sunday from noon until 4:00 p.m. The order also prohibited the father from consuming alcohol during access or being under its influence. Unfortunately, problems began almost immediately. The mother attended church with the child each Sunday. The services were not over until noon and she was unable to be at home by noon for the pick up of the child by the father. She suggested that they meet at the church. The father adamantly refused to do so. Exhibit #1 was a text message stream between the parents dated November 7, 2012. In it the mother indicated that she would have the child ready at the church at noon and asked if the father would need the car seat. The father's response was to tell the mother that he would pick the child up at the house and that this was "final". The next part of the message was difficult to understand due to spelling and typing errors. In it the father said he would call the police if the mother were not home when he attended to pick the child up and indicated that he had given the mother a couple of weeks to organize herself to be at home at the pick up time and it was not his fault that she had not done so.
6There was clearly a misunderstanding regarding the order on the part of the father. The order of October 15, 2012 did not require the mother to be at home for the pick up, but only required her to make the child available on time each Sunday. She made it very clear that Zoe would be ready at noon at the Church. Aside from a slight inconvenience to the father in travelling to the church, there was no need for the difficulties that were created by him as a result of his inflexibility. There was also no police enforcement clause in the order. The father's threat to call police was meant to intimidate the mother and had no legal force or effect.
7The text stream is illustrative of the manner in which the parents moved forward regarding issues of access and custody. The text message shows that it was Mr. Lewis who was inflexible and who created a problem with the pick up that was totally unnecessary. Mr. Lewis testified that the mother was a dictator and that he was required to fight against her demands and commands. He also testified that he went out of his way to 'butt heads with her'.
8On November 5, 2012, an interim child support order was made, requiring the respondent father to pay to the applicant mother child support in the amount of $379.00 per month based on his annual income of $42,000.00. Unfortunately, Mr. Lewis did not pay the support to the mother indicating that he waited until FRO took the necessary steps to enforce the order. While it is true that FRO often takes several months to complete the administrative work to get support flowing, it is also true that a parent can ensure that his/her child is supported by paying the money directly and obtaining a receipt, or by way of cheque, that can later be provided to FRO to show payment. Alternatively a parent could set aside the monthly amount each month, so that the funds are available for immediate payment when FRO is finally ready to enforce the order. Mr. Lewis did none of these things and FRO was required to garnish his pay to make up the support and arrears that accumulated. Although Mr. Lewis was within his legal right to take these steps, they are not the steps taken by a parent concerned about his/her child's basic needs being met. Fortunately, Ms. Cox was on Ontario Works for some time and the arrears were mostly owed to the Ministry. Mr. Lewis testified that with tax refunds, the arrears should soon be caught up. The court's concern is that Mr. Lewis' insistence on exercising his absolute right to wait for FRO again shows his inflexibility in working with the mother in the child's best interests.
9On November 5, 2012, there was also an order made requesting the assistance of the Office of the Children's Lawyer. Mr. Lewis testified that he wanted the OCL to become involved in the case. Unfortunately again, Mr. Lewis did not meet with the OCL representative as requested by her. Ms. Brothers, the author of the OCL report filed with the court noted that there were significant pieces of information missing from her assessment and that despite "multiple efforts to contact Mr. Lewis to arrange a meeting and complete the assessment, he did not attend the scheduled meeting, nor did he contact to reschedule or discuss the reason for his absence". (Emphasis mine)
10As a result of the lack of information from Mr. Lewis, Ms. Brothers noted that the recommendations in the report did not significantly change the arrangements that were in place but attempted to address the mother's concerns while allowing Mr. Lewis to continue to have a relationship with his daughter and to have access to information about her. More will be said about the report below.
11On March 15, 2013 an interim order was made changing the father's access to Sundays from 1 p.m. to 8 p.m. and on Saturdays subject to the Respondent's work schedule to be arranged between the parties. Although this order left open the possibility of more access by the father on Saturdays when his work schedule allowed, no arrangements were ever made for extra access by the father. According to Mr. Lewis, the mother was not amenable to making any additional arrangements for access. Having regard to her position that Mr. Lewis should have no access to Zoe, I accept his evidence on that issue.
12By November 2013, the issue of access had become more problematic with the mother alleging that the father was threatening her during access exchanges and the father alleging that the mother was making false allegations to make him look bad. Additionally, Mr. Lewis was compelled to bring two motions for contempt alleging that the mother had withheld access. The first of these motions was brought on November 4, 2013. The material filed in support of the motion indicated that the mother had withheld access on October 13, and October 20, 2013. In response to this motion, the mother brought a motion asking that the father be restrained from molesting, harassing or annoying her, that the father's access be supervised, or alternatively that the access exchanges occur at the London Ontario Police Headquarters.
13In her response the mother deposed that the father would not agree to drop Zoe off at the London Police Headquarters and that if he had to do so he would keep Zoe an extra hour to compensate for the time he lost with her. This meant that the child, who had not yet reached her second birthday, would not be arriving home until after 9 p.m. It was for this reason that the mother cancelled the next visit on October 20th. There was no explanation regarding the visit on October 13th.
14The two motions were heard on November 4, 2013. On that date a further interim order was made providing that pick up and drop off for the purpose of access was to be done at the London Police Services Headquarters, 601 Dundas Street, in London Ontario. There was no finding of contempt made in that order and the father's access was not changed.
15This event is again illustrative of the parents' inability to discuss matters and be flexible regarding issues that concern their child. Ms. Cox had no authority to cancel access because the father refused to return the child to her in London, without the benefit of a court order, but neither did Mr. Lewis have the authority to demand that the mother return the child to Ingersoll or threaten to keep Zoe past the allotted time of access.
16What is evident is that the parents spend unnecessary and unuseful time arguing about "their rights" and show that they have no ability to communicate and co-operate with each other for the benefit of their daughter. In this I find both parents equally at fault.
17The second contempt motion was brought by Mr. Lewis on January 27, 2014. In his affidavit in support of the motion, Mr. Lewis deposed that he was advised by Ms. Cox in a text that the mother's lawyer has suspended access. The affidavit did not attach a copy of the text, which would have been helpful. The motion was not responded to, nor dealt with because the trial was imminent. Unfortunately, Mr. Lewis did not ask the mother questions about the missed visit in January or show the court the text in which Ms. Cox apparently suspended access. As such there can be no finding of contempt with respect to this visit.
18However, it is important that the court make a clear order regarding access by Mr. Lewis and direct both parties to follow that order exactly, unless they agree in writing to a change. Because they have been unable to discuss and agree to changes for Zoe's sake the court has no option but to make an order that eliminates all discretion regarding access. Both parents must comply with the terms of the order. If a change is necessary for the child's sake, the parent seeking a change must come to court before using self help.
Position of the Parties
19The mother's position was that she should retain sole custody of Zoe; that the father should pay Guideline support based on his current income, contribute to s. 7 expenses; and that he should have no access or alternatively, supervised access to the child.
20It was difficult to get a clear picture of what order the father wanted the court to make, especially regarding custody, despite several requests that he articulate it. What was clear was the father wanted as much time as possible with the child and wanted to have the same responsibility for her as the mother. He specifically asked for access on weekends from Saturday morning to Monday at noon and for midweek day visits as well. He requested holiday time with Zoe when he is not working and alternate holiday time on Christmas, Easter and Thanksgiving. He agreed to pay guideline support although he suggested it be based on a lower income than was suggested by the mother.
Issues
21The issues for determination are as follows:
a) Custody: should there be a joint or sole custody order and with whom should the child primarily reside?
b) What access should be ordered for the non-custodial parent and should it be supervised?
c) What support should be payable for the child and what is the proportionate share of s. 7 expenses?
Credibility of the Parties
22Before dealing with the law regarding custody, access and child support, it is necessary to comment on the credibility of the parties and their evidence. Both the mother and father testified on their own behalf. The father both testified and submitted that the mother lied about most of the issues in dispute and regularly, during the litigation, made false reports to police, CAS and the OCL in order to make him look bad. The father provided very little proof to support his claims regarding the mother's lies, except to indicate that she reported to the CAS that he had come to her home to pick up Zoe smelling of alcohol and that the CAS reported to the OCL that he was returning Zoe when the mother smelled alcohol. It is impossible for the court to find that the mother told two different stories regarding the same event, because it was not her who made the comments to the OCL, but rather a CAS worker who made the statement. It is equally possible that the mother told the CAS worker that she smelled alcohol when the father attended to pick up Zoe and that the worker made a mistake when she relayed the information to the OCL months later.
23During cross examination, evidence was presented to the father that showed he had misled the court on certain issues. These issues included, in part, information regarding his criminal record, his financial situation and the ability to pay less HST/GST on consumer goods and services.
24With respect to the father's criminal record, the court directed the father on day one of the trial to complete a form 35.1 affidavit. None had been served and filed in the proceeding by the father. His explanation, which is accepted by the court was that he was unaware that he needed to do so. However, when the court directed Mr. Lewis to serve and file his 35.1 affidavit, he was told when a parent who had a criminal record did not file a 35.1 affidavit, it raised concerns that the parent was trying to hide something. This admonition should have been a warning to Mr. Lewis to be forthright in his affidavit. Mr. Lewis assured the court he was not trying to hide anything and would bring a sworn 35.1 affidavit to court the next day. He did bring a 35.1 affidavit to court on day two of the trial and it was filed as Exhibit 3.
25In the 35.1 affidavit at paragraph 6 under the heading: "I have been found guilty of the following criminal offence(s) for which I have not received a pardon:", Mr. Lewis listed a robbery in 1999, a robbery and assault in 2004 and an assault in 2013. He was sentenced to 3 years in prison for the first robbery, 7 years in prison for the second robbery/assault and 3 years probation for the assault in 2013. At the bottom of the page where the form asks for information regarding violence or abuse, Mr. Lewis indicated he was involved in a domestic situation in 2001 and pled guilty to assaulting his partner (wife) at the time.
26During his testimony, Mr. Lewis said he went back to the oldest charge and then included the most serious charges. He did not include other charges that occurred while he was incarcerated. He described some of the other charges that had not been listed while giving his evidence in chief. Details were clearly lacking in his evidence and the violent nature of some of his crimes was downplayed.
27During cross examination, Mr. Lewis was presented with a more detailed description of his criminal past, which he admitted was true. In 1997, he was charged with robbery and disguise with intent, three counts of break, enter and theft, disguise with intent, robbery, theft under $5000, possession of property over $5000 obtained by crime, and failure to comply with a recognizance. He explained that he did not include all of the details and charges, because all the above charges were related to the robbery, which he had noted in his 35.1 affidavit.
28In 1998 he was convicted of attempting to escape prison. In September 2001, he was convicted of assault with a weapon against his wife. He admitted to pleading guilty to assault with a weapon, but then downplayed the incident claiming only to have removed a knife from her hand. He then admitted that he had acknowledged the facts to be substantially correct at the time he entered a guilty plea to the charge.
29In August 2002 he was convicted of failing to comply with a recognizance and uttering threats. He testified that he did not remember the scope of those charges and thought they were associated with the assault against his wife.
30In September 2003 he was found guilty of assault with a weapon related to an assault while incarcerated. In March 2004 he was found guilty of assault causing bodily harm. He noted that he had listed that assault with the robbery charge in 2004. He stated that he did not remember it being an assault causing bodily harm, although he admitted that he knew the difference between assault, assault with a weapon, and assault causing bodily harm.
31Also in March 2004 he pled guilty to three counts of robbery. During his evidence in chief he had described these crimes as robberies of banks where he presented a note to a teller. He described being bent over toward the teller and having his arm across his chest. He did not mention any weapon and in fact was asked if he had one and he answered no. Yet in cross examination it was learned that he had also pled guilty to using an imitation firearm in two of the robberies, receiving one year consecutive on each of those charges.
32Mr. Lewis did not list a parole violation in 2007 for which he was returned to jail to complete the remainder of his sentence.
33Mr. Lewis candidly told the court that substance abuse (drug use) had been a major contributing factor in each of his charges. He admitted that he had been addicted to drugs and all of his crimes were related to getting drugs or getting money for drugs. He admitted that he used drugs during his first 3 year prison sentence and that he only stopped using drugs in 2004. He testified that he was clean from drug use and no longer used drugs. He also admitted that alcohol had been a factor in some of the crimes he committed, specifically the last one in 2011.
34With respect to that charge, Mr. Lewis noted in his affidavit that he was charged with assault. During examination in chief, he described the incident. He testified that he and a friend had gone to a bar for 'last call' after having a couple of drinks at a friend's house. At the bar, they ran into Mr. Lewis' brother. Mr. Lewis' brother and a friend got into an altercation on the dance floor. The friend then left and went home.
35Later while Mr. Lewis and his brother were walking home, they ran into the men who had been in the bar fighting. According to Mr. Lewis, one of the men got aggressive and instigated a fight. Mr. Lewis' brother yelled for him and he ran over. According to Mr. Lewis, he was swung at and he turned around and hit someone else. Later Mr. Lewis discovered that the person he had hit had perhaps been a peacekeeper who was trying to break up the fight and that his intentions were not clear. At the end of this explanation, Mr. Lewis said he had not intended to hide his criminal record and that there was 'not near enough room' on the 35.1 affidavit to provide details or list all the charges of which he had been convicted. No explanation was provided by Mr. Lewis as to why he did not simply add a piece of paper in order to provide full disclosure to the court.
36When Mr. Lewis was cross examined regarding the 2011 assault, it again became clear that he was downplaying the seriousness of the crime. Not only did Mr. Lewis strike an individual named Darryl Watson, Mr. Watson fell after being punched and hit his head on the concrete. He had to be transported to hospital where he spent time in the intensive care unit in a coma for an undetermined time. The assault was clearly not the common assault listed on the 35.1 affidavit or described by Mr. Lewis initially, but caused the victim serious bodily harm. This assault also resulted in Mr. Watson's family making threats against Mr. Lewis on facebook, something which the mother testified about and which led her to want to move away.
37Mr. Lewis admitted in cross examination that alcohol has played a factor in some of the crimes that he has committed including the last assault in 2011. Aside from one occasion, he claims that he has not consumed alcohol while on any terms of release not to do so. His undertaking to a peace officer given after the assault in August 2011 included a term not to consume alcohol. According to the OCL report, his probation terms related to the 2011 offense require him to abstain from drugs and alcohol for a period of three years from April 2013 to April 2016. Based on pictures in Exhibit 8, Mr. Lewis has clearly consumed alcohol on occasion in the past and likely continues to do so. Unfortunately the pictures are not dated and Mr. Lewis could not remember when they were taken. Ms. Cox did not give evidence as to the timing of the pictures. It is not possible for the court to determine if Mr. Lewis has breached his probation terms on the evidence presented.
38Mr. Lewis also admitted in cross examination that many of the crimes he had committed were violent. He admitted that he had spent 11.5 years, (approximately 1/3) of his life in jail. He noted however, that most of the crimes were committed under the influence of narcotics, which he no longer consumes.
39Other examples of the father's attempt to mislead the court concerned financial information. Mr. Lewis filed a financial statement in September 2012. At that time he did not include any mention of a twice yearly grant he receives from the Millbrook First Nation Enterprise Grant. According to the evidence the amount received can be $2000 to $3000 per year. There was no explanation as to why Mr. Lewis did not include this income in his first financial statement.
40The third area where Mr. Lewis' credibility was questionable was with respect to the GST/HST tax benefit he receives. Mr. Lewis produced a document printed from a government website dealing with the guidelines regarding GST/HST on goods purchased by Indians, Indian bands and unincorporated band-empowered entities. This document was filed at Exhibit #6. Mr. Lewis' evidence that the document provided a 'perfect' explanation as to when GST/HST applies to consumer goods and services for him. According to the document, generally GST/HST does not apply to goods bought on a reserve by Indians, Indian bands and unincorporated band-empowered entities. Goods bought off a reserve by Indians, Indian bands and unincorporated band-empowered entities are subject to GST/HST, unless the goods are delivered to a reserve by the vendor or the vendor's agent. (emphasis mine). In Ontario, qualifying First Nation purchasers are obliged to only pay 5% GST/HST. Mr. Lewis' evidence was that he does pay full GST/HST of 13% unless he buys on the reserve for items that remain on the reserve.
41However, during cross examination, Mr. Lewis was presented with an invoice from Surplus Furniture and Mattress, filed as Exhibit #7. The invoice showed the sale of furniture to Mr. Lewis in the amount of $927.00 with HST of $46.35. This amount is exactly 5% of the purchase price. The address of Mr. Lewis is shown as being on the reserve although the shipping address was in Ingersoll. Although Mr. Lewis tried to have the court believe that he would have had to show his status card and identification to obtain the tax relief, it is clear that he did so and only paid 5% on his purchase.
42These examples show that Mr. Lewis was willing to misrepresent certain facts and attempt to misdirect the court on others. The court finds that he was less than forthright. Because of this, the court is obliged to accept the mother's evidence where her evidence and that of Mr. Lewis conflicts. However, having assessed Mr. Lewis' credibility as less than exemplary, the court is still not prepared to use that as the basis for terminating all of his access to his child.
The Law and Analysis
Custody
43Before the access issue is discussed, the court must determine who should have custody of the child. As earlier indicated, the father sought equal responsibility for the child. In his application he sought joint/shared custody of Zoe.
44The decisions of the Ontario Court of Appeal in Kaplanis v. Kaplanis, 10 R.F.L. (6th) 373 and Ladisa v. Ladisa, 11 R.F.L. (6th) 50 deal specifically with the criteria to be applied in deciding whether a custody order should be joint or sole. Although the Court of Appeal reached different conclusions on whether the trial judge erred in ordering joint custody and shared parenting in Kaplanis and Ladisa, the Court applied the same legal analysis to both. Several important guidelines can be taken from Weiler J.A.'s reasons in Kaplanis and Ladisa. They are as follows:
a) there is no default position in favour of joint custody in Ontario;
b) each case is fact based and discretion driven;
c) past parenting experience both during cohabitation and after separation is of critical importance to a court's decision on whether to order shared parenting in any form;
d) the fact that one parent professes an inability to communicate with the other parent does not in and of itself mean that a joint custody order cannot be considered, but hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order for joint custody;
e) where there is no evidence of historical co-operation and appropriate communication between the parents, joint custody may be inappropriate.
45In the Kaplanis case, Weiler J.A. found that there was no history of cooperative parenting or effective communication between the parents. Rather she found there was evidence to the contrary on these points. Accordingly, she held that the trial judge erred in ordering joint custody and granted sole custody of the child to the mother who had been the child's primary caregiver. In Ladisa on the other hand, Weiler J.A. found that the trial judge had taken into account the history of co-parenting by the parties while they were married and the ties that the children had to both their parents in reaching the conclusion that joint custody was appropriate in the circumstances. Weiler J.A. found that the trial judge was satisfied that notwithstanding their differences the parents could cooperate and had communicated effectively putting the interests of the children ahead of their own when it was necessary to do so. As a result, the Court of Appeal was not persuaded that the trial judge had erred in ordering joint custody.
46In this case there is no history of cooperative parenting or effective communication between the parents. The parents lived together after Zoe's birth for approximately 8 months. Immediately following Zoe's birth, the father was more involved in her care, when he was not working due to the mother's medical condition. Since the separation, the mother has been the primary caregiver of the child.
47As for communication, both parents gave evidence that they are unable to communicate. Both make demands and neither has appeared to be flexible regarding access arrangements with Zoe. Although Mr. Lewis denies that he has ever threatened the mother directly, his history suggests that he has a temper and is not always able to control it. During his evidence, he called the mother a liar and a dictator. On at least two occasions he refused to change arrangements for picking up the child or returning her. He demanded on one occasion that the mother meet him at her home, rather than her church and on another refused to return Zoe due to weather conditions. Although he indicated the roads were closed, he did not provide any proof of that to the court. The mother had to drive to Ingersoll to pick up the child. If the parents cannot work out simple details of this nature, the court sees no hope that they will be able to discuss and decide on major issues affecting Zoe.
48Mr. Lewis was not able to show much insight into how his behaviour might affect others. He does not acknowledge any responsibility in the break down of communication between the parties. Whether he agrees or understands, the court accepts that the mother is afraid of Mr. Lewis when she has to deal with him on her own. Mr. Lewis' evidence was that he needs to bring witnesses or record his contact with Ms. Cox in order to protect himself. Nothing in the evidence by either party, suggested that a joint custody order would work. In fact all of the evidence pointed to the absolute need for a sole custody order.
The OCL Report
49In November 2012 the parties consented to an order requesting the assistance of the Office of the Children's Lawyer. The OCL determined that it would provide a s.112 assessment. The assessor met with the mother on two occasions and observed interaction between the mother and Zoe in a home visit in May 2013. The assessor was able to meet with the father on only one occasion and observed him and Zoe during a separate home visit. The report indicates that on June 14, 2013 a voice mail message was left for Mr. Lewis, to which he did not respond. On June 26, 2013 a further voice mail message was left for Mr. Lewis, and he again did not respond. A letter was sent to him on July 7, 2013, to which he did not respond. Finally, Mr. Lewis missed a scheduled meeting with the assessor on August 16, 2013 and did not call to explain his absence or to reschedule. The assessor noted that despite multiple efforts to contact Mr. Lewis, he did not contact her.
50As a result, the assessor noted in her report that significant areas of the assessment were not completed due to lack of information from the father. As such, her recommendations were to make minor changes to the access regime that was in place when she began the assessment with additional access for holidays.
51During the trial, the father testified that the mother made up stories to the CAS and the police in order to make him look bad. Mr. Lewis had a perfect opportunity to provide as much information as possible to the assessor. The lack of information from his perspective is entirely due to his own actions in not fully participating with the assessment.
52Despite Mr. Lewis' lack of participation in the assessment, the assessor noted that Zoe was comfortable in the presence of both parents. Both parents were observed to be playful, affectionate and protective of Zoe. She went on to say that Zoe requires a sense of predictability and security in her relationship with both parents. While the assessor noted that a joint/shared custody arrangement could not work due to the high level of conflict between the parents, she felt that Mr. Lewis should continue to have a relationship with his daughter, through access. This recommendation was made despite the allegations made by the mother and despite Mr. Lewis' criminal record which was known to the assessor.
Best Interests of the Child
53Section 24 of the Children's Law Reform Act sets out that the merits of an application for custody of or access to a child shall be determined on the best interests of the child, in accordance with subsections (2) (3) and (4) of s. 24. As neither parent made submissions on the criteria in s. 24(2), the court will deal with the section generally.
54Criteria in section 24(2):
(a) the love, affection and emotional ties between the child and,
i) Each person entitled to or claiming custody of or access to the child,
ii) Other members of the child's family who reside with the child, and
iii) Persons involved in the child's care and upbringing.
(b) The child's views and preferences, if they can reasonably be ascertained.
(c) The length of time a child has lived in a stable home environment.
(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.
(e) Any plans proposed for the child's care and upbringing.
(f) The permanence and stability of the family unit with which it is proposed that the child will live.
(g) The ability of each person applying for custody of or access to the child to act as a parent.
(h) The relationship by blood or through an adoption order between the child and each person who is a party to the application.
55Both parents love their daughter. To his credit, Mr. Lewis did state that Ms. Cox was an amazing mother and that she had done a remarkable job with Zoe. Ms. Cox testified that Zoe is a happy and healthy child. Mr. Lewis was sincere in his evidence that he wanted a full and positive relationship with his daughter. On this point, both parents are equal.
56Zoe is only 2 years old. Although there is a report from the OCL, it obviously does not deal with her views and preferences. Even if she was able to articulate her views and preferences, her age would preclude the court from giving them any weight.
57Zoe has lived in her mother's care since separation 18 months ago. All of her needs have been met by her mother. There were no complaints about the care she has received at the hands of her mother, except with respect to a diaper rash, and no evidence that it would be in Zoe's best interests to be removed from her mother's care. The mother is now employed, but has secured day care for the child. There was no evidence as to how the father would care for the child on a full time basis, primarily because he did not really feel the need to change custody of Zoe from that of her mother. His primary goal in this proceeding was to have regular, consistent, positive access to his child. That issue will be dealt with separately.
58The review of all the factors shows that the mother has provided a stable, caring home for the child since separation; that Zoe is happy, healthy and meeting her milestones; and there is absolutely no reason to move her from her mother's care. There will, therefore, be an order that the mother have custody of the child Zoe.
Access
59The father has had access to Zoe every Sunday from 1 p.m. to 8 p.m. since the interim orders were made. Most of the problems regarding access relate to the exchanges for access. Ms. Cox feels threatened and afraid of Mr. Lewis. Mr. Lewis testified that he protects himself by having a witness present or by recording the conversation during access exchanges.
60The mother submitted that Mr. Lewis should have no access because he has nothing to offer the child, due to his extensive criminal history. Even if the mother did not know all the details of the crimes committed by Mr. Lewis while she was dating him, she certainly was aware of a large portion of his criminal history and chose not only to live with him, but to lie to his probation officer to protect him and to have a child with him. Ms. Cox presented absolutely no evidence to suggest that Mr. Lewis does not love his daughter, or neglects her during access. She did not testify that Zoe is afraid of her father in any way or that Zoe had ever been harmed in her father's care. She did not testify that Zoe dislikes going to her father when he attends to pick her up for access. Although Ms. Cox is nervous about alcohol use, there was no independent evidence that Mr. Lewis has ever been intoxicated while caring for Zoe. The OCL report noted that there had been an acknowledgement by Mr. Lewis that alcohol had been a factor in his last assault causing bodily harm charge in 2011. There were no reports from police or Mr. Lewis' probation officer that he has breached his probation terms by consuming alcohol.
61The mother also raised concerns about the father's mental health. The evidence was that in April 2013, the father took time off work and attended on a doctor because of stress and anxiety. This was due to stress caused in the workplace, in his criminal proceedings regarding Mr. Watson and in the family proceedings. He undertook counselling voluntarily to deal with the stress and anxiety and was prescribed Ciprolex for depression. According to the OCL report, the mother also suffered with general stress and anxiety. She was also prescribed an antidepressant and lorazapam to take as needed. Clearly both parents have suffered stress and anxiety related to their separation, and these court proceedings. Both took steps to deal with the issue with a doctor. Nothing makes the father's stress more concerning than the mother's.
62The mother submitted if access was ordered, it should be supervised. This is a step backward. Mr. Lewis has been regularly exercising access since October 2012. There have been no problems regarding Zoe during access. Supervised access is necessary when there is a danger to a child in the care of a parent, or where the child has no relationship with the parent and it must be built slowly. Supervised access should always be a temporary measure designed to protect a child physically and emotionally. Once a non-custodial parent has proven an ability to care for a child and the child has been shown to have a relationship with the non-custodial parent, access should move to unsupervised.
63In this case, Zoe already has a positive emotional attachment to her father and he is more than capable of caring for her when she is with him. The OCL report was clear that his relationship should continue. The assessor had all of the facts concerning Mr. Lewis' past and the concerns of the mother, yet at no time did she suggest that his access should be supervised. In fact, the recommendations increased his access slightly. In reviewing the report, the court is left with the feeling that had Mr. Lewis participated more fully in the report, further positive changes would have been made to the current access.
64The court has had the opportunity to see and hear both parents. There is no question that Mr. Lewis both bends and stretches the truth about some information. It is also true that Mr. Lewis acknowledged his criminal history as "horrific" and as something to which he does not wish to return. He works six days per week and exercises access on the seventh day. Mr. Lewis has worked hard to change his life. There was no evidence provided that convinces the court that Mr. Lewis' access to his daughter should be supervised.
65Both parties agreed that supervised access exchanges would be beneficial in protecting each of them from the other. It is the opinion of the court that it is essential that exchanges occur at a supervised setting to avoid Ms. Cox from feeling afraid and intimidated and to provide Mr. Lewis with some assurance that allegations will not be made against him. For that reason, access exchanges will occur at Merrymount Children's Centre in London Ontario.
66Mr. Lewis asked for access to Zoe from Saturday morning until midday, Monday and for some mid week access during the day. Mr. Lewis works from 3 p.m. to 11 p.m. For him to have access until Monday midday or any other day of the work week, it would be necessary for Merrymount to be open for access exchanges and for the mother to be available to pick Zoe up at Merrymount. The court does not believe that Merrymount is open for access exchanges midday during the work week. Further, the mother is employed. She would not be able to pick Zoe up from Merrymount, even if it was open, at a time to allow Mr. Lewis to attend work at 3 p.m. Therefore neither midweek access nor a Monday midday return time from weekend access is possible.
67What is possible and should be ordered in Zoe's best interests is longer access on weekends and some holiday time for Mr. Lewis. Although Mr. Lewis works Saturdays 3 p.m. to 11 p.m., he testified that his mother was available to care for Zoe while he attended work until his return to his home on Saturday night. This would allow Mr. Lewis and Zoe to experience full weekends together. The fact that he needs a babysitter for a few hours on Saturday evening is no different from the mother using a babysitter to go out with friends from time to time.
68Mr. Lewis also testified that he has not had a single holiday with Zoe since the separation. He stated that he has holidays from work for 2 weeks at the beginning of July and one week at Christmas. He also testified that the mother had withheld access to Zoe when she was angry at him. There was no explanation from the mother about withholding access and unfortunately, Mr. Lewis did not ask the mother her reasons for withholding access. Mr. Lewis also enlisted self help on occasion when he and the mother did not agree.
69Whatever the parents' reasons or explanations for withholding access or overholding the child, it must be made clear to both of them that the court will not tolerate self help with respect to access. Court orders are made to be obeyed. Clearly, these parents are not able to adjust access terms fairly or reasonably and so the court order will be very specific as to when the child is to be in her father's care and when she is to be returned to her mother's care. Any change in the access schedule will only be permitted if agreed to in writing or by further court order.
Child Support
70The next issue for determination is child support and sharing of s. 7 expenses. The father's position is that his support should be based on $42,000 per annum. He seemed reluctant to contribute to day care expenses because the child is entitled to full subsidized day care once she has been registered with his band. She is not registered yet. Mr. Lewis blames the mother for not giving him her copy of the long form birth certificate. There was no reason why the father has not ordered his own copy. He claimed he was unable to afford to do so, without any information as to what it would cost. When Zoe is registered she will be eligible for subsidized day care, and will also receive the same twice yearly grant that the father receives. For now day care costs are a very real expense for the mother.
71The father's evidence was that his income in 2013 was lower than usual due to his taking 2 months off work due to stress and anxiety. Much of that stress and anxiety was caused by the family and criminal court proceedings. Both have now been dealt with and there is no reason for Mr. Lewis to miss work in 2014. He also mentioned a physical condition he has, but at no time did he discuss this condition with Dr. McKillop or claim to have missed work due to it. In 2011 Mr. Lewis earned $42,748 and in 2012, he earned $43,556. Mr. Lewis' T4 for 2013 showed an income of $35,951. His pay stub for the pay period ended February 8, 2014 showed a gross income of $6,548 for a 5½ week period. This results in weekly gross income of $1190.58. That amount over the course of a year would amount to $61,910 per annum. There was no evidence as to whether Mr. Lewis gets paid for vacation. It was also evident that Mr. Lewis had not made $61,910 in the last three years he has worked for Autotrans Corporation. The court finds that $42,000 is less than Mr. Lewis is likely to make in 2014 and that $61,000 is higher than he will make in 2014. Having regard to the facts that his 2012 income was $43,556; that his 2013 income was reduced due to his not working for 2 months; that his first five weeks pay in 2014 averaged $1,190.00 per week; and he receives a tax free grant each year, the court finds that it would not be unreasonable to impute income to Mr. Lewis in the amount of $50,000.00 per annum and will determine child support and s. 7 expenses on that income. Guidelines support on $50,000 is $462 per month.
72The mother's income is currently $24,408.00. The total income on which to base s. 7 expenses is $74,408.00. Of that amount 67% is attributed to the father, with 33% attributed to the mother. The mother has been incurring child care expenses in the amount of $25 per day, 5 days per week. In 2013 she paid $85 to Ingersoll Children's Centre and $1,160 to a day care in London, for a total of $1,245.00. According to the divorce mate calculation the mother provided, she received the Universal Child Care benefit of $1200 for the year 2013. As the mother provided no evidence of any other child care costs in 2013, the Universal Child Care benefit would have covered the cost of day care incurred by the mother in 2013. Therefore there is no amount that needs to be paid by the father for day care in 2013.
73However, in 2014, the mother will continue to pay $25 per day for January and February and then $35 per day commencing March 1, 2014. Day care is paid for statutory holidays even though the child does not attend day care. This would result in day care costs for 260 days per year. For the 40 days in January and February, the cost of day care was $1,000. The cost of day care for the remainder of the year will be $7,700.00. According to the mother's evidence the net cost of child care for 2014 is $6,584.00. Until Zoe is eligible for subsidized day care, this cost will be divided on a 67%/33% proportionate basis. On a monthly basis this would amount to $368 per month.
74The mother also produced receipts for health and dental care that were not covered by plans held by the mother and the father. These costs totalled $75.95. The prescriptions and dental costs of the mother have not been included. Mr. Lewis' share of these costs is $50.00.
75The final issues relate to the request by the mother for an order that the father not harass, molest or annoy her and the father's request for a police enforcement clause. Both are needed until the parents learn a positive way to communicate and understand that each of them must comply with court orders without exception.
Final Order
76For the reasons given above, a final order will issue as follows:
1) The applicant mother Jennifer Amanda Cox shall have custody of the child Zoe Ella Lewis born November 28, 2011.
2) The respondent father Jason John Lewis will have access to the child as follows:
a) Every Sunday from 1 p.m to 8 p.m. with pick up and drop off at London Police Services Headquarters, 601 Dundas Street, London, Ontario, until such time as he makes arrangements with Merrymount Children's Centre in London Ontario to schedule access exchanges there.
b) The father shall be responsible for making the initial contact with Merrymount to arrange for access exchanges there. Once he has completed all intake/forms necessary, he will notify the mother, in the communication book that he has contacted Merrymount to set up the access exchanges. The mother will then have 10 days from the time she receives notification from the father, to contact Merrymount and complete any intake/forms required of her to finalize the arrangements for access exchanges. The father will pay the cost of the access exchanges at Merrymount.
c) Once access exchanges are arranged at Merrymount Children's Centre in London Ontario, the father will have access to the child every alternate weekend from Saturday at 10 a.m. until Sunday at 7 p.m., commencing on the weekend after the arrangements are made with Merrymount. If the pick up and drop off times need to be varied by Merrymount in order to provide the access exchange service, Merrymount may change the pick up and drop off times so long as they occur on Saturday morning and Sunday evening. The pick up and drop off times are not to be varied at the request of either parent, unless both agree, but only because Merrymount is unable to provide the service at the times set out.
d) The child will spend Father's day with the father and Mother's day with the mother regardless of the weekend access schedule. If Mother's day falls on the father's weekend access, he will return the child to the mother's care by 7 p.m. on Saturday. If Father's Day falls on a weekend that is not the father's access weekend, he will pick up the child on Saturday at 7 p.m. and return her on Sunday at 7 p.m.
e) In 2014 and 2015, the father will have Zoe in his care for one week at the beginning of July from Saturday at 10 a.m. until Sunday at 7 p.m. one week later. Commencing in 2016, the father will have a two week vacation time with the child from Saturday at 10 a.m. to Sunday at 7 p.m. two weeks later. The father is to notify the mother in the communication book of the dates when he intends to exercise his summer access.
f) Commencing in 2015 and every odd numbered year thereafter, the father will have Zoe in his care on Easter weekend from Saturday at 10 a.m. to Sunday at 7 p.m. regardless of the regular weekend access schedule. In even numbered years, the mother will have the child in her care for the Easter weekend regardless of the regular weekend access schedule.
g) If the father's access weekend falls on Thanksgiving, he will have the child in his care from Saturday at 10 a.m. to Sunday at 7 p.m. as per the order. If his weekend does not fall on Thanksgiving, he will have the child on Monday from 10 a.m. to 7 p.m. to celebrate Thanksgiving with Zoe and then she will be returned to her mother's care.
h) In 2014, the father shall have the child for Christmas from 2 p.m. on Christmas day until December 29th at 7 p.m. In even numbered years commencing in 2016, the father will have the child in his care from 2 p.m. on Christmas day until January 1 at 7 p.m. In odd numbered years, commencing in 2015, the father shall have the child from December 20 at 6 p.m. until December 25 at 2 p.m.
i) If the parties cannot arrange pick up and drop off at Merrymount during holiday periods because Merrymount is not open, access exchange shall occur at the London Police Services Headquarters on Dundas Street, London Ontario, unless otherwise agreed in writing.
3) The parties may by mutual agreement, in writing, change any of the above periods of access or times of exchange in order to accommodate the needs of the child.
4) The respondent father shall be entitled to make inquiries and to be given information as to the health, education and welfare of the child from third party service providers involved with the child. The applicant mother shall provide to the respondent father the contact information of the child's doctor, dentist, school (when she attends) and all other service providers engaged with the child in order that the father may seek the information regarding the child. The applicant mother's address will not be provided to the respondent father by the third party service providers and any reference to her address will be redacted from any written information given to him.
5) The father will not consume alcohol or non prescription drugs 12 hours before access or any time during access.
6) The parties will communicate about the child Zoe, using a communication book, which will be provided by the mother. The pages are to be numbered sequentially and no pages are to be removed by either party.
7) The applicant mother may obtain a passport for the child without the consent of the respondent father and may travel with the child for vacation purposes without the consent of the respondent father, so long as such travel does not interfere with the respondent father's access. If the travel will affect or interfere with the respondent father's access, the applicant mother must obtain the respondent father's consent and offer additional access time to make up for the time lost. The respondent father is not to withhold his consent unreasonably. The applicant mother will provide a copy of her itinerary, and contact information to the respondent father prior to travel with the child.
8) The respondent father shall not travel outside of the Province of Ontario with the child without the consent of the mother, such consent not to be unreasonably withheld. If the respondent father intends to travel outside of Ontario with the child for vacation purposes, he shall provide to the mother a copy of his itinerary and contact information before seeking her consent.
9) Police Enforcement Clause.
10) Commencing January 1, 2014, the respondent father Jason Lewis shall pay to the applicant mother Jennifer Cox, for the support of the child, Zoe Ella Lewis born November 28, 2011 the sum of $462 per month based on an imputed income of $50,000.00 per annum.
11) FRO clause
12) The respondent father shall pay to the applicant mother the sum of $368 per month commencing January 1, 2014 as his 67% proportionate share of net day care costs incurred for the child. The mother will notify the father in writing, when subsidized day care is available to Zoe. The father will then pay to the mother 67% of the net costs of such subsidized day care each month.
13) The respondent father shall maintain the child on any extended health and dental benefits available through his employment.
14) The father will pay to the mother the sum of $50 as his share of health and dental costs incurred for the child to date. In future, the mother will provide a receipt for such expenses to the father and he will pay his proportionate share within 30 days of receiving it.
15) The parties will exchange a copy of their Income Tax Return and Notice of Assessment each year by June 1, commencing in 2015.
16) Neither party will harass, molest or annoy the other.
17) The applicant mother will provide 60 days written notice of any intention to move the residence of the child out of Oxford or Middlesex Counties.
77As neither party was completely successful in the claims made by them, the court is not inclined to order costs. However, if offers to settle have been served by either party that are equal to or better than the order set out above the parties may seek costs, in writing, limited to five pages each. The applicant shall serve and file her submissions on or before March 28, 2014. The respondent shall serve and file his submissions on or before April 15, 2014. Any reply submissions by the applicant are to be served and filed by April 30, 2014.
Released: March 3, 2014
Signed: Justice M.A. McSorley
