Court File and Parties
Court File No.: D60580/13 Date: November 24, 2015 Ontario Court of Justice
Between:
BIANCA CIUTCU Applicant
— AND —
SORIN DRAGAN Respondent
Before: Justice Roselyn Zisman
Heard on: October 21, 26, 27 and 30, 2015
Reasons for Judgment released on: November 24, 2015
Bianca Ciutcu ………………………………………………………………………on her own behalf
Sorin Dragan ………………………………………………………………………….on his own behalf
Zisman, J.:
1. Introduction
1This trial involved the parenting arrangements for the parties' two children, Michael born April 14, 2006 and Daniel born February 27, 2005 (referred to as "the children" or "Michael" and "Daniel") and child support. Both children have been diagnosed with severe and profound autism spectrum disorder ("ASD").
2The applicant ("mother") seeks an order for sole custody and that she make all decisions regarding the children including medical decisions and that the respondent ("father") be prohibited from administering any homeopathic treatment. She is prepared to consult and advise the father of all decisions. The mother also seeks an order that the father pay child support in accordance with the Child Support Guidelines and based on the respondent's ("father") income for full-time employment and that they share of any section 7 expenses. She also seeks that the father continue to exercise access on week-ends from Friday after school to return to school on Mondays but that the children remain in her care for one week-end each month. The mother is also seeking an order that the parties share all holidays and each parent have one week of vacation for themselves, when the children would stay with the other parent, on three to four months' notice to the other parent.
3The father also seeks sole custody and that he make all of the decisions regarding the children. He would like to continue using homeopathic remedies. He seeks an order that the present temporary order for access continue that is, that he have the children in his care every week-end from Friday after school to Monday morning and that the mother have 8 week-end days a year as arranged between the parties and he is agreeable to sharing the holidays. He seeks an order that no child support by payable by either party based on their shared parenting arrangement and that parties share all benefits, subsidies and tax credits.
2. Background
4The mother is 37 years old. The father is 48 years old.
5The parties began living together in 1998 and married on October 30, 2004. They separated in August 1, 2011. They only have the two children, Michael and Daniel.
6While the parties resided together the mother stayed home with them full-time and only worked one day a week. After the separation she began to work on a full-time schedule.
7After the parties separated the children remained in the care of the mother and the father had the children in his care every week-end from Friday evening at about 9:30 p.m. to Monday morning. In November 2013, without the knowledge or consent of the mother, the father changed the school bus routine so that the children are dropped off at the father's home on Fridays. As a result the father now has the children in his care from Friday after school to Monday mornings when he drops them off at their respective schools.
8The mother is employed with a food company. She works three days a week with a flexible schedule but usually from 8:00 a.m. to 4:30 p.m. and for one day she must be available to work until 11:00 p.m. She has two week-days off every week and works every weekend but has one weekend a month off. The mother was recently promoted to a managerial position and now earns $48,636 a year.
9The father is employed as a computer programmer for a software company. He has worked for the same company for 15 years. He worked 37.5 hours a week and his general schedule until recently was from Monday to Fridays at 11:00 a.m. to 7:00 p.m. and he had four weeks of vacation and five additional sick days. As of January 1, 2015, he produced an employment letter that indicates that his work hours have been reduced to 30 hours and his work schedule will be Monday to Thursdays from 10:30 a.m.to 7:00 p.m. and his income has been reduced from about $63,000 to $50,923.
10Daniel was diagnosed with ASD when he was about and half years old and Michael was diagnosed with ASD when he was two years old. Both children are non-verbal and have a limited ability to comprehend speech and communicate with other people. Neither child is yet toilet trained or able to dress, feed or otherwise care for himself.
11Both children received early intervention through Intensive Behavioural Therapy ("IBI") for three years that was government funded and when they aged out of the program they were transitioned to school. Daniel attends a regular school but in a specialized classroom. Michael attends a school that specializes in children with all types of disabilities as he was showing more aggression towards other children but his behaviour has improved. Daniel is on a waitlist to attend the same school as Michael but according to the school, Daniel is more functional than Michael and he is doing well in his current school.
12Both parties agree that the children are extremely challenging to care for especially during the night.
3. History of Litigation
13The mother issued this Application on March 12, 2013. The father filed his Answer and Claim on April 16, 2013. The claims by the parties are similar to those now sought at this trial.
14On September 23, 2013 an order was made for the Office of the Children's Lawyer to be appointed. The Office of the Children's Lawyer report was released on March 19, 2014. The report recommended sole custody to the mother, access to the father on three week-ends a month from Friday at 5:00 p.m.to Sunday at 8:00 p.m. with the children remaining with the mother for the fourth week-end. There was also a recommendation that the father have additional access two times a week on the non-care week-end access visits on Wednesdays and Thursday from 5:00 p.m.to 8:00 p.m. There were restrictions on the father taking the children to see a homeopath or other health care professionals unless authorized by the mother and there were recommendations regarding communication. A detailed holiday access schedule was also recommended. The father filed a dispute with respect to the report that essentially was critical of the lack of information the clinical investigator gathered about ASD and her lack of meeting with enough collaterals who worked with the children and that she was critical about the father's use of homeopathic remedies. The father was also critical of the investigator making factual errors.
15The Office of the Children's Lawyer filed a response to the father's dispute indicating that it had determined that there were no factual errors and no additional information in the father's dispute would cause the Office of the Children's Lawyer to change the contents or recommendations in the report.
16Leave was granted for the parties to file temporary motions but the parties did not proceed with the temporary motions and instead chose to attend mediation.
17The parties agreed to open mediation and the mediation report dated September 19, 2014 was filed with the court. The parties attended for five joint sessions and were unable to agree on the issues of decision-making with the mother seeking sole decision-making and the father joint decision-making. They could not agree on the residential schedule or child support. The mother was open to sharing the benefits if the father would commit to actually assuming the shared parental responsibilities. There was a suggestion by the mother for a split custody arrangement with each parent assuming full-time care of one of the children. The father was not open to this suggestion as he was concerned that he would not have child care due to his work schedule but he nevertheless wished the current schedule to continue with the children spending an extra evening in his care. The mother continued to request one week-end a month that was not agreeable to the father. The parties discussed but did not agree on holiday and special occasion times as they had not agreed upon residential arrangements.
18The parties did agree on each having the option of having one vacation week for themselves without the children and the children staying with the other parent. The parties also agreed that during the summer they would have equal time with the children and would use their vacation time and program funding for camps to ensure the children were cared for during the non-summer months.
19Both parties then brought motions for temporary orders for custody and child support that were heard on November 12, 2014 by the case management judge, Justice Sherr. On November 14, 2014 Justice Sherr released his decision and on a temporary basis he ordered that the mother have sole custody of the children and that she consult with the father on any major decisions regarding the children. The father was not permitted to give the children any homeopathic remedies or take the children to any medical practitioner without the mother's prior consent. The father's access of every week-end from Fridays after school to Monday mornings was continued but the mother was entitled to an additional 8 days a year during the week-end on notice to the father. There were also provisions for the sharing of the holidays and in particular that the children would spend alternate weeks with each parent during the summer.
20In the decision, Justice Sherr found that the father was spending at least 40% of the time with the children based on the overnights he had them and based on an equal sharing of the holidays and as a result he applied the principles set out in the case of Contino v. Leonelli-Contino with respect to section 9 of the Child Support Guidelines and reduced the father's child support obligation to $500 per month. The calculations were also based on the mother's income of $41,000 and the father's income of $63,000.
21Further, as Justice Sherr was only making a temporary order his decision indicates that he was only relying on the factual findings based on the personal observations of the clinical investigator from the Office of the Children's Lawyer and not on the recommendations made in the report as the evidence had not been tested through cross-examination and the father filed a lengthy dispute.
22Justice Sherr also encouraged the parties to return to mediation after the schedule had been in place for two months as he was hopeful the decision would be a road-map for settlement.
23On April 30, 2015 a settlement conference was held. As the issues could not be resolved, the matter was adjourned to the trial assignment court for September 16, 2015.
24On July 17, 2015 the mother filed a Form 14B motion for leave to hear a motion before the trial and requested that Justice Sherr direct her as to what evidence he requires in order to make final orders and she requested that the trial date be vacated. The supporting affidavit states that the father refused to take the children for the summer and that she believed that the trial would be a waste of time as the father relinquished his rights of access.
25The father responded by deposing the he could not afford to take the children for the summer. He blamed the mother for not confirming that the children were enrolled in summer camp for two weeks as then he would have taken them for at least some time as he would have known he could drop them off at camp. He deposed that he was worried the mother would simply drop off the children in his care and not take them back. He deposed that he simply could not afford to pay the child support ordered and care for the children so his short term solution was to not see the children and pay full child support for the months of July and August.
26The motion was dismissed and the endorsement stated that the case required a final resolution and should remain on the trial list.
27A trial management conference was held before me on September 22, 2015. At the conference the mother confirmed that she would not be calling any witnesses except herself. The father indicated that he did not intend to call the clinical investigator and was advised that he had the right to summons the clinical investigator for cross-examination especially as he disputed some of her findings and questioned the depth of her investigation. The father had a list of witnesses he intended to call including the children's teachers, other school authorities and some therapists. The father was advised that if he intended to file affidavits from two homeopaths and a dentist, then those witnesses would have to be present for cross-examination. The father proposed obtaining a qualified mental health professional to prepare an autism assessment but wanted the mother to pay for this. He was advised that the trial would proceed without delay as scheduled and that his proposal was not well-thought out or possible. Both parties were ordered to serve and file updated financial statements, proof of any special expenses, proof of any benefit or credits received on behalf of the children and serve and file disclosure briefs with any documents they intended to rely upon.
4. Applicable Legal Principles Regarding Parenting
28Section 24 of the Children's Law Reform Act ("CLRA") sets out that the court must make custody and access orders in the best interests of the children. Section 24 (2) of the CLRA which reads as follows:
Best interests of child
(2) The court shall consider all the child's needs and circumstances, including,
(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 the 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; and
(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.
29Children should have maximum contact with both parents if it is consistent with the children's best interests.
30I have considered and applied these principles in determining the parenting arrangements that are in these children's best interests.
5. Position of the Mother
31The mother seeks sole custody as she is the parent who historically has been the primary caregiver of the children, has met all of their complex needs and has made most of the major decisions regarding the children and it is in their best interests that she continues to do so. She submits that the parties have no ability to communicate so that any form of joint decision making is not workable.
32With respect to access, despite the fact the father re-arranged the school bus schedule without her consent, she feels that it is the children's best interests to maintain as much consistency and stability as possible and therefore, she is agreeable to the current schedule remaining in place but wishes one week-end a month with the children.
33It is her position that the father wishes to organize access so he does not have to pay the full amount of child support rather than a schedule that meets the children's best interests. It is the mother's position that the father does not have the children for 40% of the year and therefore should pay full child support, that he is not entitled to any of the benefits or tax credits she receives and that he should pay his share of any section 7 expenses. It is further the mother's position that the father's income should be imputed to $63,000 that is, the income he has historically earned.
34There are some incidental orders the mother sought with respect to the father returned Daniel's health card, passport and birth certificate.
6. The Position of the Father
35The father also seeks sole custody but outlined various scenarios.
36In the first scenario, the father submitted that there should be a shared parenting arrangement based on the current temporary order and that the mother keep all of the funds from the Special Services at Home Program ("SSAH") and that she concedes to him half of the Assistance for Children with Severe Disabilities ("ACSD") and the Universal Child Care Benefit ("UCCB") and that they share the tax benefits equally with each parent claiming one child and no child support be payable. If the mother did not agree to concede the benefits to him, then the court should include those benefits in her income and then the mother should be ordered to pay him child support of $850 per month.
37In his second scenario, the father submitted that he should be granted sole custody and he would then receive all of the benefits and credits the mother now receives. He submitted that he has estimated that child expenses would be $20,000 per year for specialized child care but if he could arrange for an after-care program for the children through the YMCA the cost would only be about $10,000 and he would then have more money for therapies for the children. In this scenario the mother would pay him child support of $724 per month. When questioned about the mother's access, he indicated that he has not thought about the mother's access but she could have as much or as little as she wished.
38The father then submitted that the third scenario was the worst possible solution for the children, namely that the mother has sole custody and he be required to pay full child support and that the mother keep all of the benefits. If this was ordered, it is the father's position that he would then only take the children for a few hours a day on the week-end during and not overnight as in all likelihood he would not be able to afford proper accommodations for the children. He submitted that in this scenario, the children would be better off being placed in a group home where they could receive better care than the mother is providing.
39The father also submitted that child support should be retroactively re-adjusted back to 2012 with re-adjustments made on the basis that he has the children were in his care for half of the time and therefore the mother owes him $49,420.
7. Evidence and Findings of Fact Regarding Parenting
40The mother testified that when Daniel was diagnosed with ASD the father blamed her as he told her she had "defects" in her family as her sister is deaf. There were ongoing disagreements and the mother felt that the father never respected her opinion and that he was controlling. Since the separation the parties have had ongoing conflicts and despite the father telling the clinical investigator that that he had no evidence that the mother is anything but a good parent, he challenges almost every decision she makes or complains that she is not pro-active in obtaining services or is not providing proper and timely care for the children.
41The mother has continued to work full-time despite the challenges of caring for two severely disabled children.
42The mother has the assistance of her mother who resides in the same apartment building as she does. The maternal grandmother helps the mother, if the mother is not available due to her work schedule, to put the children on their two different school buses and she is available in the afternoon when the children are dropped off. The mother also needs her mother to be available if the children are ill or need to be unexpectedly picked from school. The mother pays her mother for looking after the children from $600 to $1,000 per month. The father is also critical of the care the maternal grandmother provides as he feels she is too old to care for the children. Yet the father has left the children in the care of his mother who is 84 years old whereas the maternal grandmother is only 64 years old and in good health.
43Although the father attended some appointments, the mother has historically made the necessary appointments for the children and attended all of the appointments since they were young including:
a) genetic testing at the Hospital for Sick Children;
b) physiotherapy for the children's low muscle tone;
c) occupational therapy;
d) developmental paediatrician for assessments, providing resources and referrals;
e) a feeding clinic to deal with Daniel's trouble eating;
f) speech therapy two to three times week for about eight months when the children were younger;
g) IBI through the Toronto partnership for Autism Services;
h) various programs at Geneva Centre that specializes in children with autism;
i) specialized dental care and in particular for Daniel who requires anesthesia for even regular dental care; and
j) ensures the children have regular medical care from their family doctor.
44The mother has attended programs at Etobicoke Children's Centre to learn to deal with the children's behaviour and learn to communicate with the children. She has also participated in workshops, conferences and seminars about autistic children.
45The father is extremely critical of the care the mother provides to the children and feels that she had given up on them. The mother's view is that the father is s looking for a "cure" for autism rather than trying to find a method of managing autism.
46Initially the mother had been agreeable to trying homeopathy remedies as a support for traditional medicine. But over time the mother became concerned as the father was using homeopathic treatments without proper knowledge or training and was using these treatments because he believed that they could cure autism. Not only were these treatment not effective but they had negative effects.
47For example, in about June 2013, the father gave Daniel a homeopathic remedy which was intended to reduce his spasms and instead Daniel, who is normally not aggressive, became very aggressive. He would not stop hitting everyone and it took about two weeks for the behaviour to stop and for him to return to his normal state.
48The father does also not follow doctor's instructions. In February 2012, when Michael had a cut on his finger and the doctor prescribed antibiotic medications, the father treated him with a homeopathic remedy instead and refused to bring Michael to the mother's home for a week while he continued to use homeopathic remedy. Michael's cut did not heal but became more infected. When Michael returned to the mother's home, she treated him with the antibiotic medicine the doctor prescribed and the infection was healed in five days.
49The father did not agree that the homeopathic remedies did not work but explained that the examples provided by the mother were just "aggravations" and that the conditions sometimes need to get worse before they get better. The father admitted that he never sought any input or consulted with any medical doctors about any of the "remedies" he administered.
50The father told the clinical investigator that he had bought many books on homeopathy and did extensive research on the subject and that he would not give the children homeopath treatments without consulting a homeopath. But I agree with the conclusions in the report of the Office of the Children's Lawyer that it was unclear from the father's statements that he consulted in every instance but more importantly it seems potentially an unsafe practice to consult with a homeopath without the homeopath having seen the child in person or when the treatment was not being directly given by a homeopath. The father chose not to call as witnesses either of the two homeopaths he testified he saw or consulted with. When directly asked if would agree to not administer any homeopathic remedies to the children or take them to a homeopath, the father initially stated that he did not care that much about homeopathy but then would not answer the question and then finally stated that he would still like to administer homeopathic remedies. In view of the father's evasiveness with respect to questions regarding homeopathy and his failure to call any homeopaths as witnesses, I find that he has continued to either consult with or administer homeopathic remedies to the children despite the temporary order prohibiting him from doing so.
51The father has also continued to take the children to various professionals without the prior consent of the mother. For example, he took Michael to a podiatrist because he was still having trouble walking. He began taking Michael to an osteopath for back and neck pains and also plans to take Daniel. Despite the temporary order that the father not take the children to any medical practitioner without the mother's prior consent, the father feels he is able to arrange and take the children to these appointments as they are not "medical practitioners".
52There is no medical opinion that the children would benefit from any homeopathy or osteopathy treatment or needed to see a podiatrist.
53The father also wishes to arrange further speech therapy and occupational therapy for the children. He also is exploring listening therapy at the Listening Centre and wants to enroll the children in horseback riding as he has learnt this can also be therapeutic. The father acknowledged that the children receive occupational therapy at school and that the teachers are trained in applied behavioural therapy; he nevertheless wishes to have them attend these further services even though he acknowledges that they are extremely expensive. The father expects the mother to pay for these services and therapies through the funds she receives for the children.
54The mother has concerns that none of these therapies would be useful at this time. She noted that the therapy that helped the children the most was IBI but that unfortunately the Ontario government only provides for the funding for a limited amount of time and the cost of private IBI which is about $70,000 per year in prohibitive. She testified that she had thought about moving to Alberta where the government funding for ASD services is much more generous but she appreciated the importance of the father's role in the children's lives and so did not pursue this option.
55The mother has a good relationship with the children's dentist who they have seen since 2007 and wishes to continue to use her services despite the dentist only agreeing to do so if the office only deals with the mother and only the mother attended the appointments. I make no finding as to whose fault it was with respect to the father's apparent falling out with the dental office but for whatever reason they are not willing to have the father involved. Both children have difficulties with dental appointments most particularly Daniel and it would not be in either child's best interests to change dentists unless there are financial reasons the mother must do so.
56The mother also appears to trust the decisions that the school is making with respect to the appropriate choice of schools for the children. Although it would be more convenient to have both children attend the same school, the mother is prepared to abide by the present decision to have Daniel remain in a regular school with a specialized program that allows him to partially integrate with typical children. The reports cards produced by the mother support her view that the children's needs are being met by their current schools. The clinical investigator spoke to the teachers and had no concerns about the children's schooling. The father's dispute to the Office of the Children's Lawyer report states that no in depth information was obtained from the school but the father chose not to call any witnesses from the school to support his view that Daniel should be moved to the same school as Michael.
57Despite the temporary order regarding the sharing of the summer holidays the father chose not to have the children in his care at all this summer. This resulted in the mother having to make arrangements for extra care for them with little advance notice.
58The father testified that he noticed how seriously the children deteriorated after he had not seen them over the summer and then resumed the regular schedule this September. The father blames the mother for this deterioration and this convinced him that the mother could not properly care for the children. At no time did the father even consider that the children may have deteriorated as they did not see him for nine weeks, that they would not understand why, that they need a routine and become upset and anxious when their routine is changed.
59The father's decision not to see the children is the most glaring example of his inability to put the children's needs before his own need to control and punish the mother.
60In April the father sent a text message to the mother saying that he probably would not be able to take the children for the summer unless his child support was lowered at the next court date, which was on April 30, 2015. He then sent several other texts warning the mother he would not take the children for the summer. He also stated that he "expected" the child support to be lowered in May and when that did not happen, he could not afford to take the children. He proposed that he care for both of the children but not one child as then he would receive all of the tax credits and benefits. He threatened the mother that without his help she would not able to manage and would have to institutionalize the children. He sent a final text on July 15, 2015 that stated as follows:
I thought we discussed this yesterday. I'm done. I will not pick them up. There is nothing further to discuss unless you are offering to cover child expenses.
I believe it would be illegal to starve the children to death. I'm not sure
How court can justify causing this but, whatever. I'm out.
If you cannot handle the children I suggest foster care, institutionalizing them, or cover my child expenses so I can take them.
The court has left me no money in my budget for food so I can no longer take the kids.
61The father was also upset when the mother pointed out that despite claiming he had no money for food, he could still afford to spend money on cigarettes.
62I find that the father showed a total lack of judgment in coming to the decision not to see the children. I find that the father was upset with the court's decision that he pay $500 per month in child support and carried through with his threat that if he had to pay any child support he would not be able to see the children. When he could not convince the mother either in mediation or through the court process to agree to reduce the child support and share the tax benefits and credits she receives, he then withdrew from seeing the children over the summer so the mother would see how difficult it was to care for the children on her own and thereby yet again trying to have her agree that he not pay child support. In this trial, he has again used the same threat.
63The father's behaviour and attitude are unfortunate as it is clear he loves the children and the children love him. The observations of the clinical investigator confirm that he is able to care for the children. However, the clinical investigator made the same observations of the mother. The father simply is unable to accept that the mother is capable of meeting their needs and that he is not always right. He is so fixated on the financial consequences of the parenting arrangements and his perceived unfairness of the mother receiving all of tax credits and benefits for the children that he has made poor parenting decisions.
64Although it is understandable that the father wishes to investigate services and possible therapies for the children, such services need to be discussed and co-ordinated with the children's teacher, medical doctors and other professionals involved in the children's lives and of course discussed with the mother. The father, despite the temporary court order, has not done so and has no insight that he should do so.
65I agree with the conclusions of the clinical investigator that are totally supported by the evidence at this trial that there is no merit to the father's assertion that the mother is not interested in either the short term or long term well-being of the children.
66The father refused to provide the mother with Daniel's original health card or passport and then tried to justify his actions by blaming the mother for not asking for these documents or because she had Michael's original health card or because he paid for Daniel's passport. This is yet another example of his pettiness.
8. Analysis Regarding Custody and Access
67Based on the findings of fact made, I find that the mother should be granted sole custody for the following reasons:
a) although both parents love the children, the mother is the parent who has been able to put the needs of the children before her own needs. The father's decision to refuse to see the children for nine weeks in the summer is a stark example of putting his needs and priorities over those of the children;
b) the children have lived in the primary care of the mother for their entire lives. The children require the consistent routine and stability that the mother is able to provide;
c) the mother is the parent who is most able to work cooperatively with the children's health providers and school and follow their suggestions;
d) the mother has met all of the children's needs including their special needs;
e) the mother has a workable plan for caring for the children with the assistance of her mother and the children are accustomed to being cared for by their maternal grandmother. The mother has arranged her employment hours to optimize her time with the children and also to accommodate the father's schedule. The father's plan is vague and not well thought out. He proposed that his mother who is 84 years old would help him and that he would arrange after school care but these children cannot function in a regular afterschool program and his work hours would make such a plan impossible. His other proposal was for an expensive caregiver in the home;
f) the mother is the parent who is willing to consult with and advise the father of all decisions regarding the children. Although the father testified that he would also consult with the mother, it is clear from his actions that he has not and will do so in the future;
g) the mother is willing and able to make informed and sensible decisions regarding the children in accordance with the recommendations of medical professionals and other professionals involved in the children's lives. The father on the other hand, seems to think he knows what is best for the children; and
h) the mother respects the importance of the father's role in the children's lives and has supported that role. The mother did not disparage the father even though she may have disagreed with his decisions whereas the father took every opportunity to disparage and discredit the mother. He was so hurtful as to argue that the children would be better off in a group home than in the care of their mother.
68With respect to the issue of access, the mother agreed with the father that the recommendations in the Office of the Children's Lawyer report with respect to weekend and weekday access was not in the children's best interests as it would involve too may transitions and as the children were used to the current schedule it was better for the children if it continued.
69However, the mother wishes one week-end a month, as recommended by the clinical investigator and this is something she has been requesting since shortly after the separation. As the children are now in full-time school, she has no time when she can simply relax with the children and take them on outings without the stress of getting them up and ready for school. The father opposes any change in the schedule as he submits that the mother, pursuant to the temporary order, was given the option of eight days during the week-end and only used two days. He further submits that this is an indication that she does not want the children. There is not an iota of evidence to support this submission. Given the lack of communication between the parties it is hard to conceive how they would be able to agree to arrange these extra days and clearly they have not been able to do so. A schedule that simply provides that the mother have the fourth week-end of every month is predictable and reduces any friction between the parties or need to discuss and agree upon arrangements.
70I agree with the mother's submissions that the father is refusing to agree to her having the children in her care for one week-end a month as he is concerned that this additional time will reduce his time with the children below 40% and therefore he will be required to pay full guideline table amount of child support. I find that it is in the children's best interests to spend some unstructured time with their mother one week-end a month. I will delay this change in the access schedule until January 2016 so that the mother can make the necessary arrangements with her employer and re-arrange the school bus.
71The mother is agreeable to the sharing of holidays as recommended by the clinical investigator. The father did not oppose the schedule recommended.
72Although the father agreed in mediation and with the Office of the Children's Lawyer recommendations for sharing the summer holidays, he chose not to exercise his summer access and the mother testified that he also did not take the children for the professional development days and did not want to take them for the March break. The father has withheld the children in the past for the Christmas holidays but this is time the mother does not work and she wishes to ensure that the children are in her care this Christmas. The father in the past has also withheld the children on all holiday Mondays so that the mother never has the children on any holidays.
73Despite the father's threat that if he is required to pay any child support, he will not be financially able to exercise week-end access and will only see the children a few hours a week, I intend to make an order that is in the children's best interests. I hope that the father will reconsider his ill-conceived and rash threat and continue to maintain his important attachment and connection to his children. If he chooses not to do so and he chooses to reduce contact with them, then he is not the parent his children deserve.
9. Child Support
74The father spent an inordinate amount of time and produced several charts with respect to why he should not be required to pay any child support, why the tax system of dividing tax benefits and credits was unfair to him and why his expenses to care for the children were as high as the mother's expenses and why she was not properly using the funds she received.
75The parties' income is as follows:
| Year | Mother's Income | Father's Income |
|---|---|---|
| 2011 | $35,698 | $63,842 |
| 2012 | $41,459 | $63,739 |
| 2013 | $40,955 | $63,756 |
| 2014 | $40,643 | $68,364 (includes $8,000 RRSP income) |
| 2015 (estimated) | $48,000 | $50,923 |
76The mother receives the following further benefits that are not taxable and not included in her income:
a) ACDS- $886 per month. These funds are provided to the primary parent and are to assist with such costs as transportation, special shoes or clothing, specialized equipment, parental relief, prescriptions and dental care. The amount received is based on a parent's income and expenses;
b) SSAH- $900 yearly for Michael and $2,400 yearly for Daniel. The mother must submit invoices to be eligible to be reimbursed for any expenses. The eligible services are services such as child care, respite care and camps and the amount received fluctuates in accordance with the needs of the children and the amount of government funds available; and
c) Child tax benefits and child disability benefits - $ 944 per month. The mother receives various provincial and federal funds provided to supplement her income and the amount fluctuates in accordance with her income.
77As the mother earned more income in 2015 she expects that the benefits she is receiving will be decreasing but she will not know the amounts until her tax return for 2015 is submitted. The mother testified that the father would also be eligible for the SSAH funding and she does not know why he has not applied. The mother agreed that the father also had added expenses in caring for the children.
78The father submitted that these added benefits that the mother receives should be included in her income as it was unfair that she received all of these funds. There is no legal basis for this submission. The funds received by the mother are geared to her income and based on her special and added expenses of caring for the children.
79The father provided various charts and calculations to substantiate that the children are in his care for more than 40% of the time. He based his calculations on the current access schedule and on the basis that he had the children for half of all of the holidays. This was the basis for the finding in the temporary order by Justice Sherr that the father had care of the children for either 44.38% or 40.13% of the year depending on whether the calculation is made counting overnights or hours. However, when the father chose not to care for the children for nine weeks this summer his time with the children would be reduced to less than 40% of the time over the year.
80The father also acknowledged that he had only had the children for one professional development day in 2014, none in 2015 and had not taken the children for any extra time for the March or summer breaks in 2013 and 2014. But he did take the children for extra time during the Christmas holidays. Therefore, the father has historically has not taken the children for any extra time except for Christmas.
81Based on the actual time the father spent with the children in 2015, he should therefore be required to pay full guideline child support for that year.
82Based on the schedule that I intend to order for the mother to have the children in her carer one week-end a month, the father would not meet the 40% threshold necessary for a shared custody arrangement and therefore on an ongoing basis he should also pay full guideline child support.
83As the father does not meet the criteria of having the children in his care for more than 40% of the time over a year, I will not comment on his various claims for his added costs of caring for the children as those claims are no longer relevant.
84I have considered that the father's sudden reduction in income is somewhat suspicious coming only months after the temporary court order requiring him to pay child support. However, the father did produce a contract from his employer explaining the reduction in his income that was not contradicted. Although the mother testified that the father is close friends with his employer, there is no proof that this letter was concocted. I also accept the father's evidence that he was too consumed with the court proceedings to look for other employment or attempt some retraining to improve his marketable skills.
85Based on the evidence I accept, I therefore find that the father's child support obligation should be based on his actual income in 2015. Based on the father's 2015 income he is therefore required to pay child support based on the Child Support Guidelines of $757 per month.
86With respect to the father's claim for retroactive readjustment of his child support, based on the order made there is no merit to his request and it is dismissed.
87The mother did not pursue her claim for retroactive child support as of October 2011. The temporary order made child support payable as of April 2013 when the mother commences her application and the arrears pursuant to that order will continue to be payable.
88With respect to the mother's claim for a sharing of special expenses, I find that the mother receives sufficient funds through ACDS and SSAH to meet her current expenses for the children such as dental care, medical expenses, any specialized equipment, child care, respite care and camp fees. All of these expenses are legitimate section 7 expenses.
89However, if the father carries through with his threat not to exercise the access being ordered then it is probable that the mother will incur added expenses as she will require further childcare and respite care that will exceed the funds she is receiving for these expenses.
90If any of the children's expenses for childcare, respite care and camp programs exceed the funds available to the mother from the funds she receives from ACDS and SSAH, then the father should be required to pay his proportionate share of these expenses. The mother will be required to provide proof to the father of these expenses and that she has exhausted the funds available through both ACDS and SSAH funding for childcare, respite care and camps. In view of the fact the parties' income are almost equal at this time, the father shall pay 50% of the costs within 30 days of the mother providing the necessary receipts.
91The same process will apply for any medical or dental costs in excess of coverage under the parties extended medical and dental employment plans.
92The father will be required to provide ongoing disclosure of his income so that the amount of child support can be re-adjusted annually, if necessary. However, I would add a proviso that the father's income not be reduced to less than his current income of $50,493 as I am quite concerned that in view of the statements made by the father during this trial that he may simply quit his job in order to totally avoid his child support obligations. It is my expectation that now that the trial is over the father will devote his energies to improving his employment situation and begin to earn an income in the range of his previous earnings.
93If the mother requests that the father pay his proportionate share of any section 7 expenses, then she will also be required to provide ongoing financial disclosure so that the proportionate share of these expenses can be re-adjusted annually, if necessary.
94With the legal process now completed, I hope that the parents can redirect the energy they have devoted to fighting each other, to devote to their children who need both of their parents' love, attention and devotion.
10. Conclusion
95There will be a final order as follows:
1. The mother shall have sole custody of the children.
2. The mother shall advise the father and consult with him on any major decision regarding the children. In the event of a disagreement, the mother shall make the final decision.
3. The father shall not give the children homeopathic remedies without the mother's prior written consent.
4. In the case of an emergency, the father shall take the children only to a licensed medical practitioner, walk-in clinic or hospital.
5. The father shall not take the children for any treatment, therapy, appointment or consultation with any person providing any type of medical, homeopathy, naturopathy, osteopathy, podiatry, occupational therapy, speech therapy or any other type of therapy or providing any other type of services with the prior written consent of the mother.
6. The mother shall keep the father advised about any medical directions, treatment or prescriptions required for the children.
7. The father shall follow any medical direction or treatments for the children as informed by the mother when the children are with him. He shall also give them any drug prescriptions as informed by the mother.
8. The parents shall share time with the children as follows:
i) The children shall be with the father for the first three week-ends of every month every Friday from after school until Monday morning when he will return them to school. The mother's fourth week-end shall commence as of Friday January 29, 2016 and every fourth week-end thereafter.
ii) The children shall spend all other time with the mother.
iii) School holiday breaks shall be spent equally with the parents. Each parent will have one week with the children during the winter school break. If the parties cannot agree on who will have which week, the mother will have the children with her during the first week of the winter school break in 2015, from the last day of school to Christmas day at 4:00 p.m. and the father will have the children with him during the second week, from Christmas Day at 4:00 p.m.to the day before school resumes and this schedule will then alternate in the following years.
iv) The children shall rotate spending one week with each parent during the summer. The children may be enrolled in summer camp for two weeks by the mother and both parents shall ensure that the children attend camp each day, unless they are ill. The mother will advise the father of the weeks the children will be in summer camp within seven days of making the arrangements.
v) Professional development days shall be rotated between the parties. If it is the father's day, he shall pick the children up from school or from the mother's home on the Thursday evening before the professional development day. Each parent shall be responsible for obtaining the schedule of professional development days from the school.
vi) The father will have the children with him on the next professional development day. If the father is unable to care for the children on his scheduled professional development day he shall advise the mother at least 48 hours before.
vii) Statutory holidays shall be rotated between the parties. If it is the father's day with the children, and the statutory holiday is a Monday, he shall return them to school on the Tuesday morning following the statutory holiday. If the Monday statutory holiday is during the summer, he shall return the children to the mother on Monday evening by 6:00 p.m. If it is the mother's turn for a Monday statutory holiday, the father shall return the children to her by 9:00 a.m. on the Monday morning.
viii) The mother shall have the children with her on the next statutory holiday.
ix) The children shall spend every Mother's Day with the mother and every Father's Day with the father.
x) The regular access schedule will be suspended during holiday access.
xi) Each parent shall be permitted to have one week of vacation without the children on 90 days' notice to the other parent who will then be responsible for caring for the children.
xii) If the father fails to have the children in his care in accordance with this schedule, his access can be suspended in the sole discretion of the mother.
9. The father shall immediately provide the mother with Daniel's original health card, passport and birth certificate. The mother shall provide to the father a copy of both Michael's and Daniel's health cards.
10. Based on the father's anticipated 2015 income of $50,923 he shall pay child support for the two children in accordance with the Child Support Guidelines of $757 per month as of January 1, 2015. The father is to be credited for any monies paid in accordance with the temporary order of November 14, 2014.
11. For clarity, the father shall continue to be required to pay the arrears fixed at $5,648 at the rate of $200 per month in accordance with the terms of the order of November 14, 2014 less any payments he has made to date.
12. The father shall provide to the mother a copy of his income tax return and Notice of Assessment annually as of June 30, 2016 and each year thereafter as long as child support is payable. The amount of child support payable will be re-adjusted for the preceding year, if necessary but the father's income shall continue to be imputed at no less than $50,923.
13. If the mother requests that the father pay his proportionate share of any section 7 expenses, she shall also be required to provide to the father a copy of her income tax return and Notice of Assessment as of June 30, 2016 and each year thereafter if she is requesting that he pay for any section 7 expenses. The proportionate share of the section 7 expenses for the preceding year will be re-adjusted, if necessary.
14. The mother and father shall continue to maintain the children on any medical, dental or extended health plan that they have available through their respective places of employment.
15. If any of the children's section 7 expenses such as for childcare, respite care and camp programs exceed the funds available to the mother from the funds she receives from the Assistance for Children with Severe Disabilities and from the Special Services at Home Program, then the father shall pay his proportionate share of these expenses. The mother will be required to provide proof to the father of these expenses and that she has exhausted the funds available through both the Assistance for Children with Severe Disabilities and from the Special Services at Home Program funding for childcare, respite care and camps. Based on the parties' present incomes, the father shall pay 50% of the costs within 30 days of the mother providing the necessary receipts. The mother may present a yearly calculation if this is more convenient. The same process will apply for any medical or dental costs not covered by both parties' extended medical and dental plans and not covered by the funding noted above.
16. Nothing in this order precludes the Director of the Family Responsibility Office from collecting support arrears from any government source (such as income tax or HST returns) or from any lottery or prize winnings.
17. A support deduction order shall issue.
96If the mother as the party who most successful is seeking costs, she within 14 days serve and file brief cost submission and the father will have 14 days to serve and file a brief response.
Released: November 24, 2015
Signed: "Justice Roselyn Zisman"
Footnotes
1Both parties were represented by counsel on these motions and then became self-represented.
2Contino v. Leonelli-Contino, 2005 SCC 63, [2005] 19 R.F.L. (6th) 272 (SCC)
3The father relied on these same arguments during the trial
4Gordon v. Goertz, [1996] 2 S.C.R. 27
5See decision on temporary motion, [2014] ONCJ 602 at paras. 52 and 53.
