Court File and Parties
Ontario Court of Justice
Between:
Daniel Larabie Applicant
— AND —
Karen Dube Respondent
Before: Justice A. H. Perron
Heard on: January 23rd and 24th, 2020 and February 12th, 2020
Reasons for Judgment released on: February 25th, 2020
Counsel
Shawn Hamilton — counsel for the applicant
Stephania Sikora — counsel for the respondent
Reasons for Judgment
Background and Procedural History
1Daniel Larabie and Karen Dube are the parents of 3 children, namely, C.L.D. (born 2004 – Age 15), A.L. (born 2013 – Age 6) and J.L. (born 2005 – Age 5). They separated in November 2017 after a common law relationship of approximately 12 years.
2During the relationship, the parties lived in River Valley Ontario which is a small rural village of approximately 350 habitants located approximately 40 km north of Sturgeon Falls, Ontario. Prior to separation, mom worked in Sturgeon Falls and dad was working mostly out of town in the mining industry. Dad suffered serious injuries as a result of a motor vehicle collision in November 2016. He has been unable to work since and describes himself as a stay-at-home dad who is now presently receiving disability benefits from his insurance company.
3When the parties separated in November 2017, mom moved in with her mother in Sturgeon Falls Ontario. All three children remained in the matrimonial residence in order that they could continue attending school in River Valley. The parties were able to reach an agreement regarding access and raising their children until June 2018, when dad commenced these court proceedings.
4At the first court appearance of June 21, 2018, a consent temporary order was made for week about residency of the children for the upcoming summer with exchange to occur on Friday afternoons. On June 26, 2018, mom was ordered to pay $400 a month in child support commencing August 1, 2018 with the fact of the shared residency for the summer months taken into consideration. On November 16, 2018, a final order was made for joint custody of all three children.
5On January 15, 2019, after a contested motion, a temporary order was made that the applicant father would have primary residence of all three children which specified that mom would have access with the children a minimum of two weekends per month. It also provided that she could have access with the children during the evenings no less than once per week and liberal access as agreed upon between the parties. On March 1, 2019, the respondent mother was ordered to pay $867 a month in child support commencing February 1, 2019 and pursuant to the child support guidelines.
6The parties agreed to another temporary order on June 27, 2019 providing for week about access for all three children for the summer of 2019. The order specifically provides that the previous order providing for primary residence with dad would continue as of the commencement of the school year in September 2019.
7A request was made during these proceedings for the involvement of Ontario Children's Lawyer. That request was denied. Later, a request was made for the preparation of a Voice of the Child (VOC) report to provide the oldest child C.L.D.'s preferences and views. A VOC report was prepared and filed with the court on July 31, 2019.
8The respondent mother filed a motion with the court to change the residency arrangements for the oldest daughter C.L.D. in order to comply with her wish as expressed in the VOC. A temporary order on consent was made on October 29, 2019 wherein the parties would enjoy shared parenting time of C.L.D. on a week about basis with said order providing that C.L.D.'s views and preference being offered significant weight at all times with respect to where she resides.
9The original application filed by the applicant father requested that primary residence of all three children be with him and that the respondent mother have access in accordance with her work schedule. At the beginning of the trial, counsel advised that dad was content that the present order of October 29, 2019 concerning C.L.D. be made a final order and that the primary residence of the two youngest children be with himself. He was therefore basically asking that the present regime now in place become a final order.
10Leave was granted for the respondent mother to amend her answer and relief sought. She is now asking that the residence of all three children be on a week about basis between herself and the applicant father. In the alternative, she is asking that she be granted primary residence of the oldest child C.L.D. subject to reasonable access to the father and that the primary residence of the two youngest children be with the applicant father with access to her on at least two weekends per month and one overnight access per week.
11Despite numerous settlement conference and ongoing negotiations, this matter was unable to be settled between the parties. This court heard evidence in a very focused manner on January 23 and 24th, 2020.
Applicant Father's Position
12During his testimony, the applicant father Daniel Larabie, confirmed that he has basically lived in River Valley his whole life. His parents are greatly involved in his children's lives and live approximately 3 kms away. He presently lives in a four-bedroom house and owns approximately 10 acres. He lives there with his three children and his girlfriend, Jessica Vezina lives with them most of the time.
13He confirmed that after separation, the respondent mother went to live with the maternal grandmother in Sturgeon Falls and she would have access with the children on her time off and on weekends. He decided that he needed to go to court on this matter in order to provide some structure in the children's life.
14He confirmed that there have been a variety of custody and access arrangements since separation. In his view, the present regime is working fine and same should become permanent. The oldest, C.L.D. is on a week about regime and she seems very happy with that as she gets to spend time with both parents. He also confirmed that the final order concerning joint custody is working well between the parents. He also confirmed that the three children seem to have a good relationship and all three of them get along well with his girlfriend.
15As for C.L.D., he approves of the current arrangement as it gives her the flexibility of spending more time with one parent if she so desires. There is a need however for clear lines of communication between all of them as to where she is staying and same seems to be working fine.
16He confirmed that he has reviewed the VOC report which basically states that C.L.D. wishes to stay with mom on a full-time basis. In his view, C.L.D. was not feeling well at the time the report was being prepared and was quite emotional. In his view, her present request is not to stay with mom on a full-time basis but rather to continue with the present regime of week about residency.
17He was clear during his evidence that he did not have any issues with mom seeing the children on school nights. He however made it clear that the children must be back home no later than 8 PM, which is their bedtime in order for them to be prepared for school the next day. They presently have a well-established routine which is working well and he does not want to do anything to disrupt same.
18He did confirm that he has a very close relationship with his parents, and he speaks to them on almost a daily basis and sees them almost every other day. They are a great support to him; however, he is the main parent to his children. He confirmed that obviously, when they are around his children, they will do some parenting. He did also confirm that his girlfriend does spend a lot of time with the children and she also does some of the parenting. He is however clear that he is the main parent for all three children.
19He did confirm that he suffered a major back injury as a result of a motor vehicle collision. He is being followed by a doctor from Toronto and is taking a number of prescribed medications. This injury is not affecting his parenting abilities, but he does confirm that there are some physical limitations. For example, he cannot do any heavy lifting or pulling and often needs to sit in order to rest. He has learned how to cope with his issues and same are not affecting his parenting abilities.
20The maternal grandmother, Helene Larabie testified in support of her son's position. She confirms that she is supporting her son Daniel as she does for her three sons. However, she confirmed that he is the main parent and that she only offers support when requested. In her view, Daniel has never prevented the mother of having any visits with the children. He however is clear that he wants routine for them during school and same should not be interfered with. During the weekend or summer that is different.
21We also heard evidence from Jessica Vezina who describes herself as the applicant father's girlfriend. She confirmed that she maintains two residences, one with Mr. Larabie and one with her father.
22It seems that she spends the majority of her time living with the applicant father. She does however spend some time with her ailing father who suffers from PTSD and a variety of other serious illnesses.
23In her view, she has not witnessed any problem with the applicant father's parenting skills. Yes, she does assist when she is at the residence however, he does most of the parenting. She confirms that she is very close to all three children and the oldest child C.L.D. has confided in her many times.
Respondent Mother's Position
24The second day of trial was dedicated to the respondent mother's witnesses. The first witness we heard from was Carole Vaillancourt who completed the Voice of the Child report on behalf of the Ontario Children's Lawyer's office. She confirmed that she spent a total of 90 minutes meeting with C.L.D. in two separate interviews. She confirmed that C.L.D. appears to be a happy young adolescent who looks slightly older than her given age. She appears very talkative, bright and intelligent and clearly seems to know what she wanted based on her own experience.
25She appears to have spoken to both her mother and father about the interviews however, C.L.D. does not seem to be influenced by either parents. She also confirmed that C.L.D. seemed very comfortable and open during both interviews. She held a very strong view that she wanted to live with mom. She had nothing bad to say about either parent, but her preference was to remain with mom.
26C.L.D. advised that she is more at ease with her mother and that she is easier to talk to. When she does talk to her father, he appears not to be listening to her or acknowledging her wishes. He often gets upset when she mentioned that she would rather be with mom and is not respecting her feelings. She does not have any concern about being split from her brother and sister as there is a big age difference between them and it is her wish to spend every weekend with them.
27She confirmed that she has no friends in the River Valley area where her father resides. She therefore feels very socially isolated while living with him. She also expressed some concerns about the long daily bus ride to Sturgeon Falls. She wishes to live with mom in Sturgeon Falls in order to be closer to the school and more particularly her friends. In her view, there is nothing to do in River Valley and without elaborating, said there is more things that interest her in the Sturgeon Falls area.
28This witness confirmed that at the time of the interview, the children were on a week about regime for the summer months. She appeared to be enjoying this type of regime but knew that she had to return to live with dad come September. She did not appear distressed and did not express any major concern about this change in routine for the school year.
29We also heard evidence from Hélène Fredette who is the maternal grandmother. She confirmed that her daughter moved in with her after the separation. She lived there until January 1, 2018 when she got a nice fully furnished apartment in Sturgeon Falls.
30She advised that it was her impression that the plan was that her daughter needed to get settled in by the end of the school year. At that time, the children would commence a week about regime. She was extremely proud of her daughter as she worked two jobs in order to save enough money to obtain her own apartment that was big enough to accommodate all the children and had to equip and furnish same.
31She confirmed that she has a very flexible job and is available to assist with last-minute emergencies. She is also able to take some days off when need be in order to assist her daughter.
32She advised that her daughter unfortunately had to let go of her apartment in December 2019 for financial reasons. She simply said that she had no more funds to continue paying child support and for the apartment as she was now receiving employment insurance benefits.
33Since December 2019, her daughter Karen has been living with her other daughter Audrey Rose in Verner Ontario. She has a big house located on a small farm which can easily accommodate everyone.
34The next person who testified on behalf of the respondent mother was her sister Audrey Rose Dube. She confirmed that when she returned to live in this area in 2016, she moved in and lived with both the applicant and respondent in their River Valley home. She advised that her sister had asked for some help and needed some support.
35Her sister Karen is now living with her in her residence in Verner, Ontario since the end of December. She explained and displayed a number of pictures showing the layout of her house and the accommodation available to her sister and her three children. It appears that the house was recently renovated which is the reason, she explained, why the three children had not been in attendance at the house much before the move of December 2019.
36Last witness that we heard from was the respondent Karen Dube herself. She confirmed that she is now 31 years of age and the proud mother of three children age 15, six and four. She confirmed that her preferred relief sought was a week about regime for all three children. In the alternative, she would be seeking an order that C.L.D. live primarily with her and the two youngest children primarily with dad. She would however be seeking some midweek overnight access with the two youngest children.
37She confirmed that she is lucky to have a great deal of support in order to juggle life in general. She specifically pointed out to her sister Audrey Rose and her sister's partner Kevin. She advised that they would be able to continue the children's daily routine to accommodate her shift work.
38She did confirm that the move to Verner was a recent one. While confirming that she cannot predict the future, she does not plan on moving any time soon. She did confirm that she has a boyfriend and after some discussions with him, it was decided that it would not be appropriate at this time for them to commence living together.
39She confirmed that the oldest child C.L.D. will continue attending school notwithstanding where she resides. She is happy at that school and is doing well.
40Her primary suggestion is that the two youngest children start attending the public French school in Sturgeon Falls. As this is the only French public elementary school in the area, it is her understanding that the children could be bussed from both residences in River Valley and Verner. By making this change, this would make things fair where both parents could share equal parenting time with all the children and school transportation would be supplied.
41If the children would be living with her on week about basis, she could move her shift around in order to be more available for them when they are with her. As a hospital clerk in Sturgeon Falls, she does have some flexibility of switching shifts with other workers in order to make a lighter week when the children are with her. She has confirmed that she has successfully done that before in order to accommodate the summer week about regime that has been in place since separation.
42In her view, shortly after the separation, the applicant father and she sat down in order to discuss the future. She believed that they had an agreement on a 50-50 sharing of the children and also an agreement on financial issues. She does confirm that this did not formally come into effect and no specific agreement was signed.
43Shortly after the separation, she looked for rental housing in River Valley. She confirmed that this is a very small rural community and no suitable housing was found to accommodate her and her three children. She also looked in other neighboring communities that were situated close by with no success. She therefore opted to move in with her mother who was at the time living in a large family home and grieving the recent loss of her common-law spouse to cancer.
44Immediately after separation, she would see the children on weekends and on her day offs. At first, she would go see them at the matrimonial home. Access was also being done at her mother's residence who could easily accommodate all her children at the large family home.
45The respondent mother did express some frustration about dad's position when asking for more parenting time on a weekday. She mentioned that she requested same numerous times either in person or through electronic communication. Dad always refused any overnight access during a school day but has recently agreed on a few occasions to allow her weekends to be extended to include a Sunday night.
46She testified that she stopped requesting overnight access during school nights as she was always getting the same answer from the applicant father. He always mentioned that she was able to see the children however they needed to be back home by bedtime at 8 PM. This would clearly not give enough time to drive back to her residence with the children or give her limited to no time for social activities in the small community of River Valley. Obtaining other liberal access was simply not an option for the applicant father as he would say that this would be too disruptive to the children's routine.
47The respondent mother describes her week with C.L.D. as a mixture of emotion and laughter. After a few days of winding down, she is able to have frank and open discussions with her. They play cards and other children's games to entertain themselves.
48She described C.L.D. as being very close to her siblings. C.L.D. says that she would not miss her siblings if their primary residence would be different. Mom is however of a different opinion and believes that deep down, C.L.D. would miss her siblings if they didn't all live together. She describes C.L.D. as obtaining good grades at school. She has two or three close friends and enjoys playing soccer with the school in the spring.
49As for the two youngest children, they appear to greatly enjoy playing outside. Now that they are living in Verner, this is much easier to accommodate as they have a big and safe yard. When they used to live in Sturgeon Falls, this was a bit trickier as there was no park close by to accommodate this.
50When specifically asked about concerns about dad's parenting skills, the respondent mother said she had none. Her concern is that he might not be the one doing the majority of the tasks. However, he seems to be the one making sure that the tasks are done after obtaining assistance from his family or his girlfriend.
51She did confirm that obtaining support from family members seems to be a constant thing in this family life. She confirmed that she was only 16 years of age when C.L.D. was born. Accordingly, her mother provided a great deal of assistance in the first few years. She then later moved in with the applicant father at his parent's residence in River Valley. Their support continued after they obtained the matrimonial home when two youngest children were born.
52She confirmed that her usual yearly income is in the range of approximately $45,000. She has a permanent part-time position at the hospital in Sturgeon Falls where and she works shifts of usually 18 to 37 hours a week. There are a number of other clerks working in a similar position as hers and can easily rearrange her shifts to accommodate her parenting obligations.
53As outlined by a letter filed by her family doctor, the respondent mother has been unable to work due to recent family stressors affecting her mental health. She advises that she is now medicated and has an excellent prognosis of a full recovery. She is expected to return to work in the near future with a modified work schedule to accommodate her recovery.
54During her absence from work, she was receiving employment insurance sick benefits. Unfortunately, these benefits ran out recently and she presently finds herself without any source of income until she can return to work in early February.
55Not being able to have extra time with her children when she has not been working the last few months has been extremely frustrating mostly because she would now have time to drive them back and forth to school. She expressed some frustration about the fact that she was not able to spend parenting time with the children when dad attends his bi-weekly doctor's appointment in Toronto on Thursdays. With the present access regime, she would go up to two weeks without seeing her children.
56She describes the two youngest children as being very "clingy" when they first attend for their weekend visits. At the end of the weekends, the children often seem hesitant to leave and often ask why they cannot stay any longer with mom. The younger children seem confused as to why C.L.D. gets to spend more time with her than them.
57At the conclusion of the second trial day, the matter was adjourned to February 12th in order to allow the opportunity for the applicant father to call reply evidence. On the said return date, no further evidence was presented to this court and submissions were made.
Submissions
Applicant Father's Submissions
58Closing submissions were made the morning of February 12th, 2020. Dad's position was that Justice Lainevool's temporary order of January 15th, 2019 for the two youngest children and her order of October 29th, 2019 concerning C.L.D. should be made final orders. Mom's position remains that the children's residence should be shared on the week-about regime or that the primary residence of the oldest child C.L.D. be with her and residence of the two youngest to be with dad subject to access every second weekend and a midweek overnight access. Both parties also agree that the issue of child support needs to be reviewed since Justice Lainevool's order of October 29th, 2019 and moving forward using mother's current income.
59Counsel for the applicant father specifically refers me to section 24(2) of the Children's Law Reform Act which enumerates factors to be considered in determining the children's best interest. He points out that the two youngest children have always lived in the matrimonial home in River Valley. Dad has been the primary caregiver for them since separation.
60He points out that the respondent mother is now in her third residence since the separation in November 2017. He points out that section 24(2)(f) of the CLRA states that permanence and stability of the family unit needs to be considered in determining the best interests of the children. Mom's present living arrangement in Verner is very recent and her change in residence does not show any stability.
61He also points out that section 24(2)(a) refers to love, affection and emotional ties between the children and each person including a parent or grandparent entitled to claim custody or access to the child. He advises that the paternal grandparents have always been highly involved in the children's lives and that they have emotional ties mostly with the grandmother who he describes as a superstar.
62He also refers to section 24(2)(c) which makes reference to the length of time that the child has lived in a stable home environment. With the assistance of the paternal grandparents and the applicant father's girlfriend, the children have always had a stable home environment in River Valley.
63Counsel for the applicant father points out that mother's hectic work shift schedule makes it difficult to provide the children with the stability that they require. Dad expressed some serious concerns about her availability to be there for the children with her hectic shift work. Mom's plan to have her sister, her sister's spouse and or her mother assist in parenting while she is working does not show any stability. On the other hand, dad is a stay at home parent and can take care of his children as he has done for a number of years.
64In referring to paragraph 24(2)(g), counsel for the applicant father argues that there is nothing before the court showing bad parenting by dad. Despite the big age difference between all three children he has been able to see to their well-being and is more than able to parent all three children. He does admit that he does receive some assistance from his parents and his girlfriend however, he maintains that he is the primary parent of his children.
65The applicant father submits that his injuries sustained in his serious motor vehicle collision do not impact his parenting ability. He is able to cope with his physical limitation and has support to assist him in his parental obligations.
Respondent Mother's Submissions
66Counsel for the mother outlined that there is a common theme to all witnesses, that is, that her client is a capable and excellent mother. On the other hand, she describes dad's position concerning access as being rigid and not able to show any flexibility. An example of this is dad not allowing the children to spend time with their mother while they are in Verner for their skating lessons.
67Mom has been able to convince dad to allow the children to stay on some Sunday nights during her access visits. She has been able to bring the children to school on the Monday morning with no issues. Mom points out that there is no evidence to show that this extra Sunday night access before a school day has in any way affected the children's routine. She therefore fails to understand why dad is unable to show any flexibility for midweek overnight access.
68Counsel for the mother expressed concerns about who is in fact doing the majority of the parenting while the children are in dad's care. It is her position that the paternal grandmother and the girlfriend are doing much more of the parenting than the father. Mom stated that C.L.D.'s views as expressed to the clinician are similar as to whom does the majority of the parenting.
69A great deal of frustration has been expressed by dad refusing to comply with Justice Lainevool's order of January 15th, 2019. Paragraph 4 specifically says that mom is to have additional liberal access with the children as agreed upon. Paragraph 7 mentions that the parties shall have a right of first refusal to care for the children when the other parent is unavailable. Dad has been attending doctors' appointments in Toronto every second Thursday. He leaves early in the morning and returns later in the evening. He is therefore obviously not available to parent the two younger children. Mom claims that he has never offered or suggested that she take care of the children while he is away despite a clear court order to that effect.
70Mom points out that all three children get along well together. It is mom's position that the oldest child C.L.D. would like to be with her siblings. Dad's parenting plan clearly does not allow for this wish to be respected.
71Mother's position is that for the next few months, she will have a reduced work schedule in order to accommodate her health issues. She has the ability to move some shifts around in order to be more available to parent the children when they are in her care. She points out that this was successfully done during the two summers when the parents shared a week about regime.
72Mom also points out that the two youngest children seemed very confused about the present arrangement. They seem to wonder why the oldest child C.L.D. can spend more time with mom than they do. This is causing some confusion which is not in their best interest.
73The first case referred to is a decision of the Ontario Court of Appeal in BV v PV, 2012 ONCA 262. Paragraph 15 of this decision reminds us of the maximum contact principle that the child should have with each of their parents. Obtaining this principle is consistent with the child's best interest. The court goes on by saying at paragraph 16 that there needs to be compelling reasons for limiting access that is contrary to the maximum contact principle.
74The Ontario Superior Court of Justice decision in Kaufman v House, 2019 ONSC 7283, addresses the issues of the wish of a child in custody and access cases. The court mentions at paragraph 68 that it is dealing with a child whose views are long-standing, realistic and clear. The child is intelligent and demonstrates maturity and ability to adjust. The court concludes that by ignoring or minimizing the child's wishes would be "both a legal error and leave inevitable, problematic and practical difficulties of dealing with these wishes again sooner than later by both the respondent and the applicant".
75Counsel for the mother points out that Justice Lainevool's orders will not work on a permanent basis. They contain too much flexibility and any loose arrangements will result in the applicant father simply saying no to mother's request. His actions have shown that mom's time with the children is clearly not important to him. In her view, in order to allow for the maximum contact principle to be applied and to allow the siblings to continue residing together that the only type of order that would work would be a week about regime.
Analysis on the Issue of Residency and Access
76In reviewing the totality of the evidence now before this court there are many refreshing aspects to this matter. Contrary to many matters that appear before our court, there appears to be no issues with violence, criminal behavior, addictions or serious mental health concerns.
77Neither party can provide any substantial evidence that the other is a bad parent or lacks the basic parenting abilities to deal with their children. Mom has expressed concerns about who in fact is doing the parenting while the children are in the father's care but does admit that everything seems to be going well and the father is assuring that all the children's needs are met. It is ironic that the applicant father's concerns about the mother's parenting plan is that she needs to rely on her family to assist when she is working. This is something that father has been doing himself for years by getting assistance from his parents and his girlfriend.
78There is clear evidence before this court that assistance to the parties from their extended families has been a constant throughout the children's lives. After the birth of C.L.D. mom lived with the maternal grand-mother in Sturgeon Falls. Mom and dad then lived together at the paternal grandparent's residence in River Valley. We have heard evidence of the mother's sister moving in in order to provide some assistance. These parties are in fact extremely lucky to have such supportive family to assist in raising their children.
79This court is aware of the principles as enumerated in section 24(2) of the CLRA concerning the best interests of the children. It is clear from the evidence presented during this trial that both parents have love, affection and emotional ties with the children. Both parents, despite where they are actually residing, are able to provide a stable environment for the children.
80Clearly this court needs to understand and appreciate the child's views and preference when they are known to the court. In reviewing the evidence of the assessor of the VOC report, C.L.D. was clear that she enjoyed spending equal time with her parents during the summer months. She is however clearly stating that she wishes to spend more time of her mother as she finds it easier to communicate her feelings with her. VOC report was prepared prior to the week about regime being imposed in October 2019. Both parents' evidence seems to suggest that C.L.D. has adjusted well to this new regime and is in fact enjoying same.
81From all accounts, all three children seemed to have a positive relationship with each other. Despite a big difference in age between C.L.D. and her two siblings, she appears to greatly enjoy her time with them. These children deserve the right to spend as much time together as siblings as possible. This time will obviously be limited as C.L.D. will be graduating from high school in a few years.
82The present temporary order clearly provides for flexibility between the parties. As noted earlier the orders provide for additional week day access for mom and the right of first refusal for the parent who cannot take care of the children. For all practical purposes, dad has ignored these provisions. He has travelled to Toronto on every second Thursday and never offered mom to parent the children during those visits. It is of concern also that he is not showing any flexibility for week day overnight access despite the order allowing for this and mother requesting same. It is clear that children do need structure and routine however same should be imposed with some flexibility. Dad's views and actions towards allowing additional access is of grave concern to this court.
83The present regime for C.L.D.'s week about residency between both parents is working well and clearly appears to be in her best interest. This regime will therefore continue on a permanent basis.
84As for the two youngest children, there has been some issues as to what school they would attend and transportation for them. In the court's view, these issues should not prevent the two youngest children enjoying equal time with both parents and maximum time with their sibling C.L.D. Accordingly, the residency of A.L. and J.L. will also be shared on a week about basis with all three children following the same schedule. Same at first might be disruptive to the routine and structure now imposed at dad's residence however, A.L. and J.L. are young enough to quickly adapt to this new routine and structure.
Child Support
85The respondent mother has been paying child support in the amount of $867 a month since February 1st, 2019 based on her 2018 income of $43,655. Both counsel agree that changes need to be made to this temporary order.
86First, it is important to note that dad is presently receiving accident benefits from his insurance due to the motor vehicle collision that he was involved with. The evidence before the court clearly states that this income has not been taxable for him. Counsel for the mother has provided case law to suggest that this income replacement is to be considered income for child support purposes. They also stand for the proposition that there is a need to gross up this income to address the issue that same is non-taxable. This issue was not argued in length and it appears that both counsel agree that dad's accident benefits are to be considered replacement income for child support purposes and that same should be grossed up to deal with the tax issues.
87To assist in determining child support, Ms. Sikora has filed with the court six Divorcemate calculations to address the possible scenarios depending on the decision on primary residence of the three children. Same have been very helpful and the court thanks her for these calculations.
88The parties agree that since mother has been not working due to health concerns, that the court should use a yearly income of $25,584 in determining child support. There is also an agreement that we should use the amount of $23,711 as dad's yearly income which is the grossed-up amount of his accident benefits.
89C.L.D. has been living on a week-about basis since October 2019. The child support order that is in place contemplates all three children living primarily with the father. Accordingly, there needs to be an adjustment wherein the respondent mother will pay child support in the amount of $337 a month commencing October 1st, 2019 up to February 2020.
90On an ongoing basis, the respondent mother will be paying child support in the amount of $30 a month commencing March 1st, 2020 based on the incomes noted earlier and a shared parenting plan for all three children and pursuant to the child support guidelines.
91It is anticipated that the respondent mother will eventually be returning to her regular work schedule and her child support obligation will need to be revisited at that time with her new yearly income. The mother will therefore have an obligation to advise the applicant father once she returned to her regular work schedule.
Implementation and Next Steps
92This court is specifically not addressing three issues that still need to be determined on this matter. A final order for joint custody was made some time ago in this matter. It is therefore assumed that these parents can communicate with each other for the well-being of their children and the court will allow them the opportunity to make some decisions on their own on how to implement this new reality that is being imposed by this order. However, if they are unable to reach suitable arrangements in a timely fashion, the court will make the final decision.
93I will therefore leave it the parties to decide as to when this new regime will commence. Obviously, decisions will need to be made about the date and time of exchanges for the week about regime. They also need to have some discussions on the educational needs of the children as well as transportation issues relating to same. These are all incidental issues to be determined on cases of custody and access and this court can decide same if need be. However, there are number of options available to them and I will give them the opportunity to try to come up with suitable arrangements.
94There is also the issue of costs that needs to be determined in this matter. This will be done by written submissions by counsel. A schedule will need to be determined for the filing of same but only after the opportunity to negotiate the implementation details of the week-about regime.
95The matter is therefore adjourned to March 3rd, 2020 in Courtroom #201 at 9 AM for a status report regarding the next step.
Released: February 25th, 2020
Signed: Justice A.H. Perron