Court File and Parties

Date: July 9, 2018 Court File Number: 32-2017 Ontario Court of Justice Orangeville

Between: Ikechidiadi Justin Kaja, Applicant

and

Monica Mihalciuc, Respondent

Before: Justice B.E. Pugsley

Heard: July 4th, 2018

Released: July 9th, 2018

Appearances

Applicant and counsel: Ms. Shawna Downey

Respondent and counsel: Mr. Omar Khan

Endorsement

Background and Issues

[1] The parties are the parents of A.M. (M)(DOB: […], 2017). They never lived together. An issue has arisen as to temporary access and support. The parties each bring a Motion for temporary relief and seek the guidance of the court.

[2] The Applicant (father) seeks temporary unsupervised access to the child on a gradually increasing basis (see Tab 13) and that the Applicant and child should not be required to remain within the Town of Orangeville for access. The Respondent (mother) seeks a longer period of supervised access at the Orangeville Family Visit Centre before moving to unsupervised access, citing the tender age of the child and the Applicant's lack of parenting experience. She is also worried about what she submits is the Applicant's few connections to Ontario.

[3] The Respondent (mother) seeks temporary child support based upon the Applicant's current income, a percentage of daycare costs, disclosure with regard to the Applicant's formal connections to Ontario and his past assets and dispositions of assets, a parenting course by the Applicant, and continued supervised access until December 1st, 2018 (see Tab 16). The Applicant concedes the temporary child support sought, states that he has complied with the disclosure requested, and that there is no need for either a parenting course nor any further supervised access. He and the child know each other and he should have access outside the access centre. He has worked in Ontario for ten years, albeit he has (a) only very recently obtained an Ontario drivers' licence, and (b) has been driving his sister's car with Maryland licence plates.

Prior Proceedings

[4] The Applicant started the Application on October 5th, 2017. They came to court with counsel on December 13th, 2017, for the first appearance court, and quickly agreed to temporary minutes of settlement. Their agreement started up access at the visit centre and started up child support. A case conference was held on March 21st, 2018. Again the parties left the courthouse with a temporary consent order fixing child support arrears and a way of paying those arrears. Comprehensive financial disclosure was agreed to in both consent orders.

Child Support

[5] At the commencement of the argument of the Motion and Cross-Motion the parties agreed that the child support should be increased to reflect the current, increased, income of the Applicant.

[6] I will make that order today to start effective August 1st, 2018.

Daycare Expenses

[7] The parties differ on how the Applicant should contribute to the child's daycare costs given that Respondent has the tax benefit and that the dollar amount is likely to change with the change in the Respondent's employment routine. Applicant seeks disclosure of the actual daycare expense. Respondent seeks a percentage split of this section 7 expense based upon receipts as submitted to him and the parties respective income.

[8] Daycare expenses vary and to fix an amount invites the parties to engage in unnecessary future conflict and potential expense. On an interim basis, this amount will be divided proportionately based upon the parties' current income (Applicant: $87,804; Respondent $60,000) such that the Applicant pays the Respondent his proportionate share (currently 59.4%) of the child's daycare expenses as proven by receipts provided to the Applicant by the Respondent each month. The Applicant will pay to the Respondent his said share within 30 days of his receipt of the proof of payment from the Respondent. The proportionate amount the parties each pay shall be adjusted to recognize changes in their respective income and any tax deductibility shall be adjusted each year by the end of April of the following year commencing in April 2019. If the parties are able to share that daycare tax reduction then there will be no need for such an adjustment.

Access Issues

The Core Dispute

[9] The key issue between the parties is the nature and quality of the A.M.'s access to his father. The Respondent seeks a "go slow" move to unsupervised access based upon A.M.'s tender years. The Applicant submits that there is no basis for continued supervised access.

Parental Communications and Conduct

[10] Both parties file aggressive and somewhat posturing affidavits supporting their positions, including copies of past communications between them and between their respective counsel. Each points to past character flaws in the other, blames their opposite number, and justifies their own past words and actions.

[11] Such communications and finger pointing are of absolutely no value to the court and simply make settlement harder and more expensive. The court must focus on the sole issue of what is best for A.M.

[12] Although each parent purports to put A.M.'s best interests first, their material, from the start, suggests to the court that they are still focused on the mistakes and hurtful behaviour of their past relationship. The only glimmers of mutual regard are shown in their consent agreements. Indeed, in spite of their aggressive material, those agreements bode well for a future where they will recognise the role of each other in A.M.'s upbringing.

Guidance to the Parties

[13] In that regard it would be helpful for the parties to recognise some features of their positions that are apparent to the court.

[14] First, each points to a lack of trust in the other party. Trust is earned and can be slow to develop and easy to break. Words matter and ill-considered words can have immediate and long lasting effects. Calling each other in legal language liars and untrustworthy is not conducive to the multi-decade relationship that the parties will now have to have for the benefit of their son.

[15] The parties should try to get used to communicating their parenting concerns directly with one another as soon as possible, rather than through the filter of a legal representative. Software exists to prime the pump of direct communication if necessary.

[16] Reading between the lines of their material, both parents appear to be decent, well adjusted, and well-meaning individuals who at one point felt considerable regard for each other. As is readily apparent from the observation notes, they have created a wonderful little boy together. And yet, they appear to be prepared to disregard those past good times in favour of what is an increasingly counterproductive war of words.

[17] The parties will be dealing with A.M., together, for twenty plus years. They need to decide, together, how painful they want those years to be for each other and for A.M. They should start by considering the good in each other.

Recognition of the Mother's Role

[18] For example, the Respondent is A.M.'s mother – the Applicant should recognise that the healthy and happy child he sees on his visits is healthy and happy because of the excellent care she is giving him. He should recognise that A.M.'s welfare is first and foremost the urgent day by day care, concern and duty fulfilled by the Applicant. He should honour her for that care.

[19] He should try to understand and to assuage the Applicant's concerns instead of dismissing them as ill-founded and ill-logical.

Concerns About the Applicant's Conduct

[20] For example, he has been here for ten years yet until recently used a US drivers' licence. He has driven a US plated and insured vehicle, not his own, for five years while residing full time in Ontario. Note that in each case he has ignored the requirement in Ontario law that the vehicle either be removed from the province or legally exported from the USA and imported to Canada, and then properly plated, and that a non-resident must obtain an Ontario drivers' licence upon moving here within sixty days. Further, it is questionable that his sister's Maryland car insurance would cover his driving a Maryland vehicle full time in Canada for five years. In other words, he may have no insurance at all. Further, minimum car insurance liability requirements vary widely from jurisdiction to jurisdiction. In Ontario the minimum third party liability coverage is $200,000. These are not just small points or regulations he has ignored. They are messages to the Respondent that he doesn't respect the law or at least is indifferent to that law. Luckily he appears to be addressing this in part at least, and will rent a car to transport A.M. He has new responsibilities as a father and an opportunity to assess meeting those responsibilities.

Recognition of the Father's Role

[21] For another example, the Applicant is the father of the Respondent's child – the Respondent should honour him for coming forward and stepping into that role and committing to being A.M.'s father forever. In this court's experience there are many fathers who run as far and as fast as possible from being the parent to a child they have shared in creating. It is without question true that children grow up healthier and more rounded emotionally when they have both parents consistently in their life.

Phasing in Unsupervised Access

[22] Part of this recognition of the role the Applicant will play in A.M.'s life includes a need to understand that A.M. needs and will continue to need one on one time with his dad. The Respondent notes this but is reluctant to move quickly towards starting to move that relationship outside the family visit centre. Her fears are the natural fears of any parent when exposing their child to the unknowns of the child's expanding horizons. She wants to postpone that time to December and only then after the Applicant's compliance to her satisfaction with multiple preconditions.

[23] The Respondent notes that the Applicant lacks training in parenting skills. So do most people. Intelligent and loving parents learn how to parent from experience, and learn from their partners, their parents, their friends, and from their child.

[24] The Respondent submits that the Applicant has few ties to Canada. I suppose this is intended to suggest that the Applicant may abduct A.M. from the country. There is no evidence to support that fear.

[25] By the Respondent's own observation the Applicant does have ties to Canada: he's lived and worked here for ten years. Now his child lives here. That is perhaps the greatest tie of all to Ontario. Nonetheless it is appropriate at this early stage of the parties' litigation, and given A.M.'s tender years, that the order address where the Applicant can be with A.M. at this stage of his son's life.

[26] The Respondent does not suggest that the Applicant will intentionally harm A.M. Rather she fears that he will do so by lack of experience, neglect or inattention. The visit notes – created by independent observers – suggest that the Applicant has in fact learned to care for A.M. and has asked for advice appropriately. His relationship with his son has increasingly blossomed. If the scope of visits remains limited as proposed by the Respondent there is a real risk that the increasing connection between father and son may be diminished.

[27] It is time to allow more freedom for A.M. to be with his dad. The Respondent knew that this was inevitable. That it will be phased in faster than she would like will require a leap of faith on her part. The Applicant can help the mother of his child by recognising that trust she is placing in him and meeting that trust by his actions even if he believes those concerns to be ill-founded.

Transition Strategy

[28] The visit centre now used by the parties offers an exchange service for separated parties. It is my view that rather than moving directly from the current supervised access to uncontrolled access in the community it would help the parties to know that their exchanges of A.M. for the next little while will be in a controlled setting.

[29] Restrictions on where access may take place will also be gradually loosened in the child's best interests.

Conditions on Access

[30] There is no reason for the Applicant to be under the influence of alcohol or other drugs when he is visiting A.M. He shall have no alcohol, marihuana, nor non-medically prescribed drugs in his body while he exercises access.

[31] A rental car and a proper car seat for A.M.'s size and weight are required until the Applicant obtains a properly registered and insured Ontario vehicle. Alternatively the Applicant could come to the exchange in his current vehicle and perhaps walk around town with A.M. to the local parks in a stroller or take him on public transit in the area – just not in his sister's car.

Direct Communication

[32] The parties ought to have a direct way of communicating with each other about A.M.'s situation. Both parties would want to know if, for example, A.M. became ill while in the other's care, or if inclement weather interfered with transportation. If such a line of communication does not exist, the parties directly or through counsel shall forthwith establish that line of communication, for example by using third party software, or perhaps by each creating a Gmail address to be used only by the parties to communicate about A.M.

Frequency of Contact

[33] At A.M.'s age weekly contact will encourage the growing link between father and child.

Flexibility and Variation

[34] Current access is intended to be weekly and for a short time at the visit centre. Access has been taking place on Saturdays. That will change under this order. There will soon be a time however when the parties may have a desire for flexibility to change the parameters of the visits between A.M. and his father. For example, doubling up one weekend to allow no access the following weekend for a family event or holiday, or to cover a closed visit centre. Increasing trust may lead the parties to that end. As such, this order may be varied in any aspect by the written consent of the parties directly or via counsel.

Disclosure

[35] While disclosure was discussed there is no need for such an order here. The parties know their disclosure obligations. Income Tax Returns assessed by the Canada Revenue Agency can be assumed to have a high degree of reliability. There is no evidence that the Applicant has hidden income. Indeed, he would have had to have been remarkably prescient to have started to hide income before he was aware of any future child support concern. I leave this issue to be sorted out by the parties in the belief that the Applicant's disclosed income is in fact his actual income.

Costs

[36] The parties were not asked to address the issue of costs although offers have been exchanged. If the parties having read this endorsement wish to address costs, and if they are unable to agree on that issue, each may provide brief two page costs submissions (exclusive of attachments) upon the following schedule: Applicant within ten business days of the release of this endorsement; Respondent within ten business days of the receipt of the Applicant's submissions or twenty business days after the release of this endorsement whichever is earlier, and any reply by the Applicant within five business days of the receipt of the Respondent's submissions. Submissions should reference any applicable offers to settle.

Order

[37] I therefore make the following temporary order:

1. Commencing on the 1st day of August, 2018, and on the 1st day of each month thereafter, the amount of interim child support paid by the Applicant father to the Respondent mother for the support of the child of the parties A.M. (M)(DOB: […], 2017), shall be varied as follows: $817.00 per month.

2. Paragraph 1, above, amends the temporary child support order dated December 13th, 2017 with regard to periodic payments of support. This order does not amend the temporary order fixing arrears of support and providing for a schedule of repayment dated March 21st, 2018.

3. Commencing on the 1st day of August, 2018, the Applicant shall pay to the Respondent as his proportionate share of the said child's continuing daycare expense 59.4% of the amount set out on each receipt provided to the Applicant by the Respondent. Such receipts are to be sent on a monthly basis by the Respondent and are to be paid by the Applicant within thirty days of receipt. The tax deductibility, if any, of the said daycare expenses will be the subject of an adjustment between the parties every April 30th, commencing April 30th, 2019. Changes in the income of either party may lead to a request by either party to revisit this interim division pursuant to section 7 of the Child Support Guidelines (Ontario).

4. If agreed between the parties, daycare expenses created prior to August 1st, 2018, may be divided as set out in paragraph 3, above, and the issue of arrears of daycare contributions, if any, may be determined on consent. Upon such a consent the parties may apply to the court by consent motion in Chambers to give effect to the agreement. If the parties fail to agree on how the Applicant shall pay his proportionate share of the said pre-August 2018, daycare costs and/or any arrears, then that issue remains to be decided by the court.

5. The order made above is based upon the Applicant's current income of $87,804.00 and the Respondent's current income of $60,000.00 and the chart amount for one child.

6. Support Deduction Order shall issue.

7. Until varied by this order supervised access between the child and the Applicant shall continue as currently enjoyed.

8. Commencing on July 21st, 2018, the temporary order for access dated December 13th, 2017, is revoked and replaced by the access set out below.

9. Access by the Applicant to the said child shall take place on every Saturday commencing on Saturday July 21st, 2018, from 10:30 am until 3:30 pm. Access exchanges shall take place at the Headwaters Family Visit Centre in Orangeville. Access may be exercised in the following geographic locations at the option of the Applicant: Dufferin County, Peel Region.

10. The parties shall forthwith contact the said visit centre to set up the exchanges set out above.

11. Commencing on Saturday August 25th, 2018, and on each Saturday thereafter, the access set out in paragraph 9, above, shall be varied as follows: access shall take place from 11:00 am until 5:00 pm; pick up and return of the child shall take place at the MacDonald's restaurant at Broadway and Highway 10 in Orangeville, Ontario. Access shall be exercised in the Greater Toronto Area only.

12. The child may only be transported by the Applicant in a rental vehicle until this order is varied by the written agreement of the parties or further order of the court.

13. The child must be transported in an approved child car seat suitable for his age and weight.

14. When exercising his access the Applicant shall have no alcohol, marihuana or non-medically prescribed drugs in his body.

15. The parties shall establish a means of direct communication between them to be used to communicate with one another for issues concerning the child.

16. At no time shall the child be removed from Canada by the Applicant.

17. At no time shall the Applicant obtain any travel documents for the said child from Canada, the United States of America, or any other country.

18. Particulars of the above access order, including day, place, duration and pick up and return, may be varied by the written consent of the parties.

19. Paragraphs 16 and 17, above, may only be varied by further court order.

20. If the parties cannot agree upon the issue of costs then submissions may be made as set out in these reasons.

21. Adjourned to September 19th, 2018, as previously endorsed.

Justice B.E. Pugsley