BARRIE COURT FILE NO.: FC-17-000022-0000 DATE: 09 October 2018 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Tim Faulkner Applicant – and – Jamie McTaggart Respondent
Self-represented Jillian C. Bowman, counsel for the Respondent
HEARD: May 15, 16, 17, 18, 22, 23, 24, 2018
REASONS FOR DECISION
DOUGLAS J
Background and Overview
[1] This trial was unexpectedly refreshing. Despite some still raw emotions and history of difficult communications between the parties, both parties were able to volunteer complimentary evidence of the other’s parenting relationship with their daughter and positive observations of one another’s new partners in life.
[2] The insight and balance so demonstrated is something observed all too rarely in family court. I commend the parties and counsel for their respectful and professional approach to this proceeding.
[3] The focus of virtually all the evidence in this proceeding was the parties’ daughter Honour Marilyn Faulkner born August 2, 2015.
[4] The issues before me are as follows:
(a) Custody/Care and control; (b) Decision-making; (c) Communication between the parties; (d) Child support including s. 7 expenses; (e) Spousal support; (f) Mobility; (g) Travel; (h) Accounting for joint debts and post-separation expenses; (i) Divorce; (j) Pre-judgment interest; (k) Costs
[5] The parties commenced cohabitation in May 2009. They married on June 16, 2012 and as noted above they have one child of their marriage, Honour, who is currently not in school. She will be starting school in the fall of 2019.
[6] The parties initially cohabitated in Calgary, Alberta and moved to Ontario in July 2016 where they rented premises in Innisfil. They moved to Simcoe County in order to be close to the respondent mother’s family as her mother and step-father both live in Barrie.
[7] The parties separated on October 8, 2016. They remained in the same residence until November 6, 2016 when the respondent mother demanded that the applicant father leave the premises. During an angry exchange she threw the applicant father’s cell phone at him. Since this event it appears the parties have had little direct communication with one another, instead restricting their communication to text, email or Our Family Wizard communications.
[8] Upon his departure from the parties’ residence the applicant father moved temporarily to his cousin’s residence in Cambridge. Soon thereafter he began renting space from Michelle Harrison, a woman he met following the parties’ separation and to whom he is now engaged and with whom he is (at the time of trial) expecting a child.
[9] The applicant father and Ms. Harrison purchased a home in Bowmanville. They intend to continue residing there for the foreseeable future. They have made clear their long-term intention to build their family there.
[10] The respondent mother has been in a relationship with Cory Clements since April 2017. The evidence did not make clear when they started cohabiting but it must be no more than a year prior to trial in May, 2018.
[11] In 2012 the respondent mother was diagnosed with Multiple Sclerosis. This fact has permeated much of the evidence in this proceeding.
These Proceedings
[12] This proceeding was commenced December 30, 2016.
[13] On April 18, 2017 the parties consented to a without prejudice order that they have joint custody of Honour subject to Honour having her primary residence with the respondent mother and subject to the parties consulting each other prior to making major decision relating to Honour’s health, education and general welfare. The applicant father was entitled to parenting time with Honour such that for the period April 16, 2017 to May 31, 2017, a span of 46 days, Honour was with the father 17 of those days or 37 percent of the time. Exchanges took place on Sundays at the intersection of Highway 404 and Greenlane in Newmarket and on Wednesdays at the respondent’s residence. The applicant was entitled to contact Honour by way of video links, such as Skype, with unspecified frequency.
[14] The applicant father was ordered without prejudice to pay child support commencing May 1, 2017 in the amount of $444.68 per month upon income of $49,392, plus his proportionate share of Honour’s extraordinary expenses subject to proof being provided by the respondent mother and payment 30 days thereafter, including employment-related daycare.
[15] The parties consented to a further order on August 21, 2017, but for reasons unknown a formal order has not been issued and entered. The August 21, 2017 order continues the temporary and without prejudice joint custody of Honour subject to primary residence with the respondent and consultation by the parties on major decisions relating to Honour’s health, education and general welfare.
[16] Pursuant to the August 21, 2017 order the applicant’s time with Honour was governed by a 10-month schedule which provided for Honour to be with the applicant approximately 122 out of 272 days (from which I have excluded the Christmas holidays which have been addressed separately by the parties through email exchange and about which I have no evidence). Thus Honour has been with the applicant father approximately 45 percent of the time since that order.
Custody/Primary Residence
[17] This is a divorce proceeding and accordingly issues of custody and access are governed by s.16 of the Divorce Act, the relevant components of which include the following:
16 (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.
16 (4) The court may make an order under this section granting custody of, or access to, any or all children of the marriage to any one or more persons.
16 (5) Unless the court orders otherwise, a spouse who is granted access to a child of the marriage has the right to make inquiries, and to be given information, as to the health, education and welfare of the child.
16 (6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.
16 (7) Without limiting the generality of subsection (6), the court may include in an order under this section a term requiring any person who has custody of a child of the marriage and who intends to change the place of residence of that child to notify, at least thirty days before the change or within such other period before the change as the court may specify, any person who is granted access to that child of the change, the time at which the change will be made and the new place of residence of the child.
16 (8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.
16 (9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.
16 (10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.
[18] The applicant father seeks joint custody with primary residence of Honour with him. The respondent mother also seeks joint custody, but with primary residence of Honour with her.
[19] Thus, the main issue in dispute between the parties is Honour’s primary residence. Secondary to primary residence is decision-making.
[20] Honour’s “best interests” are the ultimate and only relevant issue on custody and access matters. The multitude of factors that may impinge on a child’s best interest make a measure of indeterminacy inevitable. A more precise test would risk sacrificing the child’s best interests to expediency and uncertainly. Parental conduct, no matter how meritorious or reprehensible, does not enter into the analysis unless it relates to the ability of the parent to meet the needs of the child. (See Gordon v. Goertz, [1996] S.C.J. No. 52, 19 R.F.L. 4th 177 (S.C.C.)).
[21] In applying the best interests of the child test under the Divorce Act, paternal preferences and “rights” play no role in issues of custody and access. It is a legal test, albeit a flexible one, and needs to be applied according to the evidence of the case, viewed objectively. There is no room for the judge’s personal predilections and prejudices. Despite the maximum contact principle, contact is to be restricted if it conflicts with the child’s best interests. (See Young v. Young, [1993] S.C.J. No. 112 49 R.F.L. 3rd 117 (S.C.C.)).
[22] The “best interests” test, with its inherent indeterminacy and elasticity, is more useful as a legal aspiration than as a legal analysis. It can be no more than an informed opinion made at a moment in the life of a child about what seems likely to prove in that child’s best interest. Deciding what is in a child’s best interest means deciding what, objectively, appears most likely in the circumstances to be conducive to the kind of environment in which a particular child has the best opportunity for receiving needed care and attention. Because there are stages to childhood, what is in a child’s best interest may vary from child to child, from year to year, and possibly from month to month. (See MacGyver v. Richards, [1995] O.J. No. 770, 11 R.F.L. 4th 432 (Ont. C.A.), deciding the issue under the Children’s Law Reform Act).
[23] In any custody case, the sole issue before the trial judge is the best interests of the child. The fact that both parents acknowledged the other to be “fit” did not mean that it was in the best interests of the child for a joint custody order to be made. The evidence must reveal what bonds the child had with each of her parents and their ability to parent the child. The fact that one parent professes an inability to communicate with the other does not, in and of itself, mean that a joint custody order cannot be considered. But there must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another. When the child is so young that he or she can hardly communicate her developmental needs, communication is even more important. It was an error in principle to award joint custody where there was no evidence of historical cooperation and appropriate communication between the parents and in the hope that it would improve the parenting skills of the parties. Parallel parenting envisages that the parents have equal status and exercise the rights and responsibilities associated with custody independently of the other. (See Kaplanis v. Kaplanis)
[24] An order for joint custody should only be made where the court has before it the right combination of thoughtful and mature parents who understand what is involved in such an arrangement and are willing to try it. If the parties are not willing to try joint custody, the court should not impose it on them. (See Kruger v. Kruger, [1979] O.J. No. 4343, 11 R.F.L. 2nd 52 (Ont. C.A.)).
[25] The applicant father submits as follows in support of his position that Honour should reside primarily with him:
(a) Since separation the respondent mother has demonstrated a consistent inability to prioritize the child’s best interest before her own; (b) The respondent mother has often acted unilaterally and contrary to medical advice provided by a licenced medical practitioner; (c) The root of the parties’ parenting conflicts lie in the respondent mother’s rigid and unwavering view that the applicant father is to have a diminished role in the child’s life; (d) The applicant father’s plan of care represents long term stability for the child, particularly in light of the respondent mother’s diagnosis of multiple sclerosis. It is better for the child to become established in a home and school environment now rather than face a dramatic change in the event mother’s illness overtakes her ability to parent the child after the child has become more deeply rooted in mother’s community; (e) The respondent mother has not demonstrated any real effort to co-parent and has expressed irrational hostility toward the applicant father’s new partner;
[26] The Children’s Law Reform Act, while not applicable to this case given it is a divorce proceeding, includes a useful list of factors in s.24 which have been considered a useful foundation for a best interests analysis under the Divorce Act.
[27] Those factors are:
(a) The love, affection and emotional ties between the child and; (i) Each person including a parent or grandparent 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 be reasonably 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 the guidance and education, the necessaries of life and any special needs of the child; (e) The plan proposed by each person applying for custody of or access to the child 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) Any familial relationship between the child and each person who is a party to the application.
[28] I propose to address these factors in turn and discuss their relevance to the matter before me.
[29] Regarding the factors outlined in paragraph 24(2)(a) above, the evidence easily supports the conclusion that the child enjoys a loving relationship with both the applicant and the respondent. There is no basis to conclude that the child is any more closely bonded to either parent than the other. It is also clear that the child is closely bonded with her maternal grandmother with whom she enjoys regular if not daily contact; indeed, Honour’s maternal grandmother is clearly a strong feature in her daily routine when in respondent mother’s care. The evidence also readily supports the conclusion that the child enjoys a close bond with Michelle Harrison, the applicant father’s fiancée. While Cory Clements, the respondent mother’s partner, has not been meaningfully involved in Honour’s life from a parenting perspective, I am nevertheless satisfied that his presence in Honour’s life is a positive and supportive one.
[30] Regarding s.24(2)(b) of the CLRA, obviously Honour is too young for her views and preferences to be reasonably ascertained.
[31] Regarding s.24(2)(c) of the CLRA, the applicant father resides in Bowmanville (about 2 hours from mother’s residence) in a home that he owns jointly with Michelle Harrison. He intends to continue living there until Honour finishes high school. The respondent mother resides in a basement apartment that she rents with Mr. Clements. Prior to separation the parties had a number of moves. I do not fault the parties for these moves. Since separation, once the dust had settled, the parties both settled into apparently stable home environments which they were then able to share with their daughter during their defined periods of care. I find that both parties have been able to offer Honour reasonably stable home environments.
[32] Regarding s. 24(2)(d) of the CLRA both parties advance reasonable plans of care with respect to Honour’s education. The applicant father has developed a long-term plan based upon the assumption that Honour will be primarily resident with him. The respondent mother proposes that Honour transition from her existing daycare at Willow Landing to the associated elementary school at the same location and with the same students. I have no reason to doubt the ability or willingness of either party to provide the child with guidance and education, the necessaries of life and answer any special needs.
[33] Honour does not present with any special needs apart from her difficulties with constipation, regarding which I heard extensive evidence from the parties. While both parties have been diligent regarding this issue (arguably to the point of hyper-vigilance), that may be a product of the scrutiny brought to bear during outstanding family court proceedings. The applicant father has been consistent in advocating for intervention based upon the doctor’s recommendations whereas respondent mother has demonstrated a readiness to challenge the doctor’s recommendations in deference to more “natural” remedies. In a Facebook post from the respondent on September 25, 2017 she confirms that the family doctor and specialist want the parties to use “Restoralax” but she was “refusing and sticking with aloe juice, magnesium, lots of fruit, veggies and water.” The doctor’s position with respect to the use of aloe juice was neutral but a letter from the doctor dated July 5, 2017 recommended water, increased fibre, natural oils such as prunes, coconut or avocado oils, magnesium citrate and glycerine suppositories. The mother’s evidence on this issue is somewhat inconsistent. While she assures the court that she respects the doctor’s advice, she also communicates to others her refusal to follow that advice.
[34] The parties had agreed on no vaccinations prior to Honour’s birth but thereafter, and in particular following separation, the parties struggled as the mother resisted vaccinations while the father preferred to proceed with vaccinations. Communications between the parties confirm ongoing conflict resulting from these disagreements.
[35] The doctor’s notes reveal several discussions regarding vaccinations and the mother’s concerns associated therewith. The doctor confirmed that the mother did not want to immunize but that the father did. According to the doctor: “We reviewed that there will never be a consensus medical opinion advising against immunization as it is such an incredibly effective preventative tool”. On September 21, 2017, following an order from the court on consent that Honour be vaccinated, the doctor hosted another “long discussion re vaccination”. The mother continued to identify concerns regarding the “theoretical risk of having more than one vaccine at a time”. Although the doctor’s note does not specifically refer to the mother as the source of this expression of concern, the parties’ testimony confirms that such is the case.
[36] The parties’ failure to achieve consensus on medical issues has been a significant source of conflict. If joint custody is to work the source of this conflict must be removed. The best way to achieve this is to give sole decision-making authority over the issue to one of the parents. I can anticipate similar conflict regarding Honour’s school when she commences attendance, unless a solution is crafted to ensure focus on Honour’s best interests rather than the parties’ personal preferences.
[37] Regarding s. 24(2)(e) of the CLRA, the father proposes that Honour live primarily with him subject to access by the mother and that she attend elementary and high school near his current residence in Bowmanville. The mother proposes that Honour reside under her primary care, continue in daycare at Willow Landing and transition into the elementary school at Willow Landing and be cared for by the mother primarily with the assistance and support of her mother and stepfather. Each party’s plan of care is reasonable and responsive to Honour’s needs. The mother’s plan has an advantage in comparison to that of the father in that Honour has resided primarily with the mother since separation. I do not fault father for this reality. He has in my view worked diligently and successfully to build a strong and positive post-separation relationship with Honour; however, his plan does require that Honour be removed from an established and tested care regime in favour of a regime that has not been as fully tested. I note as well that it was the father’s decision to dramatically change his place of residence from that where the parties and their daughter had resided prior to separation. I fully understand his reasoning. It made sense for him; however, the fact remains that the father’s plan necessarily requires a significant change for Honour. It makes less sense for her.
[38] Regarding paragraph 24(2)(f) of the CLRA, there is an element of marginally greater permanence and stability to the applicant father’s plan of care given his plans to marry Ms. Harrison, his expected child with Ms. Harrison, his having purchased a home in Bowmanville and his employment which has been stable since February 2017. The respondent mother’s relationship is somewhat fresher but nonetheless supportive and healthy. Her employment has been less stable, something that she attributes to the stress arising from this litigation and the conflict between the parties. I note there is no medical evidence to support the mother’s submission in this regard. In any event this is not a contest between the parties’ respective sources of income. It matters not to Honour where or whether her parents are employed.
[39] Regarding s. 24(2)(g) of the CLRA the evidence readily supports the conclusion that each party is able to act as a parent and there is no reason to conclude that either party is more capable in this regard than the other. As noted elsewhere in these Reasons, while there is concern regarding the mother’s health circumstances there is no reason to conclude she is not currently able to care for Honour, particularly with her family supports in place.
[40] Regarding s. 24(2)(h), of the CLRA the parties are obviously the biological parents of the child and she has a close and loving relationship with both of them.
[41] Section 16(10) of the Divorce Act is set out above. The father submits that in essence this provision establishes a presumption in favour of equal care and control, to be rebutted by the person seeking to stray from that presumption. I disagree with this submission. Had it been Parliament’s intention to so provide it would have said so.
[42] I also disagree with the father’s repeated assertion that a balancing of the parents’ “power” must be achieved. This submission shifts focus away from Honour’s best interests in favour of the parents’ interests. This is inconsistent with the provisions of the Divorce Act. The case law is clear that a child’s best interests must be assessed from the perspective of the child, and not from that of either parent.
[43] Both temporary orders for custody and access and primary residence have been framed as “without prejudice”; however, the reality is that since the parties physically separated in November 2016 Honour has resided primarily with the mother, subject to extensive time spent in the case of the applicant father. More recently, as embodied in the order of August 21, 2017, Honour’s time with her father has risen to the level of approximately 45 percent. That is a level of contact that is feasible and demonstrably workable until Honour commences attendance at school on a full time basis in September 2019. The current schedule will become logistically impossible to maintain thereafter.
[44] The applicant father urges implementation of a new primary residence with him immediately in order to avoid unnecessary upset for the child that would result from her becoming more established in her current environment only to be uprooted and commence primary residence with her father in a little over a year’s time.
[45] In a contest between the known and the unknown in relation to a child’s best interests, absent evidence of a compelling need for change, the known will usually represent the more prudent course. The father submits that such compelling need exists here, in the form of mother’s deteriorating health and her alleged efforts to marginalize him as a parent.
[46] I disagree with these submissions.
[47] While the mother has a significant diagnosis with her MS and she has described some of the medical consequences to her (including seizures and hospitalizations), I have no evidence that she is now or even reasonably foreseeably incapable of continuing to parent Honour as she has to date. That may change as life unfolds, or it may not while Honour is a minor. Such things are too uncertain to formulate a basis for a finding in relation to Honour’s best interests. I am satisfied that the applicant mother has adequate supports in place to ensure Honour’s safety while in mother’s care. Provision can be made in a final order for the child to come promptly into father’s care in the event of mother becoming medically incapable in caring for the child for any significant period of time.
[48] Although the respondent mother minimized her health circumstances by suggesting she has “only good days” in response to the suggestion that she has “good days and bad days” in relation to her illness, the balance of the mother’s evidence was apparently candid and detailed. I do not have medical evidence regarding the mother’s prognosis. This evidence was solely within her ability to provide. While it is tempting to draw an adverse inference from this failure, it is clear from the evidence that has been provided and which I accept, that the mother is currently managing her illness responsibly (although with occasional difficulties such as hospitalization or difficulty in maintaining employment). The evidence supports the conclusion that the course of the mother’s illness is unclear but that she is currently effectively, although imperfectly, managing her parenting responsibilities notwithstanding.
[49] As noted above, the current schedule is one with which Honour is familiar. It is a tested schedule that does not appear to be presenting any unusual challenges for her.
[50] As for the allegation that mother is marginalizing the father, certainly her actions in the immediate aftermath of separation were unreasonably restrictive of father’s access with Honour, and contrary to Honour’s best interests. She demanded a criminal record check for Ms. Harrison, but unreasonably refused to secure one for Mr. Clements on the basis that the request was “insulting”. She enlisted the assistance of friends to attack Ms. Harrison on social media after Ms. Harrison unwisely and probably deliberately posted memes that were implicitly critical of the mother. When the mother was hospitalized in August 2017 the father was not immediately notified. He expected Honour to come into his care while mother was in the hospital but this was delayed when the parties could not agree on when Honour would be returned to the mother care.
[51] The father submits that the mother continues to fail in facilitating additional access and that this should militate against mother’s claim for primary residence; however, I note that the two orders that have been made on care and control both contemplate the applicant father having extensive contact with the child notwithstanding the father’s decision to relocate to Bowmanville. I note that the mother arranged for Honour to spend extended time with the applicant father while she visited Calgary. When the mother was hospitalized in August 2017 the father complains that he was not allowed to take the child into his care as a result of the respondent insisting that the child remain with her mother instead. In my view the mother’s position in this regard was motivated by a desire to have the child available to her upon her release from hospital and the father’s refusal to demonstrate flexibility (instead preferring to secure additional time with Honour beyond that to which he was entitled pursuant to the order) was the proximate cause of the dispute. I do not fault the applicant father for wishing to secure extra time while with the child, but parents must always maintain a reasonable degree of flexibility in response to those unforeseen circumstances that are always lurking.
[52] There are other instances of what the father describes as evidence of the mother excluding him from decision-making regarding Honour.
[53] Unfortunately the father has in part contributed to the mother’s reluctance to consult with him. The evidence, as it so often does these days, descended into an examination of a myriad text and email messages between the parties. These messages reveal the father’s somewhat insistent and obsessive communication style. The mother’s reaction is understandable. Future communications between the parties, to be constructive and respectful, must have reasonable limits.
[54] The father refers to the mother’s unstable employment circumstances, highlighting her having quit three jobs since separation, due to her illness. The father was laid off from his employment shortly after separation and secured his current employment in February of 2017. His employment for less than 18 months as of trial does not stand in stark contrast with the respondent’s employment history given her personal circumstances. In any event what matters most to any child is the person under whose care they are living at any given point in time, rather than the consistency of that person’s employment.
[55] Overall my impression of the evidence is of a couple who, despite geographic distance and emotional hurt, were nevertheless able to agree upon two orders defining the father’s significant contact with Honour following separation. Despite some conflict from time to time, to which both parties contributed, the father was able to secure meaningful time with Honour pending trial, without the need for judicial intervention. The parties are to be commended for these achievements.
[56] The father submits that the mother engages in “parental alienation in terms of making decisions about Honour’s health, education and general wellbeing…” She does this, it is submitted, by disregarding advice from medical professionals, scheduling appointments for the child without consulting the father, not sharing information she receives during doctor’s appointments, unilaterally deciding where Honour would attend daycare, dismissing the father’s viewpoint in deciding issues pertaining to Honour’s welfare and constantly arguing when the father tries to “give advice or input in rearing of Honour”.
[57] There is absolutely no expert evidence to support the applicant’s bald assertion of “parental alienation”. The evidence in support of this assertion is very weak and undeserving of further comment.
[58] The father submits that the mother has tried to establish that his relationship with Ms. Harrison is not in Honour’s best interests. While there is no doubt that there has been difficulty in the mother’s relationship with Ms. Harrison, in my view Ms. Harrison must accept some responsibility for that. While Ms. Harrison testified that the Facebook posts that she made referring broadly to divorcing parents who withhold children from their former spouses, and so on, were not intended to refer specifically to the mother, I find this very difficult to accept and in fact I reject same. I have little doubt that it was Ms. Harrison’s intention to post veiled messages of criticism to the mother. The messages are simply too “on point” and timed with the events unfolding between the parties for me to come to any other rational conclusion. Having said that, it was open to the mother to simply not view those posts; instead she appears to have enlisted the assistance of her allies in coordinating a social media attack upon Ms. Harrison. Both parties to these unfortunate antics need to accept responsibility for their choices.
[59] And yet, despite the foregoing, both parties, under oath and with sincerity, described the other in positive terms in relation to their respective relationships with Honour. I commend both of them for finding the strength and maturity to see beyond some of their earlier dispute and focusing on Honour’s best interests.
[60] I carefully listened to the respondent’s evidence and found little in it to support the applicant’s submission that the respondent mother is maintaining that Honour’s relationship with Ms. Harrison is not consistent with Honour’s best interests.
[61] Further, for the reasons outlined above, I reject the father’s submission that the mother has demonstrated an unwillingness to facilitate additional access.
[62] I also find, for the reasons outlined above, that it is in Honour’s best interests to remain in her mother’s primary care. There is simply no compelling reason to disturb the status quo.
[63] Since at least August, 2017 the parties have organized the father’s significant time with Honour to coincide with his employment schedule. I see no reason to alter this approach until Honour commences school in September, 2019. At that time, as noted above, the current schedule will become unworkable.
[64] For all of these reasons, there shall be orders as below.
Decision-making
[65] As noted above, the parties have encountered significant conflict arising from disagreements and vying for control over medical issues. I anticipate similar difficulties regarding the major issue of education unless a mechanism is put in place to facilitate decision-making without conflict.
[66] The parties are ad idem that joint custody is appropriate, subject to special provisions regarding decision-making.
[67] Despite this consensus, there is reason to be wary of a joint custody order in this case. Typically such orders are granted after considering whether there is a sufficient degree of cooperation and communication, whether there is a history of day to day decisions and a manageable level of civility meeting the child’s needs and whether there are concerns that a parent will make unilateral decisions or involve the child in the dispute (see Kaplanis v. Kaplanis). The communication has been problematic as described above; however, I was struck by the parties’ mutual respect for the other’s relationship with Honour. While the father spoke of not trusting the mother, this appears largely to relate to the circumstances of separation and its immediate aftermath. Since then the parties have agreed to two orders, they have made some arrangements for father’s contact with Honour beyond that strictly provided for in the orders, and now they come before me both proposing a joint custodial regime. From this last fact I conclude that they each wish the other to be recognized as a significant and actively participating parent in Honour’s life. Indeed, this is what the evidence clearly demonstrates they have been since separation, despite missteps along the way.
[68] With some restrictions in place regarding communication I am confident that the parties can and will make a joint custodial regime work for their daughter.
[69] Joint custody can be an appropriate disposition even in cases where parents are openly hostile and uncooperative, if crafted as “parallel parenting” (see M.(T.J.) v M.(P.G.), [2002] O.J. No.398 (Ont. S.C.J.)).
[70] The solution most consistent with Honour’s best interests is one of partial parallel parenting. Such will ensure the parties are able to make decisions promptly and consistently in keeping with Honour’s best interests.
[71] In this regard I would give decision-making authority to the father regarding medical issues. I do so given the mother’s demonstrated resistance to medical advice (including second-guessing her commitment to a consent order on the issue of vaccination).
[72] I would give decision-making authority to the mother regarding educational issues given her already established involvement in such issues.
[73] Other less significant issues should be subject to consensus between the parties within a more traditional joint custodial regime.
[74] There will be further orders incidental to the foregoing, many of which were sought, in whole or in part, by both parties in their draft orders.
Child Support
[75] The issue of child support under s.9 of the Federal Child Support Guidelines was not pleaded. It was not argued before me. No evidence was lead to facilitate a Contino analysis.
[76] I am therefore treating the child support issues as being determined by application of the base amount payable under the Guidelines, supplemented by contributions to proper s.7 expenses.
[77] The Statement of Agreed Facts stipulates that the father’s income history is as follows:
a. 2013 $68,120 b. 2014 $75,595 c. 2015 $51,387 d. 2016 $25,389
[78] The father’s financial statement sworn April 26, 2018 puts his 2017 income at $53,004. The same document confirms his current annualized income to be $62,868.
[79] In her closing submissions the mother submitted the father’s income in 2017 was $47,634. I am not asked to use his current income in determining the appropriate level of base support. I will use the father’s higher figure for determination of his 2017 income and thus his ongoing base child support obligation.
[80] The mother does not seek retroactivity of child support in her submissions. The father voluntarily commenced payment of child support shortly after separation.
[81] I find therefore that the father’s ongoing base child support obligation is as ordered below.
[82] As to s.7 expenses, the Statement of Agreed Facts stipulates that the mother’s income history is as follows:
a. 2013 $32,968 b. 2014 $38,327 c. 2015 $42,464 d. 2016 $29,171 e. 2017 $9,410 f. 2018 $34,840 (annualized)
[83] The consent order of April 18, 2017 required the parties to proportionally share the following expenses:
a. Child care expenses required by the custodial parent’s employment, illness, disability, education or training for employment; b. Medical and dental insurance premiums attributable to the child; c. Health related expenses that exceed health insurance reimbursements including orthodontic treatment, counseling, physiotherapy, occupational therapy, prescription drugs, hearing aids, glasses and contact lenses; d. Expenses for primary and secondary school education or for any other educational programs that meet the child’s particular needs; e. Expenses for post-secondary education; f. Extraordinary expenses for extracurricular activities.
[84] The above expenses essentially replicate the provisions of s.7 of the Guidelines.
[85] The only expense I heard about at trial is daycare. Ms. Kara Pattee gave evidence confirming the daycare services she provided to the mother starting summer 2017. She charged $35/day (confirmed by the Statement of Agreed Facts). She confirmed she was paid a total of $910 for which she invoiced the mother. The mother’s evidence put the figure at $800.
[86] Under s.7 the obligation to contribute is triggered when the listed expenses can be described as necessary in relation to the child’s best interests and reasonable in relation to the means of the parties, the child and the family’s spending pattern prior to separation.
[87] I am satisfied as to the reasonableness of the daycare expense; however, the order is clear as to the requirement that it relate to the mother’s “employment, illness, disability, education or training for employment”. I did not receive evidence confirming the reason the mother was incurring the expense.
[88] For this reason I would not order any payment by the father regarding daycare expenses incurred prior to trial.
[89] A forward-going order is however appropriate as below.
Spousal Support
[90] The respondent mother seeks spousal support under s.15.2 of the Divorce Act, in the form of a lump sum payment of $34,326. It is submitted that this is determined using the “low-range of the SSAG, for a period of 4 years.” The calculation is based upon the parties’ 2017 incomes as found above ($53,004 for father and $9,410 for mother).
[91] It is readily apparent however that the father does not have the resources to pay a lump sum as claimed.
[92] If there is a claim here for spousal support it would have to be periodic in nature.
[93] The respondent mother submits entitlement is established on both compensatory and non-compensatory grounds.
[94] The compensatory grounds are predicated upon the parties’ roles during the marriage, with the father as the breadwinner and the mother staying home on maternity leave following Honour’s birth. That leave was extended by 15 weeks on the advice of her doctor.
[95] The non-compensatory grounds are based upon disparities in the parties’ respective incomes and gaps in the mother’s employment (in part for medical reasons).
[96] Although the father urges me to impute income to the mother, I am not inclined to do so given the parties’ agreement as to the mother’s income as set out in the Statement of Agreed Facts.
[97] It is not disputed that the mother has been diagnosed with MS. I am satisfied that she has experienced interruptions in her employment as a consequence of her illness. Her illness was diagnosed after the parties married. While she attributes her health decompensations to stress resulting from these proceedings or actions of the father, I find no evidentiary basis for these allegations. I am nevertheless satisfied that stress can trigger challenges for the mother in managing her illness.
[98] Subsection 15.2(4) of the Divorce Act sets out the factors to consider in making a spousal support order. The parties’ respective means are demonstrated by their incomes as found above. The “condition” and “other circumstances” of a spouse are certainly broad enough to encompass the mother’s illness. Where illness developed during the marriage support may be ordered notwithstanding that the poor health has no causal connection to the marriage (see Bennett v. Bennett, 2005 ABQB 984 and Bracklow v. Bracklow). The parties cohabited for 7 years. It is common ground that prior to separation the mother took leave from employment to care for the parties’ newborn child and that the father was the primary breadwinner during this time.
[99] Subsection 15.2(6) sets out the objectives of spousal support. By absenting herself from the workplace following Honour’s birth the mother has obviously experienced the economic disadvantage of suspension of income and development of employment experience during maternity leave. At the same time, the father would necessarily have benefited in that he was not required to make the same sacrifice.
[100] The mother has not claimed retroactive spousal support in her Answer, which was filed in February 2017. I treat her claim as arising at the time she notified the father of same in her Answer. In 2017 the parties’ incomes were $53,004 for the father and $9,410 for the mother. The SSAG “with child support” formula suggests a range of $298/458/616 in spousal support.
[101] In February 2018 the mother secured her current employment which generates income at the annualized rate of $34,840. The father’s 2018 annualized income is $62,868. Using the SSAG “with child support” formula, spousal support of “zero” per month is suggested.
[102] Given the foregoing, I am satisfied that entitlement is made out on both the compensatory and non-compensatory grounds, but only from the date she notified the father of her claim (February 2017 in her Answer) up to the date she secured her current employment (February 2018). The mother’s employment interruption due to maternity leave with the corresponding benefit to the father is answerable with compensatory support while the mother’s disability and the financial hardship she has experienced following separation is answerable with non-compensatory support.
[103] The appropriate period for the payment of spousal support is from February 1, 2017 through February 28, 2018. I intend to move spousal support to the high end of the range to reflect the compensatory component of the mother’s entitlement. After the mother secured employment in February 2018, given the parties’ respective incomes, entitlement is no longer made out.
[104] As the father does not have the ability to pay a lump sum I will permit him to pay spousal support for 13 months going forward at the rate of $616/month.
Reimbursement for Joint Debt
[105] The mother advances an imprecise claim for contribution by the father to some alleged joint obligations of the parties incurred prior to separation.
[106] The mother submits that as the parties cohabited for years prior to marriage “it is a very likely possibility that both parties benefited from purchases made” on certain credit cards.
[107] The evidence supports the conclusion that some of the claimed debts were paid from an account in the parties’ joint names; thus, they must be treated as having been paid by the parties jointly.
[108] It is not clear to me which debts were incurred prior to cohabitation or marriage and which after. The evidence shed no light.
[109] In his evidence the father acknowledged approximately $100 owing in respect of his contribution to utilities expenses incurred prior to separation.
[110] Only by virtue of the father’s admission is this claim made out in that amount.
Conclusion and Order
[111] For the foregoing reasons, final order to issue as follows:
(1) The applicant father and respondent mother shall have joint custody of the child of the marriage, namely Honour Marilyn Faulkner born August 2, 2015 (hereinafter referred to as “Honour”).
(2) Honour shall reside primarily with the respondent mother.
(3) Honour shall reside secondarily with the applicant father as follows:
(a) Until the child commences attendance at school in September 2019, care and control of the child up to a maximum of 45 percent of the time including alternating weekends and midweek visits (including overnight) timed to coincide with the applicant father’s availability in relation to his employment schedule; (b) After the child commences attendance at school in September 2019, alternating weekends from Friday evening to Sunday evening (extended to include the extra day of a holiday weekend) plus at least one midweek non-overnight visit per week; (c) The full March break in odd numbered years (the respondent mother shall be entitled to the full March break in even-numbered years); (d) For Thanksgiving and Easter, the applicant father shall have the first half of both weekends in odd numbered years and the respondent mother shall have the second half of both weekends in odd numbered years. The respondent mother shall have the first half of both weekends in even numbered years and the applicant father shall have the second half of both weekends in even numbered years; (e) Honour shall always be with the respondent mother on Mother’s Day and the applicant father on Father’s Day. If the day falls on the other party’s weekend, then the day will be spent with the parent whose day it is from 9 am until 5 pm; (f) The child will always be with the respondent mother on the day upon which the respondent’s local MS walk falls. If the day falls on the applicant father’s weekend, then the applicant father will be compensated with the exchange of one of the respondent’s weekends within 30 days of the MS walk; (g) Commencing in the summer of 2019, each party shall be entitled to have Honour for two non-consecutive weeks of summer vacation each year from Sunday to Sunday. The applicant father shall select his summer vacation days first in even numbered years and the respondent mother shall select her summer vacation days first in odd numbered years. The party selecting first shall provide the other party with their summer vacation dates by March 15th of each year and the other party shall provide their selected dates for summer vacation with Honour by March 31 of each year. The parties shall use their best efforts to agree on the precise timing for pickups and drop offs, which shall be arranged between the parties in writing no less than 14 days prior to commencement of Honour’s selected summer holiday timed with each respective parent; (h) The child’s Christmas school holiday shall be divided equally between the parties each year. The applicant father shall have Honour in his care from 4 pm on December 24 until noon on December 26 in even numbered years and Honour shall be with the respondent mother from December 24 at 4 pm to noon on December 26 in odd numbered years; (i) Such further and other care and control as may be agreed upon from time to time.
(4) The parties shall consult with one another prior to making major decisions relating to Honour’s welfare, including those relating to her education, major non-emergency health care, major recreational activities and religious activities. In the event of disagreements regarding issues pertaining to Honour’s education, the respondent mother shall have final decision making authority. In the event of disagreement with respect to major issues affecting Honour’s major non-emergency healthcare, the applicant father shall have final decision making authority. Other issues shall be decided jointly by the parties or upon application to court or motion to change.
(5) Each parent shall be entitled to make day to day decisions with respect to Honour while Honour is in his or her care and control. Neither party shall interfere with such day to day decision making of the other party.
(6) Both parties shall have the right to consult with and obtain information directly from the child’s teachers, doctors and other professionals about the health, education and general welfare of the child. The parties shall execute such authorizations and directions as may be reasonably required to facilitate such access.
(7) Both parties shall keep the other informed as to any significant issues arising in relation to the child’s general welfare during their time with the child.
(8) Except in the case of genuine emergency, the parties shall not contact one another in excess of once per day with inquiries as to the child’s general welfare.
(9) Unless the parties otherwise agree, care and control exchanges shall occur at the intersection of Highway 404 and Greenlane in Newmarket.
(10) Unless they otherwise agree in writing the parties will communicate with each other via text or email only in order to arrange access or in emergency situations. The parties shall each open an account with Our Family Wizard for the purpose of exchanging communications solely regarding the child’s general welfare. The parties will communicate via Our Family Wizard or similar means, only twice per week, as necessary, regarding important decisions affecting the child’s general welfare. Responses, where warranted, shall be provided within 48 hours, except in case of an emergency pertaining to the child. The parties shall keep the communications brief, respectful and child-focused.
(11) Neither party shall speak negatively of the other party in the child’s presence nor permit third parties to do so. Neither party shall discuss this proceeding or other adult issues involving the parties with the child.
(12) Each party shall be entitled to communicate with the child via telephone, Facetime, Skype or other alternate communication means while she is in the care of the other party, but not more than once every second day, and at a mutually agreeable time. The calls shall not be recorded.
(13) The parties shall communicate with each other only to discuss child-related issues. They shall speak with each other directly, and not through a third party, except counsel.
(14) Each parent shall provide the other parent with information about any of the child’s extra-curricular activities in advance so that they may attend the event with their respective families regardless of whether it is their access.
(15) Neither party shall schedule an extracurricular activity for the child that may infringe upon the other party’s care and control of the child without first securing the other party’s written consent or court order.
(16) The respondent mother shall retain the child’s passport, health card and other important documentation subject to access by the applicant father as may be reasonably required to facilitate his parenting time with the child.
(17) The respondent mother shall forthwith provide to the applicant father a notarized copy of Honour’s health card.
(18) The parties shall keep each other informed of their current residential address and telephone number and notify the other party within 24 hours whenever such information changes.
(19) Should Honour require emergency medical care while with one parent, that parent shall immediately notify the other of the medical emergency.
(20) Each party has the right to make emergency medical decisions respecting Honour while Honour is in their care.
(21) The parties shall keep each other informed as to their emergency contact information and shall promptly notify the other whenever this information changes.
(22) Both parties shall be listed as emergency contacts with Honour’s school and or any third party organizations or individuals involved with Honour.
(23) Each party shall immediately notify the other in the event he/she is hospitalized for any period or anticipated period in excess of 24 hours.
(24) The parties shall foster, encourage and support a healthy relationship between Honour and the other parent and between Honour and the other parent’s partner.
(25) Neither party shall discuss any issues arising between them relating to their parenting of Honour in social media.
(26) Neither party shall remove Honour from the Province of Ontario without the prior written consent of the other, such consent not to be unreasonably withheld.
(27) A party planning to travel with Honour outside the Province of Ontario shall provide the other party with a detailed itinerary at least 14 days prior to travel, including the name of any flight carrier, flight times, accommodation, address and telephone numbers and details as how to contact Honour during the trip.
(28) Each party shall provide to the other at least 45 days’ notice in writing of any proposed change in residential address.
(29) The parties may utilize mutually agreeable third party delegates to affect care and control exchanges, including Valerie Caruso and Michelle Harrison.
(30) Commencing November 1, 2018 the applicant father shall pay to the respondent mother the sum of $489 per month by way of base child support based upon his 2017 income of $53,004 for the child Honour Marilyn Faulkner born August 2, 2015.
(31) Commencing November 1, 2018 for a period of thirteen months the applicant father shall pay spousal support to the respondent mother in the amount of $616 per month.
(32) For as long as child support is payable, the parties shall provide disclosure to one another in accordance with s.24.1 of the Federal Child Support Guidelines by June 30 of each year.
(33) Child support shall be reconfigured as the parties may agree from time to time or as ordered by the court.
(34) The parties shall proportionally share the following reasonable and necessary special and extraordinary expenses pertaining to the child:
(a) Child care expenses required by the custodial parents employment, illness, disability, education or training for employment; (b) Medical and dental insurance premiums attributable to the child; (c) Health related expenses that exceed health insurance reimbursements including orthodontic treatment, counselling, physiotherapy, occupational therapy, speech therapy, prescription drugs, hearing aids, glasses and contact lenses; (d) Expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs; (e) Expenses for post-secondary education; (f) Extraordinary expenses for extra-curricular activities.
(35) The applicant father’s share of such expenses is currently 49 percent and the respondent mother’s share is 51 percent.
(36) Neither party will unreasonably withhold his or her consent to the payment of an extraordinary expense. The party seeking a contribution from the other party shall provide proof of the expense in writing prior to seeking contribution from the other party.
(37) Prior to determining each party’s obligation with respect to Honour’s post-secondary educational expenses, the parties shall first deduct a reasonable contribution to these expenses expected from Honour.
(38) The applicant father shall forthwith pay the sum of $100 to the respondent mother representing his share of the parties’ joint expenses accrued prior to separation.
(39) If unable to agree on costs, written submissions, restricted to a total of 5 pages each, excluding offers and bills of costs, may be provided to me through my assistant at Barrie as follows:
(a) Applicant father within 21 days; (b) Respondent mother within 28 days; (c) Applicant father, in reply, if desired, within 35 days.