Court File and Parties

COURT FILE NO.: 18-32 DATE: 20190411

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Lisa Ann Leggo, Applicant -and- Stephen Harrington Hulme, Respondent

BEFORE: FRAGOMENI J.

COUNSEL: Leena Kumar, for the Applicant Noel Da Silva, for the Respondent

HEARD: April 8, 2019

ENDORSEMENT

[1] At the motion heard by me on Monday April 1, 2019 there were numerous issues discussed and dealt with. During the course of the hearing it became evident that some of the issues were best left to be dealt with at trial.

[2] A significant issue that was not dealt with on April 1, 2019 related to the parenting and residency arrangements for the two children of the marriage, namely, Ava Rose Leggo-Hulme, September 2, 2011 and Brooklyn Frances Leggo-Hulme, March 23, 2009.

[3] The reason that the issue was adjourned one week to April 8 was as a result of events that took place on Thursday and Friday March 28 and 29, 2019.

[4] On those dates something happened or something came to the attention of the family doctor that necessitated the doctor referring the matter to the Children’s Aid Society.

[5] At the hearing on April 1, 2019 counsel for the mother advised the Court of this very recent development, however, no details could be provided from the doctor or the Children’s Aid Society.

[6] In those circumstances I was reluctant to hear the motion relating to the children without knowing what had transpired. The circumstances that led to the referral to CAS could be serious and significant and could change the landscape of interim custody and access going forward or it could be minimal, resulting in no change in the status quo. The status quo at this time is week about residency of the children with each parent.

[7] The father has the children for his week from Thursday March 28 to Thursday April 4.

[8] On Monday April 1, counsel for the mother advised that CAS would be meeting with the children and mother regarding the referral and presumably the father as well.

[9] As of April 1, CAS had not apprehended the children from the father.

[10] This issue was adjourned to April 8 with the existing status quo in place. Counsel for the mother would be obtaining affidavits from CAS and the doctor for my review on April 8.

[11] On consent, an order was made appointing the Office of the Children’s Lawyer with a note to the OCL that serious allegations are being made about the father’s addiction to opiate based pain medication and the mother’s addiction to alcohol.

[12] The other issues dealt with on April 1, 2019 that required a determination by me included the following:

• Spousal Support
• Child support and s. 7 expenses
• Medical Coverage by the mother on her plan at work to include the father
• Reimbursement to the father of prescription expenses for the time period the mother removed him from her plan
• Contribution by the father toward pet care expenses

Spousal Support

[13] The mother’s 2018 line 150 gross annual income was $96,913. The Applicant mother is a teacher with the Dufferin-Peel Catholic School Board. The mother puts forward two options for imputation of the father’s income, as the father claims he has no income and has not been employed since June 2018.

Option 1 Impute his income at his 2015 income of $79,000. The mother submits he is capable of earning this amount. Further in his Financial Statement sworn October 12, 2018 he shows yearly expenses of $76,752 on an income of $33,710.

Option 2 Impute income for the father at $50,000. The mother submits that this is the approximate average of the years 2015, 2016 and 2017. Further, the mother points to the father’s rental application in which he disclosed an annual income of $50,000.

[14] On the basis of these incomes the mother argues that there should be no spousal support. She asserts that she has been paying most of the expenses and s. 7 expenses relating to the children. As such, the mother submits that any retroactivity should be waived. Further, the father received some funds from the sale of the home.

Net proceeds from the sale of home - $132,000.

[15] The mother requests that a small amount, $20,000, be dispersed to each of them with the balance remaining in trust pending trial.

Medical Benefits

[16] The mother agrees to reinstate the father on her benefits as long as it is with no additional cost to her.

[17] She does not agree that she should pay for any of the father’s prescriptions of $2,800, during the period she had him removed, on the basis that she had to bear the cost of the bills and the s. 7 expenses related to the children.

Pet Care

[18] With respect to pet care the mother seeks an order that the father contribute $100 per month towards the ongoing pet care costs.

Position of the Father

[19] The father submits that spousal support should be based on the mother’s $102,000 annual income for 2017 and his income be imputed at nil. In the alternative, his income should be imputed at $33,000, his last Notice of Assessment for 2017.

Spousal Support

[20] There are several difficulties with the father’s position relating to spousal support.

[21] Firstly. he deposes in his Affidavit that he has not been able to secure employment since June 2018. However, he has not provided any documentary support for the efforts he has made to secure employment. He has not filed any applications he has made, any responses to such applications, interviews or anything to establish what efforts he has made. There is no medical evidence to suggest that he cannot work. Although he blames the mother for his termination at work or his constant absences from work because of her, he has not filed any Notices of Termination to support that position. This evidentiary gap is significant.

[22] The father asks for a grace period while he searches for work. It has now been since June 2018, (10 months). He has had a sufficient grace period. Further, the father did not deal with the rental application showing an annual income of $50,000 in his Affidavit. This silence is problematic. The reason that the mother’s income was slightly higher in 2017 than in 2018 was because she taught night school. It is logical to conclude that since the separation teaching night school, without that father being available to look after the children, would be difficult.

[23] I am satisfied that spousal support should be based on the following incomes:

To the mother $96,913 To the father $50,000

Re: Medical Benefits

[24] I am satisfied that the mother reinstate the father on a go forward basis on her medical, dental and all health benefits, as long as it is without an additional cost to her.

[25] I am not satisfied that the mother should reimburse the father $2,800 at this time. This issue will be reserved, to be dealt with at trial.

Re: Reimbursement of Expenses

[26] The parties agree that this issue is best left for trial. There is a serious dispute with respect to the date of separation.

[27] The mother states it is January 1, 2017. The father states it is either March 2018 or August 2018.

[28] The reimbursement of expenses the mother paid is dependent on the finding relating to the date of separation. For the same reason any issue relating to retroactive spousal support and retroactive child support are adjourned to trial. Reimbursement of any retroactive s. 7 expenses are also left to be dealt with at trial.

Pet care

[29] I am also satisfied that due to the conflicting Affidavits we have surrounding the dogs, any contribution to pet care is best left to trial.

Net proceeds

[30] I am satisfied that a small distribution of funds will relieve some of the financial pressure of the parties. Each of the parties shall receive $25,000.

[31] I am not satisfied that the father’s position is reasonable, that is to give him his half and her half to remain in trust.

Disclosure

[32] The last issue I will deal with relates to a disclosure request made by the mother in her disclosure letter of March 12, 2019, at Tab 26 in which she requests details about the father’s opiate based pain medication.

[33] The mother seeks an opinion from the doctor on the father’s ability to parent, in light of this opiate use.

[34] It is my view that without a qualification hearing on this issue it is difficult for me to determine if the doctor is qualified to give any opinion on this. I am more inclined to remove this from the disclosure request at this time. It is hoped that if the OCL accepts this file, their investigation can be of assistance on this issue.

April 8, 2019 hearing re: Parenting Schedule

[35] The mother seeks to vary the Consent Order of June 22, 2018 at which time the parties agreed that the residence of the children, on an interim without prejudice basis, would be week about, commencing July 20, 2018 at 6:00 p.m. with the father (after school when school starts).

[36] The mother now seeks an interim order for sole custody of the children pending completion of the Children’s Aid Society investigation and pending completion of the OCL report. The mother submits that the father should now only have daytime access and such access ought to be supervised.

[37] The mother argues that this variation is necessary for two reasons:

1. An increase in the concerns surrounding the father’s opiate based pain medication.
2. The inability of the father to be able to co-parent.

[38] The father disputes that he has the inability to co-parent the children. The father also submits that he takes his medication in a responsible manner and the mother has not demonstrated any reason to vary the existing consent order.

[39] I have now had the benefit of reading the Affidavit of Dr. Tita, sworn April 4, 2019, as well as the letter from the Dufferin Child and Family Services signed by Tina Nicholson, Child Protection Worker, and Kimberley Evans, Manager Central Intake Team, dated April 4, 2019.

Two Videos - Filed by Mother

[40] Before I set out the contents of Dr. Tita’s Affidavit and the letter from CAS it is necessary to set out the allegations of the mother as it provides the necessary and relevant context to what they have outlined. At paras. 119 and 120 of her Affidavit sworn March 21, 2019 the mother states:

I have also attached two videos (via the USB attached to this affidavit at Exhibit “Q” and by email to counsel for the Respondent) which show the Respondent in his intoxicated state. One video shows the Respondent wandering aimlessly around our kitchen, appearing dazed, lethargic, and confused. In the videos the Respondent recognized that his mental state is impaired and the proceeds to drive to work.

The other video shows the Respondent sitting on our sofa in a semi-conscious state and unresponsive while a noisy vacuum is running and his pill bottles are within clear reach of Ava.

[41] It is important to point out that those two videos were made in November 2017 and April 2018, well before that Consent Order in June 2018. It is also important to note that the mother only provided to Dr. Tita those two videos by letter dated April 2, 2019, the day after the April 1, 2019 motion was to be initially heard. Counsel for the mother makes the following request of Dr. Tita in the April 2, 2019 letter:

It would be of great assistance to the Court if you were able to provide an affidavit detailing the following information:

1. Your experience and your qualifications;
2. Confirmation that you have reviewed both videos provided to you by Ms. Lisa Leggo;
3. Your recounting of what appears to happen in those videos;
4. the details of what you observe in those videos, specifically; a. Whether Mr. Hulme appears intoxicated, specifically whether Mr. Hulme appears to be drowsy, dizzy, sleepy, incoherent, confused, delirious, or otherwise in an altered mental state;
5. Whether Mr. Hulme appears to be under the influence of opiate based pain medication beyond that which can be expected from minimal usage;
6. Whether Mr. Hulme displays behavior consistent with inappropriate utilization of opiate pain medication;
7. The impact that inappropriate use of pain medication would have on his ability to function regularly and including but not limited to his capacity to parent.

[42] In response to that letter Dr. Tita sets out the following in her Affidavit:

1. Medical doctor. Member of the College of Physicians and Surgeons of Ontario (2009). Certified in Family Medicine by the College of Family Physicians of Canada (2011). Practicing family medicine in Caledon since 2011.
2. Yes. I confirm that I have reviewed both videos provided by Ms. Lisa Leggo.
3. Poor quality videos, secretly recorded by Ms. Leggo with Mr. Leggo appearing to be confused – e.g. staring at the fridge / microwave.
4. Mr. Hulme appears to be temporarily unable to react and confused. Mr. Hulme does not appear to be delirious.
5. I can not speculate on the cause of Mr. Hulme’s behaviour. The prescribed dose of opiate medications follows medical recommendations for his condition. Mr. Hulme has been on the same dose since 2017. I have seen him multiple times in the office and he seemed fully functional.
6. I can not speculate that his behavior is directly related to inappropriate utilization of opiate pain medication. I am not able to comment on any substance use outside his prescription.
7. I don’t have the expertise to determine one’s capacity to parent, hence I involved Children’s Aid Society to look into the matter. Based on my assessment I believe that his ability to function in society is intact.

[43] The letter from The Children’s Aid Society dated April 4, 2019 states:

Dufferin Child and Family Services received a child protection referral on March 21, 2019, alleging that the children may be at risk in Mr. Hulme’s care due to his prescribed opioid use. The child protection investigation has commenced, yet has not been completed. In accordance with the provincial child protection standards, I have up to 60 days to complete a child protection investigation. To date I have completed one visit with the each of you and the children. Dufferin Child and Family Services has no additional comment at this time and will advise you further as the investigation progresses.

[44] The mother’s position that there is significant risk to the children necessitating a change to the Consent Order is not borne out by the evidentiary record before me.

[45] CAS received the referral on March 21, 2019. Since that time the father continues to have the children with him in accordance with the consent week about schedule agreed to by the parties in June of last year.

[46] At no time has the CAS moved to apprehend the children when they were with the father. At no time does CAS advise the mother that she cannot continue to allow the children to be with their father. The CAS letter of April 4, 2019 refers only to allegations of risk and there is a 60 day time period within which to complete the investigation.

[47] Further, in her Affidavit sworn April 4, 2019 Dr. Tita clearly states the following:

I have seen him multiple times in the office and he seemed fully functional.

Based on my assessment I believe that his ability to function in society is intact.

[48] CAS saw the videos and Dr. Tita saw the videos. CAS has not taken any steps to apprehend the children from the father. The videos were taken in November 2017 and April 2018, prior to the June 2018 Consent and at no time were CAS or Dr. Tita advised of these videos.

[49] Further, it has now been almost ten months since the consent order putting the week about schedule in place. The threshold for varying that order is high and must be based on a material change in circumstances with compelling evidence. In Batsinda v. Batsinda 2013 ONSC 7869, D. Chappel, J. set out the following at paras 24 – 26

In a number of cases, this court has held that as a general rule, changes to existing custody, residence and access arrangements that have evolved either as a result of temporary orders or otherwise should not be made pending trial unless there are compelling circumstances which render a chance absolutely necessary in order to satisfy the child’s best interests. (Doell v. Cassar, 2009 ONSC 6300; Osama v. Sayegh; David v. McCain; Kimpton v. Kimpton)

However, I rely on the principles which the Ontario Court of Appeal set out in Papp v. Papp (1969), [1970] 1 O.R. 331 (Ont. C.A.) respecting the weight to be accorded to de facto custodial and access arrangements in the context of motions for temporary custody and access. In that case, the court recognized that the existing arrangements, and how well they are working for the child, are relevant factors in deciding such motions. It stated that as a working rule, a disturbance of the status quo at the interim stage requires more cogent evidence than may be required to disrupt the status quo after trial.

As I have previously emphasized in Kerr v. Kerr [1983 CarswellOnt 310 (Ont. C.A.)], the Court of Appeal statement in Papp v. Papp that clear and compelling evidence is typically required to disrupt the status quo on a motion for temporary relief did not establish a presumption that the status quo should continue absent clear and compelling circumstances that make a change absolutely necessary. On motions dealing with temporary custody, residence and access there is no presumptive rule in favour of the status quo that must be rebutted by the party seeking to change the existing arrangements. As the Court of Appeal emphasized in Papp v. Papp, the applicable test remains the best interests of the child. In applying that test, there is an obligation on the part of the court to carefully scrutinize and weigh the quality, magnitude, and strength of the evidence adduced in support of a change to the status quo arrangements and to ensure that the evidence is sufficiently compelling before acting upon the evidence to vary the existing arrangements. The Ontario Divisional court highlighted the importance of avoiding presumptive rules on motions relating to temporary custody and access in the case of Holt v. Anderson, 2005 CarswellOnt 5158 (Ont. Div. Ct.) It emphasized that the overriding consideration in such cases is the best interests of the child and that the maintenance of the status quo arrangements as of the time of the hearing should not be elevated into an immutable principle. 2013 ONSC 7899, 2013 CarswellOnt. 18635, [2013] O.J. No. 6120, [2014] W.D.F.L. 1803…

[50] In Southorn v. Ree, 2019 ONSC 1298 J.P.L. McDermot, J. stated the following at paras 12 and 13:

Normally, the status quo which arises between the parties after separation largely determines the time-sharing relationship between the parties pending trial. The case law confirms that the court is hesitant to change a long term status quo unless compelling circumstances dictate otherwise see Ceho v. Ceho, 2015 ONSC 5285 and the cases cited therein, including Batsinda v. Batsinda 2013 ONSC 7869, Green v. Cairns and Papp v. Papp, [1970] 1 O.R. 331 (C.A.). In Grant v. Turgeon, MacKinnon J. notes the required circumstances for an interim variation of custody as being “exceptional circumstances where immediate action is mandated.”

There are good reasons for this. It is presumed that where parties have agreed to a time sharing arrangement, that arrangement best reflects their initial assessment as to the best interests of the children. Moreover, to change custody on an interim motion runs the risk of the child going through two changes of custody: one after the interim motion and another at trial. That would create more, not less instability in the child’s life. Moreover, evidence at a trial has the benefit of being tested through cross examination whereas evidence at a motion is by affidavit where conflicting versions of the truth cannot be determined with any certainty and the court is unable to make credibility findings.

[51] I am not satisfied that the evidentiary record establishes a material change in circumstances, nor am I satisfied there is compelling evidence to disturb the status quo.

[52] The mother raises concerns that the father has deliberately delayed having the Office of the Children’s Lawyer appointed and in doing so has created a status quo that is for his benefit. The difficulty with this assertion is that the mother has not pressed or shown the urgency she now advances since last June, 2018. I will not review the chronology of events or procedural steps taken on both sides relating to the appointment of the OCL. The point is that the mother advises that as early as July 2018 she had a change in position, on reflection, as it related to the Consent Order. Yet at no time is a motion placed before the court again in 2018, armed with the two videos and other evidence, to ask the court not to endorse the week about schedule.

[53] CAS is now conducting its investigation. An order has been made appointing the OCL. If the OCL accepts the file their investigation will commence shortly.

[54] The Affidavits of the parties are conflicting in many important aspects and both of these independent investigations must be allowed to take place.

[55] The evidentiary record at this time does not support the position of the mother.

CHILD SUPPORT

[56] Based on the mother’s income of $96,913 and the father’s imputed income of $50,000, and in light of the week about schedule, the set off child support payable by the mother to the father is $679 per month.

[57] The s. 7 expenses will be shared on a pro-rated basis.

SPOUSAL SUPPORT

[58] The SSAG set out the following with child support ranges for 2019:

Low - $44 per month Mid - $432 per month High - $796 per month

[59] On an interim basis, and considering the length of the marriage at eight years, I am satisfied that a monthly spousal support amount of $300 per month is reasonable. The father shall notify the mother of all employment applications he makes and any responses to same and shall advise the mother of the details of any employment he receives within 24 hours of receiving such employment.

[60] Temporary Order to issue as follows:

1. The mother’s motion to vary the existing consent order dated June 22, 2018 with respect to the residency of the children is dismissed;
2. On the basis of the week about parenting schedule, the mother shall pay to the father child support for the two children of the marriage, the sum of $679 per month as a set off based on the mother’s income of $96,913 and the father’s imputed income of $50,000, commencing May 1, 2019; Section 7 expenses shall be shared on a pro-rata basis.
3. The mother shall pay spousal support to the father in the sum of $300 per month, commencing May 1, 2019;
4. The parties shall each receive the sum of $25,000 from the net proceeds of sale of the matrimonial home. The balance of the net proceeds of sale shall remain in trust pending trial or written agreement of the parties.
5. The mother shall reinstate the father on her medical and health benefits as long as doing so does not result in any expense to her.
6. The issues relating to reimbursement of expenses by the father to the mother is reserved to the trial judge;
7. The issues relating to pet care expenses is reserved to the trial judge;
8. The issues relating to the retroactivity of child support, spousal support and s. 7 expenses is reserved to the trial judge;
9. The issue relating to reimbursement to the father of $2,800 regarding prescriptions is reserved to the trial judge.
10. The parties shall file written submissions on costs within 20 days.

FRAGOMENI J. DATE: April 11, 2019

COURT FILE NO.: 18-32 DATE: 20190411 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Leggo v. Hulme COUNSEL: Lisa Ann Leggo, Applicant and Stephen Harrington Hulme, Respondent ENDORSEMENT FRAGOMENI J. DATE: April 11, 2019