COURT FILE NO.: FS-20-0038-00 DATE: 2023-06-02
SUPERIOR COURT OF JUSTICE – ONTARIO
B E T W E E N:
B.S.
Applicant
David Bennett, for the Applicant
- and -
K.S.
Respondent
Beth White, for the Respondent
HEARD: September 12, 13, 14 & November 22, 2022, at Kenora, Ontario
Madam Justice T. J. Nieckarz
Reasons for Judgment
Overview
[1] The parties are married spouses. They separated July 9, 2020. They have two children, C.S., 14 years-old, and A.S. born 10 years-old. I have used initials given the sensitive nature of some of the evidence pertaining to the children that could be harmful to them if made publicly available.
[2] The parties resolved issues pertaining to equalization of net family property, decision-making for the children, and arrears of child support by way of Final Minutes of Settlement, dated November 1, 2021.
[3] Neither party disputes the request for divorce, but no marriage certificate has been filed and no clearance certificate obtained as of yet. Once the marriage certificate is filed, I will issue an endorsement dealing with the divorce.
[4] What remains for determination is the following:
Parenting:
a. What parenting arrangements are in the best interests of the children? Is shared parenting appropriate?
b. Should the Respondent (Mother) be permitted to relocate with the children without the consent of the Applicant (Father)?
Spousal Support:
c. Is the Mother entitled to spousal support?
d. If there is entitlement, and/or for the purpose of child support should additional income be imputed to the Mother?
Child Support:
e. What is the ongoing child support? (this will depend on the parenting arrangements and imputation of income arguments with respect to the Mother)
f. Should there be a retroactive adjustment of child support?
[5] For the following reasons:
a. The parties shall share parenting of the children, albeit with a preferential amount of parenting time allocated to the Mother.
b. Parenting time for the Father shall be alternate Thursday – Tuesday, and alternate Thursday – Friday.
c. There shall be no order permitting a relocation of the children without the consent of the Father.
d. The Father shall pay the Mother spousal support in the amount of $770.00 per month.
e. Income is imputed to the Mother of $19,000 annually for the purpose of support.
f. Ongoing child support shall be determined using a set-off of the child support payable based on the Father’s 2022 income (estimated at trial to be $98,748), and an income imputed to the Mother of $19,000. Child support paid by the Father shall be adjusted retroactively to September 1, 2021 in accordance with his actual income.
Background
[6] The parties began living together in 2005 and were married August 10, 2013. For much of their relationship they lived in Grande Prairie, Alberta.
2016 Separation and Court Proceeding:
[7] In August 2016, allegations of sexual abuse by C.S., against A.S. were verified by the police and Grande Prairie Children’s Services (“GPCS”). The children were ages seven and four respectively. Given C.S.’s age, there were no charges. Because of these circumstances, the Mother remains concerned that C.S. should not be left alone with A.S.
[8] In December 2016 the parties separated temporarily. The Mother alleges that C.S. disclosed to her that his father was touching him inappropriately. The Mother left the home that day with the children.
[9] On December 21, 2016, at the request of the Mother the Provincial Court of Alberta, Grande Prairie, granted an ex parte Emergency Protection Order (“EPO”). The EPO prohibited B.S. from communicating with or contacting directly or indirectly the Mother or the children.
[10] On January 3, 2017, an interim order restraining B.S. from contacting the Mother and children for a further month, and directing the children meet with a registered child psychologist with regard to the allegations of sexual abuse.
[11] On February 3, 2017, a further interim order was issued varying the January 3rd order by allowing B.S. supervised parenting time with the children through a supervised access program in Grande Prairie.
[12] On February 16, 2017, on consent of the parties, the EPO and both interim orders were vacated. B.S. was granted specified unsupervised parenting time, although not overnight. The parties reconciled.
[13] Except for a 1 hour supervised visit, the Father did not see the children from December 18, 2016 to February 18, 2017, a period of two months.
[14] GPCS and police conducted investigations. No criminal charges were laid.
[15] Police records indicate that:
a. C.S. did not disclose sexual abuse in interviews with police;
b. C.S. reported feeling safe with his father;
c. The investigating officer viewed a video tape prepared by the Mother, of C.S. making the disclosure of abuse. The officer concluded that the video appeared “rehearsed” and the child appeared to have been “coached”;
d. The Mother told police that she was sexually abused as a child, and she is paranoid it will happen to her own children; and
e. The Mother had previously alleged that a long-time friend had sexually abused the children.
Move to Kenora:
[16] The parties moved to Kenora, Ontario on August 2, 2017, where the Father was able to obtain work as a Millright. They both wanted a fresh start and even though their families did not live in Kenora, they were closer to them.
[17] The GPCS file was transferred to the Kenora-Rainy River District Child and Family Services (KRRDCFS). Each party states that KRRDCFS has no concerns with either of their ability to parent the children.
[18] The Mother characterizes her relationship with the Father as abusive and controlling. She does not allege physical abuse, but rather verbal, emotional and financial. She states that the Father belittled, controlled and manipulated her. The Father denies this and alleges that just like in December 2016, these false allegations are designed to deprive him of the children and bolster the Mother’s relocation claim. It is in this context that the Father alleges the 2016 circumstances are relevant.
The Final Separation:
[19] On June 29, 2020, the Mother and the children travelled to her sister’s residence in Winnipeg, Manitoba.
[20] The Mother left after finding a ride with a neighbour. She states that the parties were not separated at the time, and she only left for a vacation. She does not allege that she had to leave so quickly for safety reasons. She texted the Father while he was at work, told him she had found a ride and was leaving immediately and advised him where she was staying. She states that the parties had previously discussed her travelling to Winnipeg to see her family but had not discussed dates.
[21] The Father tells a different version of events. The Father denies that he agreed to the trip. He alleges that he received a sudden text stating that the Mother was taking the children to Winnipeg for a visit. His evidence suggests that the trip came as a surprise to him, particularly because he had family visiting Kenora and he wanted the children present.
[22] The parties exchanged text messages but at some point, the Mother stopped responding. She alleges it was to have a reprieve from the Father’s harassment. After two days of no response the Father became concerned that the Mother was not planning on returning with the children.
[23] On July 8, 2020, the Father brought an emergency ex parte motion seeking the return of the children. He says the order was necessary because the Mother stopped communicating with him by text or phone, he could not communicate with the children, and the Mother was not providing a return date. He feared a situation similar to 2016.
[24] The ex parte order was granted, and the children ordered returned to the care of the Father. The order also contained police enforcement provisions, prohibited the further removal of the children from Kenora/Keewatin, ON, and required any parenting time between the Mother and the children to be supervised.
[25] On July 9th, 2020, the children were removed from the Mother’s care in Winnipeg by the police and brought to the Father. The Father did not give the Mother an opportunity to return the children without involving the police.
[26] In response, the Mother sought to vary the July 8th order. On July 22nd, 2020, Justice D. Shaw made a further order vacating the July 8th order and restraining the parties from leaving Keewatin with the children. Both parties agreed to remain civil and live in the matrimonial home with the children together.
[27] The Mother returned to the matrimonial home on July 24, 2020, to live separate and apart under the same roof with the Father and the children. The situation was not harmonious, each party alleging misconduct by the other.
[28] The parties continued through the court process. On August 31, 2020, they attended at a case conference and an order was made requesting the appointment of the Office of the Children’s Lawyer (“OCL”) pursuant to s. 112 of the Courts of Justice Act.
[29] The OCL appointed a lawyer and a clinical agent. COVID-19 restrictions delayed their ability to commence the investigation. In the meantime, the children began individual counselling.
[30] The acrimony between the parties erupted in January 2021. The Mother alleges that on January 21, 2021, she overheard the Father having a telephone discussion with his sister. She claims he was angry and told his sister he was going to stab David Elliott (the OCL appointed lawyer), stab the Mother, and put the Mother’s dismembered pieces into a garbage can. The Mother says she believed the threats and was afraid. She recorded part of the Father’s conversation with his sister.
[31] The Mother fled the home with the children the next day. The Mother contacted the police and the Father was charged with uttering threats causing death or bodily harm. The Father was subject to an undertaking not to communicate with the Mother or David Elliott except through a mutually agreeable third party for child-care arrangements. He was also prohibited from attending at the matrimonial home.
[32] As a result, the OCL declined any further involvement.
[33] The Father says he was doing nothing other than ‘blowing off steam’ in a private conversation with his sister and that he was not aware the Mother was eavesdropping. He alleges the Mother was attempting to withhold his daughter from him in the house, and rather than cause a scene he went into a bedroom and called his sister to vent.
[34] Both parties brought motions with respect to the parenting of the children and support. The Mother sought relief including a temporary order permitting relocation, sole decision-making and primary care of the children, exclusive possession of the home and contents, and support. The Father sought an order placing the children in his care, supervised parenting time to the Mother, or alternatively shared parenting and other relief.
[35] KRRDCFS became involved with the family again given the level of conflict. The Father was not able to see the children. The Mother says that she was advised by KRRDCFS that the Father should only have supervised parenting time, and that they instructed her to keep the children out of school to ensure that the Father does not attend school to remove them from her care. This has not been confirmed by KRRDCFS. The children participated in online learning and did not attend school.
[36] On March 23, 2021, I delivered reasons for my decision on the motions of the parties (see B.S. v K.S., 2021 ONSC 2178). I denied the Mother’s request for interim relocation and the Father’s request for primary care of the children. I granted the Mother exclusive possession of the home and contents. Primary care was awarded to the Mother and unsupervised parenting time to the Father as follows:
a. alternate Fridays after school until Tuesday after school;
b. alternate Mondays after school until Tuesday after school; and
c. an equal sharing of holidays.
As of the date of trial, the parties were following this schedule, although the Father alleges that holidays have not been shared equally and the Mother was unduly restrictive with parenting time at Easter and in the summer holidays. Child support was ordered payable by the Father in the amount of $1,461 commencing March 1, 2021, based on an estimated annual income of $99,157. No spousal support was ordered given that the Father was paying the mortgage, taxes and insurance payments for the home that was owned by him, but the Mother and children were living in.
Voice of the Child Report:
[37] On April 8, 2021, the OCL brought a motion to be removed as counsel for the children. The OCL indicated they would provide a Voice of the Child Report (the “Report”). The clinical agent appointed had conducted virtual meetings with the children.
[38] The Report was delivered July 3, 2021. The children expressed wishes to remain in Kenora. C.S. was consistent in saying that he wanted equal time with his parents. A.S. was inconsistent with her wishes. When A.S. was interviewed while in the care of her father she expressed a preference for equal time with each parent. When A.S. was interviewed while in the care of her mother she expressed a preference for more time with her mother. Both children were noted by the author of the report to be reluctant to speak with her, and not forthcoming with information. The clinical agent did not testify and therefore there is no evidence as to how questions were presented to the children, particularly surrounding the relocation issue.
[39] The parties attempted to obtain an updated report prior to trial, but the OCL declined further involvement.
Resolution of the Father’s Charges and the Partial / Final Minutes of Settlement:
[40] On July 20, 2021, the Father entered into a Recognizance to Keep the Peace for one year. The charges were withdrawn against him.
[41] On November 1st, 2021, the parties entered into partial Final Minutes of Settlement (the “Minutes”). The Minutes were incorporated into the Order of Fregeau J., dated November 22, 2021. The parties resolved issues pertaining to the equalization of their net family property, the matrimonial home, child support arrears, and decision-making authority for the children. The Mother and the children moved out of the former matrimonial home and into rental accommodations. The Father returned to the home.
Analysis
Parenting:
[42] The parties have agreed to joint decision-making with respect to the children. What remains to be determined is whether parenting time should be shared as proposed by the Father, or whether the Mother should have primary care and the ability to relocate with the children without the prior consent of the Father.
Legal Framework:
[43] In deciding parenting issues, a court is directed to take into consideration only the best interests of the children: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as am., s. 16(1).
[44] The factors to be considered in determining best interests are set out in s. 16(3) of the Divorce Act. They include:
a. The children’s needs, given the children’s age and stage of development, such as the children’s need for stability;
b. The nature and strength of the children’s relationship with each spouse, each of the children’s siblings and other family members or persons who play an important role in their lives;
c. Each spouse’s willingness to support the development and maintenance of the children’s relationship with the other spouse;
d. The history of care of the children;
e. The children’s views and preferences, giving due weight to the children’s age and maturity, unless they cannot be ascertained;
f. The children’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
g. Any plans for the children’s care;
h. The ability and willingness of each parent to care for and meet the needs of the children;
i. The ability and willingness of each parent to communicate and cooperate, in particular with one another, on matters affecting the children;
j. Any family violence and its impact on the ability of a parent to care for and meet the needs of the children, and the appropriateness of making an order that will necessitate cooperation on issues affecting the children.
[45] When considering the best interests factors, s. 16(2) of the Divorce Act, requires the court to give primary consideration to the children’s physical, emotional and psychological safety, security and well-being.
[46] In addition, s. 16(6) requires the court to give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of each child.
[47] Best interests of the children also govern the court’s decision as to whether to authorize a relocation of children. In addition to the factors set out above, the court is required to take into consideration:
a. The reasons for the relocation;
b. The impact on the children;
c. The amount of time spent with the children by each parent and their level of involvement in the children’s lives;
d. Whether the person who intends to relocate the children complied with the notice requirements under the Act, and the existence of any orders or agreements specifying the geographic residence of the children;
e. The reasonableness of the proposal to vary parenting time or decision-making responsibility for the other parent; and
f. Whether the other parent has complied with their obligations under family law legislation.
[48] While neither party argued this issue, s. 16.93 of the Divorce Act, sets out who has the burden of proof with respect to the relocation. When the children are primarily in the care of one parent, the other parent has the burden of proving that the relocation would not be in the best interests of the children. Having said this, a court may decide not to apply this burden if the order giving primary care to one parent is merely an interim order: s. 16.94 of the Divorce Act.
Discussion:
[49] This was a difficult case to decide. The relief requested by the Mother with respect to relocation was that she “shall not require the consent of B.S. to relocate with the children to Winnipeg, Manitoba”. She did not ask the court to approve of a specific move at a specific time, with a specific plan, but rather a general plan to move at some point. I have assumed the move to be imminent and awaiting only court approval. No evidence or submissions were made with respect to the double-bind issue and the effect of s. 16.92(2) and if, whether the only options I am able to consider are the children being in the primary care of the Mother in Winnipeg, or the primary care of the Father in Kenora. The case was argued on the basis of primary care to the Mother with the option to relocate, or shared parenting. I have decided it on this basis and in accordance with the best interests of the child factors and relocation factors set out above. I have also considered the principles established in Gorden v. Goertz, [1996] 2 S.C.R. 27, as amended by the Divorce Act, and as considered most recently in Barendregt v. Grebliunas, 2022 SCC 22.
[50] I appreciate that perhaps this lack of clarity as to the options the Mother was putting forward for my consideration was intentional. It can, at times, be a risk that a parent is not willing to assume to put forward a position of move with the children or have them remain in the other parent’s care.
What parenting time is in the best interests of the children:
[51] The Mother argues that she should continue to have primary care of the children, while the Father argues that shared parenting is in their best interests. The Mother argues that primary care to her is consistent with the status quo that existed prior to, and post-separation and remains in the best interests of the children. She argues that while the children enjoy time with their Father, he acts like more of a friend to them than a parent. She argues that all parenting responsibilities such as organizing medical appointments and activities have always been left to her, and she is the best party to ensure they continue. She suggests that despite her agreement to joint decision-making, given the domestic violence concerns, shared parenting is not workable.
[52] The Father does not allege he has been the primary caregiver for the children but does say that he has been an active and involved parent in all aspects of their lives and their care. He wishes for this to continue. He argues that he is capable of parenting the children on a shared basis. He further argues that the Mother’s claims of domestic violence are exaggerated in an effort to bolster her claim to be able to relocate.
[53] Based on the evidence before me I accept the Mother’s evidence and find that she was the primary caregiver during the relationship. As of the date of separation, she had not worked since approximately September 2019, and prior to that time she worked on a part-time basis. The Father worked consistently and prior to moving to Kenora he worked frequently out of town. I accept that the Mother was the parent responsible for important aspects of the children’s care including their education, medical appointments and activities. Even post-separation it is the Mother who took the initiative to have a regular tutor assist A.S. with her struggles in school. The Father hired his own tutor, but the evidence suggests it was for a few sessions at most. The Mother arranged for counselling for the children. Furthermore, the Father was honest and forthright in admitting he did not know the names of the children’s regular medical practitioner or dentist as the Mother has always “dealt with this stuff”. He knows where to take them, but not the names of the practitioners. This supports the Mother’s evidence that such matters have traditionally been left to her.
[54] This finding does not mean the Father has not been active and involved with the children. I accept he has been. I accept that he is more than a “friend” and has assumed parenting responsibilities. However, I find that the Mother has assumed the majority of the parenting responsibilities for the children, while the Father has assumed responsibility as the “breadwinner” or financial provider. It is not uncommon for parents to adopt different roles during their relationship and then to have to adapt to new roles post-separation.
[55] The question is whether the Mother should continue to be the primary caregiver or whether shared parenting on a week-on/week-off schedule is in the best interests of the children.
[56] Both parties struck me as honest and candid. They have different perceptions of issues in their marriage that contributed to its breakdown. They have dealt with serious health matters, and troubling issues during their relationship. Their one common ground is their love for, and devotion to their children. This was evident from each of their testimony. I accept that both parents have a lot to offer their children and that the children’s interests are best served by having both parents play an active role in their lives.
[57] But active does not mean equal. I find that maximum contact consistent with the best interests of the children means that while the Father’s parenting time may be expanded from the temporary order, the Mother should continue to have slightly more time with the children, on the understanding that I am to consider as an option, shared parenting in Kenora.
[58] I start from the perspective that there is no evidence to suggest that the children do not have a good and loving relationship with both of their parents. Both children confirmed to the OCL representative that they are comfortable with each parent and have no preference of one parent over the other.
[59] At the time of the temporary order the situation between the parties was volatile. The criminal charges were new and ongoing. The Father was not seeing the children, and the Mother had removed the children from school out of fear he may attempt to see them there. Each party took the position that the other’s time with the children should be supervised. I was left to conclude that the then level of tensions between the parties, the restrictions on communication posed by the Father’s undertaking in the criminal matter, and the Father’s living arrangements (with a friend temporarily) were a barrier to a shared parenting arrangement. The intent behind the order was not to create a status quo, but merely restore some contact between father and children.
[60] There was some evidence at trial that initially caused me concern that the relationship between the parties may not be conducive to a shared parenting relationship. The majority of the evidence in the trial pertained not to the children, but rather the relationship between the parties and their history. There remains considerable mistrust between them. The Mother’s mistrust stems from her allegations of domestic violence, as well as concerns that the Father minimizes the issues that arose in 2016 and how that should inform his parenting today. The Father’s mistrust stems from the allegations made against him in 2016, his inability to see the children for two months in 2016, the Mother’s sudden departure in July 2020, his inability to see the children in January/February 2021 and his views with respect to the allegations of domestic violence. I find that at times, each party has made decisions more consistent with these fears and mistrust than the best interests of the children. On the Mother’s part, this includes her keeping the children out of school for a lengthy period of time in January/February 2021 and not clearly communicating her July 2020 plans to the Father. On the Father’s part, this includes him having the police remove the children from the Mother in July 2020 without giving the Mother an opportunity to return with the children.
[61] Despite this, the situation as of trial was different than when the motions were argued. The criminal charges have resolved. Both parties now have suitable accommodations with the Father back in the former matrimonial home, while the Mother has rented accommodations, their positions remained quite different but not as polarized as at the motions, and we now have had the benefit of seeing how the children have fared with having periods of time in their father’s care. I see no reason not to expand his parenting time.
[62] The fact that the parties are willing to try to overcome their concerns and agree to joint decision-making is encouraging. Based on the limited evidence of the actual communications between the parties, I initially had some concern that the continued mistrust between the parties could prevent the level of co-operation necessary to make shared parenting work. The parties have, however, indicated a willingness and desire for this to improve. There have been signs that the parties can co-operate, such as when the Father put aside his differences with the Mother to assist her with attending medical appointments for herself. The ongoing court matter may have been a barrier to further improvement in the relationship between the parents. There are also orders that can be made to assist with concerns. The parties need to remain vigilant in ensuring that they protect their children from any conflict between them, and that their focus in matters affecting the children is always the children’s best interests.
[63] Regardless of the situation between the parties, the evidence supports a conclusion that the children are happy and doing well. They appear to have adjusted well to the parenting time ordered by me in the temporary order. I am satisfied that expanding the Father’s weekend with the children to allow for more contact is consistent with their best interests.
[64] Having said this, the Mother should still have slightly more parenting time. I agree with the Mother that week-on/week-off parenting time is not in the best interests of the children. I agree with the Mother’s position that given the challenges in communication between the parties it is preferable that the children be in her care consistent days each week so that she can continue to attend to matters such as tutoring, counselling (if the children still attend) and arrange for activities in the event that the parties cannot agree. The evidence supports the Mother’s willingness and ability to attend to the needs of the children, and in particular their physical, emotional and psychological needs. I accept the Mother’s evidence that when there is a medical or other concern pertaining to the children the Father asks the Mother to attend to it. The Father has previously acknowledged to third parties that the Mother is an excellent mother and that she takes good care of the children. I have no doubt this will continue.
[65] The Father’s parenting time may be increased while not radically changing the children’s current schedule and upsetting their routine, or the Mother’s ability to attend to the needs of the children.
[66] In making a decision to share parenting with slightly more time allocated to the Mother, and in not ordering week-on / week-off, I have also considered:
a. The children’s views and preferences with respect to their living arrangements are but one factor. I have considered these wishes in expanding parenting time and denying the relocation request, but I have not granted the week about rotation favored by the children. I note the Report was somewhat dated as of the time of trial but given that there was no evidence as to contrary wishes, I was not prepared to completely disregard the wishes of the children. C.S. expressed a consistent preference for shared time, but I note that primarily he wanted someone else (such as the court) to decide his living arrangements. A.S.’s wishes were inconsistent. The OCL expressed that A.S. “did not really know what she wanted, but she wanted her parents to get along”. The overriding wishes of the children seem to be that they want their parents to stop fighting and for someone else to decide their living arrangements. I have also considered that the Father has discussed the children’s wishes with them and may have influenced their views, and the Mother monitors their communications with their Father, both of which suggest the potential for the children’s wishes to have been influenced. The OCL expressed concern that the children may have used “avoidance strategies, consistent with their ages, so as not to answer or fully answer questions”. The most I have concluded from the Report is that the children will be comfortable with and accept any parenting time ordered provided it is not a drastic change from what they currently have, and provided their parents stop arguing.
b. I share the Father’s concerns that certain of the Mother’s actions, have not demonstrated a willingness to support the children’s relationship with him. Much seems to stem from the mistrust previously discussed. I agree with the Father that to a certain extent the Mother marginalizes the Father by seeing him as a fun/friend as opposed to recognizing his contributions towards parenting the children. I do not attribute this to malice but the Mother’s experience of the roles the parties adopted during their relationship, without a recognition that they have since changed. The Mother’s own past trauma has likely impacted her reaction to certain events.
Having said this, there is also evidence of positive steps taken by the Mother to encourage the Father’s relationship with the children. This demonstrates an ability to consider the interests of the children over her own. For example, when C.S. told his mother that the Father did not have sufficient funds to purchase tickets to A.S.’s dance recital, recognizing it would be meaningful for the child to have her father attend, the Mother purchased the tickets for the Father.
c. With respect to the ability and willingness of each parent to communicate and cooperate on matters affecting the children, there are concerns with respect to both parents. With respect to the Mother, while I was not clear from the evidence as to exactly what happened, I was left with the impression that the Mother made scheduling summer parenting time unnecessarily difficult last year. The Father’s tone in his communications with the Mother is entirely inappropriate. Of significance is the Father’s failure to follow my previous order and communicate with the Mother through the Our Family Wizard program. His evidence was that he missed this obligation in the order, but this was an important piece that was designed to try to have more positive and child-focused communication between the parties. Much of the text communication between them that I have seen is not child-focused. Despite this, the Mother’s evidence was that the parties are able to communicate with respect to the children. There have been times when the parties have put aside their differences. However, based on the evidence before me and the challenges in communication I have seen, it is important for each parent to have consistent days with the children to schedule events or appointments (most of which has historically fallen at the feet of the Mother) to minimize the risk for the children getting caught in the middle of any potential disagreement.
[67] With respect to the allegations of family violence, the inclusion of this factor in the best interests of the child test in the legislation recognizes the significant impact on children when family violence is present in a home. Violence is not merely physical harm, but can be verbal or emotional abuse, coercive or controlling behaviour, or actions that compromise the safety of a child or spouse.
[68] The Mother alleges ongoing verbal and emotional abuse directed at her, along with a pattern of controlling behaviour. In her evidence at trial, the Mother testified that the Father’s controlling attitude, combined with ongoing verbal abuse left her feeling vulnerable and isolated. She testified that it was not always this way, and that the Father’s behaviour towards her changed some time after they had moved to Kenora. This contributed to her anxiety, for which she has been receiving medical treatment and has impacted her ability to work during the marriage. She confirmed that she does not currently fear for her safety or that of the children. There is no evidence of any form of family violence directed at the children.
[69] There is evidence to suggest that there is some veracity to the Mother’s allegations of ongoing verbal and emotional abuse. I accept that it is harmful to the children if they have been exposed to their Father making demeaning comments about their Mother. It also speaks to the Father’s ability to support the children’s relationship with the other parent.
[70] The Mother sought to introduce into evidence a series of text messages between the parties that she produced late, and that counsel did not put to the Father in cross-examination. While I admitted the text messages, there are Browne v. Dunn concerns with respect to areas in which the Mother sought to impeach the Father’s credibility with the messages. This included whether the Father communicated with the Mother on matters not pertaining to the children, contrary to the terms of his Undertaking/Recognizance. I have given them no weight in this regard and make no findings on this issue. I have considered them in the context of the Mother’s allegations of verbal abuse. As indicated above, the Father’s tone and words in his text communications with the Mother were insulting, unnecessary, and generally unkind. At their worst, they confirm allegations of verbal abuse. At best, they demonstrate an immaturity and inability to communicate in a child-focused manner. They reinforce the need for greater parenting time allocated to the Mother and set days for each parent to have the children, which maximizes the amount of time between the Father and children, while at the same time minimizes the need for coordination between the parents.
[71] The incident in January 2021 also demonstrates a lack of insight on the part of the Father. Even at trial I did not get the impression that the Father understood just how wrong his conduct was. While I accept the Father’s evidence that he had no intention of harming the Mother or Mr. Elliott and was simply ‘blowing off steam’, the disturbing comments he made were made while the children were in the home and in bed. Even though the Father went to a separate room, if the Mother could hear the conversation and record it from outside that room, the children could have potentially heard it also. The Mother was not without fault in the circumstances leading up to the Father’s comments, but this does not excuse what he said, the nature of which understandably caused fear in the Mother and significant implications for the children in the two months that followed. The threats were irresponsible and highly inappropriate and unnecessarily increased the conflict between the parties, which impacts the children.
[72] A.S.’s comments to the OCL demonstrate that the children have been affected by the arguments between their parents. I do not lay the full blame for this at the feet of the Father, but he needs to be kinder in his communication with the Mother. The children want it to stop. If it does not stop, the children will suffer further emotional and psychological harm. While I am satisfied that the children will benefit from close to equal time with each parent, this underscores the necessity of strategies to minimize the need for frequent coordination of schedules between the parties.
Relocation
Reasons for the Relocation:
[73] The Mother wishes to relocate for better housing, better job prospects, and to be closer to family support. The Supreme Court of Canada in Gordon v. Goertz, [1996] 2 SCR 27, at para. 48 recognized the importance of giving respect and serious consideration to a primary caregiver’s views.
[74] While a parent’s need for emotional support will not always justify relocation, it is a relevant consideration in the best interests analysis. A move that can improve a parent’s emotional and psychological state can “enrich a parent’s ability to cultivate a healthy, supportive, and positive environment for their child”: Barendregt v. Grebliunas, 2022 SCC 22, at paras. 168-169.
[75] As the Supreme Court of Canada in Barendregt v. Grebliunas also acknowledged, a child’s best interests are furthered by a well-functioning and happy parent.
[76] I have considered these principles and the evidence. While I can understand the Mother’s desire to relocate closer to family now that the parties are separated, I note:
a. The Mother’s family live within approximately 2 hours of the parties and the children. This is close enough for the Mother to still frequently visit and have the benefit of their support. The Father’s family lives considerably further away and are still a source of support for him.
b. While I accept that housing is a challenge in Kenora, I am not convinced that the Mother must relocate to secure the type of employment she is contemplating in Manitoba. I appreciate that she has family friends who are willing to employ her with hours suitable to the children’s schedules, but I am not satisfied that she could not secure meaningful employment with similar pay and hours in the Kenora area. Spousal support can also assist in bridging the income gap for the remaining years of the children’s dependency.
Impact on the Children:
[77] The Father is active and involved in the lives of the children. I am satisfied that any benefits derived from the move will not outweigh the detriment of the change in the children’s relationship with their father if the parties relocate. This is my primary concern with the relocation. While the Father could still exercise parenting time alternating weekends, his time and involvement with the children will be reduced, and he will be relegated to a weekend and holiday dad. I have found that more parenting time with the Father, as opposed to less, is in the children’s best interests. Furthermore, given the ages of these children, within a few years even this short amount of parenting time could be eroded as the children start to have part-time or summer jobs, or activities that impede their ability to travel weekends. Primarily, I accept that while the children are largely indifferent as to what their living arrangements are, they do not want such a radical change.
[78] There is also a concern that a relocation will exacerbate the existing tensions between the parties. The Father, perhaps justifiably, is concerned that if the children relocate, his parenting time will not be prioritized. I am concerned that the necessity of navigating parenting time travel, changes to the schedule for illness or weather conditions, and other incidents of long- distance parenting time will only fuel conflict between the parties to which the children are subjected. This is not in their best interests. I find that both parents being able to actively parent the children in the same community will offer the best hope for a harmonious relationship between the parents, which is what the children want and need more than anything else. In making this decision I have taken into consideration the Mother’s arguments and my findings with respect to domestic violence.
[79] At this time, the children’s home, school, friends, medical practitioners and counsellors are all located in Kenora, as is their Father. The children had to move to a different city and different school five years’ ago. They are older now. They have had their sense of stability disrupted by the separation of their parents. It is understandable that they may not want to have to readjust to an entirely new city. I find that regardless of whether it is the Father who bears the onus (given the Mother had a temporary order for primary care) or if the parties share the onus (if I disregard the temporary order), I am satisfied that relocation and the disruption it will cause for the children is not in their best interests.
Support
Imputation of Income and ongoing support:
[80] The Father argues that an income of $38,547 should be imputed to the Mother annually for child and spousal support purposes, as being representative of what the Mother is capable of earning. I am not satisfied that this is the case.
[81] In the Statement of Agreed Facts the parties have agreed as follows:
K.S. worked on a part time basis during the relationship and has had several part time/on call employment positions since moving to Kenora. She is currently employed on a part time basis by Houseboat Adventures (as a cleaner), Lloyd Timlick, contractor (as a casual labor), and as a house cleaner. Line 150 on her Income Tax Returns are as follows:
a. Three years prior to separation:
2017 – $665.00
2018 – $18,897.00
2019 – $19,476.00
b. Following separation:
2020 – $13,468.75
2021 – $16,890.11
[82] The Mother’s 2021 income tax return shows that of the $16,890.11 in income, $5,572.31 was social assistance payments and $9,807.56 in self-employment income. In 2020 her entire income consisted of the Universal Child-Care Benefit.
[83] The evidence before me suggests that the Mother has not earned the kind of income the Father seeks to impute to her. She has not worked full-time since the birth of C.S. Since C.S. was born she has worked on a casual basis performing various housekeeping duties. After the parties moved to Kenora the Mother had a job at the local hospital in the housekeeping and laundry department, and she worked as a nursing attendant. Her anxiety caused her to stop working in the year prior to separation. Her anxiety issues have improved, although she still sees her doctor monthly.
[84] The evidence of the Mother’s current income is confusing, and I am unclear as to exactly what she is earning. The Mother is primarily self-employed. She appears to be doing seasonal work cleaning for a houseboat company, she has performed general labour, and she cleans homes. She is trying to advertise her housecleaning business and hopes to grow it. She also continues to receive social assistance to supplement her income.
[85] The general labour work she performs for a local contractor consists of painting, drywall patch, and flooring. The Mother testified that this was time limited, and the job is finished. When she was doing this work, she worked approximately 5 hours a day at $20.00 per hour.
[86] The Mother’s housekeeping business started just a few months prior to trial. She also cleans and packs homes when people are moving, and then will “stage” the home for sale. It is a “cash” business. She earns $25.00 per hour for some clients, and $20.00 per hour for others. As of trial she only had a couple of clients but is hopeful she can increase this to be working 5 hours a day.
[87] The Mother’s evidence is that she has interviewed for positions in health care, but the hours of work cannot work around the children’s school schedule. This remains important given that C.S. and A.S. cannot be left alone due to the history of C.S.’s sexual impropriety. The Mother’s evidence is that the most she will leave them alone is approximately 10 minutes while she runs out to a corner store (gas station). Her ability to work full-time is compromised. I also note her evidence that when the children have appointments to attend, even on his parenting time, the Father expects the Mother to take time off work to take the children.
[88] There was no other evidence as to the Mother’s education or qualifications for work.
[89] For the purpose of support I am prepared to impute a minimum income of $19,000 annually to the Mother. Her employment history shows that she is capable of earning this. Even working at a minimum wage job 5 hours a day for 5 days a week, with a couple of weeks a year for vacation, will generate this level of income. If the Mother is able to build her business as she anticipates, or if she returns to her former employment, she will earn more. The extra time the children are in the care of the Father should assist with this somewhat.
[90] I do not know the parties’ actual current income given the date the trial concluded. The Father estimated his 2022 income to be $98,748. Ongoing child support shall be as follows:
Commencing July 1, 2023, child support shall be calculated based on the shared parenting provisions of the Federal Child Support Guidelines. The Father shall pay child support to the Mother for the two children based on his line 150 for 2022. The Mother shall pay child support to the Father based on the greater of her line 150 income for 2022 or $19,000. For ease, the parties may choose to have the Father simply pay the set-off amount to the Mother.
[91] With respect to spousal support, there is no doubt that the Mother has entitlement to spousal support both on a compensatory and needs basis. The Mother has sought support in the amount of $500 per month for 5 years. This order sought was based on the Mother living and working in Winnipeg. Given the duration of the relationship, the compensatory nature of support, and the circumstances of the parties, I see no reason to order support less than the low-end of the Spousal Support Advisory Guidelines (SSAGs) amount, or to time limit support. Effective July 1, 2023, spousal support shall be payable at the low end of the range based on an estimated income for the Father of $98,748 and income imputed to the Mother of $19,000. If the income of the parties in 2022 ended up being considerably different from anticipated at trial in that the Father’s income is materially lower or higher than I have determined, or the Mother’s income was materially higher, then I may be spoken to, to adjust support accordingly.
[92] With respect to duration, I disagree with the Father’s arguments that the payments he has made since separation fully satisfy his support obligation. This was a long-term marriage and there are compensatory aspects to the support payable. The SSAGs suggest a duration of 8 to 16 years. The Mother is relatively young and likely the lower end of the range is appropriate, but in my view, it would be an error in law to time limit the spousal support at this time. Support shall be reviewable in the event of a material change in circumstances, foreseen or unforeseen.
Retroactive support:
[93] The temporary order made by me was made based on an estimated income for the Father. Child support should be adjusted to reflect the actual income of the Father for the years in which support was payable.
[94] With respect to spousal support, the Mother’s draft order does not seek retroactive spousal support. The Father seeks to have the payments made by him post-separation attributed to his support obligation.
[95] The Father is the sole owner of the matrimonial home. While I do not have the particulars of the property calculations performed in the resolution of the property issues, I assume that any post-separation mortgage payments that were made for the period of time the Mother lived in the home were for the sole benefit of the Father as the sole owner. As the owner of the property, it is also appropriate that he pay the taxes and insurance.
[96] With respect to utilities, the evidence as to who paid what is not clear with respect to exact amounts. Regardless, in light of the Mother not claiming retroactive spousal support, I am not inclined to adjust spousal support for the utility payments made by the Father during the Mother’s sole occupancy of the home.
Order:
[97] It is ordered that:
Parenting:
a. The parties shall share parenting of the children.
b. Neither party shall be permitted to relocate with the children without either the other parent’s consent or a court order authorizing the move.
c. Each party shall be entitled to leave the District of Kenora with the children during their parenting time for the purpose of a vacation without the consent of the other parent.
d. If a party does leave the District of Kenora with the children, they shall provide prior written notice to the other parent as soon as they become aware of the trip, and shall provide details prior to leaving that include the departure and return date, mode of transportation (i.e. car or flight information), an address where they will be staying and a telephone number where the children may be reached.
e. The Father shall have parenting time as follows:
i. Alternate Thursday after school (or 3:30 p.m. if not a school day) until Tuesday morning at the commencement of school (9:00 a.m. if not a school day).
ii. Alternate Thursday after school until Friday after school (or 3:30 p.m. if not school days); and
iii. An equal sharing of holidays. Unless the parties agree otherwise in writing, the following shall apply:
A. For Easter weekend, the children shall be in the care of the Mother in even-numbered years and the Father in odd-numbered years from Thursday after school until Tuesday at the commencement of school.
B. The children shall be with the Mother on Mother’s Day weekend from Saturday at 7 p.m. until Sunday at 7:00 p.m., and with the Father on Father’s Day weekend during the same times.
C. The parties shall divide the summer months of July and August equally. If they cannot agree, the Mother shall have the July 1 – July 15 and August 1 – August 15 in odd-numbered years and the Father shall have July 15 – 30 and August 15 – 31. The parties shall alternate in even-numbered years.
D. For Thanksgiving weekend, the children shall be in the care of the Father in even-numbered years and the Mother in odd-numbered years from Thursday after school until Tuesday at the commencement of school.
E. The Mother shall have the children for the first half of the Christmas school break in odd-numbered years, including Christmas Eve and Christmas Day and the Father shall have the children for the second half, including New Years’ Eve and New Years’ Day. The parties shall alternate in even-numbered years. The exchange time shall be noon for parent who has the first half of the break, with the parent who has the children for the second half of the break returning the children to school.
f. The children shall be in the care of the Mother at all other times.
g. When school is in session, exchanges of the children shall occur at school.
h. When school is not in session, exchanges shall be made at a mutually agreeable location.
i. Each parent shall have reasonable telephone or other electronic communication with the children when they are in the care of the other parent.
j. The children shall be free to contact each parent at all reasonable times.
k. Each parent shall be responsible for taking the children to their extra-curricular activities when they are in their care. Both parents may attend and shall conduct themselves in a polite and respectful manner towards the other.
l. Neither party shall make disparaging remarks to, or in the ear shot of the children about the other or their extended family.
m. All communication between the parties with respect to the children shall be respectful and child-focused.
n. Save and except for emergencies, all communication between the parties pertaining to the children shall take place through the Our Family Wizard (or a similar) program.
o. If a child needs medical care while with one party, that party will promptly notify the other with particulars of the care required, appointment details (if any) and treatment prescribed.
p. If the parties feel that other parenting plan provisions (see AFCC parenting plan templates) would be useful and can agree on those provisions, they shall incorporate them into the draft order.
Support and Incidents of Support:
q. The Father’s child support obligation shall be adjusted retroactively as follows:
d. Effective September 1, 2021 (this is the date claimed in the Father’s draft order), and continuing to December 31, 2021, the child support payable by him shall be reduced to $1,433 based on his actual income for 2021 of $96,812.
e. Commencing January 1, 2022 and continuing to June 30, 2023, any retroactive adjustment to the Father’s child support shall be calculated based on his actual 2022 income. If the parties cannot agree, I may be spoken to.
r. Commencing July 1, 2023, child support shall be calculated based on the shared parenting provisions of the Federal Child Support Guidelines. The Father shall pay child support to the Mother for the two children based on his line 150 for 2022. The Mother shall pay child support to the Father based on the greater of her line 150 income for 2022 or $19,000. For ease, the parties may choose to have the Father simply pay the set-off amount to the Mother. [for the actual order the parties will need to specify the names of the children and actual amounts]
s. Each parent shall pay a proportionate share of s. 7 expenses, including tutoring, provided consent to the expense is obtained in advance, with consent not to be unreasonably withheld. The order shall specify the percentages payable by each party based on the Father’s 2022 income and the greater of the Mother’s 2022 income or $19,000. If either party feels that more specific s. 7 expense provisions are required and the parties cannot agree, I may be spoken to. I did not have the evidence necessary to make a more specific order.
t. The parent incurring the s. 7 expenses shall provide an invoice/receipt in proof of same to the other. The other parent shall pay the paying parent their proportionate share within 14 days, failing which the amount shall be submitted for enforcement by the Family Responsibility Office.
u. The Father shall maintain the Mother and the children on his extended health care benefits available through employment for so long as support is payable for each of them and they qualify pursuant to the terms of the plan.
v. If the Mother obtains employment with extended health care benefits, she shall also name the children as dependents.
w. The Father shall name the Mother and the child are equal irrevocable beneficiaries of any life insurance he may have through employment for so long as he has a support obligation for them. The Mother shall be the trustee of the children’s interests.
x. If life insurance becomes available to the Mother through employment, she shall name the children as irrevocable beneficiaries for so long as she has a support obligation for them, with the Father as trustee.
y. Commencing July 1, 2023, the Father shall pay to the Mother spousal support in the amount of $770 per month, subject to review in the event of a material change in circumstances whether foreseen or unforeseen.
z. For so long as child support or s. 7 expenses are payable, the parties shall exchange updated income disclosure annually, including but not limited to copies of their Income Tax Returns and Notices of Assessment/Reassessment. The exchange shall occur no later than June 1st of each year, with any adjustments to child support made effective July 1st of each year.
Divorce:
aa. The Applicant shall file the marriage certificate and a draft divorce order for my review.
[98] With respect to costs, the parties appear to have had divided success and I am inclined not to order costs unless there are offers to settle that suggest a costs order is appropriate. If necessary, counsel may schedule a half-hour appointment before me to address the issue of costs.
“Original signed by” The Honourable Madam Justice T.J. Nieckarz
DATE: June 2, 2023
COURT FILE NO.: FS-20-0038-00 DATE: 2023-06-02 SUPERIOR COURT OF JUSTICE - ONTARIO BETWEEN: B.S. Applicant -and- K.S. Respondent REASONS FOR JUDGMENT Nieckarz J. DATE: June 2, 2023