DATE: 20050131
DOCKET: C41451
COURT OF APPEAL FOR ONTARIO
WEILER, ARMSTRONG and BLAIR JJ.A.
B E T W E E N :
MARIA PIA LADISA
Jirina Bulger for the appellant
Appellant
- and -
MICHELE LADISA
Katrina A. Prystupa for the respondent
Respondent
Dan Goldberg and Manjusha Pawagi for the Office of the Children’s Lawyer
Heard: November 19, 2004
On appeal from the order of Justice Maria T. Linhares De Sousa of the Superior Court of Justice dated January 30, 2004, [2004] O.J. #800 (S.C.J.).
WEILER J.A.:
[1] On January 30, 2004 Justice Linhares de Sousa ordered that the parties have joint custody of their three children, with the eldest child, then about fifteen years and nine months old, residing primarily with the father and the two younger children residing with both parents on an alternating weekly basis. The appellant mother appeals and seeks sole custody of the children. The trial judge also made orders of spousal and child support in favour of the respondent father and the mother appeals these as well.
[2] This appeal was heard immediately following the appeal in Kaplanis v. Kaplanis, in which an appeal from an order of joint custody was also taken, and regard should be had to those reasons respecting the issue of joint custody raised here.
[3] For the reasons that follow, I would dismiss the appeal with respect to the issue of joint custody. I would allow the appeal in part respecting the orders of spousal and child support.
The Appeal Respecting Custody
[4] The parties were married on August 30, 1986 and lived together for approximately sixteen years until they separated in July 2002. They had three children. Alana is now 16 years old, having been born May 6, 1988. Jordan, now 13, was born on April 19, 1991; Jessica, now 9 years old, was born in November 1995.
[5] When the parties separated, all three children remained living with their mother in the matrimonial home. Initially, the father resided with his parents and then acquired his own residence in November 2002 when he began exercising overnight weekend access.
[6] The parties could not agree on the custody arrangements respecting their children and, after court proceedings began, attempts at mediation failed. At this time Mackinnon J. requested the Children’s Lawyer to provide a social work assessment and to make recommendations on the parenting arrangement that would be in the best interests of the three children. The two youngest children remained in the care of their mother while the eldest, Alana, was permitted to move between the care of their mother and father in accordance with her wishes until the trial in December 2003 and January 2004.
[7] The trial judge found that the, “love, affection and emotional ties between all three children and both their parents were very and equally strong.” Throughout most of the marriage, the mother worked outside the home. The father had worked mostly in construction as a labourer as well as a grouter until 1982 when he was diagnosed with Crohn’s disease. He underwent surgery for his illness in 1991. He began receiving CPP disability insurance and that has been his consistent source of income since that time. Under this plan, he is able to work up to 90 days without losing his eligibility for disability insurance. The trial judge found that he worked part-time for a Mr. Romano. He dedicated his free time to care for the children and the home. He was home for the children after school, to take them to doctor and dentist appointments and was very actively involved in their sports and school activities. The mother also participated in the children’s sporting events and parent teacher meetings to the extent that she was able. The children’s maternal grandmother assisted both parents in caring for their children throughout, but as she had to care for an increasingly ill spouse, she was less able to offer assistance. The youngest child, Jessica, had gone to the same babysitter, Ms. Ryall, since she was an infant and had gone to her home before and after school. In June 2003, when the mother had to go on sick leave from her employment, Ms. Ryall’s employment was terminated but it was her intention to re‑employ her when she returned to work. The trial judge noted that if the father had the care of the children on alternating weeks there would be no need to have her services during that time because the father would care for Jessica himself.
[8] Ms. Savoia, the social worker appointed by the Children’s Lawyer, recommended that the children be in the joint custody of their parents.
[9] The trial judge also had the benefit of the expressed wishes of the children. Alana did not express a preference to live with one parent or the other but stated she would continue to live with the parent who best met her needs as she saw them at the time. At the time of trial, she was living with her father. Following her parents’ separation, she had moved back and forth between her parents as she wished. For example, after moving from her mother’s home to her father’s home, she moved back in May 2003 for a time because of conflicts with her father over spending time with her boyfriend. She was described as headstrong and defiant and seriously truant from school. In the opinion of Ms. Savoia, who had been appointed by the Children’s Lawyer to conduct an assessment, she was a child out of control.
[10] Jordan expressed the desire to spend equal time with each parent. He had, on a previous occasion, refused to return to his mother’s care against the instructions of both his parents. On another occasion he had defied the wishes of his parents and gone to see his father to get assistance in building a go-cart, a project on which he was working. Jessica was ambivalent. She expressed a desire to spend more time with her father in the first two interviews and then said she was content with the arrangement in existence at trial, residing with her mother and weekend access with her father, in the last interview.
[11] At the time of trial, the mother had arranged for counseling for the children and the father had agreed to cooperate with her efforts.
[12] The trial judge found:
Despite the intense conflict between these parents, in emergencies and when the parents have had an opportunity to consider the real interests of their children, they have behaved appropriately, even in each other’s presence. Some examples of this are the following. When Alana had her emergency treatment for her fall, the parents were able to work out their differences, although with some sadness on the part of Mr. Ladisa, as to who would stay with Alana and who would care for the other children. When Jordan was adamant that he needed the assistance of his father with his go-cart project, the parents were able to agree on a resolution in the interests of their son. When the parents have been forced together because of their children, such as at parent-teacher meetings, school functions and sports activities, they seem, with perhaps one or two exceptions, to have been able to behave appropriately. According to the testimony of third parties, including teachers, a former hockey coach, other hockey parents and neighbours, the parents have always acted appropriately when together towards each other and towards their children. Their conflict has not been obvious to the observation of these third parties. When the children have forgotten some item at the house of the other parent, arrangements to fetch the item or sports equipment have been worked out. This accommodation even includes the question of the children’s confirmation last year. The disagreement was not whether the children should be confirmed but when they should be confirmed that seemed to have some financial consequences.
[13] The trial judge also found that both parents had made efforts to meet the financial needs of the children when these needs presented themselves, without consideration of whether the other parent should be paying or without anticipation that one parent would reimburse the other for that expense, and that they had done this at great personal sacrifice to themselves.
[14] In the result, the trial judge found that the children needed the parenting that both parents could give them. She therefore ordered that Jordan and Jessica reside with both parents on an alternating weekly basis with the transfer time to be Friday evening at 7 p.m. Each child was to be free to telephone the other parent while they were in the care of one parent but that, short of an emergency, the parents were to have no direct contact by telephone. Instead, communication between the parents was to be by means of a communication book or by email. School and statutory holidays were to be shared equally and a detailed order was made in this regard. Both parents were permitted to attend school functions and extracurricular activities for the children and both were entitled to receive all medical and school information concerning the children. Both were permitted to travel with the children outside of the Ottawa jurisdiction for vacation purposes upon reasonable notice to the other parent of at least 30 days and the provision of an itinerary.
[15] The mother submits that the trial judge erred in her assessment of the evidence respecting the ability of the parties to co-operate with one another in the interests of their children and that the few examples the trial judge cited were flawed and contrary to the weight of the evidence. The mother’s position is that a joint custody order is not appropriate as the parties have repeatedly been in conflict. She submits that the trial judge erred in imposing joint custody in these circumstances.
[16] In my opinion, it was within the trial judge’s discretion to make the order she did respecting Jordan and Jessica. The trial judge’s conclusion took into consideration the history of co-parenting by the parties while they were married and the ties that the children had to both their parents. With respect to communication and cooperation, the trial judge considered the evidence of third parties respecting the parents’ interaction with their children. She was satisfied that, despite their strife, when necessary, the parents could and had communicated effectively and put the interests of the children ahead of their own. The appellant has not persuaded me that she made a palpable and overriding error in making this finding. The trial judge also had the benefit of the expert evidence of the Children’s Lawyer who recommended joint custody. The trial judge’s decision also took into consideration the wishes of Jordan, and, although she did not expressly advert to it, the lack of any compelling reason to separate custody of Jordan from that of his sister, Jessica, as well as the mother’s evidence that Jessica should not be separated from her for more than a week at a time. In these circumstances, the trial judge did not err in principle in making an order of joint custody regarding Jordan and Jessica.
[17] As indicated, Alana was almost sixteen at the time of trial and, in the opinion of Ms. Savoia, she was a child out of control. She indicated she was going to live with whichever parent she pleased and that was precisely what she had done. She attended school sporadically until at least October 2003. It appears from Mr. Ladisa’s evidence that she left school altogether two months before trial. I am not prepared to say that the order that the parties have joint custody of Alana was inappropriate at the time it was made. Now that Alana is almost 17, any custody order in respect of her, or requirement that she have her principal residence with one parent, in this case the father, would be moot.
[18] Accordingly, for the reasons I have given I would vary paragraph 5 of the trial judge’s order to provide that the parties share joint custody of Jordan and Jessica and that no order for custody of Alana be made. I would delete the first part of paragraph 8 relating to the requirement that Alana’s principal residence be with the father as well as paragraph 8(a).
The Support Issues
[19] At the time of trial neither parent was employed because of health reasons. The mother had been the main financial support of the family. She was earning $37,136 a year when she went on paid sick leave in June 2003 and her income dropped to 70% of her salary. When her sick leave benefits ran out in September, she began receiving a short-term disability pension. She was entitled to employment insurance but there was no evidence as to when this would terminate.
[20] While the trial judge was suspicious of the unusual measures Mrs. Ladisa used to obtain the medical documentation to support her disability claim, she noted that other medical evidence supported her claim. On the strength of that evidence she found the mother’s income for the purposes of child support to be $26,075.04 a year at the time of trial. Assuming that the mother would return to work at her former salary at some point in the future, she imputed income to the mother of $37,136 a year at that time. The trial judge found that the father’s income was limited to his disability pension of $10,380 a year. [^1]
[21] The trial judge applied s. 9 of the child support Guidelines and this court’s decision in Contino v. Leonelli-Contino, [2003]O.J. No. 4128 (C.A.) and ordered the mother to pay the father child support in the amount of $566 a month, increasing to $866 a month once the mother returned to work. In addition she ordered the mother to pay spousal support to the father of $150 a month once she returned to work. The mother submits that the trial judge erred in failing to impute income to the father over and above the amount he received from his pension.
[22] The trial judge reviewed the evidence pertaining to the father’s illness, Crohn’s disease. She noted that Dr. Hassard, who had been treating the father since 2001, had expressed the opinion that he was unable to do construction work. She also noted Dr. Hassard had recommended that he go on a medicine called Remicade that apparently had an approximately 70 to 80 % chance of putting the disease into remission but that the father could not afford this medication. Some effort had been made to obtain public funding for this drug but at the time of trial the status of those efforts was not known.
[23] Apparently, unbeknown to Dr. Hassard, Mr. Ladisa had been working in construction. Mr. Romano testified that Mr. Ladisa worked for him as a grouter from late in 1998 or early 1999 to the summer of 2002 when he came in and quit. Mr. Romano said that Mr. Ladisa worked 32 to 40 hours a week and would take time off approximately five to seven times per year. Mr. Ladisa was never on his payroll but worked for him as an independent subcontractor and some of the cheques were made out to Alana Ladisa when she became old enough to have her own social insurance number. On the basis of Mr. Romano’s evidence, other evidence that Mr. Ladisa had done a lot of construction work on the matrimonial home, as well as the evidence that the couple used a full time babysitter between 1998 and 2002, the trial judge found that Mr. Ladisa did work at least part time after 1998. She also found that, “…if his health permits he is able to work on a part-time basis” and that his ability to earn income was from zero up to $15,000 a year.
[24] When it came to assessing the father’s income for support purposes, the trial judge was, however, not prepared to assume that he would be able to earn more than the amount he was currently receiving from his disability pension, that, according to his financial statement was $10,380 a year. She appears to have concluded that if the father worked he would lose his disability pension and would not earn much more than what his pension provided.
[25] In cross-examination, the father reluctantly agreed that, if he could not return to work as a grouter, he could consider seeking out a job as a school-bus driver but added he would do so only after the litigation was over.
[26] In refusing to impute any income to the father over and above his pension, the trial judge ignored the evidence that the father could – and did – work up to 90 days at a time without losing his disability pension and assumed that the father would be unable to obtain any other employment to supplement his pension. This constituted an error in law. The evidence also indicated that a substantial portion of this income was not declared for income tax purposes. As a result, the net income of both parties was approximately the same at the time of trial.
[27] Having regard to the factors in s. 9(c) of the Guidelines, as well as to the unchallenged evidence of the mother respecting the deficit she was incurring each month, I would order that each parent bear the expense of supporting Jordan and Jessica when they are with them as they have done in the past. The parent with whom Alana lives should receive support for her in accordance with the Guidelines for so long as she continues to be a child of the marriage
[28] The trial judge’s order with respect to future support when the mother returned to work is problematical. In her evidence, the mother stated that she was unable to return to work at present because of the continuing stress of the litigation and depression and the fact she was unable to perform her job to the extent her employer required in her current situation. She was unsure about when she would be able to return to work and was being monitored on a monthly basis by her physician.
[29] Besides the uncertainty respecting the timing of the mother’s return to the labour force, there is uncertainty respecting the father’s income and ability to work. It will be recalled that, at the time of trial, the father had made efforts to obtain public funding for Remicade, a drug that had a 75 to 80 % chance of putting his illness in remission. If his application was approved, and the drug was effective, it would clearly affect his ability to work as a grouter in the future and to obtain regular employment.
[30] There is also uncertainty as to the number of children for whom support the parents will be required to provide support. At the time of trial last January, Alana was seriously truant from school. If she did not return to school in the fall term and was no longer living with one of her parents she would no longer be a child of the marriage for support purposes under the Divorce Act.
[31] Having regard to the many contingencies, the trial judge erred in granting an order for future support to commence at an indefinite date in the future predicated on only one of those contingencies, the mother returning to work. It would be more appropriate for the interested party to apply for a variation of support once the outcome of these contingencies is known.
[32] Accordingly, I would allow the appeal with respect to support and set aside paragraphs 12 to 14 of the trial judge’s order respecting support for the children. In their place I would order (1) Each parent shall bear the expense of supporting Jordan and Jessica for the period of time they are with that parent. (2) So long as Alana continues to be a child of the marriage within the meaning of the Divorce Act, the parent with whom Alana resides is entitled to support for her in accordance with the Guidelines and taking into account the shared custody of Jordan and Jessica. I would also order that paragraph 20 of the trial judge’s order respecting future spousal support be set aside.
[33] Having regard to the divided success on this appeal, I would order that each party bear their own costs.
RELEASED: January 31, 2005 “(“KMW”)
“Karen M. Weiler J.A.”
“I agree Robert P. Armstrong J.A.”
“I agree R. A. Blair J.A.”
[^1]: (The trial judge’s figures as to the parties’ incomes do not include the CPP and Child Tax Credit of $6,269 the mother was receiving for Jordan and Jessica or the CPP and Tax credit of $4972 the father was receiving for Alana. Because the differential is only $1297, I have also not included them.)