Court File and Parties

Court File No.: Brampton 1342/07 Date: 2012-09-05 Ontario Court of Justice

Between: Andre Anderson, Applicant — And — Salina Alladin, Respondent

Before: Justice P.W. Dunn

Heard on: 23 August 2012

Reasons for Judgment released on: 5 September 2012

Counsel:

• Ms. K. O. Lewis, for the applicant
• Salina Alladin, self-represented, assisted by Mr. B. J. Varcoe, Duty Counsel
• Ms. Holder, for the Office of the Children's Lawyer, legal representative for the child

Reasons for Judgment

P.W. DUNN, J.:

[1] Before the court was the applicant's unfiled motion dated 11 July 2012, the applicant's affidavit sworn 11 July 2012 and a Consent. I request Ms. Lewis to file these documents in the continuing record.

[2] The respondent had an affidavit sworn 21 August 2012. I request the respondent to file it in the continuing record. This affidavit is in response to the applicant's motion.

[3] The applicant's motion was for summary judgment on issues of custody, access, child support, arrears of child support and costs.

[4] Ms. Holder agreed that the motion should proceed, and supported the applicant's position on custody and access issues.

[5] The respondent requested that the motion be dismissed, and that there be a trial on all issues.

Background

[6] The applicant's motion for summary judgment related to the respondent's motion dated 15 March 2011 to change the orders of Madam Justice Maresca, dated 18 April 2008. Those orders:

(1) gave joint custody to both parties with primary residence with the applicant;

(2) awarded access to the respondent;

(3) required the respondent to pay child support of $200 a month from 1 May 2008, based on the respondent's income of $21,000, and that quantum included a $20 a month contribution to child care costs.

[7] The respondent's motion to change sought:

(i) to vary the primary residence from the applicant to the respondent (but keeping the joint custody decision);

(ii) access to the applicant on alternate weekends;

(iii) to rescind or vary the amount of arrears.

[8] An outline of the requests in the applicant's summary judgment motion is:

(a) The applicant sought sole custody with primary residence to continue with the applicant.

(b) The respondent was to have alternate weekend access;

(c) Holidays were to be shared;

(d) The respondent was required to pay child support according to a reasonable imputed income to her;

(e) To fix the quantum of child support arrears, and require the respondent to pay them;

(f) Costs.

Facts

[9] The facts at present were:

(a) The parties have joint custody, with primary residence with the applicant.

(b) The respondent has access on alternate weekends.

(c) The child, Tianna, is about twelve-and-a-half years old, and is intelligent and well able to express her views.

(d) Ms. Holder has a good rapport with Tianna. The Children's Lawyer found that the child's views and preferences were consistent. Tianna did not want to be involved in her parents' conflict; Ms. Holder believed that Tianna would be capable of telling each parent what she or he wished to hear.

(e) Tianna was observed by Ms. Holder to be comfortable and secure in her father's primary care. The girl was certain that her father will get her to school regularly and on time.

(f) Tianna wished to spend more time with the respondent. Ms. Holder tried to obtain extended access on weekends on occasion for her to be with the respondent to extend over to Monday morning. However, the respondent had difficulty getting the girl to school on Monday mornings. Hence the plan for extended weekend access was unsuccessful.

(g) There has been an ongoing difficulty with the respondent not getting the child to school in a timely manner on Monday mornings. It was a concern for Tianna that the respondent did not always fulfil this obligation.

(h) Ms. Holder recommended that the present primary arrangement continue, because it was stable and predictable and consistent for Tianna.

(i) The respondent was out of work since June 2012, but she was looking to resume employment. The respondent's work history showed that she consistently earned annually from $20,000 to $24,000.

Analysis

[10] The issue was whether the summary judgment motion should proceed. I am satisfied there is no genuine issue for a trial. The issues have been the same since the application was filed on 30 July 2007 – custody, access and child support. The application stated that even in July 2007, Tianna had been living with the applicant. The matters at hand have remained static throughout the case's history.

[11] It is significant that although the respondent's affidavit sworn 21 August 2012 stated that she sought primary residence, on 9 December 2011, when the respondent was represented by Ms. Sahadeo, Mr. Sahadeo confirmed that his client no longer requested primary residence. It may be that the respondent recanted her position because Tianna told her that she wanted to live with her.

[12] My reasons for concluding there is no genuine issue for a trial are:

(1) It is improbable that the parties will communicate any more effectively in the future. The applicant has been the decision maker about important aspects of Tianna's life. Joint custody in decision making seems unwarranted.

(2) I believe the child's emotional and physical stability at the applicant's will predictably continue, as it has done for the past five years. Ms. Holder observed Tianna to be comfortable and secure at her father's. Any evidence at a trial is unlikely to paint any different a picture.

(3) The pattern of instability in the respondent's life will likely remain in terms of her residence and employment. In her affidavit sworn 21 August 2012, paragraph 17, the respondent stated: "My recent employment history has been inconsistent".

(4) The respondent's prolonged incapability to produce Tianna for school on time with homework completed has been an ongoing concern for the applicant and the child. When access has been extended to Mondays, the respondent's work schedule interfered with her ability to cause Tianna to attend school.

(5) I would not expect there would be any comprehensive evidence about the respondent's earning power. Her income historically has been in the $20,000 to $24,000 range.

(6) After five years of court involvement, this case requires finality, especially for Tianna's sake.

[13] The respondent's affidavit sworn 21 August 2012 and her submissions at this hearing, did not present any genuine issue for a trial, but were denials and allegations.

Orders

[14] The applicant's summary judgment motion is granted. The following final orders will issue:

The orders of Madam Justice Maresca dated 18 April 2008 shall be amended as follows:

(1) Paragraph 1 shall be removed and replaced with: The applicant shall have sole custody of the child, Tianna Faith Anderson ("the child"), born 4 February 2000.

(2) Paragraph 2 shall be removed and replaced with: The respondent shall have access to the child on alternate weekends. The respondent will pick up the child from the applicant's residence on Fridays at 4:00 p.m., and return the child to the applicant's residence at 5:30 p.m. on Sundays.

(3) Paragraph 3 shall be removed and replaced with: The applicant and the respondent shall share holidays as follows:

(a) March Break - The applicant shall have the child during March break until and unless the respondent provides no less than two weeks in advance the child's registration for March break camp.

(b) Summer Holiday – Commencing in 2013, the applicant and the respondent shall each have two consecutive weeks in the summer (for the months of July or August). The applicant shall have his choice in even numbered years and the respondent shall have her choice in odd numbered years. Each party shall advise the other party in writing (electronic methods are acceptable) no later than May 31st of their respective years of choice, failing which the other party may have first choice.

(c) Christmas/New Year's Holiday – The child's Christmas holidays shall be divided as follows and alternated annually:

(i) The last day of school until December 25 at 12 noon;

(ii) December 25 to December 31 at 12 noon; and

(iii) December 31 at 12 noon to January 1 at 12 noon.

(d) All other holidays shall go in accordance with the regularly scheduled access.

(4) The applicant shall obtain a passport and any subsequent renewals without the respondent's consent and this order shall be sufficient authority for the applicant so doing.

(5) The applicant shall travel with the child outside of Canada without the necessity of obtaining the respondent's written consent and this order shall serve as the respondent's acknowledgement.

(6) The applicant shall provide the respondent with a travel itinerary and contact telephone number for the child no less than 30 days in advance of travel.

(7) The respondent shall not remove the child outside of Canada without the necessity of obtaining the applicant's written consent, said consent shall not be unreasonably withheld.

(8) The respondent shall provide the applicant with a travel itinerary and contact telephone number for the child no less than 30 days in advance of the intended date of travel.

(9) The applicant shall continue to retain all of the child's legal documents including passport, health card, and social insurance number.

(10) If the respondent requires the child's passport for travel, the passport shall be returned immediately to the applicant with the child upon return.

(11) The applicant shall provide the respondent with a travel itinerary and contact telephone number for the child no less than 30 days in advance of the intended date of travel.

(12) The respondent shall pay child support to the applicant for the child Tianna Faith Anderson, born 4 February 2000 in the amount of $160 a month from 1 September 2012 and regularly monthly thereafter. Payments to the Family Responsibility Office. A Support Deduction Order is to issue. This order is based on an annual income imputed to the respondent of $20,000 and the Guideline amount for this sum in the Guideline Tables is $160 a month.

Arrears

[15] I was advised that the quantum of child support arrears as of 20 August 2012 was $6,101. It is highly unlikely that the respondent's financial circumstances will be such that she could repay this sum. The court will lower the amount of the arrears to a sum that realistically may be recouped.

[16] I was invited to require the respondent to pay a sum monthly towards arrears. If that were to happen, it would fetter the Director's ability to garnish a large sum that might become available. Hence, there will not be an order requiring the respondent to pay a specific sum towards arrears.

(13) The arrears are fixed at $2,000 as of 1 September 2012.

(14) The parties will share in the cost of the child's special expenses, in proportion to their respective incomes.

(15) By June 1st in each year, starting 1 June 2013, the respondent will give the applicant a copy of her income tax return, together with attachments and Notices of Assessment or reassessment.

(16) The respondent will keep the applicant informed at all times about her employment status.

Costs

[17] The applicant wished to request costs. The applicant must be reminded of the respondent's impecuniousness and that any demand for costs must be very reasonable and reflect the respondent's financial circumstances.

[18] A request for costs must be served on the respondent and sent to the Justices' secretary, Ms. Ruth Evans, by fax at 905-456-4839 by 25 September 2012.

[19] If the respondent wishes to Answer this request, she must serve Ms. Lewis and send a copy of Ms. Evans by fax as above, by 19 October 2012.

[20] If the respondent files and serves an Answer, and if the applicant wants to Reply to the Answer from the respondent, the Reply must be served and filed as above by 31 October 2012.

[21] I thank Ms. Lewis, Ms. Holder and Mr. Varcoe for their assistance in this case.

Released: 5 September 2012

Justice P.W. Dunn